Original intent was to
speed up terror cases,
opposite has occurred

CRISTIN SCHMITZ OTTAWA

Are immigration security certificates dead?

Following a spate of court defeats since last fall, the government has been quietly re-examining whether security certificates are still viable in terrorism-related cases which raise the prospect of indefinitely detaining the named person, or deporting them back to countries where they may be tortured.

Special advocates and other experts on national security law told The Lawyers Weekly the Harper government may be poised to abandon security certificates in favour of an administrative model for ejecting permanent residents and foreign nationals it deems to be a danger to Canada.

“The feeling I get, and nothing has been said to me [by offi-cials],…is that the government has found the security certificate cases too complicated, too long, and expensive, and will attempt to achieve whatever objective they have concerning permanent residents or foreign nationals by some other procedure — which could be before the immigration division of the Immigration and Refugee Board, or some other kind of administrative body or person,” says Paul Cavalluzzo of Toronto’s Cavalluzzo Hayes.

Paul Copeland of Toronto’s
Copeland Duncan notes “the
general opinion among all of the
special advocates who have
worked on the [five al-Qaeda-
related security certificate] cases
is that [the government] won’t
do another.”
However Cavalluzzo, who
with Copeland is special advo-
cate (SA) for security certificate

in camera administrative pro-

“The general opinion
among all of the
special advocates
who have worked on
the [five al-Qaeda-
related security
certificate] cases is
that they won’t do
another.

Safety Minister Peter Van Loan said he feared for Canada’s ability to fight terrorism given the “increasingly complex legal environment” in which the Federal Court is steadily holding the government’s feet to the constitutional fire.

He promised that the govern-
ment’s internal review of security
certificates will determine “what
we would do in the future and
whether that is an appropriate
instrument.”
But in the intervening 10
months the government has dis-
closed nothing publicly, although
some security law experts were
consulted. “I was interviewed for
some sort of review,” acknow-
ledges University of Ottawa law
professor Craig Forcese. “I don’t
know what came of it.”
Forcese agrees it’s unlikely that
security certificates will be issued
in future terror-related cases. “We
may still see them on other cases
where there is no [deportation to]
torture issue, such as espionage,
organized crime,” he predicts.

David Charbonneau, spokes-person for Vic Toews, the present public safety minister, declined to set up an interview with his boss. Charbonneau also declined to disclose when the security certificate review will be completed or what is under consideration.

“The objective of this govern-
ment is to keep Canadians safe
from security threats, in this case
non-citizens,” Charbonneau told
The Lawyers Weekly. “Our review
is focused on the challenge of how
to protect Canadians’ security
while recognizing the obstacles
emerging under the existing
security certificate regime. The
results will be made public once
the review requested by the minis-
ter has been completed.”
Forcese said there are signs
the government is turning to
bringing national-security-
related cases under s. 86 of the
Immigration and Refugee Pro-
tection Act. In such cases the
government contends in front
of an immigration adjudicator
that a person is inadmissible to
Canada on national security
grounds. Because the govern-
ment relies on sensitive secret
evidence, SAs must be appointed
by the court.

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“I think its constitutionality would be in serious question if you take it out of court, because there are many serious and constitutional questions that arise during the course of one of these proceedings,” Cavalluzzo says.

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Federal Court grants first ‘torture motion’ in security certificate case

CRISTIN SCHMITZ OTTAWA

For the first time under Canada’s revamped security certificate regime, the Federal Court has excluded Canadian Security Intelligence Service (CSIS) information because the information is likely the poisonous fruit of torture committed by foreign agencies.

In a June 11 redacted order and “communication” to security certificate detainee Mohamed Mahjoub and his lawyers, Justice Edmond Blanchard allowed Mahjoub’s novel “torture motion” which asked the court to exclude evidence that CSIS obtained from one or more foreign governments with bad human rights records.

The motion is believed to be the first of its kind since the new security certificate, and special advocate (SA), regime was created in 2008.

It was successfully argued,
behind closed doors, by
Mahjoub’s SAs, Gord Cameron of
Ottawa’s Blake
Cassels & Gray-
don and
Toronto lawyer
Anil Kapoor.
The Federal
Court’s ruling is
a big proced-
ural win for
security certifi-
cate detainees— permanent resi-
dents or foreign nationals who
are barred, on national security
grounds, from seeing much of
the evidence the government

Cameron
proffers in support of its conten-
tion that they endanger Canada.

Not only did Justice Blanchard exclude evidence he found may reasonably be believed to be torture-tainted, he also made clear, for the first time, that a security certificate detainee need only show “a plausible connection” between the impugned information relied on by the government and the use of torture or cruel, inhuman or degrading treatment (CIDT).

Once this initial hurdle is surmounted, the burden shifts to the government to show there are not reasonable grounds to believe that the proposed evidence was obtained by torture or CIDT.

“The ministers bear the
See Mahjoub Page 6
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