The Muslim Law Students' Association of the University of Ottawa organized an event on 19th October 2012 at University of Ottawa, Faculty of Law, which focused on constitutional issues surrounding security certificates and a description of what life is like for detainees under security certificates.
The following guest speakers were present at the event:
- Barbara Jackman, member of Mahmoud Jaballah's legal team (see www.bjackman.com/immigration-lawyers/barbara-jackman)
- Yavar Hameed, member of Mohammad Mahjoub's legal team (see http://hf-law.ca/our-lawyers/yavar-hameed)
- Leo Russomanno, member of Mohamed Harkat's legal team (see www.wsgalaw.com/attorneys/leo-russomanno)
- Sophie Harkat, Human Rights advocate married to Mohamed Harkat, a refugee who has been detained without charge under a security certificate for almost 10 years (see www.justiceforharkat.com)
- Mohammad Zeki Mahjoub, an agricultural engineer, father and refugee who has been detained without charge under a security certificate for over 12 years (see www.supportmahjoub.org).
The security certificate is a legal device by which the Canadian government can detain and/or deport non-citizens who are deemed a threat to national security. The security certificate is controversial because it allows for indefinite detention without charge and, secret evidence, which means that neither the accused nor their lawyers can see the evidence against them. In some cases the evidence relied on to substantiate the security certificate may have been obtained through torture – a practice which CSIS has publicly stated is integral to their work. Over the past twelve years, 5 Muslim men have been held under these security certificates including men who had been successfully admitted into Canada as refugees by our government. After spending over 25 years in prison combined, none of the five men have been charged with a crime and none of them have had the opportunity to exercise their constitutional right to full answer and defence or any presumption of innocence.
Five years ago, in the landmark Supreme Court of Canada decision of Charkaoui v. Canada, security certificates were held unconstitutional. Yet, as of October 2012, only 2 of the security certificates have been quashed. Three of the men, Mohammad Mahjoub, Mahmoud Jaballah and Mohamed Harkat still live under some of the strictest house arrest conditions in Canadian history.
The panel of speakers included detainees under the security certificate regime, their family members and their legal counsel. This article will discuss two issues dealt with in detail - the effect of adding a special advocate in the process and the strict house arrest conditions faced by detainees.
Government Response After Charkaoui: Special Advocates
In Charkaoui, the Supreme Court held that named persons are entitled to a fair hearing, which includes the right to know the case against them, to respond to that case, and to have decisions made on the basis of facts and the law. Excluding named persons and their legal counsel from significant portions of certificate proceedings is inconsistent with the right to a fair hearing and with section 7 of the Canadian Charter of Rights and Freedoms.
As a result of the Charkaoui decision, Parliament amended the Immigration Refugee Protection Act (IRPA) to authorize security-cleared “special advocates” to represent named persons during secret proceedings, to access classified evidence, and to challenge that evidence as well as the government’s application for non-disclosure. Neither the named person nor their legal counsel is allowed to see the evidence or meet with the special advocate once the latter has seen the secret evidence. However, in practice, the special advocate system has not been as promising as intended. In Mohamed Harkat’s case, special advocates are not even allowed to cross examine government witnesses who testify to the secret evidence.
Strict House Arrest Conditions
Through the experiences of Sophie Harkat and Mohammed Majoub, the event shed some light on the strict house arrest conditions security certificate detainees face. Canada is known to have some of the strictest house arrest conditions in the world. Some of these include being constantly followed by CBSA officers, having surveillance cameras in their personal home, only being allowed 3 outings a week for a maximum of 4 hours, only being allowed pre-authorized outings by the CBSA, having mail intercepted, phones tapped, and not having access to cell phones or internet.
In March 2009, Mohammad Mahjoub went as far as to request the court to be returned to prison for the sake of his family, stating that the house arrest conditions "had humiliated them and deprived their two sons of any semblance of a normal life".
The security certificate regime was held to be unconstitutional in Charkaoui, but not much has changed in the last five years. It is clear that drastic legislative reform is required to render this mechanism constitutional. Russomano stated that the justice system after 9/11 has been bending over backwards to fit into national security.
A recording of the event is available from the following link: http://www.youtube.com/watch?v=cJxhRvBMkPY
Charkaoui v Canada (Citizenship and Immigration),  1 SCR 350, 2007 SCC 9
Five Years after Charkaoui v Canada: The Constitutionality and Impact of Security Certificates http://www.facebook.com/events/265880370181225/
Graham Hudson, “A Delicate Balance: Re: Charkaoui and the Constitutional Dimensions of Disclosure” Constitutional Forum (2011) Available from: http://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&ved=0CGsQFjAJ&url=http%3A%2F%2Fejournals.library.ualberta.ca%2Findex.php%2Fconstitutional_forum%2Farticle%2Fdownload%2F12132%2F9275&ei=GciGUMWgDPSa0gHM_oHoDw&usg=AFQjCNECZbEbzLAAjn6PaXyqfNBwat6Kuw&cad=rja