Amnesty International was represented in this case by Michael Bossin, Laïla Demirdache, and Chantal Tie.
WHAT IS THIS CASE ABOUT?
Mohamed Harkat is a Canadian permanent resident of Algerian descent. In 2002, a security certificate was issued against him, declaring him inadmissible to Canada on national security grounds, and Mr. Harkat was detained.
Under the original security certificate scheme, a federal judge was assigned to review the reasonableness of the certificate. However, this review process happened almost entirely in secret, with the named person deprived of some or all of the information forming the basis of the certificate. In an earlier case concerning Mr. Harkat, Mr. Almrei and Mr. Charkaoui (who were also named in separate security certificates), the Supreme Court of Canada found that review process violated the right to a fair hearing of an individual named in a security certificate, and declared it unconstitutional. Click here for more information about Amnesty’s involvement in the Charkaoui case.
In response to the Supreme Court of Canada’s declaration that the security certificate scheme was unconstitutional, in 2008 the government of Canada introduced a new regime for security certificates in the Immigration and Refugee Protection Act. The government then re-issued a security certificate against Mr. Harkat.
Mr. Harkat challenged the constitutionality of the new security certificate regime at the Supreme Court of Canada, arguing that it continued to undermine the right to a fair hearing and for the accused to know and be able to respond to the case against him/her. For instance, under the new scheme, an individual named in a security certificate is entitled to a summary of the allegations forming the basis of the certificate. However, the Federal Court judge reviewing the reasonableness of the certificate may base his or her decision on evidence or information that is not disclosed in that summary. The new security certificate scheme also introduced the new role of “Special Advocate.” Special Advocates are counsel with high-level security clearance appointed to represent the interests of individuals named on security certificates in secret hearings. However, Special Advocates operate under strict communications rules; once they review confidential information and evidence, they are no longer permitted to speak to the accused without specific judicial authorization. Further, Special Advocates have no power to cross-examine human sources to test their evidence and information used as a basis for the security certificate.
AMNESTY INTERNATIONAL’S INTERVENTION
In our submissions to the Supreme Court of Canada, Amnesty International argued that the new security certificate scheme fails to respect named persons’ due process rights, as required under binding international human rights law. National security and human rights are not mutually exclusive; any actions taken to protect security should also comply with international human rights law, including the right to a fair trial. Under international human rights law, parties to proceedings should have a reasonable and equal opportunity to present their case (the principle of equality of arms). Both parties should be given the opportunity to know and comment upon evidence and arguments advanced by the other side, in order to challenge it and show with contrary evidence that it is incorrect (the principle of an adversarial process). Finally, a fair trial is conducted in public and results in a public judgment, which contributes to the fairness and independence of the decision-making process and maintains public confidence in the system (the principle of open justice).
International human rights law only permits one justifiable limitation of these due process protections. In exceptional circumstances, the press and public may be excluded from a hearing. However, there is no situation recognized in international law where the parties or their counsel would be justifiably excluded from proceedings.
In Amnesty’s International’s submissions, we argued that the new security certificate scheme undermines all three elements of the right to a fair trial established in international human rights law. We further submitted that the presence of special advocates is unsufficient to remedy these fair trial defects because of the constraints imposed by the scheme on their ability to adequately represent the interests of the named person. In Amnesty International’s view, it would be impossible to restructure the relevant provisions of the Immigration and Refugee Protection Act in a way that upholds fundamental due process rights. As a result, we took the position that the security certificate provisions should be struck.
STATUS OF THE CASE
The Supreme Court of Canada found that the new security certificate and Special Advocate regime in the Immigration and Refugee Protection Act is constitutional. The Court acknowledged that the scheme remained “an imperfect substitute for full disclosure in an open court” and that there may be cases where the process is unfair. Nevertheless, the Court found that the scheme met the requirements of procedural fairness. In coming to this conclusion, the Court entrusted Federal Court judges to use their discretion to ensure a fair process, including making sure the named person receives sufficient disclosure to adequately instruct his/her counsel; refusing to admit unreliable or unduly prejudicial evidence; taking a liberal approach to authorizing communications by the Special Advocate; and ordering a stay of proceedings where it is impossible to guarantee a fair process.
Mr. Harkat is now under a removal order from Canada to Algeria, where he faces a real risk of torture and persecution. His counsel is arguing that he should remain in Canada for humanitarian reasons.
Supreme Court of Canada Judgment in the Harkat, Almrei and Charkaoui cases invalidating the original security certificate scheme
Amnesty International’s application to intervene before the Supreme Court of Canada in the Harkat case
Amnesty International’s submissions to the Supreme Court of Canada in the Harkat case
Supreme Court of Canada’s judgment in the Harkat case