|Submission of the Canadian Council for Refugees On the occasion of the visit to Canada of the UN Working Group on Arbitrary Detention|
8 June 2005
The Canadian Council for Refugees (CCR) is pleased to have this opportunity to present to the UN Working Group on Arbitrary Detention our concerns with respect to the detention of non-citizens under Canada’s immigration legislation.
The CCR has a longstanding concern about the broad powers of detention provided to the authorities under immigration law, despite the recognition of the fundamental right to liberty in both international law and the Canadian Charter of Rights and Freedoms. In June 2002, the Immigration and Refugee Protection Act (IRPA) came into effect, further broadening the grounds for detention.
The post-September 11 context has had an impact on immigration detention in Canada. Linkages made by politicians and media between asylum seekers and potential security threats have affected public opinion and government policies. The special budget adopted by the Canadian government in December 2001 included increases in funding for immigration detention. In December 2003, the enforcement components of Citizenship and Immigration Canada were moved to the newly created Department of Public Safety and Emergency Preparedness, as part of the Canada Border Services Agency, putting responsibility for immigration detention in the context of public security concerns.
We recognize that the government has resisted pressures to make generalized use of detention. Most asylum seekers are not detained, and many of those who are detained are released relatively quickly. However, significant concern remains regarding those who are detained, who include many who appear to be detained in an arbitrary manner and many vulnerable people, notably children, women, survivors of torture, victims of trafficking and people with mental health problems.
Human rights protections
Non-citizens in Canada have their fundamental rights guaranteed under the Canadian Charter of Rights and Freedoms. Section 7 of the Charter states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Canada is a party to a number of relevant international human rights instruments, notably the International Covenant on Civil and Political Rights, the Convention relating to the Status of Refugees and the Convention on the Rights of the Child.
The Immigration and Refugee Protection Act states that it is to be “construed and applied in a manner that […]:
(f) complies with international human rights instruments to which Canada is signatory.” [IRPA 3 (3)]
Detention of asylum seekers
International law calls for asylum seekers to be treated with particular attention, taking into account the fact that they may be fleeing persecution. The 1951 Convention relating to the Status of Refugees directs that States Parties (of which Canada is one):
shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. [art. 31(1)]
According to the UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers, February 1999,
[t]he detention of asylum-seekers is, in the view of UNHCR inherently undesirable. This is even more so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical or psychological needs. [para. 1]
Despite this specific context respecting the rights of asylum seekers, the Immigration and Refugee Protection Act and Regulations do not recognize the special status of asylum seekers and the undesirability of their detention. Experience and statistics show that, in practice, asylum seekers make up a significant proportion of those in immigration detention in Canada.
According to weekly statistics provided to the CCR by Citizenship and Immigration Canada (CIC) and subsequently Canada Border Services Agency (CBSA) from 15 June 2003 to 31 March 2005, there were on average 285 refugee claimants in detention for part or all of each weekly period. In addition, there were on average 66 “failed refugee claimants” in detention. Refugee claimants represented on average 43% of those detained, with “failed refugee claimants” representing a further 10% of detainees.
The statistics also reveal a regional breakdown that deserves attention. Over the period covered, 59% of the detained claimants were in Ontario, 26% in Québec, 13% in BC and 2% in the Prairies. This regional breakdown does not correspond closely to the regional breakdown of claims made: in 2004, 71% of claims were made in Ontario, 22% in Québec, 5% in BC and 2% in the Prairies (the percentages in the rest of the period covered by the detention statistics were similar). Thus it appears that refugee claimants in BC and Québec are detained proportionately at a higher rate than claimants in Ontario. The imbalance is even more striking if we consider the regional breakdown of detained claimants in 2004: 31% were in Québec and 14% in BC, compared with 54% in Ontario.
