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CAUT Bulletin Archives

November 2004

Security Certificates Condemned

Lawyers and leading legal scholars are urging Canada's Minister of Public Safety to immediately stay the removal of any person to a country where they face a serious risk of torture or persecution, and to reform the security certificate process to bring it into conformity with international human rights standards.

More than 40 law professors and national and provincial legal networks, including the Canadian Bar Association, lent their support to a letter written by Sharryn Aiken, assistant professor of law at Queen's University, and Andrew Brouwer, co-chair of the Legal Affairs Committee of the Canadian Council for Refugees. The writers pointed out that security certificate provisions in their current form allow the arrest and detention of non-citizens without charges, without legal representation and without rights. Individuals detained in cases involving security matters are denied the right to prepare a defence and mount a meaningful challenge to the lawfulness of their detention. Critics also charge the security certificate process is being invoked in cases where the likely outcome is deportation to a country where the individual concerned is at serious risk of torture or other human rights violations.

"We are gravely concerned that the security certificate process denies to non-citizens the due process rights to which they are entitled as equal human beings. Likewise of great concern is the denial of non-citizens' right to be free from arbitrary detention - especially in the case of those who are not permanent residents, who can be detained without even a warrant. As undeniably serious as these violations are, however, they pale in comparison to what for some is the eventual outcome of the process: torture, which is perhaps the ultimate violation of human dignity and fundamental human rights," the letter said.

"We are aware that there are at least five persons in Canada currently subject to security certificate procedures who have been denied the right to a fair hearing and face the imminent risk that they will be returned to torture, in violation of universal norms of international law ... The rights to life, liberty and security of the person, the right to be free from discrimination, as well as the prohibition on torture are pillars of democracy and the rule of law. They are guaranteed not only by our own Charter of Rights and Freedoms, but also by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and numerous other international and regional human rights treaties to which Canada is a party. As a world community we have guaranteed these rights not on the basis of the accident of our place of birth or social status, but on the basis of the simple fact of our humanity."

The letter says there are other options if it's believed an individual is a threat to national security or the safety of any person. "Canada may be able to prosecute the person under the anti-terrorism provisions of the Criminal Code. Alternatively, where an extradition request has been made, Canada may extradite the person to face charges elsewhere, provided the person's fundamental human rights will not be violated by that country.

"Both of these options meet the goal of avoiding impunity and protecting the public, and have been repeatedly advocated by the UN General Assembly, the UN Security Council and international legal scholars. At its recent conference in Berlin, the International Commission of Jurists adopted the Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism. The declaration specifically affirms the principle that states should apply and where necessary adapt existing criminal laws rather than resort to extreme administrative measures in efforts to combat terrorism."

Amnesty International has for several years listed Canada for human rights transgressions. The organization also this year asked McLellan to "take immediate steps to reform the security certificate process to bring it into full compliance with Canada's international human rights obligations."

The government maintains that individuals detained pursuant to a security certificate constitute a threat to national security, and despite Amnesty International "Canada continues to seek their removal to torture, in contravention of international law," the lawyers said in their letter.