In February 2007, the Canadian Supreme Court struck down provisions of the Immigration and Refugee Protection Act as unconstitutional. The provisions permitted the use of secret evidence against foreign national security suspects subjected to "security certificates" and threatened with deportation, many to places where they would be at risk of torture. Bill C-3 proposes a system of "special advocates" to review sensitive national security-related evidence in security certificate cases. Human Rights Watch's commentary raises concerns that the bill does not rectify the constitutional deficiencies identified by the Canadian Supreme Court and should not be passed until amendments are made to it.
Bill C-3, tabled on October 27, 2007, was drafted in response to the Supreme Court’s February 23, 2007 decision in Charkaoui, which struck down as unconstitutional the security certificate regime provided for in the Immigration and Refugee Protection Act (IRPA). The proposed law, which draws heavily on the special advocate (SA) system used in national security deportation appeals in the United Kingdom, contains a number of serious flaws, including: 1) the use of secret evidence not available to the person subject to removal or his chosen legal representative; 2) the lack of specific disclosure obligations for the government and disclosure rights for SAs, including with regard to exculpatory evidence; 3) the absence of an express prohibition on the use of evidence obtained by torture; and 4) provisions that effectively could result in the indefinite detention without charge or trial of the person subject to removal.
Under Bill C-3, the SA’s role is to protect the interests of a person named in a security certificate who is barred access to allegedly security-sensitive evidence used by the government to justify that person’s detention and removal. Special advocates would be security-cleared persons (the Bill does not specify that these advocates are required to be lawyers) who would have access to secret evidence and could cross-examine witnesses and make submissions on that evidence. The SA is not a party to the proceeding, however, and the relationship between the SA and the person subject to a security certificate is not that of solicitor and client (s. 85.1(3)).
1. Proposed SA system involves the use of secret evidence not available to the person subject to removal or to his legal counsel.
In February 2007 the Canadian Special Senate Committee on the Anti-terrorism Act warned in its report “Fundamental Justice in Extraordinary Times” that any new SA system should permit an SA to consult with the affected person after having reviewed any secret evidence1. Bill C-3, however, does not provide this guarantee. Instead, after review of secret evidence the SA would require judicial authorization to communicate with any other person about the proceeding (s. 85.4(2)), which would include any discussion on the substantive nature of the evidence. The Bill therefore raises the prospect that a person would remain in detention on the basis of secret evidence which that person would not have access to and could not dispute. In cases where judicial authorization was not granted, the primary concern articulated by the Supreme Court in Charkaoui would not be alleviated:
- Under the IRPA’s certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. This problem is serious in itself. It also underlies… concerns…about the independence and impartiality of the designated judge, and the ability of the judge to make a decision based on the facts and law.
……. In the result, the judge may be required to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never see. The named person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in a position of having no idea as to what needs to be said 2.
The UK system, which the UK parliamentary Joint Committee on Human Rights deemed “Kafkaesque,” is similar. In the UK, an SA is not permitted to communicate with the individual concerned or his counsel about any matter relating to the proceedings, without judicial authorization, once the SA has reviewed the secret evidence. In practice, such authorization is rarely granted. As the UK Joint Committee explained:
- The Special Advocates told us that the prohibition of communication with the controlled person frequently limits the very essence of their function of protecting their interests, because the Special Advocate may have no idea what the real case is against the person until the start of the closed proceedings, by which time it is too late to ask any questions of the controlled person to find out what explanations they might have. This was described as “extremely frustrating and counter-intuitive to the basic way that lawyers are used to doing their job.” It was explained that the facility in the Rules to seek the Court’s permission to consult with the controlled person was rarely used in practice, partly because such permission was unlikely to be forthcoming in practice if the purpose of the meeting was to discuss anything to do with the closed case.3
The Joint Committee concluded:
- The Special Advocate system, as currently conducted, does not afford the individual the fair hearing, or the substantial measure of procedural justice, to which he or she is entitled under both the common law and human rights law. In short … the system frustrates those who have been through it who do not feel they have had anything like a fair crack of the whip because they still do not really know the essence of the case against them. 4
Some SAs in the UK resigned in protest at the unfairness of the SA system as an alleged safeguard against indefinite detention under Part 4 of the Anti-terrorism Crime and Security Act 2001 (now repealed). In the words of one such individual, Ian Macdonald QC, his role was untenable because it was “to provide a fig leaf of respectability and a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial.”5
In four linked judgments on government-ordered restrictions on the movement and association of persons suspected of terrorism (known as “control orders”) issued in October 2007, the House of Lords Judicial Committee (commonly known as the “Law Lords”) ruled that judicial approval of such orders based solely on secret evidence violated the right to a fair hearing, even where national security interests were alleged to be threatened. Lord Brown wrote, “a suspect’s entitlement to an essentially fair hearing ... [is] one of altogether too great importance to be sacrificed on the altar of terrorism control.”6 In the linked cases of MB and AF, the Law Lords determined that the use of secret evidence deprived the two men of a fair hearing, reversing an August 2006 Court of Appeal ruling, and ordered their cases to be reconsidered by a high court judge.
