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.