When I came to law school three years ago, I had no idea what a security certificate was. I first learned about this regime in my immigration and refugee law class. I remember thinking that I must be missing something because it couldn’t be possible that this existed in Canada – the right to a fair trial is a fundamental human right. On Wednesday, the Supreme Court upheld the security certificate regime as constitutional.
Security certificates allow the government to deport or detain persons indefinitely that are deemed to be a risk to the security of Canada. The named person need not be charged with a crime. In a criminal trial, the accused must be proven guilty beyond a reasonable doubt. Under the security certificate regime, there must be reasonable grounds to believe that the person is a risk to the security of Canada. It is also easier for the government to use secret evidence in a security certificate proceeding than a criminal trial (see paras 65 – 66 of the Harkat decision). The security certificate regime is not a criminal trial, but the consequences of each are the same: a deprivation of liberty, and, in the case of named persons subject to security certificates, the possibility of deportation to a country where there is a risk of torture or death. Like a criminal trial, the security certificate regime involves the same fundamental human right – the right to a fair trial.
What I find most striking is the contrast to the Supreme Court’s discussion of the right to a fair trial in Harkat compared to criminal law cases I have read in law school. For example, in R v NS, when considering the right to a fair trial for an accused in a criminal proceeding, Chief Justice McLachlin wrote:
The right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble. No less is at stake than an individual’s liberty — his right to live in freedom unless the state proves beyond a reasonable doubt that he committed a crime meriting imprisonment. This is of critical importance not only to the individual on trial, but to public confidence in the justice system (para 38).
In contrast to NS, the Harkat decision is missing any meaningful discussion of the right at stake for named persons – the deprivation of liberty – and of the fundamental importance of guaranteeing the right to a fair trial for the rule of law in Canada. The Court mentions no international legal obligations. In fact, the Supreme Court stated that Mr. Harkat has “benefited from a fair process” (para 111). Mr. Harkat’s “fair process” included the use of summaries of destroyed intercepted phone conversations that were only ever disclosed to Mr. Harkat in an abridged form (paras 94 – 99) and that were destroyed as a result of “unacceptable negligence” by the Minister (para 94).
The Supreme Court ruled that the security certificate system is not perfect, but it is fair (para 110). However, making a process fairer, with the introduction of special advocates, does not necessarily make it fair. On the Supreme Court’s focus on the judge’s discretion to ensure that named persons are given a fair process, Amnesty International said, “when it comes to protecting fundamental rights, including something as essential as fair trial rights, discretion is simply never good enough.”
Most Canadians may not be personally affected by security certificates, but this is an issue all Canadians should care about. The Charter of Rights and Freedoms can only be meaningful if the rights guaranteed by it are meaningful for all. This includes suspected terrorists. The Criminal Code contains terrorist offences, which these men could be charged with.
Recently, I went to the premiere of Secret Trial 5 at the Hot Docs film festival. The documentary was a powerful reminder that there are real people subject to and affected by the security certificates. The constitutionality of the security certificate regime is not about whether the named persons are guilty or innocent. It is about a fundamental human right. In the words of Justice McLachlin herself, “the right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble.”
More information about the Secret Trial 5 documentary can be found at http://secrettrial5.com.