On June 13, the Supreme Court of Canada began hearing arguments in relation to the Immigration Security Certificate component of the IRPA, with presentations by counsel for several of the men currently being detained (or on bail). A few members of the NSWG attended the hearings yesterday, and we will be sitting in on the proceedings today and on Thursday as well.
Yesterday’s submissions featured a variety of arguments against the security certificate process, ranging from objections about conditions and procedure to outright condemnations on the grounds that the certificates violate principles of fundamental justice. The multi-faceted approach seemed to be generally effective, although individual arguments met with mixed responses from the assembled Justices. The core argument presented by all counsel was that security certificates represent an intolerable aberration, and should be abolished. However, this position on what ought to be done about the certificates was tempered by series of arguments about what might be done to modify or improve the existing process, at least to the extent that it reflects international standards. The overall effect was a series of discussions on the subject of security certificates, ranging in focus from the need to institute amicus curiae to challenge confidential evidence to the need to abandon certificates on the grounds that they perpetuate an image of racial profiling.
I’m looking forward to obtaining the transcripts from the proceedings, and I’ll wait for them rather than attempting to piece together my own play-by-play synopsis of the submissions. Rather, I’d like to focus on a few themes that stood out as particularly important.
Whither Security?
A significant component of the government’s argument in defence of the security certificate apparatus hinges on its status as an immigration tool designed to facilitate the effective deportation of unwanted foreign nationals – something that most states have in one form or another. The state is quick to point out that the certificates are not a post-September 11 mechanism, and not a component of current (‘new normal’) counter-terrorism initiatives. This argument is typically presented in order to justify the existence of certificates by referring to their age and to their legitimacy as immigration enforcement tools.
Yesterday, the ‘just an immigration tool’ argument came under attack on a variety of different grounds. In general, it was argued that security certificates are not all about immigration enforcement, but rather about national security. Specifically, counsel maintained that their challenge was not directed at the state’s right about to control immigration, but rather at this specific national security mechanism masquerading as an immigration enforcement tool. As a national security tool, security certificates use their legal status as immigration mechanisms to circumvent the need to afford detainees a variety of Charter rights. They take the ideal image of a swift and efficient (and judicious) deportation of a foreign national as their starting point, despite the unlikelihood of this outcome. Taking deportation out of the equation (which Canada’s commitments to Conventions Against Torture effectively does) reveals security certificates as a national security measure that allows for the indefinite detention of foreign nationals on Canadian soil – but without the legal rights afforded to individuals charged under Canadian law. Since this outcome appears to be a given in the contemporary context (and since the only way to get around it would be to follow a British model of obtaining largely cosmetic memorandums from the countries of origin guaranteeing that the individuals deported would not be tortured – something that I doubt the Canadian public is ready to embrace at this point) we can conclude that security certificates, as they are applied, have more to do with national security than they do with immigration or deportation.
De Facto Criminal Justice
Related to the argument that security certificates are components of national security policy as opposed to immigration policy is the contention that they are also a de facto form of criminal justice practice. I think that this is a strong argument, especially apparent to those of us who are looking at this practice through a criminological / sociological lens as opposed to a strictly legal one.
Counsel at the hearing pointed out that the acts (or alleged acts – or alleged potential acts …) that lead to the imposition of a security certificate are inherently criminal by their nature. The government alleges that the men currently being held are terrorists, or at least linked to terrorist groups and plots. CSIS and CBSA propose that to release these men would create an intolerable risk to Canadians. So it can be argued that the certificates are a response to some sort of serious wrongdoing or potential wrongdoing that would otherwise be considered criminal in nature.
Add to this the prospect that the imposition of a security certificate will lead to indefinite detention – or at the very least a lengthy detention followed by very severe and indefinite bail conditions. It is entirely possible that the application of a security certificate (a response to wrongdoing or imminent wrongdoing) will lead to a lengthy period of incarceration for the individual in question.
