**Analysis of C-3.**

**Text of security certificate law**

A "security certificate" is part of the Canadian immigration system. It has been around since 1976, with the current process adopted in 1988 for non-citizens. The 2002 Immigration and Refugee Protection Act re-introduced the certificate, making the process for permanent residents the same as the process for non-citizens.

In a nutshell, it has allowed the government to detain non-citizens without charge or trial for years, on the basis of secret suspicions and vague allegations, indefinitely, and keep them under threat of deportation, even though there is risk of death, torture or other ill-treatment.

Current cases

Among the most prominent of the current cases:

• Mohammad Mahjoub, an Egyptian refugee and father of two, detained without charge since June 2000 in Toronto and then Kingston. Moved to house arrest in spring 2007.
• Mahmoud Jaballah, an Egyptian refugee and father of six, who was held 9 months in 1999, released, re-arrested in August 2001 on the same basis and held without charge ever since in Toronto and then Kingston. Moved to house arrest in spring 2007.
• Hassan Almrei, a Syrian refugee held without charge since October 2001 first in Toronto and then in "Guantanamo North", a specially built prison which opened in May 2006.
• Mohamed Harkat, an Algerian refugee and married man, held without charge since December 2002 in Ottawa and then Kingston. Moved to house arrest in July 2006.
• Adil Charkaoui, a Permanent resident from Morocco, married with three kids, held without charge since May 2003 in Montreal. Released under severe conditions in February 2005.

How it works

The certificate is issued by the Minister of Immigration and the Minister of Public Safety on the recommendation of the Canadian Security Intelligence Service (CSIS) and on the basis of secret information supplied by CSIS.

This results in the immediate detention, without warrant or review, of refugees and non-status people. Permanent residents are detained after an arrest warrant is issued, and are granted a detention review every six months. In all current cases, this has meant years of detention without charge or trial.

Under the current legislation - which the Supreme Court ruled to be unconstitutional in February 2007, but left in place for one year - a Federal Court judge reviews the certificate in a process which severely limits the judge's discretionary power. The government only has to prove that there are "reasonable grounds to believe" the allegations, a far lower standard of evidence than in a criminal trial, where the Crown must prove guilt beyond a reasonable doubt.

Part or all of the information on which the judge bases his decision can be presented by the government in a secret hearing from which the person and his lawyer are excluded. Neither the person detained, nor his lawyer, are allowed access to the the information submitted to the judge. The detainee therefore has very few means of contradicting or questioning the case against them.

The 'evidence' may include hearsay and information from foreign intelligence services, which may have been obtained under torture. In the Arar case, such 'evidence' was found to be worthless; in the case of the 24 'Project Thread' detainees (arrested in Toronto in 2003), it was exposed as the product of racial profiling.

Finally, there are no precise charges laid, and key terms such as "terrorism", "national security", and "membership" are simply not defined in the law.

The person named in a certificate thus finds him or herself in the impossible position of having to prove that it is not reasonable to believe that, for example, he "was, is or will be engaged in terrorism [undefined]; and posed, poses or will pose a danger to the security of Canada" - all without having access to the case being presented against him, and in a context of racism where being a practising Muslim may very well be viewed as suspect from the outset.

There is no appeal in a security certificate process: "The determination of the judge is final and may not be appealed or judicially reviewed" (Immigration and Refugee Protection Act, 80(3)).

Once the certificate is found "reasonable" by a single Federal Court Judge, the certificate automatically becomes a deportation order which cannot be appealed: "it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing" (Immigration and Refugee Protection Act, 81(b)).

Amnesty International, Human Rights Watch, the Canadian Bar Association, legal academics, expert United Nations human rights bodies such as the Human Rights Committee (2 November 2005, CCPR/C/CAN/CO/5), the Committee against Torture (May 2005, CAT/C/CO/34/CAN), and the Working Group on Arbitrary Detention (5 December 2005, E/CN.4/2006/7/Add.2) have all expressed concern that the security certificate process fails to meet international standards governing detention and fair trials. They have repeatedly called on Canada to reform its legislation and policy on security certificates.

Torture, arbitrary and indefinite detention, or house arrest

In the context of the so-called "war on terror", a deportation order on grounds of "national security" is a sentence to torture or execution. All individuals currently subject to a security certificate are at risk of death, torture or other ill-treatment if they are deported. There is an exemption in the Immigration and Refugee Protection Act for people who have been labelled security threats which allows the government to continue to threaten people with deportation despite an acknowledged risk of torture.

In practice, the alternative to deportation to death or torture is indefinite detention without charge or trial, or indefinite house arrest.

Supreme Court decision ... and déjà vu

Charkaoui's constitutional challenge to the process was heard by the Supreme Court in June 2006. In February 2007, the Supreme Court ruled that the certificate process violated sections 7, 9 and 10 of the Canadian Charter of Rights and Freedoms, and struck down the law (sections 33 and 77 to 85 of the Immigration and Refugee Protection Act).

However, the Supreme Court gave the government one year before the law falls. This has meant that all current detainees are still being held in situations of arbitrary, indefinite detention, under a law that is now recognized as illegal.

The government introduced Bill C3 on 22 October 2007, new security certificate legislation. This was enacted into law on 22 February 2008. The new security certificate relies on a government-appointed special advocate, cleared by CSIS, who has access to the secret information given to the judge, but is prevented from disclosing it to his or her client or to the public. This reform neither meets the concerns about secrecy nor a broad range of other concerns about the certificate, including the use of illegal evidence, a low standard of proof, lack of precise charges, and particularly the equal treatment of non-citizens. It envisages continued use of indefinite detention under threat of deportation to torture.

• For an in-depth analysis of C-3, click here.