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Security detentions: What they discuss in the House of Commons Subcommittee on National Security

ON SEPTEMBER 24, the House of Commons Subcommittee on National Security of the Standing Committee on Justice and Human Rights met to discuss security detentions in Canada.

Committee members heard from the following four witnesses: Claudette Deschênes, director general, intelligence, Department of Citizenship and Immigration; Paul E. Kennedy, Senior Assistant Deputy Solicitor General, national security, Department of the Solicitor General; Ward Elcock, Director, Canadian Security Intelligence Service; Richard Proulx, acting Assistant Commissioner with responsibility for criminal intelligence, Royal Canadian Mounted Police.

Chair Derek Lee began the discussion by pointing out that the committee has always had two major focuses: "the efficacy in the intelligence gathering and intelligence product envelope in our Canadian government, and the civil liberties of Canadians and persons in Canada. I think it's fair to say that today our focus is on the civil liberties envelope, although there are certainly real concerns dealing with security. ..." He also informed that many but not all of the security detentions in Canada relate to post-9/11 security issues.

Of the current list of detainees, there are seven security certificates, with another 23 persons initially detained under sections 55 and 58 of the Immigration and Refugee Protection Act (IRPA). Since 1991, 27 security certificates have been ordered and only two have been quashed.

During the discussion, Kennedy stated that there has been an ability and a right by individuals "to challenge the constitutionality of various provisions and decisions taken, and that has occurred" such as whether or not the proceedings were actually fundamental justice, or requesting that the Minister of Citizenship and Immigration exercise discretion in not to returning persons to a country where they may face a risk of torture. "So there are always ways, certainly, in which the charter can be invoked, and those things have in fact gone up to the Supreme Court of Canada," Kennedy said.

In response to a comment that generally no writs, orders, certiorari, mandamus or habeas corpus are applicable to this kind of proceeding, Kennedy replied that though this was the case, a number of actions have been brought before the courts. He added that the legislation doesn't conceive of an appeal from the decision of the Federal Court judge who sustains the reasonableness of the certificate, but "there are always collateral attacks on the process that do occur from time to time."

Bloc MP Mario Laframboise (Argenteuil- Papineau-Mirabel) pointed out that in his presentation, Kennedy had stressed the fact that the rights of the state need to be protected when they come into conflict with individual rights. He expressed concern over the fact that Kennedy, in his presentation, had stated that it is not a matter of secret trials. "[T]hese people are individuals!" he argued. "The procedure for issuing security certificates affects foreign nationals or permanent residents. My question on individual rights is the following: at what point in the process is the individual questioned? Is he or she questioned? Does anyone speak to the person?"

Claudette Deschênes from the Department of Citizenship and Immigration answered:

"When a case is argued in federal court, a summary is prepared and given to the individual once the judge has studied the classified information and decided whether the information must remain confidential for reasons of source protection or because of the way the information was gathered. The judge may speak to the person, who may call witnesses to present his or her version of the facts. The summary that is given to the individual explains why he or she is felt to be a danger to Canada's security."

Laframboise then asked about the right to defence, whether the individual can be accompanied by a lawyer who can examine and cross-examine the witness and even ask the RCMP questions.

Kennedy informed that it was like an ordinary proceeding:

"The only difference we have is that we go to the judge in camera to say: 'Judge, there are certain provisions in here that are classified, and if they are released publicly they will damage sources, ongoing investigations, techniques or confidential relationships. Will you edit those things out judicially and provide a judicial summary that can be provided to the other side?'"

He justified this as "the balancing that occurs."

MP John McKay (Scarborough East, Lib.) referred back to the passing of Bill C-36 and questioned why the provisions in the Immigration Act, rather than Bill C-36 are being used.

CSIS director Ward Elcock responded that all the individuals are foreign nationals or landed immigrants, not Canadian citizens:

"In many cases there is information that allows us... to conclude that the individual is a national security threat because of what we know about them, their connections to various individuals or organizations, etc. But they may not yet have committed a criminal act. If you think of the 19 terrorists who carried out the attack on the World Trade Centre, I don't think any of them had committed a criminal act before they drove the airplane into the building. So in some cases to deal with people you know are a threat, particularly when they're not citizens of Canada, have not yet reached that stage in securing status in Canada, they can be removed."

