Hassan Almrei, a man held in detention for eight years under a Security Certificate — overturned by Justice Mosley of the Federal Court in 2009 — is suing the government for false imprisonment, negligent investigation, negligence, misfeasance in public office, and/or breach of his section 7, 9 and 12 Charter rights.
Arguments in summary judgment proceedings began February 15th in the Ontario Superior Court of Justice in Toronto. Mr. Almrei is represented by lawyers Nicole Chrolavicius and Lorne Waldman.
Mr. Almrei’s case again spotlights the contentious use of Security Certificates in Canada. At issue is the violation of an individual’s constitutionally guaranteed rights — to liberty, the principles of fundamental justice and due process; the rights to be free from arbitrary detention and cruel and unusual punishment — and the devastating impact upon an individual’s life where fundamental justice has been denied.
(1) What are Security Certificates?
Since 2001, Security Certificates are administered under the Immigration Refugee and Protection Act, 2001 (“IRPA ”). Security Certificates have existed in Canada since 1978, operating under the immigration laws that were in effect at each time period.
Security Certificates are used to deport an individual (i.e. a permanent resident, refugee or an asylum-seeker, — in all cases a non-Canadian), deemed inadmissible to Canada on the grounds that they pose a threat to national security, have committed violations of human or international rights, or are involved in serious or organized criminality. Security Certificates allow the use of arrest and detention of non-Canadians – pending deportation proceedings.
Since 2001, Security Certificates have been used against five men of Arab descent, who are alleged to have links to terrorist activities.
If an individual is a Convention Refugee, then the Courts will intervene to determine whether his deportation to his country of origin would expose him to the risk of torture, in violation of the international law principle of non-refoulement. In Mr. Almrei’s case, the Crown tried several times to have him deported, arguing that circumstances had changed in his native Syria, and Mr. Almrei was no longer under threat. However, each time, Mr. Almrei was able to prove to the court that he continued to face the risk of torture in Syria, and should not be deported to that country.
Further, several reviews of his Security Certificate were made, each time with the presiding Judge relying upon the initial evidence provided, but not tested or challenged by Mr. Almrei or his lawyers.
(4) Supreme Court Review of the Security Certificate Process: Fundamental Justice, Due Process, and the Right to be Free from Arbitrary Detention and Cruel and Unusual Punishment
(a) “Charkaoui 1”
In 2007, the Supreme Court of Canada heard the merged claims of Hassan Almrei, Mohamed Harkat, and Adil Charkaoui in the case Charakaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 350 , referred to as Charkaoui 1. In this case, at issue was the constitutionality of the hearing process wherein the individual is not permitted to attend the ex parte, in camera (i.e. secret) proceedings. The individual is not given any opportunity to know the evidence against him or her, or to challenge the evidence or make full answer and defence. The individual is only provided with a brief summary of the case against him or her which is usually only public information, and does not include much of the information relied upon by the Ministers because of national security concerns. Further, the individual was not represented in the ex parte, in camera hearings, and was forced to rely on the ability of the individual Federal Court Judge to test and assess the probative value of the evidence presented, with no guarantee that the Judge was provided all the relevant evidence.
The Supreme Court held in a unanimous decision that the Security Certificate process violated the principles of fundamental justice because an individual could not know the case against him or her, and could not make full answer and defence, which the Court described as the “whole point of the principle that a person whose liberty is in jeopardy must know the case to be met.” The Court stated that individuals subject to Security Certificate proceedings are entitled to the protections of section 7 of the Charter. The principles of fundamental justice apply in the national security context and must be used to protect individuals. The Court noted that the national security context cannot be used to “erode the essence of the section 7 protection”, which is to provide “meaningful and substantial protection” and due process.
The Court also found that due process was denied because the process place all the “burden” of determining the reasonability of the certificate upon the Judge. The individual could not be expected to rely upon a Judge, who must rely on the case presented by the Minister – the Court held that the Judge is “not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring”
The Court found that the breaches to fundamental justice and due process were not saved by section 1, and noted that the imperfect “special counsel” system previously used by the SIRC review, and used in the UK, was preferable to the denial of fundamental justice.
The Court also found that the lengthy detentions and delayed review process – pending the outcome of a challenge to the Security Certificate’s reasonableness — violated the section 12 guarantee to be free of cruel and unusual punishment. The detention review process was struck down immediately.
