Tackling the Government Green Paper on National Security: Part 4

December 6, 2016
This is our fourth in a series of responses to the federal government’s Green Paper on Canada’s current national security framework. The Green Paper favours  the current national security framework and defends the changes made by Bill C-51. In these brief posts, CCLA will provide context for the discussion and dig deeper into the key issues raised in the consultation. We will discuss why there is no incompatibility between a strong commitment to national security and a strong commitment to our Charter rights and freedoms, and explain the concerns we raise in our Charter Challenge to the Anti-terrorism Act, 2015In the end, we hope this information helps you decide what position you would like to take on national security reform. 
This post discusses amendments introduced in Bill C-51 to the Immigration and Refugee Protection Act (“IRPA”). These changes are another piece of the omnibus Bill C-51 – which passed into law in X 2015 – and which changes we specifically fight in our constitutional challenge to the Anti-Terrorism Act, 2015 (the “ATA, 2015”).
Make your voice heard!  The first online National Security Consultation  is over, but we now have a new national security bill before Parliament, Bill C-59.  There will likely be consultation activities, yet to be announced, in the fall of 2017. CCLA has a C-59 campaign and will to be active in any and all consultations. See our detailed submission in response to the Green Paper here! 

Immigration and Refugee Protection Act  (“IRPA”) Amendments

 

Part 5 of the Anti-Terrorism Act, 2015 amends IRPA to give the Minister of Public Safety and Emergency Preparedness the discretion to withhold relevant information from a special advocate.

 

What is a Special Advocate?

A special advocate is a lawyer with top-level security clearance in Canada – there are only 22 special advocates in Canada.

Special Advocates step in during are assigned to protect the interests of an accused individual during a Security Certificate hearing, i.e., during a special type of deportation hearing. This means disclosure special advocate is asked to protect the interests of an accused without knowing all of the information in the government’s possession. There are a lot of concepts here that might not be familiar, so to understand why this is problematic, we need to answer some questions about the Security Certificate process.

What is a Security Certificate?  

In some cases, Canada determines that an individual – who is not a Canadian citizen —  is 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.  In this case, the individual becomes the subject of a Security Certificate, and deportation proceedings are commenced against that person, who is now referred to as the Named Individual. Security certificates have existed in Canada since 1978 and have been administered under the IRPA since 2001.  Security Certificates are used to begin the process of deporting an individual (i.e. a permanent resident, refugee or an asylum-seeker, — in all cases a non-Canadian).

How does the security certificate process work?

Under the IRPA, the Minister of Public Safety and Emergency Preparedness and the Minister of Immigration, Refugees, and Citizenship receive information from CSIS regarding inadmissibility of an individual.  If the Ministers agree that an individual is inadmissible, they sign a Security Certificate together, the individual is arrested, and the Ministers refer the certificate to the Federal Court where a judge reviews the evidence, and determines the “reasonableness” (i.e. whether to ‘uphold’ or ‘vacate’) of the Security Certificate. The Ministers file the information they have relied on to issue the certificate with the Court.  National security information – “secret information” is not provided to the individual or his/her lawyer, but is provided to a special lawyer called a “Special Advocate” (explained below). The Federal Court Judge reviews the information and determines whether, on the basis of the evidence, to uphold the Security Certificate. If the Security Certificate is “reasonable” and therefore upheld, deportation proceedings begin against the individual. Security Certificate hearings are held “ex parte”, that is, without the person who is facing deportation, and “in camera”, or secretly.

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.

How does the Special Advocate work with the Named Individual?

A special advocate is a lawyer who has top-secret security clearance, and who is appointed to protect the interests of a named individual. A special advocate can see classified information about a named individual’s case that the named individual and counsel cannot see.  This ensures that the Charter section 7 rights to liberty and fundamental justice are upheld – in other words, the Special Advocate reviews the secret information and in turn, is able to make full answer and defence to the charges against the Named Individual.

The special advocate system was developed to prevent violations of individual’s fundamental justice and due process rights.  Before it was created, a Named Individual had to rely on the Federal Court Judge to consider their interest.

In 2007, in a case called Charkaoui v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada considered the constitutionality of the hearing process where the individual was not permitted to know the evidence against him or her, to challenge the evidence, or make full answer and defence. The Supreme Court’s unanimous decision was that the Security Certificate process as it was then violated the principles of fundamental justice. 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 special advocate system was established to correct the unconstitutionality of this previous system.  As a result, IRPA was amended to allow special advocates to participate in Security Certificate cases. In 2008, the Court followed this decision with another that held that an individual named in the Security Certificate process was entitled to know the evidence against him or her, and that this evidence would be provided to the special advocate who would represent their interests in secret hearings. Special advocates are allowed to challenge the Ministers’ claims that disclosure of the information to the individual would harm national security, to cross examine witnesses during the closed proceedings, and to exercise other powers if authorized by the judge.

