Canada’s War on Terror and Immigrant Rights

Canada’s Immigration and Refugee Protection Act was originally passed in 1976. After many amendments, a new act was passed in 2001, coming into effect the following year. It gives the Minister of Citizenship and Immigration and the Minister of Public Safety the power to declare a permanent resident or foreign national inadmissible on grounds of security, violation of human or international rights, serious criminality, or involvement in organized crime.

Those against whom an order for deportation is issued on a security certificate are able to appeal the order, but secret evidence may be withheld from them, so that they may not know the reasons for the certification. During the process, they may be detained indefinitely. Courts have granted most of those currently on such certificates bail under stringent conditions.

Since 1991, 28 people have had certificates issued against them. Ernst Zundel, the notorious Holocaust-denier and anti-Semite, was one of the more prominent persons expelled, in his case to Germany. In 2006, a man using the name Paul William Hempel, a supposed Russian spy, was held briefly on a certificate before agreeing to return to Russia.

There are five men in Canada who currently have security certificates issued against them. Non-citizens, they are thought by the government to pose a possible risk to the country. None of them want to return to his home country because of fear for his safety, and they remain in limbo in Canada.

In February, 2007, the Supreme Court of Canada ruled that the legislation under which they were held violates Canada’s Charter of Rights and Freedoms because those subject to the certificates are left in the dark as to the evidence against them and are thus unable to launch an effective challenge to the reasons for their certificates.

For these same reasons, the legislation has been severely criticized by a number of important organizations, including Amnesty International, Human Rights Watch, the Canadian Council for Refugees, the UN Committee Against Torture, the UN Working Group on Arbitrary Detention, and the UN Human Rights Committee.

The certificate is issued if grounds are deemed to be reasonable. That is a lesser level of certainty than the criminal criterion of "beyond reasonable doubt" or the civil procedural criterion of "balance of probabilities".

Parliament was given until February 23 by the Court to bring in a revised law, before the certificates became void, and it has met that deadline. The new law provides for lawyers with security clearance to have access to secret information against the persons for whom a certificate has been issued, information that may be withheld from the person concerned. It is a virtual certainty that this law will also be challenged in court because of concerns about the nature of the limitations placed on the special advocates. It will be back to the Supreme Court again.

But who are the men under the certificates and what are their conditions at this time? They are Adil Charkaoui, Mohamed Harkat, Hassan Almrei, Mohammad Majoub, Mahmoud Jaballah. Manickavasagam Suresh, a Sri Lankan Tamil, has not had his certificate renewed by the government. He would have been the sixth.

The five Muslim men all were incarcerated in a specially built structure on the grounds of Kingston Penitentiary in Kingston, Ontario. Four have since been released under strict bail restrictions, leaving only Hassan Almrei, who has no relatives in Canada to whom he might be released. He has been in detention in Toronto and Kingston since October 2001. Syrian by birth, he says that he fears for his safety if returned there because his father is a member of the Muslim Brotherhood, an organization that is seen as dangerous by the Syrian government. Almrei is accused of being involved in an al-Qaeda forgery ring to produce ID and of having been trained in a Taliban camp in Afghanistan. He denies being a supporter of bin Laden but admits he fought in Afghanistan against the Russians. It is alleged that he was found in a secure area of Toronto’s International Airport without authorization. He demands to be charged in court if there are any grounds. Various public figures, including a Liberal MP and the son of the late Prime Minister Pierre Trudeau have offered to provide bail for him.

Adil Charkaoui is a 34-year-old Moroccan, a married father of three, arrested in May, 2003, and released on strict bail conditions in February, 2005. His bail conditions include the wearing of a monitoring bracelet, limitations on his movements, and a need to be accompanied at all times by designated persons. Ahmed Ressam, the would-be bomber captured at the Canadian-U.S. border, identified him in a photo as an al-Qaeda agent. Ressam later changed his story. Recently, someone in Canadian intelligence leaked secret information about him to the press, leading the judge to order the reporters to reveal their source. The information released alleges that he spoke knowingly of al-Qaeda recruitment techniques in Canada.

