Opposing security certificates is difficult because so much of the information is kept secret that it’s hard to even have a conversation about their merits. The formal processes that are in place for those that are subject to them, as we’ve talked about, are very restrictive. The policy process is also pretty limited, unless you’re part of government or a more formal organization. Even then, change is slow and incremental if it happens at all. Another constitutional challenge has just started, which is great, but for those of us without law degrees, what other avenues are available?
Well since the beginning on this decade, there’s been creative resistance coming from the detainees, the families of the men on security certificates, and other activists. There are 5 men on outstanding security certificates, although only 1 continues to be detained (Hassan Almrei’s 7th year in detention).
While being detained, three of the men went on hunger strikes to protest the detention conditions, and to demand better treatment, such as access to medical care. They were each on hunger strikes for 3-4 months. During this strike, they released an open letter that includes this paragraph:
“We have been very patient and done our best to deal with a process where it is impossible to defend yourself. And we will remain patient, because we know that ultimately, we will be let out, because we are innocent men. But sometimes there is only so much human beings should be required to accept before they raise their voice in peaceful protest. We do not want to be on hunger strike. It is hard on us and our families. But it is the only voice we have.”
The full letter is available here: http://www.dominionpaper.ca/articles/924
Four of the original five men were released at different times on strict conditions while the proceedings continue. For example, Mohammed Harkat is living in a home equipped with video-surveillance and tapped phones, and he was unable to attend his own birthday party, lest it turn into a “political event.” The men continue to speak out about security certificates though, in ways permitted by the courts, such as attending court for the most recent constitutional challenge.
An across-Canada campaign arose in protest of security certificates, centered in the cities where the men were originally detained: Vancouver, Toronto and Montreal. This is the position taken by No One Is Illegal Vancouver:
“We demand that the Security Certificate process be completely abolished.
For those currently still imprisoned under security certificates, we demand:
- The immediate closing of the Kingston Immigration Holding Centre
- That they be released immediately; or, if any case against them actually exists, that they be allowed to defend themselves in open, fair and independent trials with full disclosure of the case against them.
- That they not be deported”
Most of the other anti-security certificate activist groups have similar demands around abolition, rather than revision.
There have been numerous protests, rallies, letter writing campaigns to politicians, sit-ins, street theatre, and press conferences to publicize the conditions of detention, the security certificate process and the contradictions that came up during the processes. The men subject to certificates have been very vocal during and after their detentions, as have the families and other advocates. Existing activist groups supported the campaigns, and new groups arose around the issue specifically. Coordinated days of action served to show resistance across the country to security certificates, such as the weekend of Oct. 22nd/07 when there were protests in a dozen cities across Canada (according to CP – I know of at least one that’s not listed in the article, so I’m sure there were many more that escaped the press’s attention). Also letter writing to the men on security certificates was encouraged to keep spirits up and keep communication open as a show of support. People were trying to do both negative (protest) and positive (support) actions to address security certificate detentions. This appears to have been effective by keeping it in the media and in the public realm, despite the efforts of the government to brush it (and these men) under the rug.
Most of the info here is from No One is Illegal Websites (Montreal & Vancouver) as well as the Campaign to End Secret Trials.
http://nooneisillegal-montreal.blogspot.com
http://noii-van.resist.ca
http://www.homesnotbombs.ca/secrettrials.htm
Friday, October 17, 2008
Monday, October 13, 2008
Changes to Security Certificates 1991 - 2001
The laws surrounding Security Certificates have changed over time to adapt to the different security concerns Canada has had to face. While Security Certificates have been a part of Canadian policy since 1977, they were adapted into Canadian immigration law in 1991. It was at this point that the Security Certificates found their current form. During the ten years between 1991 and 2001, ten Security Certificates were issued against individuals in Canada. During this period the Security Intelligence Review Committee reported concerns about Security Certificates. It reflected on the fact that the manner in which evidence was gather was unprofessional and did not follow adequate standards.
Prior to 1991 it was the Security Intelligence Review Committee that heard the cases about Security Certificates. In this court decisions were made on a high probability standard. This meant that there had to be a more than 50% chance that the allegations were true. After 1991 though it was the Federal Court that began hearing cases about Security Certificates. This court basis its decisions on reasonable grounds which means there can be a less that 50% chance that the allegations are true. So even if it seems quite unlikely that the individual is guilty the security certificate will still be upheld. Apparently credibility is not that important when it comes to these types of cases.
