Inadmissibility Certificates by David Matas

Of all the elements in the Canadian fight against terrorism the most controversial, bar none, has been the use of certificates under the Immigration and Refugee Protection Act. The certificate procedure is directed only against non-citizens in order to remove them from Canada. The procedure has resulted in the prolonged detention of a number people on secret evidence.

A certificate is issued by two Ministers jointly, the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness. A certificate is issued where the Ministers have formed the opinion that an individual is inadmissible on grounds of security, violating human or international rights serious criminality or organized criminality. The legislation requires the Ministers to refer any such certificate to the Federal Court for a ruling on whether the determination by the Ministers on admissibility is reasonable.

I. The cases In recent years, there have been six certificates which have attracted widespread attention. One was against Ernst Zundel, detained under a certificate in May 2003 and deported to Germany in March 2005.

Two certificates were issued prior to September 11, 2001. One of these was against Mohammad Mahjoub of Egypt, subject to a certificate in June 2000. The other was against Mahmoud Jaballah of Egypt issued in August 2001. The Federal Court ordered the release of Jaballah in April 2007 and Mahjoub in November 2009 subject to terms and conditions.

Of the three issued since September 11, one, Adil Charkaoui of Morocco, was in detention from May 2003 to February 2005. Hassan Almrei of Syria was detained October 2001 and ordered released, subject to conditions, in January 2009. Mohammed Harkat of Algeria was detained in December 2002 and ordered release subject to conditions in May 2006. 2

The case of Ernst Zundel is different from the others, not just because of his religion. The five from Egypt, Syria, Morocco and Algeria all faced the risk of torture on their return. Their going back home to escape detention in Canada was a dangerous option.

Ernst Zundel did not face the risk of persecution on return to Germany. He could have ended his Canadian detention at any time at no risk of persecution to himself simply by agreeing to return to Germany. The detention of Ernst Zundel was, like much of his other legal troubles in Canada, self inflicted in order to bring publicity to his neo-Nazi cause. His detention can be linked to his own design rather than circumstance. The other five, though, are the victims of both design and circumstance, what they did and what others, on return, would do to them, the combination of the certificate procedure, its accompanying detention regime, and the risk of torture or death on return.

II. The 2002 changes Defenders of the certificate procedure have said that it is an old procedure, not part of the anti-terrorism package which was enacted as a result of September 11. The only person whose detention began under the post September 11 changes was Harkat. Nonetheless, the use of certificate procedure, once it is justified by September 11, requires a closer look as part of the review of the post September 11 measures.

Moreover, even though there was an old procedure associated with certificates under the old Act, that old procedure is significantly different from the procedure enacted as part of the Immigration and Refugee Protection Act, which came into effect June 28, 2002.

Immediately after September 11, what became the 2002 legislation was still before Parliament in the form of Bill C-11. Then Minister of Citizenship and Immigration Elinor Caplan urged the enactment of Bill C-11 because of September 11, as a means of responding 3 to the post September 11 enhanced terrorist threat.

III. Four laws Though the certificate is criticised as one law, or legal procedure, it is, in fact, three sets of laws, each with its own procedure. One is the law on secrecy. The second is the law on detention. The third is the law on return to torture.

In addition, there is a fourth law in the wings, the criminal law. A certificate procedure is an alternative to prosecution. But whether it is a viable alternative deserves consideration.

A. Secrecy (i) Two procedures Ministerial certificates are commonly called security certificates. However, the certificate law is not only about security. It is about both more and less. It is about more, in the sense that it encompasses violation of human or international rights, serious criminality, and organized criminality, as well as security 1 . Certificates can be issued on any of these grounds.

It is about less in the sense that what the certificate procedures are truly about is secrecy. When certificates are informally called security certificates, they are misnamed. They are rather secrecy certificates.

The Government of Canada does not need a certificate to remove a person from Canada who is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. In fact, many persons the Government considers to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality are removed without certificates.

1 Act section 77(1). 4

The standard procedure for removal, for all grounds of inadmissibility, is, first, the issuance a report from an immigration officer that the individual is, in the opinion of the officer, inadmissible. Next comes a determination by the Minister of Citizenship and Immigration or his delegate whether or not the report is well founded. If the Minister or his delegate forms the opinion that the report is well founded, the report is referred to the Immigration Division of the Immigration and Refugee Board. The Immigration Division of the Immigration and Refugee Board makes a determination on admissibility and, if the Division finds the person inadmissible, issues a removal order2.

Any person whom the Government considers to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality can be removed through this procedure. Proceedings before the Immigration Division of the Immigration and Refugee Board are, as a general rule, to be conducted in public3. Those proceedings can be conducted in private if the Division is satisfied that there is risk to the person, to fairness or to security4.

These proceedings can even be conducted in the absence of the individual5. One reason is the non-appearance of the person. If the individual does not show up, the proceeding can be concluded without the person6.

Another, and for the purposes of this text more relevant reason, is that disclosure would be

2 Act sections 44(1) and (2), 45(d).

3 Act section 166(a).

4 Act section 166(b).

5 Act section 164.

6 Act section 168. 5 injurious either to national security or to the safety of any person7. The legislation provides that anything done by the Federal Court under the certificate procedure can also be done by the Immigration Division of the Immigration and Refugee Board following the normal inadmissibility procedure. Instead of two Ministers signing a certificate, the Minister's representative makes an application for non-disclosure to the Immigration Division of the Immigration and Refugee Board8.

One difference between the Board procedure and the Federal Court certificate procedure is that the Board procedure may or may not involve non-disclosure to the other side. The Federal Court certificate procedure is predicated on non-disclosure to the other side. Unless the Ministers determine there is to be non-disclosure, there is no point in engaging the certificate procedure.

If the Government, from the beginning, takes the view that non-disclosure to the other side is appropriate, the Act mandates the certificate procedure. The Board power to order non-disclosure arises, according to the wording of the legislation, "during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division,", that is to say after the hearing has commenced. The power appears designed as a safety valve, where the Minister of Citizenship and Immigration at the commencement of admissibility proceedings is not aware of any matter which requires non-disclosure, but where, during a Board hearing, an unanticipated need for non-disclosure arises. The Minister in such a situation has an option, either continuing with the hearing and seeking an order of non-disclosure or withdrawing the allegation and recommencing under the certificate procedure.

7 Act section 77(2).

8 Rule 41. 6

The true significance of the certificate procedure is evident from the title heading for the Division of the Act which sets out the procedure. That heading is "Protection of Information" and not "Security" or "Inadmissibility". The certificate procedure would be better named the protection of information procedure, or the confidential procedure or the ex parte procedure, or, as I suggested earlier, the secret procedure.

Though in form what the two ministers - the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness - are doing when they sign a certificate is stating that the individual is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, in substance, what they are doing is determining that a person who is to be the subject of removal proceedings should not have disclosed to him or her some of the information relevant to removal. Unless there were this determination that there needs to be secrecy, the whole procedure would be unnecessary and the Government could seek a removal order in the normal way, as it does for all others the Government considers inadmissible.