The statistics also reveal that the rate of detention has been increasing, if we compare the numbers of detainees to the numbers of claims made. In 2004, the number of claimants fell to 80% of the numbers of claims made in 2003. Yet, the average number of detained claimants fell only to 92% of the average number of detained claimants in 2003, meaning that in 2004 claimants were either detained at a higher rate proportionately or detained for longer than in 2003. The figures for the first quarter of 2005 are even more striking: claims went down dramatically compared to 2004 (71% of one quarter of 2004 claims) but the average number of claimants actually went up (333 in first quarter of 2005 compared to 267 in 2004).
Detention based on identity:
IRPA increased significantly measures allowing detention based on detention. Under the previous law, persons could only be detained on identity grounds at a port of entry and only for a limited time, with stricter review provisions. The main rule relating to detention on identity grounds in IRPA reads as follows:
“An officer may, without a warrant, arrest and detain a foreign national, other than a protected person […] (b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.” [IRPA 55(2)]
Detainees are brought before the Immigration Division of the Immigration and Refugee Board. However, in the case of those detained on the basis of identity, the Immigration Division has no power to review whether the immigration officer was reasonable in concluding that the identity of the detainee was not established. IRPA 58(1) states that the Immigration Division shall release the detainee “unless it is satisfied, taking into account prescribed factors, that […] (d) the Minister is of the opinion that the identity of the foreign national has not been but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.”
The legislation thus fails to offer judicial oversight of the decision to detain based on identity. The Immigration Division can only intervene if it finds that the Minister is not making a reasonable effort to establish the detainee’s identity: the question of whether the person’s identity is established as well as the question of whether it will be possible to establish identity is a matter for the opinion of the Minister alone. This lack of meaningful review of the decision to detain promotes arbitrary detention. The construction of the Act also makes it unlikely that persons detained on grounds of identity will be released by the Immigration Division in the short-term since the Division will tend to allow a certain period of time to pass to see whether reasonable efforts are being made. Furthermore, the phrase “reasonably cooperated” is vague and can be interpreted in different ways by different decision-makers, allowing wide discretionary power to the officials.
In practice, detention of asylum seekers on grounds of identity is proving problematic in a number of ways:
Montreal consistently leads the country in number of refugee claimants detained over 30 days on grounds of identity, despite the fact that more than twice as many claims are made in Toronto than in Montreal. This is shown in the series of “Snapshots” provided by the Immigration and Refugee Board on the number of claimants detained for 30 days or more, by region and by ground for detention.
While claimants in Montreal seem to be detained on ID grounds for longer, a specific Toronto problem relates to detainees who are initially detained on grounds of ID and who are asked to pay bonds to be released after the Minister is satisfied as to the person’s identity. Needless to say, this represents a substantial barrier to claimants who do not have money or know people in Canada who could post a bond for them. Similar requirements for bonds do not seem to be imposed in Montreal.
A CCR member agency has reported that some detainees are being asked to provide ever more documents (5, 6 or even 7). For example, a Bangladeshi man produced a birth certificate, but it was dismissed as inconclusive on the grounds that officials claimed that they didn’t have other examples to compare it with. Requests for documents included family photos and a detainee’s mother’s bank card.
It appears that officials lack the necessary cultural and political sensibility to assist in assessing the validity of identity documents. We find that officials are sometimes unaware of how difficult it is in many countries to obtain documents and they often have unrealistic expectations that documents from poor countries will match North American standards of identity documents.
A number of detainees, notably from Bangladesh, DRC and Nigeria have been told that they must apply for a passport if they want to be released from detention. Such requests are clearly contrary to basic principles of refugee protection. The CCR raised this issue at a meeting with government in September 2004 where a CBSA official undertook to investigate the matter.Other problems relating to detention of asylum seekers
Detention of minors
The Immigration and Refugee Protection Act establishes as a principle that minors are only to be detained as a measure of “last resort” (IRPA 60). Despite this positive development in the legislation, minors continue to be detained, including in cases where it doesn’t seem to be a measure of last resort, since there is no indication that alternatives have been seriously considered.