Also prior to 1991 the Canadian Security Intelligence Service officer who made the reports could be questioned. This meant that if there were any questions about the report or investigation, the officer could be brought in for clarification. A third party lawyer would be invited to the proceedings and the Security Intelligence Review Committee could ask for a more detailed report.
The Security Certificates allow officials to treat these individuals in a manner that differs from the way they treat Canadians. These are people who do not have a legal right to be in Canada and the Security Certificates pick up on this point and places great emphasis on it. By doing so, they subject these individuals to certain acts and types of treatment that would be unacceptable on the rest of society. For example, it would be expected that the officer who wrote the investigation report for your case, would be present at the court. That way any ambiguity about the report could be explained. With the changes to Security Certificates after 1991 however, this was no longer the case for these individuals.
The act seems to be saying that it is acceptable to treat people unequally. If you are Canadian then you are allowed to be treated with a certain level of respect and with regard to your personal safety and well being. Unfortunately if you are an individual who is simply visiting the country of living here without citizenship, then you will not be accorded these things.
Prior to 1991 it was the Security Intelligence Review Committee that heard the cases about Security Certificates. In this court decisions were made on a high probability standard. This meant that there had to be a more than 50% chance that the allegations were true. After 1991 though it was the Federal Court that began hearing cases about Security Certificates. This court basis its decisions on reasonable grounds which means there can be a less that 50% chance that the allegations are true. So even if it seems quite unlikely that the individual is guilty the security certificate will still be upheld. Apparently credibility is not that important when it comes to these types of cases.
Also prior to 1991 the Canadian Security Intelligence Service officer who made the reports could be questioned. This meant that if there were any questions about the report or investigation, the officer could be brought in for clarification. A third party lawyer would be invited to the proceedings and the Security Intelligence Review Committee could ask for a more detailed report.
The Security Certificates allow officials to treat these individuals in a manner that differs from the way they treat Canadians. These are people who do not have a legal right to be in Canada and the Security Certificates pick up on this point and places great emphasis on it. By doing so, they subject these individuals to certain acts and types of treatment that would be unacceptable on the rest of society. For example, it would be expected that the officer who wrote the investigation report for your case, would be present at the court. That way any ambiguity about the report could be explained. With the changes to Security Certificates after 1991 however, this was no longer the case for these individuals.
The act seems to be saying that it is acceptable to treat people unequally. If you are Canadian then you are allowed to be treated with a certain level of respect and with regard to your personal safety and well being. Unfortunately if you are an individual who is simply visiting the country of living here without citizenship, then you will not be accorded these things.
So, where do things stand now?
A bit more background - the nuts and bolts of the new legislation
(This section may be a little dry so please bear with me, we'll get to what it all means soon)
As mentioned in previous posts, in February 2007, in a unanimous decision, the Supreme Court of Canada (SCC) determined that certain provisions in the Immigration and Refugee Protection Act (IRPA) dealing with security certificates were unconstitutional. The case was based on the appeals of three of the men subject to these certificates: Adil Charkaoui, Hassan Almrei, and Mohamed Harkat. The Court determined that the IRPA provisions violated s.7 of the Charter. In simple terms, the Court found that it violated the principles of fundamental justice that the accused were not fully informed about the case against them and could therefore not respond effectively in their own defence. However, the Court suspended its judgement for 1 year in order to give the government time to bring legislation fully into line with the Charter.
In recent years, the debate about security certificates has been held in several House and Senate committees examining the broader questions of national security, anti-terrorism, and immigration policies. These committees have heard from a range of experts and received briefs from individuals and organizations from across the country. Therefore, along with the recommendations of the SCC, there were a number of options and recommendations offered by these multi-party committees to inform the development of the new legislation.
In October 2007, the Conservative government introduced Bill C-3, An Act to Amend the Immigration and Refugee Protection Act (Certificate and Special Advocate) into the House of Commons. It passed through the House with only minor revisions, supported by the Conservative and Liberal MPs and opposed by NDP and BQ members. The Senate passed the Bill within a week and it received Royal Assent on February 14th 2008.
Major changes in the legislation
The new legislation continues to allow the use of security certificates for detaining (and deporting) permanent residents and foreign nationals without charge. The major change to the legislation involves the appointment of 'special advocates' for the individuals subject to the certificates. These advocates are able to view the evidence against their clients and to call and cross-examine witnesses in order to challenge the detention/deportation order. The advocates can meet with their clients prior to seeing any classified evidence (an unclassified summary is made available), however, once the advocate has seen the classified material, contact between them and their clients is generally restricted to ensure that this information is not shared. A provision in the new legislation allows for the advocate to challenge the confidentiality of the evidence so that their client can learn the facts of the case against them.