In response to a further question about whether Bill C-36 would have been used if these people were citizens of Canada, Elcock said that "... absent the situation where you could demonstrate that somebody had secured their Canadian citizenship fraudulently or whatever, the only course you could pursue would be to look at the provisions of Bill C-36," adding that nothing prevents them from using Bill C-36 against people who are refugees or landed immigrants.

Elcock went on to say that the Immigration Act

"simply gives us a remedy in respect of somebody who's not yet a citizen of Canada. The acquisition of citizenship of Canada is by definition something many people aspire to. It's a right many people would like to achieve. If one has not yet achieved that position, one doesn't get the protections of the status, and the Parliament of Canada has provided that people who are regarded as a threat to security or indeed who are members of organized crime groups, for example, can be removed from the country."

Questioned about whether the risk assessment or the preparation of the certificate would be any different in the preparation of the case dealing with a citizen, Elcock responded that there would be some substantial differences in terms of a criminal prosecution under Bill C-36.

"So potentially it sets a higher standard under Bill C-36 than it does under the Immigration Act.... So in some respects it's almost a no-brainer when you're dealing with a non-citizen to use the remedies of the Immigration Act?" McKay asked.

"It depends," Elcock replied, "as Mr. Kennedy pointed out with respect to some criminals, and the same could be said of some individuals who have terrorist connections. There may be cases where you believe they should be tried in Canada. There may be cases where they have committed crimes elsewhere, they are wanted for crimes elsewhere, or they are suspected of crimes elsewhere where you may want to deport them. It's not an up and down judgment. You have to look at each case and come to a conclusion."

Kennedy added that "One of the things we tried to do when we put Bill C-36 forward was to provide the state with a range of tools, one of which was criminal prosecution. Others dealt with terrorist financing and another was obviously the removal process we had.

"But one of the things you cannot criminalize retroactively is activities. As of December 24, 2001, terrorist activities were defined and a certain mens rea was put in place that allowed us to say that is a terrorist offence, and we could prosecute for it. That did not apply prior to this date, so activity before that would not have been captured.

"The other issue is, you can remove people who have yet to commit criminal activities in Canada under the Immigration Act, so it's a proactive tool. The evidentiary levels and standards are different. Under the Criminal Code it's beyond reasonable doubt; here it's whether or not there are reasonable grounds to believe.

"The evidence you leave in court is viva voce, prima facie evidence. We've given the ministers the ability here to use hearsay evidence, not classified and not subject to the normal techniques. There's a whole range because there are different interests that are engaged in terms of a criminal trial and the stigma of incarceration as opposed to that person being removed from the country.

"The courts themselves have looked and said these are different scales, and if you're a citizen even, the regime that's in place is different from the one for a person who is not entitled to be in the country, as opposed to a citizen who is in the country. So there are different standards, different rules of evidence, and different remedies you avail yourself of, depending on the facts of the case?"

PC Member for Calgary Centre Joe Clark then intervened:

"I don't want to quarrel with words, but I noted that there was a slight difference between what is written on page 6 and what you said, in that you talked about Sikh terrorists and secular Arab terrorists, and then you said 'a right-wing extremist.' I wonder if that was advertent or significant. The right-wing extremist, I presume, is Mr. Zundel."

After Elcock confirmed that this was correct, Clark asked:

"Was that an exceptional circumstance? Do you anticipate there will be other actions taken on the basis of extremism? And how do you define extremism?"

"One could easily characterize some of the other individuals as terrorists or extremists, whichever one you wanted to choose. 'Extremist' can cover a fairly wide variety of sins. Mr. Zundel is certainly a widely known and a very serious extremist on the right-wing side. I'm not sure I would go so far as to call him a terrorist, but an extremist he certainly is," stated Elcock.

