Harkat Case in the SCC

On February 23, 2007 the Supreme Court of Canada (“SCC”) released its decision from the appeal of my client Mohammed Harkat, which was argued at the same time as the Charkaoui v Canada (Citizenship and Immigration), [2007] 1 SCR 350 and Almrei v Canada (Minister of Citizenship & Immigration), 2007 FC 1025 cases. The SCC ruled that the procedures used to determine the reasonableness of security certificates under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] violated the principles of fundamental justice under s. 7 of the Charter. The SCC held that the secrecy required by the scheme denied the named person the opportunity to know the case put against him or her, and hence to challenge the government’s case. The scheme “fails to assure the fair hearing that section 7 of the Charter requires before the state deprives a person of life, liberty or security of the person.”

Regarding justification under s. 1 of the Charter the SCC wrote that

The rights protected by section 7—life liberty and the security of the person—are basic to our conception of a free and democratic society, and hence are not easily overridden by competing social interests. It follows that violations of the principles of fundamental justice, specifically the right to a fair hearing, are difficult to justify under section 1.

Further on in the decision the SCC wrote that

These alternative suggest that the IRPA regime, which places on the judge the entire burden of protecting the person’s interest, there is not minimally impair the rights of non-citizens, and hence cannot be saved under s. 1 of the Charter.

The SCC went on to review a number of different models under the heading “Less Intrusive Alternatives.”

Included in these alternatives were:

1. the Security Intelligence Review Committee model which in the past had been used in national security matters;
2. the Canada Evidence Act model found in sections 37 to 39 of the CEA;
3. the Arar Inquiry model and
4. the special advocate model employed by the Special Immigration Appeals Commission (“SIAC”) in the United Kingdom.

In the first two models, special counsel may communicate with the person involved after having seen the secret evidence, while in the third model, a defendant’s counsel is allowed access to such evidence. In all these cases, counsel must avoid disclosing the secret evidence to the person concerned, but can ask the person questions aimed at testing its accuracy.

The SCC noted that the UK special advocate system was criticized in the House of Constitutional Affairs Committee report on the operation of SIAC and the use of special advocates.

The Committee listed three important disadvantages faced by the special advocates: (1) once they have seen the confidential material, they cannot, subject to narrow exceptions, take instructions from the appellant or the appellant’s counsel; (2) they lack the resources of an ordinary legal team, for the purpose of conducting in secret a full defence; and (3) they have no power to call witnesses.

Well after the SCC decision, in July 2007, the Joint Committee on Human Rights of the U.K. House of Commons and House of Lords concluded that the British special advocate process was “very far removed from what we would consider to be anything like a fair procedure.” To make the system minimally fair, it recommended that special advocates be allowed to communicate with the person concerned after having seen the secret evidence, that the government be obliged to inform the person of the gist of its case against him and that the government be held to a higher standard of proof, preferably a balance of probabilities standard.

On October 22, 2007 the Harper government introduced Bill C-3, an act to amend IRPA by providing for a special advocate in the security certificate reasonableness hearing. I presume that the Bill was drafted by the same government lawyers who until February 23, 2007 had successfully argued over the decades that the procedures for determining the reasonableness of the security certificate complied with the principles of fundamental justice. The government lawyers, rather than learning from the experience of the special advocates in the UK, have in effect reproduced the UK model.

I presume that counsel for the security certificate detainees will argue that the bare-bones special advocate model in Bill C-3 does not satisfy the “Case to Meet” Principle. I certainly intend to advance that argument on behalf of Mohamed Harkat and Hassan Almrei. My guarded prediction is that several years from now the SCC will again rule that the procedure for determining the reasonableness of the security certificate violates s. 7 of the Charter.

The “lack of resources an ordinary legal team, for the purposes of conducting in secret a full defence” is a vitally important omission from Bill C-3. Unless one is litigating these cases on almost a full-time basis, it will be impossible to know the detailed and intricate background of the jihad fought by the muhadajeen in Afghanistan. An adequately funded and competent research facility is essential to seeing some modicum of justice done.

In Bill C-3 there is a requirement that those to be considered for appointment as special advocates must have five years of litigation experience. In my view that level of experience is woefully inadequate for the almost impossible task that will be faced by the special advocates.

By striking down the security certificate procedures, the SCC allowed Canada to catch up with the UK circa 1996 after the European Court of Human Rights struck down the UK security certificate provisions in the Chahal case.

Bill C-3 would leave Canada where the UK was in 1996 and where the UK is at the present time.

Canada should be a leader in human rights values in the world. If we are going to have a special advocate model, many amendments and additions are required to Bill C-3.