Appeal Watch: Court to Decide if National Security Certificates are Constitutional

Background

Mohamed Harkat is a former gas station attendant, pizza delivery driver, and for the past decade, a suspected terrorist.

Harkat was arrested on December 10, 2002 on a national security certificate alleging that he had ties with terrorists. Since 2006, Harkat has been required to wear an electronic tracking device, be in the presence of his wife or mother-in-law at all times, and is not allowed to leave his home unless he gives the Canada Border Services Agency 48 hours advance notice.

A national security certificate allows the Canadian government to detain and deport permanent residents or foreign nationals considered to be security risks. Individuals detained under these certificates are not allowed to see the evidence gathered against them. Instead, they receive a summary of the information, with any evidence that could be damaging to national security or the safety of other individuals removed.

The SCC announced that it will hear an appeal from a Federal Court of Appeal decision in April that upheld the constitutionality of the national security certificate system but ordered the exclusion of evidence against Harkat because the original recordings were destroyed.

Immigration and Refugee Protection Act

The Immigration and Refugee Protection Act outlines the use and process of national security certificates. A security certificate is co-signed by the Minister of Public Safety and the Minister of Citizenship and Immigration. The certificate is referred to a judge to determine whether the certificate is reasonable, and if it is not, the certificate is quashed. A judge makes this determination by hearing the evidence against the accused. Under the Act, the judge is granted discretionary powers to hear evidence in the absence of the accused, receive evidence that would otherwise be inadmissible in a court of law, and base his or her decision on evidence not disclosed to the accused.

The constitutionality of national security certificates has already been challenged by Harkat. In the 2007 SCC decision of Charkaoui v Canada, the court ruled that the non-disclosure of evidence violated sections 7, 9, and 10 of the Charter. The SCC determined that sections 33 and 77 to 85 of the Act were unconstitutional and struck them down – but the ruling was suspended for twelve months to give Parliament the opportunity to draft constitutionally acceptable provisions.

In response to that decision, Parliament enacted “special advocate” provisions for the benefit of individuals detained under national security certificates. The role of the special advocate is to protect the interests of accused by challenging claims for the non-disclosure of evidence, participate in cross-examination of witnesses providing testimony that is not disclosed to the accused, and access all the information that is received by the judge. A special advocate is not a party to the proceeding and their relationship with the accused is not a solicitor-client one.

The April Decision

The Federal Court of Appeal ruled in April 2012:

“I am satisfied that the judge did not err when he concluded that the current security certificate regime is in accordance with the principles of fundamental justice because it allows a named person to sufficiently know and meet the case against him…The former security certificate system was found to fall short of providing sufficient protection to the right to life, liberty and security of the person. The new system was designed to remedy the deficiencies of the former and ensure, within the existing constitutional order, respect of the individual right to life, liberty and security of the person.”

With the recorded evidence that was destroyed by CSIS, the court decided that because a judge would not be able to review the evidence beyond a written summary, it would be difficult or near impossible to verify the allegations. A summary of evidence without the original evidence is an unjustifiable breach of an accused’s section 7 rights, the Court said.

The SCC will evaluate the constitutionality of the revised Act and determine the legitimacy of proceedings where the accused does not have access to all the evidence against them. It will be interesting to see if the SCC upholds the constitutionality of the Act based on the special advocate provisions they recommended – or if the Act will nevertheless be deemed unconstitutional for not going far enough to protect the civil rights of an accused.