The UN Committee on the Rights of the Child expressed its concern about the detention of minors when it examined Canada in 2003. It recommended that Canada:
(c) Refrain, as a matter of policy, from detaining unaccompanied minors and clarify the legislative intent of such detention as a measure of “last resort”, ensuring the right to speedily challenge the legality of the detention in compliance with article 37 of the Convention. (para. 47(c), Concluding Observations, 27 October 2003)
From 15 June 2003 to 31 March 2005, there were on average 16 minors in detention each week.  Most were minors accompanying an adult (13 on average a week), but some were unaccompanied minors (4 on average a week). Happily the numbers have been falling: in the second half of 2003 there were 20 minors detained each week on average, falling to 15 in 2004 and 11 in the first quarter of 2005. Similarly, the number of unaccompanied minors has fallen: from 5, to 4 to 1 for the same periods.
Minors in detention include Canadian citizens accompanying a detained parent and very young children. The conditions of detention are not appropriate for detention of children, especially when, as sometimes happens, the detention lasts weeks and even months. CCR members have reported that in some cases the basic needs of detained babies, such as baby food and diapers, have not been supplied by the detention centre.
The case above illustrates the confusion over the application of the IRPA provision making detention of children a measure of last resort. CCR members who follow detention cases are not able to discern any consistent or coherent application of the principle. In the case example, the Immigration and Refugee Board interpreted the Act as giving the Board very little room to release a minor from detention if the child is being held on the basis that the child’s identity has not been established. The Board here took the position that if the Minister declares herself not satisfied as to the identity of the child, the only question the Board can ask is whether the Minister’s officials are making “reasonable efforts” to establish the child’s identity. It is not clear how the principle of detention as a measure of last resort weighs in the decision.
An additional concern relates to the detention of minors who are suspected of being the victims of traffickers (see section below on trafficked persons).
Detention of stateless persons
CCR is concerned that IRPA provides no measures to protect the rights of stateless persons. One of the results is that people who are or may be stateless sometimes remain in detention for prolonged periods, while the government seeks unsuccessfully to remove them. Despite a request from CCR (in Resolution 18, Nov. 2003), the government does not keep statistics on stateless persons. CCR urged that statistics be gathered on, inter alia, detention of stateless persons (length of detention, reason for detention, country of habitual residence, place of detention, age, gender).
Detention of trafficked persons
Canada’s immigration legislation promotes the detention of trafficked persons as the only specific response to their specific situation. The Immigration and Refugee Protection Regulations identifies among the factors to be considered in relation to detention: “involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure” (IRPR 245 (f)). In the case of children, the law also promotes detention of victims of trafficking by including in the special considerations for minors: “the risk of continued control by the human smugglers or traffickers who brought the children to Canada” (Immigration and Refugee Protection Regulations, 249 (c)). The Immigration and Refugee Protection Act offers no measures of protection specifically for trafficked persons.
In practice, people discovered in a situation of forced labour in Canada are very likely to be detained if they are without legal status in Canada.
Detention on the basis of security
The CCR has for many years been concerned about the wide powers of the government to detain on the basis of security issues. The category of inadmissibility on the basis of security is so broad that it includes many people who in no way represent a security risk. Furthermore, the law provides for very limited judicial oversight when a non-citizen is alleged to be inadmissible on the grounds of security. This is particularly true in the case of persons subject to a security certificate but applies also to others accused of security inadmissibility.
In IRPA the powers of detention on the basis of security were broadened to include detention on the basis of a mere suspicion that the person is inadmissible on grounds of security (IRPA 55(3)(b)).