This difference between form and substance speaks to one change that needs to be made to the current procedure. It is always a bad idea when form and substance diverge. It leads to confusion and misinformation. The uninitiated might think that the certificate procedure is in substance about security, violating human or international rights, serious criminality or organized criminality, with non-disclosure an unfortunate by-product. In reality, the certificate procedure is all about non-disclosure. It has no other justification for its existence.

The legislation about certificates is badly drafted because it is only the heading of the section "protection of information" which indicates its purpose. The Interpretation Act tells us that we can not use marginal notes to interpret an Act9. The relevant provision in the statute

9 Section 14. 7

gives no clue when the power to issue certificates is to be exercised.

The legislation, in English, says that the relevant Ministers "shall sign a certificate"10. But the legislation does not say when a certificate shall be signed, what the preconditions for signing might be, what factors are relevant to signing, what triggers the obligation to sign. The word "shall" denotes a duty rather than a discretion. In theory, it is a duty that is enforceable in court in mandamus proceedings. Once the word "shall" is used, the court can order those upon whom the duty is imposed to do what they are required to do, provided a person who seeks the order has standing. In this case, in theory, the Federal Court, because the word "shall" is used, could order the Ministers to issue a certificate if they refused to do so on the request of a victim or potential victim of a person inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

But what circumstances would require the Ministers to follow the certificate procedure rather than the standard immigration removal procedure? The drafters of the legislation could not have intended, despite the plain wording of the English version of this part of the legislation, to impose an obligation on the Ministers to follow the certificate procedure in every possible situation where security, violating human or international rights, serious criminality or organized criminality was at issue. Otherwise the possibility of removing a person on the ground that the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality through the normal removal procedures would not have been included in the law.

The French version is a bit better, saying, more sensibly, in a translation I have done myself, that a certificate, once signed, shall be referred to Federal Court. Though the French version is not a piece of nonsense, as the English version is, the French version too gives no

10 Section 77(1). 8 clue as to what triggers the choice of this removal procedure rather than the more normal removal procedure. The only clue we are left with is the Division heading "Protection of information", in French "Examen de renseignements à protéger".

This opacity in the legislation speaks to one reform that needs to be made, a reform of honesty in legislation. The legislation needs some explanation or justification for exercise of the power to commence the extraordinary secret procedure. The legislation needs to say something to the effect that "If the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness are of the view that it is necessary, in order to seek the removal of a person from Canada on grounds of security, human or international rights, serious criminality, or organized criminality, to provide to the tribunal information that, for security or safety reasons, can not be disclosed to the person, they may sign a certificate stating that the person is inadmissible on one or more of those grounds".

This proposed amendment would be more than just honesty. It would, one would hope, direct the Ministers to the real question they have to decide, whether it is really necessary to resort to a secret procedure to remove a person from Canada. If removal is possible through a procedure which allows for full disclosure to the individual, that is the procedure which should be preferred.

By obfuscating the choice between secrecy and disclosure, by making the choice seem to be between security or safety on the one hand and endangerment of Canada or Canadians on the other hand, the legislation makes recourse to secrecy all too easy. Secrecy and safety are not necessarily the same. Yet, the way the legislation is now drafted, the difference between the two is blurred. The legislation needs redrafting so that it is apparent that the two are distinct. 9

There is a difference in the standard of review of Government determinations under the two procedures. Under the ordinary immigration procedure, the tribunal, the Immigration Division of the Immigration and Refugee Board, makes the substantive determination. Under the "protection of information procedure", the two Ministers decide and the tribunal, the Federal Court, just determines the reasonableness of the government decision.

However, this difference is more apparent than real. The decision of the Immigration Division of the Immigration and Refugee Board is to be based on "facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur"11. It is hard to see the substantive difference between that and a Federal Court determination that a certificate is reasonable12.

The Immigration and Refugee Protection Act recognizes that non-disclosure to the party concerned requires compensatory procedural safeguards. That is presumably the reason why, once the Government decides to go down the non-disclosure road, the matter goes immediately to Federal Court. The quality of a hearing and procedural safeguards, as well as the competence of those deciding, is higher at the Federal Court than at the Immigration Division of the Immigration and Refugee Board.

However, that difference is not enough. Those held in indefinite detention based on undisclosed evidence are not prepared to accept their fate merely because it is dished out by the Federal Court rather than by the Immigration Division of the Immigration and Refugee Board. More is needed.

11 Section 33.

12 Section 78. 10

(ii) Review by the Security Intelligence Review Committee There are additional procedural safeguards that the law has had or has now to compensate for the fact that there is non-disclosure. An historical safeguard was the review of a certificate by the Security Intelligence Review Committee.

Under the old Immigration Act, the Security Intelligence and Review Committee (SIRC), established under the Canadian Intelligence Service Act, participated in security review of individual cases. After the Ministers issued a certificate, and before the matter went to Federal Court, the issue of the reasonableness of the certificate, in the case of permanent residents, went to the Review Committee. The Review Committee formed its own independent conclusions whether or not a certificate should be issued13.

The Review Committee is an expert, independent tribunal. Its members are familiar with security issues. They were not always willing to defer to judgments of government officials on security matters.

Though Minister Elinor Caplan was quick to seize on the September 11 tragedy to urge Parliament to pass Bill C-11 as a response, Bill C-11 was designed long before September 11, with entirely different circumstances in mind. Though alleged terrorists were caught up in the certificate procedure before September 11, these certificates before September 11 were more typically used against organized crime.

Joseph Chiarelli, for instance, was the subject of a certificate, as a person likely to engage in organized crime14. He was subject to removal to Italy where torture on return was not an issue.

13 Section 39(9).

14 See M.E.I. v. Chiarelli [1992] 1 S.C.R. 711 11

For organized crime, the Government was concerned with delays in removal. Consideration by the Security and Intelligence Review Committee may have seemed like a time consuming and unnecessary step. Parliament did not consider what the certificate procedure should be as a result of September 11 because Bill C-11 was by then too far down the pipeline for that consideration to be viable. The development of a certificate procedure in light of September 11 remained to be done. In hindsight, one can say, from a post September 11 perspective, that the old law, with its system of review by the Security and Intelligence Review Committee, was better than the law that replaced it.

(iii) Disclosure The Supreme Court of Canada in February 2007 in the case of Charkaoui15 declared the system legislated in 2002 to be unconstitutional. The result was amended legislation in 2008 to a allow for appointments of special advocates bound by confidentiality to whom full disclosure is given.

In other proceedings where one party seeks confidentiality, the Federal Court, by rule, has a power to disclose the confidential material to the counsel for the other party where that counsel gives an undertaking not to disclose the confidential material to his/her client, not to copy the material or permit it to be copied, and to destroy the material when it is no longer needed for the proceeding16. This procedure is commonly followed when a party seeks in Court to challenge a denial by a Government department of access to information under the Access to Information Act17.