My earlier arguments about the legal conditions surrounding the detention of individuals held on security certificates support this. I still haven’t been able to find out what loopholes or special arrangements CBSA is using to operate KIHC on the grounds of Millhaven penitentiary. The Corrections and Conditional Release Act which empowers Corrections Canada sets out very specific guidelines about who can be detained on penitentiary grounds, and for what reason. KIHC is on penitentiary grounds, but the detainees being housed there are not ‘inmates’ or ‘offenders’ by any legal definition, and they are most certainly not ‘sentenced’ to a term of incarceration exceeding two years as is required for detention at a federal penitentiary. In fact, they have neither been charged with nor convicted of any crime. And yet, they are de facto inmates at a federal prison. Legally, there are differences between them and other inmates (specifically in that other inmates are inmates …), but in practice – in substance – this looks like a criminal justice practice.
Counsel argues that the Supreme Court needs to look at the substance of security certificates – and not their legal form – when making its decision about their propriety. Substantively, they operate as a parallel form of criminal justice, with many of the components of a criminal prosecution, but with drastically reduced rights for the ‘accused’ and significant impairments for their lawyers. Given this, why not simply proceed though traditional criminal justice channels? Why construct a parallel system?
Prevention vs. Prosecution
The answer to these questions, according to the state, has much to do with the differing objectives of prevention and prosecution. Security certificates are designed to prevent acts from occurring, while the justice system is geared towards the prosecution of wrongful acts.
This argument is specious and contradictory, and I don’t think it holds up under even moderate scrutiny.
First, as counsel noted, we can identify a number of preventative aspects of criminal legislation, as well as a number of crimes that are ‘acts preparatory’ to something. The Anti-Terrorism act created a number of criminal code sections that deal with terrorist planning and training, or even the involvement in terrorist groups. Terrorism need not happen (in the form of an act of violence) for the criminal law to take effect – as we are currently seeing with the 17 Toronto arrests.
Additionally, the argument that the preventative nature of security certificates precludes the use of criminal law ignores the larger problem of societal protection, particularly if we assume that Canadian citizens can be involved in the same activities that, when undertaken by foreign nationals, are indicative of a grave threat to national security and worthy of the application of a security certificate. The state argues that it would not be possible to criminally prosecute the ‘secret trial five,’ owing to the sensitive and / or preventative nature of the evidence involved. Hence, a security certificate is issued instead.
But what if the exact same activity was being perpetrated by Canadian citizens? What if a third generation native of the Ottawa region was involved in the exact same behaviour that the state alleges Mr. Harkat was involved in? Are we to understand that this citizen could not be prosecuted criminally for the same activity that supposedly makes Mr. Harkat a grave threat to Canada’s national security? How could this be? If this really were the case, would the government not be pushing for an expansion of anti-terror legislation to address this dangerous gap? After all, the hypothetical citizen in question could not be detained on a security certificate (which, as noted above, the state maintains is strictly an immigration control measure).
If we believe the state’s position about the different evidentiary standards associated with the preventative nature of security certificates (which preclude the use of the criminal justice system), then we are forced to conclude that it is possible for Canadian citizens to engage in the exact same activities that allegedly make the ‘secret trial five’ grave threats to our security without worrying about any sort of prosecution. This would mean certain actions, permissible for ordinary citizens (or at the very least, not prosecutable), when taken by foreigners can threaten Canada’s national security. I submit that if this were the case, we would see a headlong rush to broaden and deepen the state’s anti-terror powers, particularly in light of the current panic over ‘homegrown terrorists.’ And yet, as recently as yesterday, we have heard that the government has no intention to expand C-36.
If this is not the case, it means either that the state can prosecute the ‘secret trial five’ criminally but is deliberately choosing not to (which is cause for immense concern), or that the state cannot prosecute because it simply does not have sufficient evidence (which seems likely).
Combined, I think that these three themes or lines of argumentation constitute a damning case against immigration security certificates. To effectively convince the Supreme Court of this, however, counsel will have to focus the discussion on the substance of the certificates as they exist in the contemporary context. If the Crown is able to keep the attention of the Court focused exclusively on the legalistic aspect of the certificates as a component of IRPA, then they may be able to win a legal victory at the expense of both justice and logic.