The broad powers given to the government in the law are particularly troubling because of the hesitancy of judicial authorities to rule against the government whenever security concerns are advanced.
a) Security certificates
A fuller consideration of the problems inherent in the security certificate process are addressed in an October 2004 joint letter to the Minister of Public Safety and Emergency Preparedness, signed by the co-chair of the CCR Legal Affairs Committee and endorsed by numerous legal experts and practitioners. A copy of the letter is attached.
b) Operation Thread
In August 2003, Canadian newspapers were full of the stories of a group of Muslim men were arrested and detained as suspected terrorists under Operation Thread. Eventually there was a total of 23 detained: 22 Pakistani and 1 Indian. There were allegations that they were associated with Al Qaeda. Incriminating details included a student pilot with a flight course over a nuclear plant, several young men living together in sparsely furnished apartments and setting off the smoke alarm, and one man who knew someone who had an Al Qaeda connection. It soon became clear that the suspicions were unfounded. The RCMP backed away from the accusations first, with immigration officials later acknowledging that there was no substance to the allegations. But by then the damage was done: the detainees had been publicly labelled “terrorist suspects.” According to a journalist from Canada who travelled to Pakistan several months later to investigate the situation of those deported, the terrorist label had followed them home, causing them significant problems. One man had had his in-laws annul his recent marriage. Others reported that they were unable to get work and were known as terrorist suspects, making them reluctant to leave their homes.
The CCR and a number of other organizations wrote to the Minister of Citizenship and Immigration to complain about this, emphasizing the discriminatory aspects and the devastating impact on South Asian, Muslim and Arab communities [see letter attached]. A response, dated 11 February 2004, was received from Judy Sgro, then Minister of Citizenship and Immigration. The letter does not address the substantive concerns raised, but maintains the government’s right under the Immigration and Refugee Protection Act to detain individuals “if there is a suspicion that they may pose a risk to the security of Canada.”
Conditions of detention
The CCR has a number of concerns regarding the conditions of detention. These include:
The CCR is concerned that there is no effective, accessible and transparent complaint mechanism available to protect the rights of non-citizens in detention. Currently, complaints about the behaviour of guards or detention conditions must be given directly to the guards and signed by the detainee. The detainee receives no information on how and when the complaint will be assessed. Often, the complaint is not answered. These procedures have the effect of discouraging some detainees from reporting inappropriate behaviour on the part of guards.
Safe Third Country agreement and direct backs
Since 29 December 2004, refugee claimants applying in Canada at the US border are returned to the US, unless they meet one of a limited number of exceptions in the safe third country agreement. In addition, since 27 January 2003, refugee claimants at the US border have been subject to “direct backs” (i.e. temporary return to the US with a subsequent date to return when more convenient for Canadian officials). These “direct backs” continue after the implementation of the safe third country agreement and may affect individuals who are exempt from safe third country.
Both claimants directed back and those denied eligibility under safe third country are at risk of detention in the US, where detention is practised in a manner that is inconsistent with international law.
The CCR collaborated in the preparation of a petition to the Inter-American Commission on Human Rights on the issue of direct backs. The petition addresses the concerns regarding the violation of the rights of those detained on return. The same concerns apply to those detained after being found ineligible based on the safe third country provisions.
A. Recent CCR resolutions relating to detention
RES. 20, DEC. 2001, MINORS IN DETENTION
WHEREAS: 1. The CCR called in Resolution 20, November 1993 for an end to the detention of refugee children;
2. Minor refugee claimants continue to be detained in Canada;
3. In the case of trafficked minors the government justifies such detention on the grounds that detention protects minors from their traffickers and is in the best interests of children;
4. The CCR recognizes that in certain cases there is a need for the protection of minors but unequivocally opposes the detention of minors as detention is never in the best interests of children;
THEREFORE BE IT RESOLVED THAT the CCR call on CIC, in the case of refugee children in need of such protection, as an alternative to detention, to implement other protection models such as “safe houses.”
RES. 30, DECEMBER 2001, DETENTION
WHEREAS: 1. A number of resolutions, especially Res. 35, June 1994, have raised problems of accountability of immigration officials who abuse the rights of non-citizens in detention;
2. These problems persist;
THEREFORE BE IT RESOLVED THAT the CCR renew its request for the urgent establishment of an independent ombudsperson’s office, for complaints about Immigration practices, especially on detention issues.
