Due Process of Law
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Security, Freedom and the Complex Terrorist Threat:
Positive Steps Ahead
Chair: Hon. Hugh Segal (ON)
Deputy Chair: Hon. Serge Joyal (QC)
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A Special Senate Committee on Anti-Terrorism was established in May of 2010 to examine and report on matters relating to anti-terrorism. It focused on how to strike a balance between national security and protection of individual civil liberties. The changing threat environment, challenges associated with terrorism investigations and prosecutions, and parliamentary oversight of Canada‘s national security constituted the report’s main topics.
The report offers 16 recommendations. In response to an increase in ‘home-grown terrorism’ (often referred to as ‘radicalization’), the committee urged the federal government to support additional research efforts in order to improve our knowledge and therefore our ability to counteract the process. It also encouraged a commitment to cultural diversity within security agencies which would help to reduce inappropriate racial profiling practices. As regards investigations and prosecutions, the committee made a series of recommendations primarily designed to enhance cohesion amongst security agencies and fairness in due process. Finally, the committee recommended that a standing joint committee of Senators and MPs be established to oversee national security agencies as is done in the United Kingdom, Australia, France, the Netherlands and the United States. Committee members would be bound by a permanent oath of secrecy.
FINTRAC (Financial Transactions and Reports Analysis Centre of Canada) referenced the report in its quarterly review, Money Laundering and Terrorist Activity Financing Watch. iPolitics covered the report in one of its articles. Craig Forcese, Vice Dean and Associate Professor at the Faculty of Law at the University of Ottawa, commented on the committee’s discussion of CSIS disclosure and parliamentary review on his blog. A summary of the report was also published in the Anti-Terrorism & Charity Law Alert, a newsletter by the Canadian law firm Carters.
Fundamental Justice in Extraordinary Times
Chair: Hon. David P. Smith (ON)
Deputy Chair: Hon. Pierre Claude Nolin (QC)
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The Special Committee on Anti-Terrorism was created in 2004 to review how well the Anti-terrorism Act and related legislation had operated since being implemented in response to the 9/11 events in 2001. The Committee faced the challenge of achieving an equilibrium between two fundamental obligations of any democratic government – to ensure citizens' security and to protect their civil liberties. Over 140 witnesses were heard in the course of the review. The report contains observations as well as 40 recommendations to change various legislative provisions comprising Canada's anti-terrorism framework. The following summary highlights the recommendations dealing with security certificates.
Security certificates have existed for years, but are rarely used. Only 28 have been issued since 1991, including 6 after 9/11. Results to date are as follows:
Certificates quashed: 3
Persons held in Canada: 6 *
Persons removed from Canada: 19 **
* Mohamed Harkat, Hassan Almrei, Adil Charkaoui, Mohammad
Mahjoub, Mahmoud Jaballah and Manickavasagam Suresh.
All have been released from detention on conditions
** examples include Ernst Zundel, deported to Germany in 2005 for
right-wing extremism; and Paul William Hampel (an alias),
deported to Russia in 2006 for espionage
Procedures relying on security certificates or similar devices arise under five separate statutes. One example, deporting non-citizens for national security reasons under the Immigration and Refugee Protection Act, is outlined in more detail here.
In their review of security certificate procedures, Senators raised grave concerns about a person's Charter rights to a full and fair defence in legal proceedings, especially when faced with allegations based on secret evidence. In particular, they recommended that the Immigration and Refugee Protection Act be amended as follows:
* a special advocate be appointed on the detainee's behalf, to
help review secret evidence;
* all detentions must be reviewed within 48 hours, and ongoing
detention reviews must be held starting 1 month after custody,
and every 3 months thereafter;
* a judge must determine that secret evidence is reliable before
* a judge's decision regarding reasonableness may be appealed;
* prohibit deportations to countries reasonably believed to apply
* ensure a deported person's well-being is monitored rather than
accepting diplomatic assurances.
The Committee also recommended that similar procedures be adopted under every statute that permits the use of secret evidence as part of Canada's anti-terrorism framework.
The Supreme Court of Canada agreed with the Senate that procedures under the Immigration and Refugee Protection Act failed to provide adequate safeguards against secret evidence. The Court found that neither the procedure for reviewing a security certificate's reasonableness nor the detention review procedure constituted the type of fair judicial process required under section 7 of the Charter.
