Special advocates Paul Cavalluzzo (left) and Paul Copeland say using security certificates as an anti-terrorism measure has been costly and cumbersome for the government. [Photo by Paul Lawrence for The Lawyers Weekly] Click here to see full sized version.

Are immigration security certificates dead?

Following a spate of court defeats since last fall, the government has been quietly re-examining whether security certificates are still viable in terrorism-related cases which raise the prospect of indefinitely detaining the named person, or deporting them back to countries where they may be tortured.

Special advocates and other experts on national security law told The Lawyers Weekly the Harper government may be poised to abandon security certificates in favour of an administrative model for ejecting permanent residents and foreign nationals it deems to be a danger to Canada.

“The feeling I get, and nothing has been said to me [by officials],…is that the government has found the security certificate cases too complicated, too long, and expensive, and will attempt to achieve whatever objective they have concerning permanent residents or foreign nationals by some other procedure — which could be before the immigration division of the Immigration and Refugee Board, or some other kind of administrative body or person,” says Paul Cavalluzzo of Toronto’s Cavalluzzo Hayes.

Paul Copeland of Toronto’s Copeland Duncan notes “the general opinion among all of the special advocates who have worked on the [five al-Qaeda-related security certificate] cases is that [the government] won’t do another.”

However Cavalluzzo, who with Copeland is special advocate (SA) for security certificate detainee Mohamed Harkat, says he doubts that the government can come up with an acceptable, in camera administrative procedure for handling immigration cases that involve national security claims and secret evidence, particularly if the cases are to be presided over by a non-lawyer decision-maker.

“I think its constitutionality would be in serious question if you take it out of court, because there are many serious and constitutional questions that arise during the course of one of these proceedings,” Cavalluzzo says.

Last September, then-Public Safety Minister Peter Van Loan said he feared for Canada’s ability to fight terrorism given the “increasingly complex legal environment” in which the Federal Court is steadily holding the government’s feet to the constitutional fire.

He promised that the government’s internal review of security certificates will determine “what we would do in the future and whether that is an appropriate instrument.”

But in the intervening 10 months the government has disclosed nothing publicly, although some security law experts were consulted. “I was interviewed for some sort of review,” acknowledges University of Ottawa law professor Craig Forcese. “I don’t know what came of it.”

Forcese agrees it’s unlikely that security certificates will be issued in future terror-related cases. “We may still see them on other cases where there is no [deportation to] torture issue, such as espionage, organized crime,” he predicts.

David Charbonneau, spokesperson for Vic Toews, the present public safety minister, declined to set up an interview with his boss. Charbonneau also declined to disclose when the security certificate review will be completed or what is under consideration.

“The objective of this government is to keep Canadians safe from security threats, in this case non-citizens,” Charbonneau told The Lawyers Weekly. “Our review is focused on the challenge of how to protect Canadians’ security while recognizing the obstacles emerging under the existing security certificate regime. The results will be made public once the review requested by the minister has been completed.”

Forcese said there are signs the government is turning to bringing national-security-related cases under s. 86 of the Immigration and Refugee Protection Act. In such cases the government contends in front of an immigration adjudicator that a person is inadmissible to Canada on national security grounds. Because the government relies on sensitive secret evidence, SAs must be appointed by the court.

Toronto immigration lawyer Lorne Waldman, who is an SA in a s. 86 case, and is also public counsel for a security certificate detainee, sees no significant difference between the two processes.

“All the shortcomings of the security certificates are the same problems that exist in the s. 86 process,” Waldman says.

Like the other special advocates who spoke to The Lawyers Weekly, Waldman says he accepts that the government must at times keep information secret on national security grounds in immigration cases.

“But in those cases we have to ensure that the fullest possible disclosure is made [to the person affected], while protecting national security, and ensure that the person who represents the interests of the [affected] person at the closed hearing is as fully armed as possible,” he advises.

The constitutional crux of the matter is giving the person affected enough disclosure of the government’s case to defend himself, Waldman says.

He argues the government’s best chance of Charter-proofing its anti-terror immigration measures is to adopt the approach successfully used for many years by the Security Intelligence Review Committee (SIRC), which reviews denials of security clearances by the Canadian Security Intelligence Service (CSIS). Security-cleared SIRC lawyers — who are sworn not to disclose privileged information to the person who has been denied a security clearance — are otherwise permitted to communicate freely with that person in order to be able to adequately represent the person’s interests at the closed-door hearing where the government’s secret evidence is tendered. By contrast SAs are permitted, at most, court-authorized and court–supervised, restricted communication with the security certificate detainee’s legal team. It’s not enough, experienced SAs say.

“I think the special advocate model has very serious limitations because of the bars on communication that make the work of the SA very challenging,” Waldman says. “I can certainly envision situations where, even with the SAs present, there may well be cases where the process would not be fair.”

Ottawa’s Leonard Shore, an SA with years of experience in national security-related matters, says he believes the security certificate regime revamped in 2008 remains unconstitutional because it ties the hands of SAs.

“I think the future is in doubt,” Shore says. “But I don’t know whether this government has the knowledge or information to know what to do next.”

Security certificates were originally envisioned as a speedy and streamlined way to get dangerous foreigners out of the country, but they have turned out to be anything but, Shore said. “The Supreme Court said you can’t do it that way. You have got to give them due process.”

Judges’ constitutional vigilance has caused the Harper government to criticize the courts for dragging out matters in security certificate cases. But SAs say the government has to shoulder much of the blame.

“First of all they over-claim their national security [privilege], which raises all kinds of challenges by the SAs,” notes Cavalluzzo. “We’re constantly battling them on that,…which prolongs the event.”

Secondly the legislative gag imposed on SAs’ communication with the named persons’ defence teams is unworkable, he says. “We are constantly fighting over that because we want to discuss the situation with the individual.”

Cases have also been unnecessarily prolonged because the Federal Court has discovered, with the assistance of the SAs, that CSIS has “not been totally candid” about the veracity of its sources and in disclosing evidence, Cavalluzzo notes. “If the government shaped up, these proceedings would not take nearly as long.”

Copeland also says the government and CSIS don't seem to have a sophisticated understanding of the history or other political realities of the foreign countries involved in security certificate cases.

Harkat’s public co-counsel, Norm Boxall of Ottawa’s Bayne Sellar Boxall, says there remains a huge constitutional question mark hanging over the security certificate regime which was struck down by the Supreme Court in 2007, and then revised with the addition of the SA regime in 2008. The Federal Court is expected to address constitutional issues about the new scheme when it renders its decision next fall on reasonableness of Harkat’s security certificate.

“The fact that SAs are successful in some cases doesn’t prove the security certificate system is fair or viable” in all, or even most, cases, Boxall remarks. “I think there is good reason to believe that the government will be reluctant to use it [in the future]. Security certificates are on life support.”