15 Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9

16 Rule 151(2).

17 See for instance Do-Ky v. Minister of Foreign Affairs, A-200-97, T-2366-95, May 6, 1999. 12

One of the grounds for refusal to disclose a record requested under the Access to Information Act is that the record "contains information obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to... activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act"18

It seems strange that, if a person seeks to obtain security information through Access to Information, that information can be disclosed to his/her counsel in court before a Court decision on access is made, and for the purpose of arguing access. But if the person seeks to obtain that same information through the certificate immigration removal proceedings, his/her counsel can not have access to that information before a Court decision on access.

The Immigration and Refugee Protection Act certificate procedure specifically forbids disclosure to counsel in advance of a Court ruling on disclosure 19 . This specific Act prohibition presumably takes precedence over the more general Federal Court rules.

But one has to wonder why this so. The Federal Court rule on disclosure to counsel for the opposing side, subject to a confidentiality agreement, has a long history, a rich jurisprudence, and nothing indicating its failure. As far as one can tell, undertakings by counsel not to disclose, not to copy, and to destroy materials after proceedings are completed have been respected. A counsel who ignores the undertaking, after all, risks disbarment.

18 Section 16(1)(a)(iii).

19 Section 83(1)(e). 13

Some counsel for the individual may prefer to know only what the client knows. Asking counsel to argue a case without disclosure to the client makes seeking instructions difficult, if not impossible. Counsel would be required to act based on a determination of what the instructions of the client were likely to be if the client knew of the undisclosed information, rather than what the instructions of the client, in fact, are.

This awkward position for counsel is preferable to the total darkness in which both counsel and client now find themselves under the certificate procedure. Nonetheless, there may be some counsel who prefer to limit their knowledge to what their clients know so that the client can give instructions. Or their clients may prefer that their counsel be limited in this way. In that situation, the Court appointment of a special advocate is a fallback. The Act needs amendment either to allow the Federal Court rules on disclosure to counsel to operate or, in the alternative, to provide for a special advocate rather than for the provision of a special advocate in every case.

Mohammed Harkat challenged the constitutionality of the special advocate regime in a case decided in December 201020. Mr. Justice Simon Noël found the law constitutional and certified a question in January 2011 for the Federal Court of Appeal 21 . Harkat took advantage of the certification and commenced an appeal22. As of the date of writing the appeal has yet to be determined.

(iv) Interrogatories A person subject to a certificate procedure is to be given a summary of the undisclosed

20 2010 FC 1242

21 2011 FC 75

22 A-76-11 14

information23. That summary is better than nothing. But more is possible.

Persons subject to certificate procedures should be allowed to submit specific questions to the Minister on the summary of information provided to him or her. If the Minister objects to the answering of the question, the Court could rule on the objection. This procedure was followed in at least one case24, but should be formalized.

(v) An appeal The immigration and citizenship systems are rife with appeal denials. The absence or denials of appeals are often problematic.

Parliament denies appeals in an attempt to generate quick and final results. But this attempt almost never works. The experience has been that systems without appeals take longer to generate final results than systems with appeals because of the variety of other recourses to which counsel resort and which the courts accept in order to compensate for the absence of appeals.

As well, Parliament denies appeals on the assumption that it is only private individuals who benefit, that appeals are not in the public interest. However, the reality is that at first instance the Government sometimes loses cases it should have won and would likely have won if there were an appeal. In these cases, the public interest is frustrated by an absence of an appeal.

Appeal denial is all too common, and all too often misplaced. Added to this sorry litany, in 2002, was the denial of an appeal to those the Federal Court has determined to be

23 Section 77(2).

24 In re Harkat, 2003 FC 918 paragraph 17 Madam Justice Dawson. 15 inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality25.

For those inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, as well, it was anomalous. If a permanent resident goes through the normal, public procedure, through the Immigration Division of the Immigration and Refugee Board, and loses, the person has no appeal to the Immigration Appeal Division of the Immigration and Refugee Board26. However, the person can seek leave and judicial review of the inadmissibility decision in Federal Court, and, if leave is granted but judicial review is denied, then seek certification by the Federal Court of a serious question of general importance. If the Federal Court certifies a question, the person can appeal to the Federal Court of Appeal.

There was no particular reason why access to the Federal Court of Appeal should be possible once the Government determined that all documents can be disclosed, but not possible once the Government determined that some documents, for security reasons, should not be disclosed. The possibility of appeal through the procedure that allows for disclosure and the impossibility of appeal through the confidential procedure seemed to be just the irrational workings out of a poorly engineered piece of legislation.

In general, procedures should be more elaborate once there is non-disclosure than when there is full disclosure. In a simple sort of way, the drafters of the legislation have accepted that principle. But they have not carried the principle through consistently, allowing for access to the Federal Court of Appeal when there is full disclosure but denying it when there is confidentiality. Here, too, there should have been a possibility of access to the Federal

25 Then section 80(3).

26 Section 64(1). 16

Court of Appeal if the Federal Court certifies that a serious question of general importance is involved. This was the old law, before June 28, 2002. That old law was reinstated in 2008 with the amendments made consequent to the Charkaoui decision in the Supreme Court of Canada.

B. Detention i) Detention review The certificate procedure has its own detention regime. Detention is subject to review by the Federal Court after 48 hours, and, if detention is maintained, after that, every six months27.

Those alleged to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality who go into the normal removals process are subject to the normal detention procedure. Detention review is conducted by the Immigration Division of the Immigration and Refugee Board and not by the Federal Court. Detention review is conducted first, 48 hours after detention, second, one week after detention, and after that every thirty days after detention28.

This differentiation between detention review by the Federal Court and by the Immigration Division of the Immigration and Refugee Board of those alleged to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality is, to a certain extent, mitigated by the fact that detention reviews, in the case of persons detained outside of the certificate procedure, can be waived by the individual where there is no change of circumstance from one thirty day period to the next and by the fact that persons concerned detained under the certificate procedure can apply for accelerated

27 Section 82(2).

28 Section 57. 17 detention reviews by way of motion before the scheduled six month detention review where there is a change of circumstance in the intervening period. All the same, there is no obvious reason for these differences in the two detention regimes for the two different procedures for determining inadmissibility on grounds of security, violating human or international rights, serious criminality or organized criminality.

There is no reason why those subject to a procedure involving secret documents should be subject to a harsher detention regime than those subject a procedure involving full disclosure. Secrecy does not justify detention.

There may be a logic to keeping detention review in Federal Court once evaluation of the determination by the Government that the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality is itself in Federal Court. But the other differences with the standard detention regime have no logic and should be removed.