Section 7 guarantees the right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Secrecy required by the security certificate procedure rendered it unfair, as it denied detainees “the opportunity to know the case put against him or her, and hence to challenge the government’s case. This, in turn, undermine[d] the judge’s ability to come to a decision based on all the relevant facts and law." Therefore, the government had failed to ensure a fair judicial process consistent with fundamental principles of justice.
The Court gave Parliament one year to amend the Act, failing which the offending provisions would be null and void. On February 14, 2008, Bill C-3 received Royal Assent, amending the Immigration and Refugee Protection Act in a number of ways, including
* a special advocate may now be appointed;
* non-landed immigrants are to be treated the same as landed
immigrants were under the previous Act;
* a judge may receive into evidence “anything that, in the judge’s
opinion, is reliable and appropriate”;
* every 6 months, detainees may apply for release or for conditions
to be lifted after release; and
* appeals are allowed to the extent that a material change has
occurred, or if the judge certifies a serious question of general
Critics of the legislation contend that further amendments are needed with respect to the special advocate's role. Currently, the special advocate may not communicate with a detainee after he or she has reviewed secret evidence, for example, nor are resources provided to assist the special advocate. In addition, Amnesty International has criticized Bill C-3 for failing to prohibit deportations to countries that use torture. The Senate's Special Committee on Anti-Terrorism agreed with these criticisms.
On February 12, 2008, the Minister of Public Safety invited the Committee to continue its study of security certificates. Recommendations are to be proposed by the Committee before the end of 2008.
An Act to amend the Immigration Act
Sponsor: Hon. Finlay MacDonald (NS)
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In July of 1987, a group of Indian Nationals arrived by boat in Nova Scotia, claiming to be refugees in need of a safe haven. The individuals, almost all of whom were Sikh, paid for illegal passage to Canada because they were allegedly discriminated against in India (a country of religious tensions where Sikhs were a minority religion). However, there was speculation the group was trying to take advantage of Canada’s generous immigration policy. This incident, in conjunction with a similar occurrence only eleven months earlier, prompted the early recall of Parliament to deal with what some called a refugee crisis. As Senator Finlay MacDonald (NS) observed when introducing the bill, administration anticipated over 300,000 such claims for asylum during 1987 whereas the existing system was designed to handle only 1% of that number (Debates, page 1813).
Bill C-84 was introduced in August to target human trafficking and illegal immigration. It subjected smugglers and their accomplices to imprisonment and fines, and granted government the power to direct suspect vessels to leave Canadian waters, to conduct search and seizures of vessels and to temporarily detain individuals who arrived in Canada without documentation. The bill also allowed for the detention of individuals who were not citizens or permanent residents if the Minister responsible for immigration and the Solicitor General believed security reports reasonably indicated the individual would commit an indictable offense or engage in violence, subversion or espionage.
Bill C-84 was passed by the House of Commons on September 14, 1987. The Senate Committee on Legal and Constitutional Affairs studied Bill C-84 for several months and heard from representatives of humanitarian groups, religious groups, members of the legal community and experts on constitutional and international law. Many of these witnesses voiced concerns that parts of Bill C-84 violated the Charter of Rights and Freedoms and Canada’s commitments to human rights and refugee protection. The Committee’s report recommended several amendments, including one which shortened the detention period that refugee claimants could be held before a review was conducted and one which provided that individuals found trying to enter Canadian waters illegally be given a full legal hearing to determine if they had a legitimate claim to refugee status.
After six sittings debating the Senate’s 13 amendments, the House of Commons accepted two; modified seven others; and rejected four. The Employment and Immigration Minister in the meantime insisted on the need for tougher immigrations laws and the Bill was sent back and forth between the Senate and the House once more.
A number of Senate amendments did not survive tough negotiations with the House of Commons, including several which sought to alter provisions for prosecuting people who assist undocumented immigrants, and for curbing search and seizure powers of immigration officers.
While the Senate compromised on some amendments, it insisted on others. One part of the bill – giving authorities the power to turn back ships suspected of carrying potentially ‘bogus’ claimants – was particularly contentious and vigorously opposed by human rights advocates and members of the legal community. As a result of its determination, a key Senate amendment was accepted in order to protect individuals who could be legitimate refugees.