Because it does not guarantee adequate disclosure of evidence, Bill C-3 does not alleviate the Supreme Court’s concerns set out in Charkaoui regarding the restriction of life, liberty and security of the person, and therefore remains in violation of section 7 of the Charter.
2. Bill does not specify disclosure obligations for government and disclosure rights for SAs.
Bill C-3 places no express obligation on the government to disclose all relevant information to the court and the SA, including exculpatory evidence. Moreover, an SA has no ability to seek additional disclosure, further impairing a person’s ability to mount a defense.
The UK experience shows that disclosure requirements must be legislatively addressed. According to “Seeking Justice in an Unfair Process,” a study commissioned by the Canadian Centre for Intelligence and Security Studies,
- [SAs in the UK] are reportedly aware of cases in which important exculpatory information was not disclosed, but only learned of this fact because the same [SA] appeared on two different cases. In one of these cases, information pertinent to (and exculpatory in) another case was disclosed that had not been provided in the original matter.7
In the UK, new rules have been introduced requiring the government to disclose any exculpatory material of which it is aware, and setting standards on how the government must search for exculpatory material.8 Any Canadian law on this issue should do the same.
3. Bill C-3 should contain an absolute prohibition on evidence obtained by torture.
The use of secret evidence also raises the possibility that evidence obtained under torture may be adduced by the government to justify detention. While Canadian case law and international law both require that evidence reasonably believed to have been obtained from torture must not be considered, Human Rights Watch recommends that this be set out expressly in the Bill.
Canadian courts have held that evidence derived from torture ought not be considered. For instance, the Federal Court of Canada in Mahjoub stated: “Where the decision-maker finds there are reasonable grounds to suspect that evidence was likely obtained by torture, it should not be relied upon in making a determination.”9
The use of evidence obtained by torture is also prohibited by international law. Article 15 of the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment (“CAT”), provides:
- Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
It is imperative that Bill C-3 expressly prohibit evidence obtained by torture. In the words of Lord Bingham, third party evidence obtained by torture is “…unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.”10
4. Bill C-3 could effectively lead to indefinite detention without charge or trial.
While the Bill does not, on its face, expressly provide for indefinite detention, this possibility exists as a consequence of the legislative scheme.
a. How the legislation operates to allow indefinite detention.
The Bill permits the government to detain a suspect with the intention of deporting that person. However, deportation generally cannot be effected if there is a risk that the person will be tortured upon return to his home or a third country. Both the ICCPR and the CAT prohibit the deportation of individuals to a risk of torture.11 The Supreme Court of Canada ruled in Suresh that deportation to risk of torture was prohibited under Canadian law.
A judge can release a suspect if a deportation cannot be effected within a reasonable time and if the person does not pose a danger to national security. If a judge determines that a person would pose a threat to national security and that deportation cannot be effected, then indefinite detention is a possibility.
The unfairness of this situation was captured by the UK Law Lords in its December 2004 judgment on the indefinite detention powers under part 4 of the Anti-Terrorism, Crime and Security Act 2001, provisions substantially similar to those of the IRPA:
- An individual who is detained… will be a person accused of no crime, but a person whom the Secretary of State has certified that he “reasonably…suspects…is a terrorist”…The individual may then be detained in prison indefinitely. True it is that he can leave the United Kingdom if he elects to do so but the reality in many cases will be that the only country to which he is entitled to go will be a country where he is likely to undergo torture if he does go there. He can challenge…the reasonableness of the Secretary of State’s suspicion that he is a terrorist but has no right to know the grounds on which the Secretary of State formed that suspicion. Indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares, associated whether accurately or inaccurately with France before and during the Revolution, with Soviet Russia in the Stalinist era, and now associated … with the United Kingdom.12
The Law Lords ruled that the powers under Part 4 of the Act violated the UK’s obligations under international human rights law and the UK Parliament subsequently repealed the powers.
The Canadian security certificate regime deprives those to whom it applies of their physical liberty, placing them in detention upon issuance of a certificate.13 Short-term detention for the purposes of effecting a deportation is lawful, but questions of arbitrariness arise when a person cannot be deported because he would be at risk of torture upon removal but remains in detention indefinitely without charge or trial. In April 2006, the UN Human Rights Committee expressed concern that some persons subject to security certificates had been detained for several years, without criminal charges, without being adequately informed of the reasons for their detention, and with limited judicial review, and called on the government of Canada to “legally determine a maximum a maximum length of such detention.”14
b. Diplomatic assurances cannot overcome risk of torture.