RES. 10, MAY 2002, DETENTION ON THE BASIS OF IDENTITY
WHEREAS persons of certain countries of origin such as Pakistan and some African states appear to be detained on the basis of identity for extended periods;
THEREFORE BE IT RESOLVED that the CCR call on CIC to:
RES. 15, NOV. 2003, ACCESS TO COUNSEL FOR IMMIGRATION DETAINEES
WHEREAS: The increasing use of detention by CIC in provincial jails has resulted in the transfer of immigration detainees to remote areas, where they are effectively denied the right to counsel and cannot even contact counsel due to the requirement to communicate via collect calls from these jails;
THEREFORE BE IT RESOLVED that CCR call upon the federal and provincial governments to establish procedures to ensure effective access to counsel for all immigration detainees, including free telephone access and face to face communication with counsel.
RES. 16, NOV. 2003 DETENTION ON GROUNDS OF ID
WHEREAS: 1. Many refugee claimants lack identity documents upon arrival;
2. International standards stipulate that people must not be penalized for lack of ID;
3. International guidelines on detention stipulate that undocumented refugee claimants should not normally be detained;
THEREFORE BE IT RESOLVED that the CCR call on the government of Canada (CIC and IRB) to adhere to international standards with respect to detention of refugee claimants, and to ensure that refugee claimants not be detained for more time than is required to conduct initial enquiries as to the person’s identity. Ascertaining a person’s identity should not be dependent on an ability to produce an identity document.
RES. 17. NOV. 2003, BONDS REQUIRED FOR REFUGEE CLAIMANTS IN TORONTO AND ELSEWHERE
WHEREAS: 1. The majority of refugee claimants in detention in Toronto and elsewhere are required to pay a bond to be released;
2. Most refugee claimants do not have friends or relatives to pay the bond;
3. The bail program in Toronto is very slow and does not accept all claimants;
THEREFORE BE IT RESOLVED that the CCR ask CIC and the IRB to release refugee claimants who satisfy their identity requirements, without a bond.
RES. 18, NOV. 2003, STATELESSNESS STATISTICS
WHEREAS: 1. IRPA is silent on the issue of statelessness which increases the vulnerability of stateless people;
2. Current data collection systems of the government are inconsistent and ad hoc on statistics relating to statelessness;
THEREFORE BE IT RESOLVED that the CCR request that CIC and the IRB review their data management and reporting systems to ensure the accurate and timely collection and reporting of statistics relating to statelessness, in particular:
B. Letter re. Operation Thread
6 November 2003
Hon. Denis Coderre, PC, MP
RE: “OPERATION THREAD”
Dear Mr Coderre,
We are writing to express our grave concern over your department’s handling of the cases of 23 Pakistani and Indian men arrested under “Operation Thread.” This matter has resulted in serious violations of the rights of the individuals directly affected, has had a broad and devastating impact among South Asian, Muslim and Arab communities in Canada, heightening their sense of vulnerability to discrimination, and has unnecessarily increased Canadians’ anxiety by raising the spectre of security threats without any solid evidence.
The individuals arrested have been formally and publicly identified by Citizenship and Immigration Canada (CIC) as suspected terrorists. This violates a basic rule of justice, namely that it is unfair to arrest a person based only on a suspicion. The high profile nature of anything to do with terrorism means that the allegations against the individuals have been broadly publicized. Even after Citizenship and Immigration Canada dropped the terrorism-related allegations, since no public disclaimer was made, media stories continued to carry headlines referring to “suspected terrorists”. This illustrates clearly how the terrorist label, once applied, remains attached to the person. The reputations of those arrested on the basis of suspected terrorism have been ruined, with devastating consequences.
For members of the South Asian, Muslim and Arab communities, the handling of the cases sends a clear message that the Canadian government practices racial profiling. It highlights how easy it is to be publicly labelled a “terrorist suspect” if you happen to have certain origins. For these communities in particular, “Operation Thread” has strengthened feelings of insecurity and victimization. They have to live with the consequences of the media coverage that reinforces popular stereotypes of South Asians, Muslims and Arabs as potential terrorists.
