Five years after Charkaoui v. Canada: Panel assesses impact of security certificates

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. What makes the security certificate controversial is that it allows for indefinite detention without charge based on secret evidence, meaning 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 has been obtained through torture ”“ a practice which the Canadaian Security Intelligence Service (CSIS) has publicly stated is integral to their work.

Five years ago, in the landmark Supreme Court of Canada decision of Charkaoui v. Canada, security certificates were held to be unconstitutional. Yet, as of October 2012, only two 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: wearing tracking bracelets, having cameras in their homes and being followed by government agents.

To examine how far we have come since 2007,the Muslim Law Students' Association (MLSA) of the University of Ottawa held a discussion panel on the issue of security certificates. The Oct. 19 event delved into the constitutional issues around the process and the impact it has had.  Three lawyers and two individuals who have been personally affected by the security certificate regime sat on the panel.

Barbara Jackman, Yavar Hameed and Leo Russomanno are currently acting as counsel for security certificate detainees. They spoke about their experiences on the cases. They detailed the frustrations they have faced in trying to defend cases when they have not been able to see all the evidence against their clients and/or had to deal with unreliable evidence such as information obtained through torture or untested in the expected way through cross-examination.

Sophie Harkat, the wife of Mohammad Harkat a current security certificate detainee spoke about the personal toll that this process has had on her life and the unnecessary and arbitrary way in which Mr. Harkat's release conditions have been policed. The MLSA was also fortunate to have Mohammad Mahjoub, the longest-serving security certificate detainee, speak at this event. Mr. Mahjoub has faced some of the strictest house arrest conditions, having been held for over 12 years without charge or without trial.

Mr. Mahjoub's speech was particularly moving as he outlined his experiences in detention; the discrimination and assault he faced in and out of prison, and the very difficult toll this ordeal has had on his family. Indeed in March 2009, Mr. 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. He also spoke about his frustration with not being charged and not being given a fair trial so that he could prove his innocence and urged the audience to stand up against this practice.  His message more than resonated with the audience many of whom had been moved to tears and gave him the loudest and longest applause following his account.

One question from the audience to end of the night was whether the security certificate regime should be abolished or if it could be amended. The consensus among the speakers was that firstly, security certificates are unnecessary when we have such a robust and effective criminal justice system, and secondly, this process is incapable of respecting the charter rights of detainees.

A video of the event entitled “Five Years after Charkaoui v. Canada: Constitutionality and the Impact of Security Certificates” is on YouTube. For further information on this or other events, email:
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Amna Qureshi is the chair of the Muslim Law Students' Association at the University of Ottawa