The Canadian government may respond that detainees held under the Bill will not be held indefinitely, since it will seek diplomat assurances against torture if there is a risk that the detainees will be tortured upon return. It is true that Canada sometimes seeks and secures diplomatic assurances for returns of persons subject to security certificates to countries where there is an acknowledged risk of torture. (The government has sought such assurances from Egypt, Morocco, and China, among others.) These assurances are not effective, however, and do not provide sufficient protection to allow the return of detainees to countries where they might face torture.
Diplomatic assurances are formal undertakings from the government in the country of return that a person will not be subjected to torture upon return. In seeking such assurances, Canada claims that it complies with the absolute prohibition in international law against returning a person—no matter what his or her alleged crime or status—to a place where he or she would be at risk of torture or ill-treatment. Diplomatic assurances, however, cannot provide effective protection against torture and ill-treatment in such circumstances.
First, diplomatic assurances are based on trust that the receiving state will uphold its word when there is no basis for such trust. Governments in states where torture is a serious human rights problem almost always deny such abusive practices. It defies common sense to presume that a government that routinely flouts its obligations under international law can be trusted to respect those obligations in an isolated case. And indeed, there are an increasing number of cases in which allegations of torture are emerging after individuals are returned based on such assurances. The well-known case of Maher Arar is one among a growing dossier of examples where a person deported in reliance on promises of humane treatment has been subsequently tortured and ill-treated.
Second, post-return monitoring mechanisms, on which some governments have relied to ensure compliance with diplomatic assurances, have proven no guarantee against torture. Torture is practiced in secret and its perpetrators are often expert at keeping such abuses from being detected. Post-return monitoring schemes often lack many basic safeguards, including interviews with detainees without advance notice to prison authorities and medical examinations by independent doctors. Many detainees will refuse to speak of abusive treatment in any event due to fear of retribution from prison authorities.
Third, when diplomatic assurances fail to protect returnees from torture as they so often do, there is no way to hold the sending or receiving governments accountable. Diplomatic assurances have no legal effect and the person who they aim to protect has no recourse if the assurances are breached.
For these reasons, the Canadian government cannot credibly use diplomatic assurances to overcome the risk of removal to torture. The possibility of indefinite detention under the current legislative scheme is therefore very real for those detainees who would face torture if deported, but who cannot be released if they have been labeled a national security threat. Consequently, Bill C-3 must expressly prohibit indefinite detention.
Canada should ensure that its immigration legislation, such as the IRPA, is not used as a proxy for what is in fact indefinite detention without charge or trial. We urge you to uphold Canada’s fundamental due process rights by ensuring that Bill C-3 in its current form does not become Canadian law. Thank you for your consideration of these matters.
Terrorism and Counterterrorism Program Director
Human Rights Watch
. pp. 35 – 36.
. Charkaoui v. Canada (Citizenship and Immigration),  1 S.C.R. 350, para. 54, 55, (“Charkaoui”).
. House of Lords/House of Commons, Joint Committee on Human Rights, “Counter-Terrorism Policy and Human Rights: 28 days, Intercept and Post-Charge Questioning,” Nineteenth Report of Session 2006, 2007, July 30, 2007, para. 201.
. Ibid, para. 212.
. Ian Macdonald QC, “The Role and Experiences of a Special Advocate in Suspected Terrorist Detentions,” June 19, 2007, para. 24.
. Secretary of State for the Home Department v. MB  UKHL 46, para. 91, http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071031/home... (accessed November 16, 2007).
. Craig Forcese and Lorne Waldman, “Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom and New Zealand on the Use of ‘Special Advocates’ in National Security Proceedings,” Canadian Centre for Security and Intelligence Studies, Carleton University, August 2007, p. 41, http://aix1.uottawa.ca/~cforcese/other/sastudy.pdf (accessed November 16, 2007).
. Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2007, S.I. 2007 No. 1285, s. 9, amending rule 10.
. Mahjoub v. Canada, 2006 FC 1503 para. 34.
. A and others v. Secretary of State for the Home Department  UKHL 71, para. 52, http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand... (accessed November 14, 2007).
. ICCPR, Article 7 and UN Human Rights Committee General Comment 20 (1992) on article 7, the committee said: “In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion, or refoulement;” and CAT Article 3.
. A. v. Secretary of State for the Home Department, [2004 UKHL 56], para. 155 [emphasis added].
. Immigration and Refugee Protection Act, s. 82.
. UN Human Rights Committee, Canada: Concluding Observations on Fifth Periodic Report of Canada, April 20, 2006, para. 14, http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/7616e3...$FILE/G0641362.pdf (accessed November 16, 2007).