The differentiation in the time lags between detention reviews for those detained under the certificate procedure and the removal procedure without a certificate should disappear. Those detained under the certificate procedure should be entitled to detention reviews, as are those now detained where there is no certificate, after 48 hours, seven days and then every thirty days. ii) Indeterminate detention The liberty of the individual has to be balanced against the security of the state. The balance shifts over time. The longer a person is detained, the more weight is to be given to the person's liberty interest. This shifting balance is recognized both in the jurisprudence29

29 Sahin v.M.C.I. IMM-3730-94, Rothstein J. October 19, 1994 18 and in the Immigration and Refugee Protection Act regulations30.

Another factor besides length of time relevant to the balance, according to the regulations, is "whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time"31. The absence of elements that can assist in determining the length of time that detention is likely to continue weighs in favour of the individual. The presence of elements that can assist in determining the length of time that detention is likely to continue weighs against the individual. In other words, a person who faces indefinite detention has a more compelling case for release than a person who faces time limited detention.

But factors are just that. They do not tell us what the decision will be. The factors alone do not ensure any one person's detention or release.

To take a simple worst case scenario, someone is determined to blow us up, but faces torture on return to his country of origin. What is to be done? Either the risk of torture or the terrorist convictions of the detainee may evaporate. But, in the absence of either of these events, we may have to face up to the possibility of indefinite detention simply in order for society to protect itself. We can not be so intolerant of indefinite detention that we would accept being blown to smithereens rather than detain a would be bomber.

The Federal Court32 and the Federal Court of Appeal33 have both ruled that detention under

30 Regulation 248(b).

31 Regulation 248(c)

32 Almrei v. M.C.I. 2004 FC 420 March 19, 2004, Blanchard J.; M.C.I. v. Mahjoub [2004] 1 F.C. 493 Dawson J.

33 Ahani v. M.C.I. A-160-99 July 11, 2000 19

the certificate system is constitutional, even when prolonged. These rulings have all occurred in the context where individuals were invoking legal remedies to prevent their removal. The courts reasoned that, if removal is delayed and detention prolonged because the individual pursues legal remedies, the individual can not complain of the length of the detention resulting from the pursuit of those remedies.

In themselves, these decisions do not tell us what the constitutional ruling would be once all legal remedies are exhausted and the person becomes removable if there were no risk of torture. In this context, the delay in removal can no longer be attributed to the individual's pursuit of legal remedies. Nonetheless, some of the statements the courts have made have indicated that indefinite detention in this context would be constitutionally acceptable. The courts have said that intention can not be indefinite "without good reason", suggesting that it can be indefinite with good reason34.

Indefinite detention is not new to Canada. Indeterminate detention exists for dangerous offenders under the Criminal Code35. The Supreme Court of Canada in the case of Thomas Patrick Lyons ruled that indeterminate detention for dangerous offenders is constitutional, consistent with the Canadian Charter of Rights and Freedoms36. That ruling does not ensure that indeterminate immigration detention for a person subject to an inadmissibility certificate who faces a risk of torture abroad if removed would survive Charter scrutiny. But it addresses and counters many of the arguments that might be raised to challenge indeterminate immigration detention of a person subject to an inadmissibility certificates.

For instance, the Court in the Lyons case addressed the problem of false positives, people

34 See for instance Ahani v. M.C.I. A-160-99 July 11, 2000 paragraph 14.

35 Section 753(4).

36 R. v. Lyons [1987] 2 S.C.R. 309 20

detained indefinitely as dangerous offenders based on inaccurate predictions. The majority of the Court endorsed this statement of Floud and Young37: "His [the person indefinitely detained] being in the wrong by virtue of the risk he represents is what entitles us to consider imposing on him the risk of unnecessary measures to save the risk of harm to innocent victims."38

The Supreme Court ruled that the guarantee of fundamental justice in the Canadian Charter of Rights and Freedoms does not prevent indeterminate detention; all it does is enhance the procedural requirements before indeterminate detention can be imposed. Where indeterminate detention is the result, the Charter requirement of fundamental justice means that procedural protections "ought to be very rigorous"39. Where indefinite detention is the result of the certificate procedure, the reasoning of the Supreme Court of Canada supports the enhanced procedural protections this text advocates.

The test for the Charter guarantee against cruel and unusual treatment or punishment set out in the Lyons case is gross proportionality, again a form of balancing40. The fact that, in certificate cases there is no criminal conviction, no proof beyond a reasonable doubt, weighs against the constitutionality of an indefinite detention. The fact that the detention is the result of a desire to avoid return to torture weighs in favour of indefinite detention. The items on each side of the scale would be different for indeterminate immigration detention from those for indeterminate criminal detention. But, in my view, the final result, a finding of proportionality would be the same.

37 Floud, Jean and Warren Young. Dangerousness and Criminal Justice London: Heinemann, 1981.

38 Paragraph 100.

39 Paragraph 100.

40 Paragraph 40. 21

Put simply, if we have to choose between indeterminate detention and return to torture, the choice has to be indeterminate detention. Return to torture can never be a viable choice.

One significant difference between indeterminate detention of dangerous offenders and indefinite detention of those subject to certificates who face torture on return is that the Canadian legal system addresses the indeterminate detention of dangerous offenders directly. The indefinite detention of those subject to certificates facing torture on return is something that just happens.

We need a law in this area to parallel the law of indeterminate detention of dangerous offenders. When indefinite immigration detention occurs, it should be a conscious choice rather than an inadvertent result of other choices. The present system of detention review every six months of those caught up in the certificate procedure creates an illusion that detention is time limited when, for those facing torture on return, in reality it is not.

Would such a law discriminate against foreigners? The House of Lords, with a dissent, in the case of A(FC) viewed a similar United Kingdom law to be discriminatory 41 . The reasoning was that once foreigners ceased to be removable, they were comparable to nationals, and nationals could not detained indefinitely as security risks without a criminal conviction. The United Kingdom Court of Appeal, which was overruled by the House of Lords, held the opposite point of view. According to the Court of Appeal, the distinction between the group, foreigners subject to removal, and the sub-group, those not removable, is not based on nationality.

The House of Lords ignores an important distinction between the indeterminate and the

41 A(FC) v. Secretary of State for the Home Department [2004] UKHL 56, Lord Walker of Gestingthorpe dissenting. 22

permanent. Nationals have permanent status, not a status of indeterminate length. Those not removable because of the risk of torture abroad are stuck in a situation of indeterminate length, but, one would hope, not a situation that would last permanently. Regimes change. Over the course of time, a torture inflicting repressive regime may be replaced by a democratic, rights respecting regime. Even when the torture inflicting regime remains, an individual may cease to be a person of interest to the regime. Nationality is forever; the risk of torture is, one would hope, temporary.

The Supreme Court of Canada in the case of Charkaoui held that the result the House of Lords reached in A(FC) was distinguishable because British law allowed for indefinite detention of foreigners but not nationals. Canadian law does not allow explicitly for indefinite detention of foreigners. Once a person is caught in a detention situation which looks to be indefinite, the person can be granted release by virtue of the Charter prohibition against cruel and unusual treatment.

iii) The UK example Even if Canada could avoid the consequences of the House of Lords decision, the United Kingdom could not. After the House of Lords decision, the UK government and Parliament had three choices. Either change the detention law for nationals so that it equated to the detention law of non-removable non-nationals. Or change the detention law for non-removable non-nationals so that it equated to the detention law of nationals. Or change both laws so that they became the same. The UK chose the third option.