Another key change in the legislation is that whereas previously foreign nationals did not have the same rights as permanent residents to regular reviews of their detention/deportation orders, under the new legislation all those subject to the security certificates have the right to have the order reviewed (within 48 hours of its issue and then at six month intervals).
Other changes are largely procedural and involve, for example, concurrent hearings on the reasonableness of a security certificate (whether a person can be deported) and the Pre-Removal Risk Assessment (PRRA), which determines whether the person subject to the deportation order would face a significant risk of persecution, torture or death if returned to their country of origin. If the security certificate is deemed to be reasonable but the person faces a significant risk of harm if deported, detention may be relied on indefinitely.
So, that's where we are and how we got here. Ultimately, the new legislation is aimed at addressing the specific concerns identified by the Supreme Court without fundamentally altering the way in which security certificates are currently used in Canada. While the government rhetoric suggests that this revised legislation has struck the right balance between protecting Canadians from terrorism and maintaining our core Canadian values of democracy and human rights, critics suggest that these changes are nothing more than (as our American friends might say) 'putting lipstick on a pig'.
Now that we're through the nuts and bolts, my next post moves from "where are we now?" to "what does it all mean?"
(This section may be a little dry so please bear with me, we'll get to what it all means soon)
As mentioned in previous posts, in February 2007, in a unanimous decision, the Supreme Court of Canada (SCC) determined that certain provisions in the Immigration and Refugee Protection Act (IRPA) dealing with security certificates were unconstitutional. The case was based on the appeals of three of the men subject to these certificates: Adil Charkaoui, Hassan Almrei, and Mohamed Harkat. The Court determined that the IRPA provisions violated s.7 of the Charter. In simple terms, the Court found that it violated the principles of fundamental justice that the accused were not fully informed about the case against them and could therefore not respond effectively in their own defence. However, the Court suspended its judgement for 1 year in order to give the government time to bring legislation fully into line with the Charter.
In recent years, the debate about security certificates has been held in several House and Senate committees examining the broader questions of national security, anti-terrorism, and immigration policies. These committees have heard from a range of experts and received briefs from individuals and organizations from across the country. Therefore, along with the recommendations of the SCC, there were a number of options and recommendations offered by these multi-party committees to inform the development of the new legislation.
In October 2007, the Conservative government introduced Bill C-3, An Act to Amend the Immigration and Refugee Protection Act (Certificate and Special Advocate) into the House of Commons. It passed through the House with only minor revisions, supported by the Conservative and Liberal MPs and opposed by NDP and BQ members. The Senate passed the Bill within a week and it received Royal Assent on February 14th 2008.
Major changes in the legislation
The new legislation continues to allow the use of security certificates for detaining (and deporting) permanent residents and foreign nationals without charge. The major change to the legislation involves the appointment of 'special advocates' for the individuals subject to the certificates. These advocates are able to view the evidence against their clients and to call and cross-examine witnesses in order to challenge the detention/deportation order. The advocates can meet with their clients prior to seeing any classified evidence (an unclassified summary is made available), however, once the advocate has seen the classified material, contact between them and their clients is generally restricted to ensure that this information is not shared. A provision in the new legislation allows for the advocate to challenge the confidentiality of the evidence so that their client can learn the facts of the case against them.
Another key change in the legislation is that whereas previously foreign nationals did not have the same rights as permanent residents to regular reviews of their detention/deportation orders, under the new legislation all those subject to the security certificates have the right to have the order reviewed (within 48 hours of its issue and then at six month intervals).
Other changes are largely procedural and involve, for example, concurrent hearings on the reasonableness of a security certificate (whether a person can be deported) and the Pre-Removal Risk Assessment (PRRA), which determines whether the person subject to the deportation order would face a significant risk of persecution, torture or death if returned to their country of origin. If the security certificate is deemed to be reasonable but the person faces a significant risk of harm if deported, detention may be relied on indefinitely.
So, that's where we are and how we got here. Ultimately, the new legislation is aimed at addressing the specific concerns identified by the Supreme Court without fundamentally altering the way in which security certificates are currently used in Canada. While the government rhetoric suggests that this revised legislation has struck the right balance between protecting Canadians from terrorism and maintaining our core Canadian values of democracy and human rights, critics suggest that these changes are nothing more than (as our American friends might say) 'putting lipstick on a pig'.
Now that we're through the nuts and bolts, my next post moves from "where are we now?" to "what does it all mean?"
Subscribe to:
Posts (Atom)