**Click here for our analysis of "C-3" (January 2008), the new security certificate law, which entered into force in February 2008**

**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

• 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.

Under the old law, only permanent residents were guaranteed a detention review within 48 hours of arrest and every six months thereafter. Others (e.g., refugees) could be detained without review for up to 120 days after the reasonableness of the certificate was confirmed. In Mohamed Harkat’s case, this meant over two years even before the certificate was upheld. In Hassan Almrei’s case it has meant detention since October 2001 and counting. The Supreme Court found that this lengthy detention without review infringed on the guarantee against arbitrary detention (s. 9 of the Charter) and the right to prompt review of detention (s. 10(c) of the Charter). Under C-3, all persons held under a security certificate have the right to a detention review within 48 hours (82(1)), and at least once every six months thereafter (82(2) and (3)). That is, there is no longer a distinction between refugees and permanent residents with respect to detention. To put this improvement into perspective, the case of Charkaoui, the only Permanent Resident currently held under a security certificate, indicates what this could mean in practice. Under the system that will now apply to refugees, Charkaoui was subject to 22 months of imprisonment (from May 2003 to February 2005), and has ever since lived under severe conditions which deeply affect his entire family, all prior to any court review of the certificate.

Under the current legislation - which is subject to a new constitutional challenge launched by Adil Charkaoui in April 2008 - 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 is viewed as suspect from the outset.

Bill C-3 introduces an appeal on the determination, but only on certification by the Federal Court judge that a serious question of general importance is involved (79). On the other hand, appeals on interlocutory decisions are now prohibited.

Once the certificate is found "reasonable" by a single Federal Court Judge, the certificate automatically becomes a deportation order: it "is a removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing" (Immigration and Refugee Protection Act, 80).

Amnesty International, Human Rights Watch, the Canadian Bar Association, the Quebec Bar Association, legal academics and many others have expressed concern that the new security certificate process fails to meet international standards of justice.

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. Under its interpretation of the Immigration and Refugee Protection Act, the government maintains that people who have been labelled security threats can be threatened 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. Accordingly, it struck down that section of the Immigration and Refugee Protection Act (articles 33 and 77 to 85 of the old law).

However, the Supreme Court gave the government one year before the ruling entered into force. This meant that all detainees were held in situations of arbitrary, indefinite detention, under a law recognized as illegal for an additional year.

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 process relies on a government-appointed and paid special advocate, cleared by CSIS, who has access to the secret information given to the judge, but is prevented from disclosing it to the person named in the certificate 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 continues the practice of indefinite detention under threat of deportation to torture.

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