The United Kingdom Parliament enacted legislation which provides for government control orders that can be imposed on individuals to prevent their involvement in terrorism42. The legislation applies to everyone, UK nationals as well as foreigners. The legislation empowers the Court, on application of the Government, to make an order preventing an individual from

42 Prevention of Terrorism Act 2005 23 doing almost anything and requiring the individual to do a wide range of things.

The order may require the individual not to have in his/her possession certain articles; not to use specified services; not to work at specified places; not to work at specified occupations; not to associate with specified persons; not to live in certain places; or not to be at certain places. The order may require the individual to give access to his/her home; to allow the search of that place; to allow anything found there to be removed; to allow himself/herself to be photographed; to co-operate with his/her own monitoring; to comply with a demands to provide information; to report at specified times and places; to wearing an approved tracking apparatus; to provide advance information about his/her proposed movements or other activities.

Putting a person in prison means that virtually every aspect of the person's life is controlled by the prison institution. The UK control order scheme replicates prison control in a non-prison environment, allowing the state, through court orders, to control almost as many aspects of a person's life as would be controlled if the person were in prison.

This option allows for greater liberty to the individual than imprisonment and avoids any possible charge of discrimination between nationals and non-removable non-nationals. It deserves consideration in Canada.

C. Removal to torture Removal of those found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality involves a triple determination. One is the assessment of danger the individual poses to the community. The second is the danger the person faces on return. The third is, where both these two dangers exist, the balancing of one against the other. Where the risk to the person outweighs the risk to the community, then, in principle, the person is not removable. Only 24 where the risk to the community outweighs the risk to the person does the person become removable.

All three determinations involve different procedures. An assessment of removal procedures for those found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality requires assessment of all three. Consideration of removal procedures, once a person is subject to a certificate, requires consideration both of the procedure for assessment of risk to the individual and, where there is risk, the procedure for balancing the risk to the individual against the risk to the community.

(i) Risk assessment (a) The tribunal Risk assessment for those determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, no matter whether the certificate procedure is engaged or not, is done by a pre-removal risk assessment officer and not by the Refugee Protection Division of the Immigration and Refugee Board. An acute problem is the denial of access of both categories of persons inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality to the Refugee Protection Division of the Immigration and Refugee Board.

This remains true even with the recent law amendments. The changes shifted, generally, the pre-removal risk assessment from the Minister to the Refugee Protection Division of the Immigration and Refugee Board. However, those determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality are an exception to this general shift rule43. This category of pre-removal risk

43 2010 S.C. chap. 8, section 15 replacing 112(1) with, amongst other provisions, 112(1.1) 25 assessment applicants remains with the Minister.

The Board offers a procedure with a much higher level of procedural protection than the pre-removal risk assessment process. Pre-removal risk assessment is typically done through a paper application only. There is normally no interview, let alone a full hearing. The Board offers an independent specialized decision maker. Pre-removal risk assessment officers are departmental officials.

In cases of persons alleged to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, the contrast between the admissibility determination process and the risk assessment process is striking. The process for determination of risk to Canadian society through the Federal Court is elaborate, intensive. The determination of risk to the individual, in contrast, is cavalier, off hand.

There is no particular reason for this imbalance in procedures. Determination of risk to the individual on return should not be done with any less care than determination of risk to Canadian society. Persons found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, whether going through the Federal Court procedure or the Immigration Division of the Immigration and Refugee Board procedure, should be allowed access to the Refugee Protection Division of the Immigration and Refugee Board to assess their claims of refugee protection.

(b) The standard The definition of risk for those considered inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality is artificially restricted. A refugee claimant normally receives a determination both whether the person is a Convention refugee and whether the person is in need of protection. A person is considered to be in need of protection if the person faces a risk of death, torture or cruel and 26 unusual treatment or punishment.

A person who is considered inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality receives a determination only whether the person is in need of protection44. There is no determination whether or not the person is a Convention refugee. This means that there is no possibility of balancing the risks associated with being a Convention refugee against the danger the person represents to Canada.

Under the Refugee Convention, even a person who is a refugee can be removed to a country where his life or freedom would be threatened if there are reasonable grounds for regarding the person "as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country"45. It may be that the legislation does not allow for determination of a claim that a person is a Convention refugee once the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality because Parliament was of the view that a person inadmissible on such grounds is removable to the country fled, even if a Convention refugee. Convention refugee determination, in such a context, might seem pointless.

If that indeed was the view of Parliament, it is mistaken. The determination whether a Convention refugee is removable on grounds of security or criminality requires balancing of the risk to the person against the risk to Canada. Paul Weis, in a book he wrote about the

44 Act section 113(d).

45 Refugee Convention Article 33(2). 27

Refugee Convention states about the exception to non-refoulement in the Refugee Convention: "The principle of proportionality has to be observed that is, in the words of the UK representative at the Conference [which negotiated the Refugee Convention], whether the danger entailed to the refugee by expulsion or return outweighs the menace to public security that would arise if he were permitted to stay."46

It becomes impossible to engage in balancing, to respect the principle of proportionality, if we do not know what is there on one side of the scales. The determination whether a person is in need of protection, whether the person faces a risk of death, torture or cruel and unusual treatment or punishment, tells us something, but not all we need to know. The bar on a determination whether those found inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality are Convention refugees is a defect in the legislation which needs remedying.

(c) Diplomatic assurances Canada is too free and easy in eliciting, accepting and relying on diplomatic assurances. Canada has all too often sought diplomatic assurances from states chronically engaged in torture. The assurances assert that the receiving state will not torture the named person Canada is trying to remove. Canada then attempts to use these assurances to persuade Canadian courts that the person will not be subject to torture on return.

In the case of Suresh, the Government of Canada wanted to remove Suresh to Sri Lanka pending a challenge in the Federal Court of the decision that Suresh was a danger to the security of Canada. The Government of Canada had received written assurances from Sri Lanka that Suresh "would not be subjected to torture or degrading treatment". Suresh applied to Federal Court for a stay of execution of his removal order. In order to succeed,

46 The Refugee Convention, 1951, p. 342. 28 he had to show that removal would inflict upon him irreparable harm. The Government of Canada, in arguing that there would not be irreparable harm, relied on the Sri Lankan assurances47.

Mr. Justice Robertson, sitting as a single judge on the stay application in the Federal Court of Appeal, did not accept the assurances at face value, but rather attempted to assess their reliability. He said: "I am not as confident (as the Government of Canada) that Mr. Suresh's basic human rights will be respected once he is detained (on return to Sri Lanka)...It is difficult to speculate on the fate that may await of a person who is to be deported to a country that falls below international or Canadian standards."48

In the end, the Court made a finding of irreparable harm on an alternative basis, that the judicial review proceedings would be rendered moot by removal of Suresh to Sri Lanka pending those proceedings. So, there was no conclusion one way or the other whether the basic human rights of Suresh would be respected on return to Sri Lanka. Nonetheless, the Court made clear that assurances alone do not resolve the matter.