Yesterday’s submissions featured a variety of arguments against the security certificate process, ranging from objections about conditions and procedure to outright condemnations on the grounds that the certificates violate principles of fundamental justice. The multi-faceted approach seemed to be generally effective, although individual arguments met with mixed responses from the assembled Justices. The core argument presented by all counsel was that security certificates represent an intolerable aberration, and should be abolished. However, this position on what ought to be done about the certificates was tempered by series of arguments about what might be done to modify or improve the existing process, at least to the extent that it reflects international standards. The overall effect was a series of discussions on the subject of security certificates, ranging in focus from the need to institute amicus curiae to challenge confidential evidence to the need to abandon certificates on the grounds that they perpetuate an image of racial profiling.
I’m looking forward to obtaining the transcripts from the proceedings, and I’ll wait for them rather than attempting to piece together my own play-by-play synopsis of the submissions. Rather, I’d like to focus on a few themes that stood out as particularly important.
Whither Security?
A significant component of the government’s argument in defence of the security certificate apparatus hinges on its status as an immigration tool designed to facilitate the effective deportation of unwanted foreign nationals – something that most states have in one form or another. The state is quick to point out that the certificates are not a post-September 11 mechanism, and not a component of current (‘new normal’) counter-terrorism initiatives. This argument is typically presented in order to justify the existence of certificates by referring to their age and to their legitimacy as immigration enforcement tools.
Yesterday, the ‘just an immigration tool’ argument came under attack on a variety of different grounds. In general, it was argued that security certificates are not all about immigration enforcement, but rather about national security. Specifically, counsel maintained that their challenge was not directed at the state’s right about to control immigration, but rather at this specific national security mechanism masquerading as an immigration enforcement tool. As a national security tool, security certificates use their legal status as immigration mechanisms to circumvent the need to afford detainees a variety of Charter rights. They take the ideal image of a swift and efficient (and judicious) deportation of a foreign national as their starting point, despite the unlikelihood of this outcome. Taking deportation out of the equation (which Canada’s commitments to Conventions Against Torture effectively does) reveals security certificates as a national security measure that allows for the indefinite detention of foreign nationals on Canadian soil – but without the legal rights afforded to individuals charged under Canadian law. Since this outcome appears to be a given in the contemporary context (and since the only way to get around it would be to follow a British model of obtaining largely cosmetic memorandums from the countries of origin guaranteeing that the individuals deported would not be tortured – something that I doubt the Canadian public is ready to embrace at this point) we can conclude that security certificates, as they are applied, have more to do with national security than they do with immigration or deportation.
De Facto Criminal Justice
Related to the argument that security certificates are components of national security policy as opposed to immigration policy is the contention that they are also a de facto form of criminal justice practice. I think that this is a strong argument, especially apparent to those of us who are looking at this practice through a criminological / sociological lens as opposed to a strictly legal one.
Counsel at the hearing pointed out that the acts (or alleged acts – or alleged potential acts …) that lead to the imposition of a security certificate are inherently criminal by their nature. The government alleges that the men currently being held are terrorists, or at least linked to terrorist groups and plots. CSIS and CBSA propose that to release these men would create an intolerable risk to Canadians. So it can be argued that the certificates are a response to some sort of serious wrongdoing or potential wrongdoing that would otherwise be considered criminal in nature.
Add to this the prospect that the imposition of a security certificate will lead to indefinite detention – or at the very least a lengthy detention followed by very severe and indefinite bail conditions. It is entirely possible that the application of a security certificate (a response to wrongdoing or imminent wrongdoing) will lead to a lengthy period of incarceration for the individual in question.