How have Special Advocates helped?

In essence they test the case against the Named Individual.  They consider all the evidence including evidence subject to national security privilege (i.e. secret evidence), and then argue the Named Individual’s case.  In the case of Hassan Almrei, the Special Advocate found errors and the failure of CSIS to disclose exculpatory evidence, resulting in Mr. Almrei’s security certificate being vacated.  However, Mr. Almrei had spent 8 years subject to a Security Certificate including 7 years in detention and one under strict house arrest.

Why do the IRPA amendments put forward in Bill C-51 matter?

The IRPA amendments will allow the Minister to withhold relevant information from a Special Advocate.   But how can a Special Advocate test the government’s case without knowing the extent of the government’s case against a Named Individual?  What if an innocent person is subject to a Security Certificate based on faulty information or the failure to disclose exculpatory information – as in the case of Hassan Almrei?  This could result in a grave injustice seriously affecting an individual’s life, subjecting them to deprivation of liberty, deportation, stigma and potential danger particularly in the case of refugees who have fled persecution in their country of origin.

Upholding the principles of fundamental justice is essential. Hearings particularly relating to an individual’s liberty must be fair, and to be fair, the accused must have the right to know the case against him or her, and make full answer and defence to the charges. CCLA is concerned that by allowing the Minister to withhold information from the special advocate, these rights will be denied.

 Do the IRPA amendments violate Charter rights and freedoms?

In our challenge to C-51we note that there are section 7 violations caused by these amendments, as detention, and ultimately perhaps deportation without a fully fair trial may imperil the life, liberty and security of the person who is subject to the security certificate process.

We further argue that the amendments prevent the special advocates from serving their Constitutionally-required role as it was established in the two Charkaoui v. Canada cases in 2007 and 2008.

Consider scenarios where information might be shared . . .

In its Green Paper, the government presents a scenario where the IRPA amendments assist in detaining an individual suspected of being a danger to Canada’s national security, but makes no mention of the role of the special advocate at all. This scenario highlights the effectiveness of the security certificate process, but fails to explore the problematic elements of the new provisions. To illustrate this problem, it is worth considering an alternative scenario where the new law might undermine Charter rights and freedoms. Note that the following scenario draws directly from the one in the Green Paper, but while the Green Paper version makes it clear the accused is most certainly a member of a terrorist group and thus a danger to Canada, our version explores what might happen if the case isn’t quite so clear cut, as is so often the case in real life:

  • An individual is a permanent resident of Canada. CSIS has classified information from sources within Canada, as well as from an international partner, that indicates she is part of a terrorist group and a danger to the security of Canada. CSIS provides this information to the Minister of Public Safety and Emergency Preparedness and the Minister of Immigration, Refugees and Citizenship. The Ministers decide to sign a security certificate and a warrant for her arrest. The certificate and warrant are filed with the Federal Court. The amendments to IRPA allow some of the information the ministers were given by CSIS to be withheld from the special advocate appointed to defend the named individual. As a result, details that might have exonnerated her go unexamined. Without access to the full information regarding her case, the special advocate is unable to defend her effectively, and she is unnecessarily deported.

Were the amendments to the IRPA necessary?

The Green Paper goes to great lengths to suggest that information will only be withheld from special advocates with permission from a judge. However, it is the special advocate, not the judge, who holds the constitutionally-necessary role of knowing the full case raised against the accused and then defending the interests of the named individual against the charges. It may or may not be possible for the special advocate to develop a more effective defence with more information, but the mere possibility that the defence may be compromised through a lack of information is not in keeping with the principles of fundamental justice and due process. Despite this violation of individuals’ right to make a full answer and defence brought against them, either in person or via a special advocate, both the justifications raised during the passage of Bill C-51 and the Green Paper fail to present evidence suggesting that national security interests have ever been affected by providing full information to special advocates. Consequently, the reduction in information given to special advocates serves no demonstrable purpose other than to potentially diminish their effectiveness in upholding the principles of fundamental justice and due process guaranteed to all individuals by the Charter.

 

Additional Resources

C51 submissions

Op-eds

Other posts in this series