When the Suresh case went to the Supreme Court of Canada, the Court said this about assurances: "A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past.

47 Suresh v. M.C.I. A-415-99, July 23, 1999, (F.C.A.)

48 Paragraph 13. 29

This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter. In evaluating assurances by a foreign government, the Minister may also wish to take into account the human rights record of the government giving the assurances, the government's record in complying with its assurances, and the capacity of the government to fulfil the assurances, particularly where there is doubt about the government's ability to control its security forces."49 (I argued the Suresh case in the Supreme Court of Canada for the intervenor Canadian Bar Association.)

So the Supreme Court of Canada did not dismiss diplomatic assurances out of hand. But it indicated that assurances alone are not enough. There has to be more. There has to be an evaluation of the government's ability to control its security forces. If that ability is not there, assurances are meaningless.

As well, assurances on the death penalty have to be assessed differently from assurances on torture. The latter are harder to monitor. What that means is that there has to be in place more elaborate mechanisms for monitoring feared torture than for monitoring the risk of imposition of the death penalty.

Canada has sought and obtained assurances the Government considered satisfactory in the cases of Cheong Sing Lai from China (Mr. Lai is a client of mine), Suresh from Sri Lanka, Mahjoub from Egypt, and Charkaoui from Morocco. Lai is not a certificate case.

49 Paragraphs 124 and 125. 30

The Federal Court overruled in April 2007 a rejection, based on the assurances, of a pre-removal risk assessment application by Mr. Lai50. The Court stated: "Contrary to the death penalty, which usually takes place in the open and is therefore easier to ascertain, torture is practised behind closed doors and is denied by the states where it occurs....For torture to become known...there would have to be some compliance and verification mechanisms in place. More specifically, there would have to be an effective monitoring system by independent organizations like the International Committee of the Red Cross."

The case of Mahjoub is strange in light of the case of Jaballah. In the case of Jaballah, the Government of Canada also sought and obtained diplomatic assurances from Egypt but decided that the assurances were not satisfactory51. The assurances from Egypt about Mahjoub - that he "would be treated in full conformity with constitutional and human rights law" - were as vague as could be. Why were the assurances about Jaballah not satisfactory and the assurances about Mahjoub from the same government considered satisfactory?

The international standard for monitoring is set out in the Optional Protocol to the Convention against Torture52. The Protocol provides for inspection visits by independent outside experts to places of detention, both on a regular basis and on a follow up basis.

That Protocol entered into force in June 2006. Canada should sign and ratify the Protocol. Canada could ask that diplomatic assurances allow the Protocol's roster of experts, the Subcommittee on Prevention of the Committee against Torture, to monitor the assurances.

50 Lai v. Canada (Minister of Citizenship and Immigration) 2007 FC 361 de Montigny J.

51 M.C.I. v. Jaballah 2004 FCA 257 paragraph 5.

52 Adopted by UN General Assembly resolution 57/199, December 18, 2002. 31

The United Nations Special Rapporteur on Torture, in his general recommendations, wrote53: "Regular inspection of places of detention, especially when carried out as part of a system of periodic visits, constitutes one of the most effective preventive measures against torture. Independent non-governmental organizations should be authorized to have full access to all places of detention, including police lock-ups, pre-trial detention centres, security service premises, administrative detention areas, detention units of medical and psychiatric institutions and prisons, with a view to monitoring the treatment of persons and their conditions of detention. When inspection occurs, members of the inspection team should be afforded an opportunity to speak privately with detainees. The team should also report publicly on its findings. In addition, official bodies should be set up to carry out inspections, such teams being composed of members of the judiciary, law enforcement officials, defence lawyers and physicians, as well as independent experts and other representatives of civil society. Ombudsmen and national or human rights institutions should be granted access to all places of detention with a view to monitoring the conditions of detention. When it so requests, the International Committee of the Red Cross should be granted access to places of detention." These recommendations are not specific to diplomatic assurances. But they remain a useful guide.

Human Rights Watch suggests that diplomatic assurances should provide for monitoring through video and audio recording of all interrogations in the presence of a lawyer; expert monitors, trained in detecting signs of both physical and psychological torture and ill-treatment; meetings with a detainee in total privacy; routine forensic medical examinations by an independent physician not associated with the detention facility; confidentiality when transmitting allegations of torture so that the detainee and his or her

53 United Nations Document number E/CN.4/2003/68, paragraph (f). 32

family do not suffer further retribution for having spoken out; and the ability of the monitors to visit and have unhindered access to a detainee at any time, without having to provide advance notice 54 . That sort of monitoring standard should be incorporated into any diplomatic assurance that torture will not be inflicted.

The enhanced monitoring the Supreme Court of Canada stated is required for diplomatic assurances on torture should be satisfied by this sort of model. As well, the model has the advantage of promoting respect for the prohibition against torture not just for the person subject to assurances but generally in the country giving assurances.

Human Rights Watch takes the view that, in the vast majority of countries where torture is practised, monitoring of the sort the organization proposes would be impossible. My own view it is worth trying to achieve that standard of monitoring to combat both torture and terrorism. Where a terrorist faces torture on removal, the only way to remove the terrorist, consistent with respect for human rights, is to incorporate into assurances the sort of monitoring standards Human Rights Watch proposes.

(ii) Balancing (a) After pre-removal risk assessment There are two situations in which balancing arises. In the typical situation, the Ministers first issue a certificate that the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. The person then proceeds to pre-removal risk assessment and a pre-removal risk assessment officer decides that the person would face risk on return.

In this situation, balancing of the risk to the person on return against the risk to Canadian

54 "Still at Risk: Diplomatic Assurances No Safeguard against Torture" April 2005, pages 25 and 26. 33 society if the person is allowed to stay is done by a Minister's delegate in Ottawa. This balancing, like pre-removal risk assessment itself, should be shifted to the Refugee Protection Division of the Immigration and Refugee Board.

A person is excluded from refugee protection if there are serious reasons for considering that the person has been guilty of acts contrary to the purposes and principles of the United Nations 55 . Terrorism is an act contrary to the purposes and principles of the United Nations56.

The Handbook on Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees mandates balancing between risk to society and risk to the person where another exclusion clause is engaged, commission of a serious non-political crime outside the country of refuge, but not this exclusion clause57. Canadian law has diverged from international law even for this form of balancing, holding that the current law does not allow for balancing58.