My earlier arguments about the legal conditions surrounding the detention of individuals held on security certificates support this. I still haven’t been able to find out what loopholes or special arrangements CBSA is using to operate KIHC on the grounds of Millhaven penitentiary. The Corrections and Conditional Release Act which empowers Corrections Canada sets out very specific guidelines about who can be detained on penitentiary grounds, and for what reason. KIHC is on penitentiary grounds, but the detainees being housed there are not ‘inmates’ or ‘offenders’ by any legal definition, and they are most certainly not ‘sentenced’ to a term of incarceration exceeding two years as is required for detention at a federal penitentiary. In fact, they have neither been charged with nor convicted of any crime. And yet, they are de facto inmates at a federal prison. Legally, there are differences between them and other inmates (specifically in that other inmates are inmates …), but in practice – in substance – this looks like a criminal justice practice.
Counsel argues that the Supreme Court needs to look at the substance of security certificates – and not their legal form – when making its decision about their propriety. Substantively, they operate as a parallel form of criminal justice, with many of the components of a criminal prosecution, but with drastically reduced rights for the ‘accused’ and significant impairments for their lawyers. Given this, why not simply proceed though traditional criminal justice channels? Why construct a parallel system?
Prevention vs. Prosecution
The answer to these questions, according to the state, has much to do with the differing objectives of prevention and prosecution. Security certificates are designed to prevent acts from occurring, while the justice system is geared towards the prosecution of wrongful acts.
This argument is specious and contradictory, and I don’t think it holds up under even moderate scrutiny.
First, as counsel noted, we can identify a number of preventative aspects of criminal legislation, as well as a number of crimes that are ‘acts preparatory’ to something. The Anti-Terrorism act created a number of criminal code sections that deal with terrorist planning and training, or even the involvement in terrorist groups. Terrorism need not happen (in the form of an act of violence) for the criminal law to take effect – as we are currently seeing with the 17 Toronto arrests.
Additionally, the argument that the preventative nature of security certificates precludes the use of criminal law ignores the larger problem of societal protection, particularly if we assume that Canadian citizens can be involved in the same activities that, when undertaken by foreign nationals, are indicative of a grave threat to national security and worthy of the application of a security certificate. The state argues that it would not be possible to criminally prosecute the ‘secret trial five,’ owing to the sensitive and / or preventative nature of the evidence involved. Hence, a security certificate is issued instead.
But what if the exact same activity was being perpetrated by Canadian citizens? What if a third generation native of the Ottawa region was involved in the exact same behaviour that the state alleges Mr. Harkat was involved in? Are we to understand that this citizen could not be prosecuted criminally for the same activity that supposedly makes Mr. Harkat a grave threat to Canada’s national security? How could this be? If this really were the case, would the government not be pushing for an expansion of anti-terror legislation to address this dangerous gap? After all, the hypothetical citizen in question could not be detained on a security certificate (which, as noted above, the state maintains is strictly an immigration control measure).
If we believe the state’s position about the different evidentiary standards associated with the preventative nature of security certificates (which preclude the use of the criminal justice system), then we are forced to conclude that it is possible for Canadian citizens to engage in the exact same activities that allegedly make the ‘secret trial five’ grave threats to our security without worrying about any sort of prosecution. This would mean certain actions, permissible for ordinary citizens (or at the very least, not prosecutable), when taken by foreigners can threaten Canada’s national security. I submit that if this were the case, we would see a headlong rush to broaden and deepen the state’s anti-terror powers, particularly in light of the current panic over ‘homegrown terrorists.’ And yet, as recently as yesterday, we have heard that the government has no intention to expand C-36.
If this is not the case, it means either that the state can prosecute the ‘secret trial five’ criminally but is deliberately choosing not to (which is cause for immense concern), or that the state cannot prosecute because it simply does not have sufficient evidence (which seems likely).
Combined, I think that these three themes or lines of argumentation constitute a damning case against immigration security certificates. To effectively convince the Supreme Court of this, however, counsel will have to focus the discussion on the substance of the certificates as they exist in the contemporary context. If the Crown is able to keep the attention of the Court focused exclusively on the legalistic aspect of the certificates as a component of IRPA, then they may be able to win a legal victory at the expense of both justice and logic.
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