Security certificate

On 23 February 2007, the security certificate process was found to be in violation of sections 7, 9, and 10 of the Canadian Charter of Rights and Freedoms and ruled unconstitutional by the Supreme Court of Canada in the landmark Charkaoui case.

However, these lawyers would be selected by the Justice minister, would only have access to a "summary" of the evidence, and would not be allowed to share this information with the accused, for example in order to ask for clarifications or corrections.

[citation needed] The bill amending Canada's security certificate regime, with support from the Conservatives and the opposition Liberal Party, was passed by Parliament and received Royal Assent in February 2008, just days before the court-imposed deadline.

[citation needed] In its 2014 decision for Mohamed Harkat following Charkaoui v Canada, the Supreme Court found the framework to protect classified information in immigration proceedings to be consistent with the Charter.

[1] Certificates are governed by the Immigration and Refugee Protection Act (IRPA), prepared by the Canadian Security Intelligence Service (CSIS), and signed by the Solicitor General of Canada (ministerial post superseded by the Minister of Public Safety) or the Minister of Citizenship and Immigration when a non-citizen, either a permanent resident, refugee or foreign national located in Canada, is deemed to be inadmissible on the grounds that the subject is suspected to be a threat to national security, or has violated human rights abroad, or is involved with organized crime.

All or part of the evidence may be heard in secret, in the absence of the subject of the certificate, if the judge deems that airing it publicly may hurt national security or put the safety of any individual at risk.

In practice, the fact that there is often a risk of torture on the one hand, and a limited legal opportunity to challenge detention, on the other, has meant that named individuals are neither released from prison nor deported after the certificate is upheld.

Amnesty International wrote of several security certificate detainees on 2 February 2007, “Their detention has truly become tantamount to being indefinite as they have limited choices: either remain detained while continuing to pursue legal challenges to the unjust procedure that governs their cases, or agree to be returned to countries where Amnesty International believes they face a serious risk of torture.” A recent trend has been towards releasing detainees under strict conditions or transferring them to house arrest.

People named under certificates are exempted from legal provisions designed to prevent deportations to risk of torture or other human rights abuse.

[citation needed] Criticism related to violations of civil liberties and due process include the fact that allegations are vague and general, key terms are not defined, precise allegations do not exist or are not disclosed, the low order of proof effectively reverses the burden of proof so that the named person has to prove his innocence, the lack of disclosure of information in the file, the fact that information provided to the court can include hearsay and is known to have included information produced under torture, the fact that evidence has been tainted by destruction of evidence by CSIS, and the lack of appeal.

The Court ruled that the operative provisions of the security certificate process do not violate Section 7 of the Charter, but that the Immigration Act generally does not allow for the deportation of a person to a country where they will likely be tortured.

On 13–14 June 2006, the Supreme Court heard three different appeals from Adil Charkaoui, Hassan Almrei, and Mohamed Harkat regarding the constitutionality of the security certificate process.

Counsel for Charkaoui also argued that the security certificate process violates judicial independence, the rule of law, and sections 9, 10, 12, and 15 of the Charter of Rights and Freedoms.

In its 2014 decision for Mohamed Harkat following Charkaoui v Canada, the Supreme Court found the framework to protect classified information in immigration proceedings to be consistent with the Charter.