A question asked whether judges involved with such cases follow a set of standards that they apply to these cases, apart from what has been in their various judgments and is therefore in essence a public document, Kennedy responded:

"By the way, it's done in other fora as well. If there is a criminal trial where we have a wiretap application, it can be reviewed by the trial judge. The judge looks at the affidavit file in support of the first application, and the judge does the same thing: he edits out and decides what can be provided or not. So this editing function is done. In Bill C-36 there's an amendment to the Canada Evidence Act to give the judge that kind of power. Previously, we'd say it can't be disclosed for national security reasons. What was happening was that everyone was denied access to it. So we've given the judges the power to create these summaries, and that can be used right now in a criminal proceeding where classified information occurs as well. We trust our judiciary to do the right thing."

Source: TML Daily, October 28, 2003 - No. 198

* * * * *

Presentation by Claudette Deschênes, Director General, Intelligence, Department of Citizenship and Immigration

(Technical difficulty--Editor) ... provide it to citizenship and immigration. We then provide it to our minister for signature so that both ministers have read the material and signed off on it. They can be issued against permanent residents, as well as foreign nationals, using foreign nationals as the new term under IRPA [Immigration and Refugee Protection Act] -- people who are not permanent residents of Canada.

Once both the ministers have signed, foreign nationals are detained automatically while the reasonableness of the certificate is decided by a Federal Court judge. Permanent residents may also be detained on the authority of a warrant that would be signed by both the Solicitor General and the Minister of Citizenship and Immigration. In the case of a permanent resident, he or she must be brought before the Federal Court within 48 hours for a detention review and subsequently every six months until a determination is made on the reasonableness of the certificate.

If at any time a Federal Court judge feels it's not reasonable to detain, a permanent resident will be permitted to leave and go free. To determine the reasonableness, a Federal Court of Canada judge will review all the classified information provided by the Minister of Citizenship and Immigration and the Solicitor General in the absence of the person concerned. The judge will ensure the confidentiality of the information if in his or her opinion its disclosure would be injurious to national security or to the safety of any person.

The person concerned is then provided with a summary of the classified information. This summary is then part of the public record. The judge will also then hear evidence and testimony from the person named in the certificate before making a decision on the reasonableness of the security certificate.

When a security certificate is issued, all other pending immigration proceedings are suspended until the Federal Court makes a decision on reasonableness. The person named in a certificate can make an application for a pre-removal risk assessment, called PRRA, under the new legislation. On request, then, the judge will suspend the proceeding in order for the minister to make a decision on the pre-removal risk assessment. In making a decision concerning the PRRA application, the minister or his or her delegate, depending on the circumstance, will take into consideration the applicant's submissions and assessment of the risk faced by the applicant if returned, and whether the applicant represents a danger to the public or to the security of Canada.

During the processing of the PRRA, the minister may seek assurances from an applicant's country of nationality that the applicant's human rights will be protected upon return. The judge will then review the lawfulness of the minister's PRRA decision and the reasonableness of the certificate. If the judge determines that the certificate is unreasonable, the certificate is quashed and the client can leave detention. If, however, the judge decides that it is reasonable, then the certificate automatically becomes a removal order. The Federal Court decision cannot be appealed, and every effort is made to remove the applicant as quickly as possible. A foreign national may apply to the Federal Court for release from detention if he or she has not been removed from Canada within 120 days after the certificate has been determined to be reasonable.

In conclusion, from the perspective of CIC [Citizenship and Immigration Canada], the security certificate is only one of the tools available to protect the safety and good order of Canadian society. CIC may also choose to proceed with an admissibility hearing before the immigration division of the Immigration and Refugee Board. A certificate is only issued for removal purposes when there is information that needs to be protected for security reasons.

* * * * *

Presentation by Paul E. Kennedy, Senior Assistant Deputy Solicitor General, National Security, Department of the Solicitor General

... As you know, we have the Immigration and Refugee Protection Act, which came into force on June 28, 2002. That in fact replaced the Immigration Act. It contains a variety of provisions that give the state the ability to remove individuals from Canada. ...

... There have been a number of high-profile cases recently that we've seen played out in the press. We have a complete list of the certificates that have been issued since 1991.

... The relevant section in the current act is section 77, which is the provision that allows for the Solicitor General and the Minister of Citizenship and Immigration to co-sign a certificate indicating that a person is a member of an inadmissible class on grounds of security, violation of human or international rights, serious criminality or organized crime. The regime there provides a framework for judicial control. All matters related to that are referenced to the Federal Court for determination as to the reasonableness of those certificates.