Canadians generally have suffered as a result of your department’s handling of “Operation Thread” through the publicity given to suspicions of security threats based on the flimsiest of evidence. In the current context when people’s fears have already been heightened, we could reasonably expect that the government would be particularly cautious about unnecessary fuelling of fears. Yet Citizenship and Immigration Canada’s actions have done just this, as well as reinforcing myths in Canada and abroad that hold that Canada’s immigration process makes Canada – and the US – vulnerable to terrorism.
We note that Canada has a long and shameful history of racist immigration policies and practices, including long periods where immigrants were explicitly denied entry because they were of “Asiatic race”. This past has not been left behind us: racial discrimination continues to be widespread in Canada. Citizenship and Immigration Canada’s “Operation Thread” represents a particularly shocking example of this continuing racism.
We hold the Canadian government responsible for respecting individual rights, for combatting racial and religious discrimination, and for promoting the population’s security through intelligent action. In Operation Thread, the government did not live up to these responsibilities.
We urge you to take decisive measures to correct some of the damage done in these cases and to address the systemic problems that underlie the mistakes. We call on you to:
We look forward to your response to these concerns and recommendations
This letter is endorsed by the following organizations:
All Nations Immigration and Refugee Aid Organization
C. Letter re. Security certificates
October 14, 2004
Hon. Anne McLellan, M.P., P.C.,
Dear Minister McLellan,
We are writing this letter to express our grave and urgent concern about both the arbitrary detention and the removal to torture of non-citizens in Canada pursuant to the Security Certificate procedure. 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.
As you know, 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. In this regard, section 3 (3) of the Immigration and Refugee Protection Act explicitly confirms that the Act is “to be construed and applied in a manner that … complies with international human rights instruments to which Canada is signatory.”
A number of further rights flow from core human rights principles. These include the right to be free from arbitrary detention, the right to a fair trial, and the principle of natural justice that an accused must be informed of the charges against her and must be given an opportunity to respond to the charges. It is only when these rights are respected and protected for all that we can expect to have a truly egalitarian and democratic society. The Security Certificate process violates these fundamental principles in several crucial ways:
The Security Certificate process allows the arrest and detention of non-citizens on the basis of secret evidence.
Under the amended provisions of the Immigration and Refugee Protection Act, the Solicitor General and the Minister of Citizenship and Immigration may sign a Security Certificate alleging a non-citizen to be inadmissible to Canada on grounds of security or serious criminality. Upon being named in such a Certificate, unless the individual is a permanent resident, the subject is automatically detained, without a warrant. If the subject is a permanent resident a warrant is required, but there must only be reasonable grounds to believe the subject is a danger to national security or the safety of any person, or is unlikely to appear for removal.
While both the Security Certificate and the grounds for continued detention must be reviewed by the Federal Court, the Court may hear the government’s evidence in secret, i.e. in the absence of both the subject of the Certificate and his or her counsel. Indeed, the government is not even required to inform the detainee of the precise nature of the allegations at issue. Normal rules of evidence are dispensed with, including the right to cross-examine witnesses and to challenge evidence obtained through normally unacceptable means such as hearsay, plea-bargains or even torture.
Minister McLellan, without knowing and being able to challenge the specific allegations and the evidence against a person, it is in practice nearly impossible to mount an accurate and credible defense. By waiving procedural safeguards that are essential to the fair administration of justice, the Security Certificate process puts all the power in the hands of the government of the day and effectively strips individuals of their right to defend themselves and to challenge the grounds of their detention. While we appreciate the state’s legitimate interest in protecting the nature and sources of its intelligence information, under the former Immigration Act, the Security Intelligence Review Committee had developed procedures for addressing such evidence that struck a much better balance between the state’s interests in protecting sensitive evidence on the one hand and the individual’s right to a fair hearing on the other.