Mohamed Harkat, who is married to a Catholic Canadian woman, was arrested in 2002, accused of being an al-Qaeda sleeper. He was named by Abu Zubayda under waterboard torture at Guantanamo. Harkat denies ever having been in Afghanistan, where he is accused of having been trained. While he belonged to the Islamic Salvation Front in Algeria, he fled the country in 1991. According to Wikipedia, it was in the following year that the Front declared itself Islamist and favored a government founded on a rigid interpretation of sharia. He went from Algeria to Saudi Arabia to study, but he was not allowed to go to school there, and he took a job with a humanitarian agency in Pakistan.

The government now charges that Harkat made mysterious remarks to someone in 1998 about keeping a "low profile" till he got status in Canada, at which time he would be "ready". It also claims that he gave conflicting and evasive answers to some questions, but he contends that he had trouble with his English, which was weaker at that time. Now out on strict bail conditions in 2007, the government tried to imprison him again and revoke bail. His mother-in-law and her partner have the house where they are expected to live, and she, her partner, and Sophie, his wife, are designated as his watchers. (Sophie calls herself his jailer.) However, the mother-in-law has broken up with the man and moved out, to stay with another man, returning to the home on some nights. The government claimed that Harkat has therefore violated his bail conditions. While the judge scolded him and his mother-in-law for not informing the court about the changed circumstances, she nevertheless continued his release on bail.

Mohammad Majoub, and Egyptian, was arrested in 2000 and released in 2007. He is accused of being a member of an Egyptian affiliate of al-Qaeda. Majoub admits working for Osama bin Laden, operating a farm for him in Sudan, but denies being an agent. Similar bail conditions apply. When he came to Canada, he stayed with the Khadr family, a family closely linked to al-Qaeda.

Mahmoud Jaballah is an Egyptian accused of the same affiliation as Majoub. He had been principal of an Islamic school in Toronto, and he is now also out on similar bail conditions. He is accused of being a communications conduit for the bombing of the U.S. embassy in Tanzania, and a judge said he was unable to explain a number of long distance calls to that part of the world and to Britain at the time of the bombing.

The one non-Muslim, Manickavasagam Suresh, came to Canada in 1990 to take over the leadership of the World Tamil Movement (WTM), which has been accused of collecting funds for the Tamil Tigers. The WTM denies the charge. There have been complaints of extortion of Tamils living in Canada, apparently to fund the Tigers. The government has not chosen to renew the certificate against Suresh, so he will now be free.

None of these men has been charged in court with any crime. The government has begun to appoint lawyers to act as security-cleared advocates to view secret evidence. They will be given training about conditions of secrecy. However, the new law does not give them the right to see all the evidence. It remains to be seen if the Supreme Court will find the new law acceptable under the Charter of Rights and Freedoms. Interestingly, several of the lawyers chosen as special advocates have publicly stated that they do not think the law will pass muster when challenged before the Supreme Court. Neither does Amnesty International Canada.

A major problem with the security certificate system that continues even after the change in the legislation is the failure to give the special advocates the right and the opportunity to see all of the secret information. This shortcoming should be resolved if the government is prepared to amend the legislation. The Supreme Court may, on the next go-around, force the government’s hand on the matter.

Additionally, there is the issue of how and if the special advocate is able to interact with the accused, to get his response to secret allegations. In an interesting turn of events, two defence lawyers-for Harkat, Almrei, Mahjoub, and Jaballah-both of whom have been given the necessary security clearance, have asked to change their status to special advocates, relinquishing their role as defense counsel.

While there are undoubtedly real concerns about protecting Canada from undesirable and even dangerous immigrants, the procedures used have been less than fair, subjecting current suspects to years of imprisonment and onerous bail conditions without adequate opportunity to address the government’s information. On the face of it, the case against Harkat appears particularly problematic.

Would the government’s behavior around legislation on security certificates, and on treatment of these particular men, have been different before 9/11 and the hysteria that followed that date? I suspect not. The ineptitude with which it has treated refugee claimants even prior to 9/11 indicates a bureaucratic insensitivity to human rights and dignity.

Now, in trying to deport the five Muslim men the government faces an additional hurdle. Will Canada deport people to countries practicing torture and using the death penalty? Both international law and Canadian policy appear to stand in the way. Will Almrei then have to spend the rest of his life in custody, and the other four men continue to be subject to their highly restrictive bail conditions forever? Rather than treating these men as security dangers, it would appear more reasonable to put them on trial for actual offences, but the government appears to fear that it does not have strong enough evidence.