Under that particular process, the government can seek to remove an individual from Canada on grounds that are specifically stated, but more importantly, because of the unique nature of that application, it can be based upon classified information.

Section 78 of the legislation provides the ability for the Federal Court judge to review all of the materials in their entirety. It is the judge who makes the determination as to whether or not information is relevant. If he determines the information is not relevant, then the Crown will withdraw it from consideration.

The judge, upon examining the classified information, determines how much of it can be made available to the individual concerned by way of an unclassified summary. That is provided to the individual.

There is a requirement in the act that the summary must include sufficient information to enable the individual to be reasonably informed of the circumstances giving rise to the certificate, but this does not include anything, in the opinion of the judge, that would be injurious to national security or the safety of any person if disclosed.

It's important to note that the information that is excluded from the summary is traditionally excluded in judicial proceedings. In other words, if we had a criminal case we'd be making an application under the Canada Evidence Act, or if we had an Access to Information Act case, that information likewise would be withdrawn from public disclosure because of the harm it would cause.

The kinds of things we're talking about excluding would be details concerning human sources, technical sources, intelligence-gathering techniques or methods, and third-party information that has been provided in confidence on the basis that this is the premise on which the information is shared with Canada. So it is vital in terms of national security that such information be protected.

The unclassified information or summary is provided to the individual, as I indicated, with sufficient information regarding the substance of the allegation as determined by the Federal Court judge -- who is the judge reviewing the case.

There has been a lot of discussion recently regarding these certificates. They're often linked to the events of September 11 and the anti-terrorism act. I think it's important for us to clarify that the use of these certificates predates the events of September 11, 2001. In fact, the government has been using this particular instrument for well over a decade. ... [T]he first certificates were issued back in 1991.

More importantly, because anything we do in this country clearly has to comply with the Charter of Rights and Freedoms, those certificates and the process surrounding their use have been validated by the courts. The Supreme Court of Canada, of course, has looked at it and made that very determination.

One of the earlier cases was in 1992, when the Supreme Court, in the case of Chiarelli, looked at it as an immigration matter. It was dealing with what was then section 39 of the Immigration Act, the removal of a permanent resident from Canada. That case was based upon the alleged criminal activity the individual was believed to be involved in.

Many of the attributes of the process followed at that time were similar to the ones that were found in section 40.1 of the [former] Immigration Act, and currently in section 77 of the Immigration Act. In particular, as we heard comments about secret trials and things of this nature, the Supreme Court of Canada in that case examined the issue of in camera, ex parte proceedings and found that they in fact were appropriate.

I'd like to note right now that a lot of those decisions by the Security Intelligence Review Committee, when they were challenged, were challenged to the Federal Court for a Federal Court judge to look at. So we later looked at that and moved that issue right to the Federal Court, since they were going to be an arbiter in these cases in any event. That's why you saw in section 40.1 and section 77 that we removed the permanent residents cases and put them before a Federal Court judge to make a determination.

The Supreme Court of Canada at that time, in applying the charter, looked at it and pointed out that there was a difference, in terms of people who were not citizens. If you came to this country as a visitor and you didn't have citizenship status, you had no right to be here. Then the state had the ability to decide who could be here, and to provide different treatment for those people.

The Supreme Court ruled in that case that it was not necessary for the individual to be given details of the intelligence investigative techniques or sources to be used to acquire the information upon which the two ministers formed their decision in releasing the certificates. The Supreme Court of Canada indicated quite clearly that there were valid state interests in protecting these sources and techniques. The court said it was necessary to balance the competing interests of the state and the individual, and to fulfil the requirements of fundamental justice it was not necessary to give the individual the details of investigative techniques or sources used to acquire that information.

So this criticism that we see sometimes launched against this process has been looked at by the Supreme Court of Canada from 1992 on. We've had other cases since that time, where the court has looked at the process and said this was a balanced process for balancing the competing needs of the state and the individual, and that the rights of fundamental justice had been addressed in this area.