The Court ruled the Security Certificates procedures were unconstitutional and of no force and effect, but suspended its declaration for one year to provide Parliament with an opportunity to legislate a new process.
(b) “Special Advocates”
Consequent to the Supreme Court’s ruling in Charkaoui 1, the IRPA was amended to provide for the use of Special Advocates in Security Certificate cases. Special Advocates are lawyers who have successfully undergone extensive security clearances, permitting them to sensitive national security information.
Two Special Advocates are assigned to the case of each individual named in a Security Certificate proceeding.
(c) “Charkaoui 2”
In Charkaoui v. Canada (Minister of Citizenship and Immigration), [2008] 2 S.C.R. 326, the Supreme Court of Canada held that an individual named in the Security Certificate process was entitled to know the evidence against him or her. Because of national security considerations, this evidence is to be provided to the Special Advocate.
Special Advocates would be allowed to attend the ex parte, secret hearings, have access to the national security information or evidence, and be expected to represent the interests of the individual at the hearings by accessing and testing the information and evidence. Special Advocates are permitted to challenge the Ministers’ claims that disclosure of the evidence to the individual would be injurious to national security, and to cross-examine witnesses.
The Special Advocates in Hassan Almrei’s case worked to test, assess, and ultimately undermine the evidence used against Mr. Almrei. In February 2009, Mr. Almrei was released to strict, onerous conditions.
(5) 2009 Federal Court Vacates Security Certificate Against Hassan Almrei
The Special Advocates work undermined the reliability of the secret sources used against Mr. Almrei, and resulted in the Federal Court rejecting the ‘secret evidence’ used against him. The Special Advocates also presented information to the Court that had not been introduced prior, and which was relevant to the allegations made against Mr. Almrei.
On December 14th, 2009, Justice Mosley of the Federal Court held that the Security Certificate used against Mr. Almrei was “unreasonable”. Justice Mosley vacated the certificate that had kept Hassan Almrei in detention for eight years (including incarceration for over seven years and strict house arrest for almost one year), and ordered his release.
Justice Mosley’s 89 page decision was critical of the information used to renew the Security Certificate against Mr. Almrei over the years, and critical of the information advanced by the Minister and by CSIS. Justice Mosley found that there was no evidence linking Mr. Almrei to ever being involved with Al Qaeda; that the Minister and CSIS may have relied upon information obtained by torture; and that the Minister had tried to link Mr. Almrei to information that could justify a certificate in 2001, but was no longer was satisfactory in 2008 (the year the security certificate was last renewed).
Justice Mosley also found that the information provided by the Minister and CSIS relied upon non-credible human sources, was incomplete, speculative, outdated, misleading in important areas, reliant upon unverified sources such as Wikipedia, improperly researched, lacking in primary sources, and reliant upon reports with erroneous information and serious contradictions. Justice Mosley also found that CSIS and the Ministers breached their duty of candour to the Court, because they failed to properly assess all the evidence and information before them, and failed to forward to the Court exculpatory evidence or evidence unfavourable to the Government’s case.
(6) Hassan Almrei: 2011 Ontario Superior Court Summary Judgment Proceedings.
In 2010, Mr. Almrei filed a lawsuit against the Attorney General of Canada. Relying on the findings of fact in the federal court decision of Justice Mosley including the failure of CSIS to release exculpatory evidence, Mr. Almrei seeks partial summary judgment to dispose of one or more of the issues of false imprisonment, negligence, negligent investigation, misfeasance in public office, and breach of his section 7, 9 and 12 Charter Rights. Mr. Almrei also requests a trial to determine damages.
Mr. Almrei sues in tort and for breach of his section 7, 9 and 12 Charter rights.
Section 7 of the Charter protects 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. Section 9 protects individuals against arbitrary detention. Section 12 protects individuals against cruel and unusual punishment.
Mr. Almrei’s factum cites the importance of fundamental justice to our legal system, and argues that it incorporates the duty of CSIS and the Ministers to act in good faith and candour, and to provide a named person with the rights to know the case against him, make full answer and defence, and enjoy full and fair trial rights – all of which he argues were denied in his case as determined by Justice Mosley.
Mr. Almrei argues that his right to be free of arbitrary detention was denied when he was detained for eight years – even though the Government knew it did not have “requisite grounds” to detain him. Further, Mr. Almrei cites Charkaoui 1 to argue that his lengthy detention in the circumstances constitutes a violation of section 12 of the Charter.
The CCLA will continue to monitor the progress of this important case and keep you informed.
