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Justice Long Overdue

Security Certificate Detainees

Tom Sandborn

On October 20, six demonstrators were arrested at a sit-in at   the Toronto offices of the Canadian Security and Intelligence Service.  The group of Toronto area residents was charged with failure to leave the premises when directed and engaging in a prohibited activity on private property. They were at CSIS to protest the imprisonment of five Muslim men being held under a little known legal artifact known as the Security Certificate, a curious legal loophole that allows refugees and landed immigrants suspected of security offenses to be held indefinitely without ever seeing the evidence against them.

In early December, the Federal Court of Appeal upheld the constitutionality of the Security Certificate legislation, ruling against an appeal brought on behalf of security certificate prisoner Adil Charkaoui, who, like several of the other prisoners now being held under this draconian legislation, faces the prospect of government sponsored torture if he is sent back to his home country.  (Currently, the Security Certificate law is being used to hold the five Muslim prisoners who were the focus of the late October demonstration, Hassan Almrei, Mohammed Harkat, Mohammad Mahjoub, Mahmoud Jaballah and Adil Charkaoui, as well as notorious racist nutbar Ernst Zundel. It is expected that the Charkaoui case will be appealed to the Supreme Court. )  Also early in December, the refugee and immigrant rights group No One is Illegal held a Security Certificate protest in Vancouver outside Federal offices in downtown Vancouver, and the BC Civil Liberties Association weighed in on the issue, echoing concerns about due process and secret trials earlier voiced by Amnesty International and the Canadian Labour Congress, among many other civil society groups that have denounced the civil liberties and human rights abuses made possible by the contentious legislation.

Last year, a lot of public interest was stirred up in Canada about the case of Maher Arar, the Syrian-Canadian who got shipped off to the mid East to be tortured by Syrian secret police. Arar’s exile into pain was directly the work of American security forces, but abetted, it is suspected, by illicit information sharing by Canadian spy agencies. Civil libertarians, human rights activists and members of Muslim communities in Canada signed petitions, organized rallies and published an open letter to Paul Martin in the Globe that called on the feds to mount a public investigation. Well, the pressure worked in its usual flawed and partial manner, with the government’s Arar inquiry now being conducted often behind closed doors and with only partial public disclosure of what’s being learned. This has been frustrating for everyone concerned, most painfully for Arar, who has been returned to Canada at long last, but it does represent a small gain for the public conscience. So far, there has been no such widespread wave of public interest in the cases of the six Security Certificate detainees, prisoners who have now collectively served well over fourteen years in jail without a chance for the charges against them to be tested in open court.  

But while concerted political pressure has made Maher Arar, if not a household name at least a known figure to folks across the country who care about civil liberties and civil decency, the Security Certificate detainees have stayed well below the radar of general public concern.  However, recently both Amnesty International and the Canadian Labour Congress have expressed concern about the human rights abuses inherent in the Security Certificate process, and a web page (http://www.homesnotbombs.ca/secrettrials.htm) has been established to try to encourage public response.

A little known wrinkle in Canadian law, the Security Certificate procedure has allowed the creation of our own home-made gulag, and six men are being held under its provisions without the right to hear the evidence against them or to confront their accusers. This draconian legal machinery, which allows CSIS or the RCMP to persuade a pair of federal ministers that a landed immigrant or refugee represents a security risk and authorize detaining the suspect indefinitely, or deport them to jurisdictions where they may well be tortured or executed, all without a chance for the accusations to be tested in open court, isn’t an artifact of the great post 9/11 security panic. On the books since the beginning of the 90s, the Security Certificate legislation has been used over 20 times in the ensuing decade and a half, with a new level of enthusiasm since 2001 seeing six prisoner detained currently.

You don’t have to be a fan of Zundel’s repugnant racism, or charmed by Islamic piety, which seems to be the one known variable shared by the other five Security Certificate detainees, to object to the secret trials and abuses of basic human rights made possible by the Security Certificate legislation. All that’s necessary is a basic commitment to due process and civil liberties, and a modest citizenly reluctance to let the agents of the state have a free hand to lock up anyone they suspect without respecting the kind of protective formalities we have been building up ever since Magna Charta.  Without prejudging for a minute the guilt or innocence of the detainees, certainly one can say by now that it is past time for the government to table whatever evidence it has so the prisoners and their lawyers can make a full defense. Once that long overdue justice is done, it will be time to remove the Security Certificate from the procedures available to Canadian security cops. The real and present danger here is not some fever dream of terrorist menace; it is, as so often, the prospect of allowing our communal fears to tempt us into betraying what is best in our imperfect but precious democratic tradition. It is time for the government to put up or shut up on these cases, and for the Security Certificate procedure to become a relic of the regrettable past. These prisoners deserve an open trial or release, and Canadian democracy deserves to have the grotesque distortion of the Security Certificate procedure removed from the books.