Since that time, in January 2002, we've had the cases of Suresh and Ahani that went up to the court. There were other issues that were at stake there. There was a decision on whether or not an individual who was found to be inadmissible should be returned to a country where there was risk of torture, because Canada is clearly a signatory to the convention against torture.

The court, in looking at that issue, made reference back to the process that was described under section 40.1 of the act, which is now section 77. It talked about that in terms of describing the statutory provisions as extensive, and aimed to ensure that certificates under that section were used fairly and allowed meaningful participation of the person involved. So as late as 2002, the Supreme Court of Canada referenced back to that and said that we had a balanced process.

In addition to what the Canadian courts have done with that process, the European Court of Human Rights, in 1996, cited what was then the immigration model under section 39 -- the Canadian model of judicial control in national-security-related removal cases -- as an example of a process that both accommodated legitimate security concerns about the nature and source of intelligence information, yet accorded the individual a substantial measure of procedural justice. You're dealing with two competing interests here, and how do you square the circle?

It's my information as well that the United Kingdom subsequently changed their legislation, and in fact they were influenced significantly by the Canadian model in terms of how you address these competing interests.

Given that the certificate security process has been proven to be an effective tool in terms of national security and has withstood constitutional challenges, those provisions in fact were introduced into Bill C-36, the anti-terrorism legislation. We in fact have provisions there dealing with deregistration of charitable organizations that may in fact find themselves supporting activities that are believed to be terrorist activities. So that model was carried forward and you'll see it expressed in various provisions of Bill C-36.

* * * * *

Presentation by Ward Elcock, Director, Canadian Security Intelligence Service

CSIS has a very specific role to play in the security certificate process. Removing individuals who are regarded as national security threats is sometimes the best option for a number of reasons, among which is the fact that there may not be enough evidence for criminal charges, although there may be enough evidence to conclude that the individual is a serious threat to national security. They may not have committed a criminal act, but yet may still. There may be enough information and evidence to conclude that they are a threat to national security and their removal may have the effect of disrupting their network and/or plans.

The preparation and presentation of a section 77 case -- i.e., a security certificate case -- is generally the responsibility of CSIS, although it's not necessarily limited only to us. CSIS provides both ministers, the Minister of Immigration and the Solicitor General, with a security intelligence report, or SIR, which makes the case for inadmissibility under the Immigration and Refugee Protection Act. Assuming the ministers agree, the signed security certificate, the SIR, and the unclassified summary are then submitted to the Federal Court of Canada. CSIS personnel testify in support of the security certificate in both in camera ex parte sessions and in open court.

Because of the serious implications of issuing a security certificate, the preparation by CSIS of the supporting documentation is both deliberate and rigorous. Several conditions must be met before CSIS even considers preparing a SIR, not the least of which is because of the resource demands. Each one of these cases costs well in excess of $1 million. The individual must be assessed as a significant threat to the security of Canada. CSIS must possess sufficient threat-related information and intelligence to proceed. That information must, in our judgment, be both reliable and from multiple sources. The removal must be of strategic value in light of CSIS's investigative priorities. In other words, you're not going after little fish.

CSIS must have sufficient releasable and open source information to support the unclassified summary document. The SIR must also obviously present a reasonable argument why CSIS believes the individual is inadmissible to Canada as defined in the Immigration and Refugee Protection Act. The preparation of the SIR entails an exhaustive review of all information collected by CSIS in a number of ways. That SIR is a very detailed document whose contents are meticulously facted -- and that to us, Mr. Chairman, means that everything we write down is connected to facts that we have solid reason to believe are accurate.

The SIR is prepared in consultation with CSIS's operational branches and legal services and is approved by senior management and by myself. Since 1991 only 27 security certificates have been issued. Clearly, that's not a routine procedure, but a targeted procedure that enables the government to enforce the inadmissibility criteria in the Immigration and Refugee Protection Act in cases where there is sensitive national security-related information.

Since 9/11 only five security certificates have been put forward, including that of Mr. Ernst Zundel. They can hardly be viewed in that context as a disproportionate response.

A review of all security certificates demonstrates that while some have been directed against Islamic terrorist extremists, they have also been directed against Russian nationals engaged in espionage, Sikh terrorists, Hindu terrorists, secular Arab terrorists, and a right-wing extremist. Therefore, it would be difficult to argue that security certificates are used against any particular ethnic group.