Whatever the merits of this jurisprudence as an accurate interpretation of the existing law, it tells us nothing about what the law should be. The Refugee Protection Division of the Immigration and Refugee Board already goes beyond the Refugee Convention and determines whether or not a person is need of protection on the basis that the person faces a risk to life or a risk of torture or cruel and unusual treatment or punishment59. The legislation could just as easily go beyond the Refugee Convention to give the Refugee

55 Immigration and Refugee Protection Act section 98.

56 UN Security Council resolution 1373, September 2001, paragraph 5.

57 Paragraph 156.

58 See Gil v. M.E.I. (1995) 1 F.C. 508(F.C.A.)

59 Immigration and Refugee Protection Act section 97. 34

Protection Division of the Immigration and Refugee Board the power to balance the risk to the individual on return against the risk to Canadian society if the person is allowed to stay.

It would be desirable to do so. One reason is that it would speed up the process, avoiding the unnecessary fragmentation and delays implicit in the current process. Now risk determination is done by one person in one place - by a pre-removal risk assessment officer in the region - and balancing is done by another person in another place - by the Minister's delegate at headquarters - and this only after an intermediate round of disclosures and submissions, between the first determination and the second. Another reason is that the fairness or due process of the proceeding would be enhanced, with its concomitant benefit of increasing the likelihood of accuracy of the result.

(b) After Board determination In the second situation, the person makes a claim for refugee protection which is heard and accepted by the Refugee Protection Division of the Immigration and Refugee Board. Only afterwards does a certificate issues that the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

Here, again, there are two possibilities. One is that the determination of inadmissibility is based is information about acts arising prior to the refugee determination. In that situation, the Minister can move the Board to vacate the refugee determination on the basis that "the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter"60. The Board, in the context of considering the motion to vacate, can engage in a balancing exercise. Even under the present legislation, the Board has the power reject an application to vacate "if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee

60 Immigration and Refugee Protection Act section 109(1). 35

protection"61.

The other possibility is that the determination of inadmissibility is based is information about acts arising subsequent to the refugee determination. In that case, neither an application for vacating nor an application for cessation of the original refugee protection determination would be possible. It would nonetheless be appropriate, if all risk and balancing determinations are to be located in the Refugee Protection Division of the Immigration and Refugee Board, to send the matter back to the Board. The Board would determine whether the previously determined risk to the individual on return outweighs the newly determined risk to Canada should the person be allowed to stay.

(c) Exceptional circumstances The United Nations Convention against Torture which Canada has signed and ratified prohibits removal to torture in any circumstances 62 . The Government, in the case of Suresh63, argued that the Convention allowed removal of security risks to torture. But the Supreme Court of Canada rejected that interpretation.

The Supreme Court did, all the same, hold that removal to torture, though a violation of the UN Convention against Torture, might be done without violating the Canadian Charter of Rights and Freedoms, provided the removal was done in exceptional circumstances. The Court did not define or even indicate what "exceptional circumstances" are. However, it was the same phrase the Court had used in the case of Burns and Rafay64 to limit extradition to the death penalty. Burns and Rafay were accused of murdering the parents and sister of

61 Section 109(2).

62 Article 3(1).

63 Suresh v. M.C.I. 2002 SCC 1, paragraphs 66, 68, 71.

64 US v. Burns 2001 SCC 7 36

Rafay for inheritance money. The Court held that extradition of Burns and Rafay to the death penalty would violate the Canadian Charter of Rights and Freedoms despite the exceptional circumstances proviso. If the circumstances in that case did not allow removal to the death penalty, the circumstances would have to be dramatic indeed before, according to the standard the Supreme Court of Canada set, removal either to the death penalty or torture would be permissible.

Be that as it may, regardless of what the Charter allows, Canada should not remove to torture as a matter of principle, as well as a matter of international law. The Canadian international stance of respect for the rule of law, including the fight against terrorism, is undermined once Canada stands up for removal to torture in violation of international standards.

Regrettably, all that was ignored in the case of Mahmoud Jaballah. A pre-removal risk assessment found that Jaballah faced a substantial risk of death or torture on return to Egypt. The Minister of Citizenship and Immigration first tried to challenge that decision in court, but the Federal Court and the Federal Court of Appeal both held that the decision of the pre-removal risk assessment officer was, in law, the Minister's own which the Minister could not challenge. The Minister then determined that "the exceptional circumstances envisioned by the Supreme Court [in Suresh] clearly apply in this case". In other words, the Minister was prepared to return Jaballah to torture or death in Egypt. The Federal Court overturned this decision and sent it back to the Minister for reconsideration65 where it is still pending.

Something similar happened with Mahjoub. Though the Government sought and obtained assurances for Mahjoub the Government considered satisfactory, the decision of the Minister' s delegate when considering removal to Egypt was that the assurances were not

65 Re Jaballah, 2005 FC 399, March 22, 2005 MacKay J. 37

reliable. The Minister's delegate here too, all the same, opted for removal on the basis that Mahjoub posed an extraordinary danger to Canada. The Federal Court overturned this decision as well66.

If the Government accepts never to remove anyone to torture or death, that acceptance does nothing to resolve the problem of persons in long term detention subject to certificates. On the contrary, the problem of detention in Canada becomes more acute, because removal becomes less likely.

Removal, all the same, would be possible. Not every risk on return is a risk of torture or death. For a risk of persecution that does not amount to a risk of torture or death, the person could be removed if, on balance, the risk to Canadian society outweighed the risk to the individual. Even those otherwise subject to the risk of torture or death could be removed subject to diplomatic assurances assessed to be reliable which incorporated adequate monitoring safeguards.

D. Criminal law When all is said and done, there remains nonetheless the possibility that some persons will not be removable. Diplomatic assurances may not be obtainable, or, if obtainable, not reliable. Even for these persons, indefinite detention or a form of control on release patterned on the United Kingdom system is not the only option. There is also the possibility of prosecution.

There has been a tendency, not only here, but in many areas of the law, to argue for prosecution or nothing. That is an argument used against civil remedies for hate speech, revocation of citizenship of persons against whom there is evidence of direct involvement or complicity in crimes against humanity, as well deportation of persons inadmissible on

66 Mahjoub v. M.C.I. 2005 FC 156, Dawson J., January 31, 2005 38 grounds of security, violating human or international rights, serious criminality or organized criminality.

In principle, the notion that allegations of wrongdoing must be resolved by the criminal law alone, that civil remedies must never be invoked, is misplaced, indeed, perverse. In most areas of the law, the argument would never even be raised. We do not hear the argument, for instance, that for traffic law violations, for instance, speeding, there should either be criminal prosecutions or nothing, that speeding tickets should never be issued.

Invoking civil remedies before criminal works to the advantage of both parties, the individual and the state. When civil remedies are sought, the individual can avoid the criminal law punishment of potentially prolonged detention. The criminal law punishment of detention is more drastic than civil remedies and should be sought only as a last resort, when no other remedy is available or appropriate.

For the state, the standard of proof for a civil remedy is less than for a criminal remedy, balance of probabilities rather than proof beyond a reasonable doubt. The legal question posed by a civil remedy may be different from and, for the state, easier to answer, than the question of innocence or guilt. The lesser standard of proof and the easier question are, in a sense, the quid pro quo for the lesser consequence the individual suffers on losing the case.

