A Muslim Law Student's Perspective on Security Certificates

A security certificate is a tool, under the Immigration and Refugee Protection Act, which allows the Government of Canada to detain and deport people from Canada who are not citizens and who are suspected of violating human rights, having membership within organized crime, or perceived to be a threat to national security. Being named in a security certificate should generally result in the individual being deported from Canada. But, because it has been found unconstitutional for Canada to deport an individual to the risk of torture, where the named person would be facing a risk of torture upon deportation, they instead remain in Canada, with very limited freedom, until a court or government removes the security certificate.

Currently there are three people who are named in a security certificate. All three are detained or released under strict bail conditions. All three of them are Muslim men. Together they have served a total of 30 years in detention or house arrest, and 6 more under cumbersome bail conditions.

Every time a court decision related to a security certificate is made, whether it is determining the reasonability of a particular certificate or the constitutionality of the whole regime, there is a public hearing like any other court case. But, there's also a subsequent secret hearing in which neither the named person nor their lawyer is allowed to be a part of. Six years ago, the Supreme Court of Canada ruled that security certificates violated multiple Charter rights and declared parts of the Immigration and Refugee Protection Act unconstitutional. However, the judgment came into effect a year after the decision, during which time the government changed the regime of its own initiative. I use the word “change” liberally, because the only revision was the addition of special advocates.

The special advocates act on behalf of the named person in the secret hearings, but their role is so significantly limited that it is no surprise the constitutionality of security certificates is before the Supreme Court once again. While I hope the Supreme Court will declare the regime unconstitutional again, I think it is important to be prepared for these types of draconian laws to become normalized in the name of national security.

The process is shrouded with secrecy in order to protect the nation from this immutable, amorphous, and indefinite threat of terrorism. But, what is most problematic is that the secrecy and special advocate system is starting to more commonly permeate into immigration and refugee hearings. It is becoming more of a norm than the anomaly.

There is already an adequate criminal system to preempt terrorism and prosecute those who pose a national security threat. Security certificates unnecessarily violate fundamental freedoms. Simply saying that such measures are justifiable for protecting our nation's safety is not a sufficient defense. As a law student and advocate, I am counting on the Supreme Court to declare this regime unconstitutional and send a clear message to the government.

If you would like to get involved, or learn more about the current security certificate subjects please visit the following links:

http://www.supportmahjoub.org/

http://www.justiceforharkat.com/news.php

http://www.justiceforjaballah.org/

Aruba Mustafa is a law student and member of the Muslim Law Students' Association at the University of Ottawa.