Let me also add ... these are not secret trials, as some have alleged. This is hardly a Star Chamber. These are trials in which information that must remain secret is presented, but they are nonetheless not in and of themselves secret. The process sets out to balance the rights of the accused within the necessity of safeguarding those sources and methods by which Canada is protected at the same time as ensuring that Canada can respond to issues of those within our borders who, while not citizens of Canada, seek to use Canada as a refuge or as a place from which they might attempt to carry out other acts.

* * * * *

Presentation by Assistant Commissioner Richard Proulx, Criminal Intelligence Directorate, Royal Canadian Mounted Police

I am going to talk to you about the RCMP's role with respect to immigration and Canada's national security. The RCMP plays two roles. As the national law enforcement agency, its main responsibility is to investigate crimes that are a threat to Canada's security. It is also responsible for gathering intelligence on criminal activity, and this helps it to conduct its investigations and to fulfil its protection mandate. The RCMP is determined to gather and analyze intelligence on criminal activity, to prevent and respond to terrorist acts, and to combine its technical and scientific investigation resources with those of its main national and international law enforcement and government partners. In performing its duties, the RCMP works closely with Citizenship and Immigration Canada.

Let's take a look at the relationship between these two organizations. We investigate criminal activities related to immigration and the enforcement of warrants. We are responsible for investigating offences under the Immigration and Refugee Protection Act, the Citizenship Act and the Criminal Code, including offences related to citizenship, passports, fraud, forgery and conspiracy. We work in partnership with Citizenship and Immigration Canada.... We also work with major international partners; Interpol is a good example of that.

Over the years, the working relationship between the RCMP and Citizenship and Immigration Canada has evolved into a truly integrated partnership. The way events have unfolded in recent years has given rise to a greater convergence of interests between Citizenship and Immigration Canada and the RCMP, particularly in the areas of organized crime, terrorism, war crimes, economic fraud and criminal intelligence. The RCMP and Citizenship and Immigration Canada share enforcement responsibility for the Immigration and Refugee Protection Act and the Citizenship Act. Their partnership has grown to include the following: exchanging intelligence, communications, research, fingerprinting and verification, intelligence and fake documents, investigations and prosecutions as well as RCMP presence at citizenship ceremonies.

A recent report of the Auditor General pointed to the need for a renewed relationship between the RCMP and Citizenship and Immigration Canada. The memorandum of understanding defines the working relationship between the two organizations. It sets out a working framework for cooperation and communication with respect to common activities and interests, and includes a mechanism for regular review of the relationship, and conflict resolution. The memorandum of understanding has to be flexible enough to allow for regional and local agreements that are responsive to distinct operational realities.

A joint national committee made up of an equal number of members of the RCMP and Citizenship and Immigration Canada was struck under the memorandum of understanding. Members of the committee will act and make commitments on behalf of their respective organizations. Regional and local joint committees were also established under the memorandum of understanding. They are responsible for policy and program implementation in their respective geographic areas. The national joint committee meets at least once a year, or more often if necessary, to examine and evaluate activities. This year's report will soon be completed.

Thanks to funding for the Public Safety and Anti-Terrorism initiative, the RCMP and Citizenship and Immigration Canada have set up integrated enforcement teams for the Immigration and Refugee Protection Act in Montreal, Vancouver and Toronto. The mandate of these teams is to reduce threats to Canada's security by classifying outstanding immigration warrants in order of priority, by apprehending wanted persons and by ascertaining threats to national security. The teams are divided into three different geographic areas, and each area has its own issues. The teams actively communicate with one another if there is an immigration problem or situation that might go beyond the limits of their territorial jurisdiction. All relevant operational intelligence is shared quickly and entered into the appropriate bases.

The overall goal of the Immigration Act integrated enforcement teams is to detect, locate, question and apprehend people who could pose a threat to national security after entering Canada illegally. These units have a tremendous capacity to generate and gather intelligence to be used in developing crucial intelligence on criminal activity that may assist investigations related to national security or organized crime. All useful information is entered into the appropriate data bases. These teams are versatile and perform multiple functions, as set out in their mandate.

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