For both parties, the rules of evidence may be more relaxed. If the civil remedy is offered by an administrative tribunal, the tribunal may not be bound by legal or technical rules of evidence and may receive any evidence considered credible or trustworthy in the circumstances. The rules of evidence in criminal law can be quite technical, even arcane.

As long as the person is actually removable from Canada without risk of torture or death, all 39

that is true for persons inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. Removal may, itself, be a sufficient remedy for risks to security or a history of violating human or international rights, serious criminality or organized criminality. In that situation, pursuing prosecution raises difficulties of proof which are best avoided.

For international offences, there is a duty to extradite or prosecute. That is true, for instance, for the offence of torture. The United Nations Convention against Torture obligates states parties either to extradite or prosecute torturers found in their jurisdiction, no matter where the offence was committed67.

For terrorism, the matter is a bit different, because there is no international treaty requiring states parties to prohibit terrorism in general. There are rather only a number of specific treaties directed against named terrorist acts such as hijacking or attacks on diplomats.

Moreover, these anti-terrorism specific treaties are relatively recent. The international community turned its attention to terrorism long after it negotiated treaties on genocide or torture. For instance, the UN Convention on the Suppression of Terrorist Bombings entered into force on May 23, 2001. The International Convention for the Suppression of the Financing of Terrorism came into force April 10, 2002.

Canadian anti-terrorist criminal law is limited by its prospectivity. The law was enacted after September 11, 2001 and applies only to acts committed after the law was proclaimed. But many people accused of terrorism now in Canada are implicated in acts committed before the Canadian law came into force. Canada needs retrospective criminal legislation, allowing for the prosecution of acts committed before the law was enacted, as long as the acts were either international law offences or criminal according the general principles of law

67 Article 7(1). 40 recognized by the community of nations at the time of their commission.

The Canadian Charter of Rights and Freedoms prohibits retroactivity, but has an exception68. That provision reads: "Any person charged with an offence has the right not be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian law or international law or was criminal according to the general principles of law recognized by the community of nations."

The constitutionality of Canadian retrospective war crimes legislation was challenged in the case of Imre Finta69. Though Imre Finta won his case, he lost his constitutional challenge. The Supreme Court of Canada found the Criminal Code war crimes retrospective legislation to be constitutionally valid.

Canadian retrospective anti-terrorist legislation would not have to be limited, as one can see, to acts which were offences at international law at the time they were committed. The Canadian law can encompass acts which were criminal according to the general principles of law recognized by the community of nations at the time that they were committed even though at that time they were not offences under international law. Even if the international criminal law of terrorism is fractured and has a relatively recent vintage, terrorist acts, in my view, have been criminal according the general principles of law recognized by the community of nations ever since 1948 and the Universal Declaration of Human Rights.

Retrosp ective anti-terrorist criminal legislation would conform to the Canadian Charter of

68 Under section 11(g).

69 R. v. Finta (1994) 1 S.C.R. 701. 41

Rights and Freedoms. It would also be consistent with the new Crimes against Humanity and War Crimes Act, which makes the offences enacted by that law retrospective.

There is little difference in principle between war crimes or crimes against humanity and terrorism. Both kill innocents in pursuit of twisted ideologies or causes. If retrospectivity is justifiable for war crimes and crimes against humanity, it is equally justifiable for terrorism.

One candidate for retrospective prosecution would be Mahmoud Mohammad Issa Mohammad, guilty of a grenade attack on an El Al plane in Athens in 1968 which killed one person. He was convicted in 1970 and sentenced in Greece to seventeen years in prison for his crime. He lied his way into Canada in 1987. Deportation proceedings begun in 1988 have gone nowhere. After seventeen years, it is time to try another tack.

Mohammad should be prosecuted under retrospective Canadian anti-terrorist legislation. The principle against double jeopardy would not apply to him, since the principle applies only to those who were convicted and served their sentence70. He did not serve his full sentence because hijackers of a Greek plane negotiated his release in 1971, long before his time was served71.

Canada has a horrible record of prosecution for international offences. Its attempt to prosecute for war crimes and crimes against humanity spurred by the Commission of Inquiry on War Criminals under the Honourable Jules Deschênes ended ingloriously when the Supreme Court of Canada, in the case of Finta, held that antisemitism was a legally allowable defence to a charge of complicity in the Holocaust.

70 Criminal Code sections 7(6) and 607(1)(6)(b).

71 Stewart Bell Cold Terror Wiley, 2004. 42

Finta pleaded not guilty to shipping Jews off from Szeged, Hungary to Auschwitz and other camps and justified his behaviour with the argument that he thought Jews were the enemy. The Supreme Court of Canada ruled that this defence could properly go to the jury because it had an air of reality to it. The defence had an air of reality because of antisemitic newspaper articles published in local papers at the time72.

A new Crimes against Humanity and War Crimes Act was legislated that specifically removes the defence of racial prejudice, overruling the decision of the Supreme Court of Canada in the Finta case73. Désiré Munyaneza was convicted under that law in October 2009 and Jacques Mungwarere was charged under that law in November 2009 both for crimes against humanity in Rwanda.

There have been virtually no prosecutions under any of the other universal jurisdiction laws. There are though many such laws on the books, including torture, hijacking and terrorism.

An Ottawa man, Mohammad Momin Khawaja, arrested March 29, 2004 and charged under the Anti-Terrorism Act with participating in a plot to bomb London, England. Khawaja was born in Canada and could not possibly be deported. He was convicted and sentenced.

Eighteen people were charged in June 2006 under the Anti-Terrorism Act with planning to blow up the Toronto Stock Exchange. Eleven were convicted.

If Canada did not have such a dismal general record for prosecution of universal jurisdiction offences, it might be tempting to attribute the paucity of anti-terrorism prosecutions either to problems of retrospectivity or to the nature and quality of the evidence available in specific

72 R. v. Finta [1994] 1 S.C.R. 701

73 Section 14(3). 43 cases. However, in view of the overall scarcity of prosecutions in Canada for universal jurisdiction offences, there is something more going on than that.

That something more is the preference of the authorities for deportation rather than prosecution. Canadian officials view deportation as a remedy which is cheaper, quicker and more likely to succeed than prosecution. While that view is certainly understandable for Nazi war criminals in light of the Finta decision and the passage of time since the Nazi crimes against humanity were inflicted, it does not hold water for every international criminal found within Canadian borders.

Whatever the merits of deportation over prosecution where a person is actually removable, those advantages disappear almost completely once the person is not removable because the person on removal would face a risk of torture or death. The advantage of choosing the civil remedy of removal over a criminal remedy disintegrates once the person is held in prolonged detention in Canada pending a removal which never comes. In these situations, the option of prosecution has to be given a serious second look...... David Matas is a Winnipeg lawyer. He is a former chair of the Canadian Bar Association Immigration Law Section.