In its 2000 Report on the Canadian Refugee Determination System, the Inter American Commission on Human Rights noted specific concerns with the inequality of arms inherent in the Security Certificate process before the Federal Court and urged Canada to enact additional safeguards to ensure that “the person named in the certificate has the ability to know the case he or she must meet, and to enjoy the minimum procedural guarantees necessary to ensure the reliability of the evidence taken into account.”
The Security Certificate process holds the State to a lower standard of proof for the detention of non-citizens than for citizens.
The standard of proof for detention of persons pursuant to a criminal conviction in Canada is always the highest criminal standard of proof beyond a reasonable doubt. This high standard has been deemed to be appropriate by our Courts because of the fundamental importance of the interest at stake in detention – i.e. liberty.
Unlike the criminal law regime, when it comes to detaining non-citizens alleged to represent threats to Canadian security, the reviewing Court is restricted to assessing the “reasonableness” of the government’s allegations. That means that even where a Court comes to the conclusion, based on one-sided, secret evidence, that the government’s allegations are incorrect, as long as the government’s allegations aren’t so obviously incorrect that they are unreasonable, the Court is required to uphold them. Once a Security Certificate has been found to be reasonable the matter is closed: there is no appeal from such a finding. This differential treatment is inherently discriminatory and fails to safeguard the rights of the accused.
The Security Certificate process allows for the removal to persecution and torture of non-citizens.
Canada has been invoking the Security Certificate process in cases where the subjects face a serious risk of torture if they are deported. Torture and sending a person to where s/he will be tortured (refoulement) are prohibited by international law. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights, to both of which Canada is a party, as well as customary international law, include an absolute prohibition on torture and refoulement to torture. International law recognizes no circumstances that would justify torture or refoulement to torture.
In a number of the cases currently going through the Security Certificate process, Canadian officials have acknowledged that it is more likely than not that the subjects will be tortured by their governments if they are sent back. Nevertheless, Canada continues to seek their removal to torture, in contravention of international law.
Minister McLellan, there are other options. For example, upon apprehending a non-citizen believed to have committed terrorist acts, 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.
Refoulement to torture simply is not a legitimate response to a perceived or alleged security threat at international law. With respect to Canadian law, while the Supreme Court of Canada, in Suresh v. Canada (MCI), did not completely foreclose the theoretical possibility of exceptional conditions that might justify refoulement, the Court emphasized that the Minister should generally not deport in circumstances where there is substantial evidence of a risk of torture.
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.
Minister McLellan, we recognize that there may be occasions where special measures need to be taken to protect the public from grave threats to their security. However, such measures must be very carefully tailored to directly address serious threats, and must do so in a way that respects the essential human dignity of all persons, complies with universal norms of human rights, and upholds the rule of law. The Security Certificate process, at least in its current form, fails to meet these basic requirements. We therefore urge you to immediately stay the removal of any person to a country where they face a serious possibility of persecution or torture, and to overhaul the Security Certificate process to bring it into conformity with international human rights standards.
Sharryn J. Aiken, Assistant Professor of Law, Queen’s University and
c.c. Hon. Judy Sgro, P.C., M.P., Minister of Citizenship and Immigration
1. The only reference to the situation of asylum seekers in detention matters is a provision directing decision-makers to consider whether refugee claimants can obtain identity documents without divulging personal information to their country of nationality [IRPR 247(1)(b)].
3. According to the weekly detention statistics from mid-2003 to March 2005, referred to above, 58% of detainees in Ontario were in non-immigration facilities, compared to only 19% in Québec. The CCR has raised questions about this discrepancy in meetings with the government, without receiving any satisfactory explanation.
6. An analysis by the Immigration and Refugee Board of detained minors in 2004-2005 shows, for example, that a seven-year-old child spent two months in detention, accompanying her mother, who was detained on the ground that she was unlikely to appear.
7. IRPA s. 34 states “(1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).” The rules of interpretation state that the person is inadmissible if there are “reasonable grounds to believe” that the relevant facts “have occurred, are occurring or may occur.” [IRPA 33]
9. The petition is available at http://www.ccrweb.ca/IACHRpet.PDF