Security Certificates: Time for a Plan B

Cross-referencing: National Security Law (NSL), Ch. 10 pp. 410 et seq. and Ch. 14, pp. 569 et seq.

In an October 2009 opinion editorial in the Globe and Mail,
I wrote that “[t]he security certificate system as a tool of anti-terrorism is
dead.” This op-ed followed the dismissal of the certificate against Adil
Charkoui, upon withdrawal of much of the secret information deployed against
him. The latter act, in turn, followed a court order to disclose more
information than the government (and the Canadian Security Intelligence
Service, in particular) believed that it could without prejudicing national
security interests. (CSIS director Richard Fadden has since described this
decision as follows: “the demands for disclosure in the Charkaoui security
certificate case pushed us beyond what we could accept. We were faced with a
pretty fundamental dilemma: to disclose information that would have given
would-be terrorists a virtual road map to our tradecraft and sources; or to withdraw
that information from the case, causing a security certificate to collapse. We
chose the path that would cause the least long-term damage to Canada and
withdrew the information.”)


In my op-ed, I noted that four
other security certificate cases “continue, and the government could ‘win’ a
few in the short-term.  But even if it demonstrates a reasonable basis for
its allegations, the saga will continue – security certificates are supposed to
be about deportation. And that prospect seems vanishingly remote because of the
risk that the four remaining individuals will be tortured if deported. All of
this means that the government will inevitably need a ‘plan B’ for the future.”


It seems useful to expand on my
contentions in this blog, in more than the 800 words permitted for the op-ed.



The Objectives of
Security Certificates


certificates were (and are) supposed to about removal of security threats from
Canada. Detention, or other restrictions on liberty, associated with the
security certificate are supposed to be temporary, persisting only up to
removal.  That removal is supposed
to be speedier under a security certificate than are regular inadmissibility
proceedings in front of immigration adjudicators.  A security certificate goes directly to a Federal Court
judge (whose decision on the reasonableness of the certificate is final, and
amounts to a removal order). 
Immigration adjudicator decisions are subject to more layers of possible


course, none of these objectives have been met in relation to the five (now,
four, post-Charkaoui) security certificates issued against suspected terrorists/terrorist
affiliates. Unlike in past cases involving, e.g., Russian sleeper agents,
removal has been vigorously contested by these five, each of whom risks removal
to a jurisdiction with (at best) a spotty record on torture.  Effectively, the Canadian security
certificate labels (or reveals, depending on the truth of the matter) these
individuals as members of organizations whose purposes are invariably at
variance with the interests of their countries of origin to which they may be
removed. In these circumstances, it is to be suspected that authorities in
those states will have their own agendas to pursue with these individuals,
giving rise to a prospect of torture that does not exist with, e.g., the
removal of Russian sleeper agents.


the result, these individuals have been detained (or subject to strict
conditions on their liberty) for very long periods of time as each dimension of
the security certificate system is tested up and down the court system.  For these individuals, caught between
the rock of removal to torture and the hard place of limitations on liberty in
Canada, security certificates have become a de
system of “control orders”, analogous in effect to the system
existing in the United Kingdom and Australia. 



scenario seems likely to recur each time a security certificate is used against
an individual suspected of being a terrorist/terrorist affiliate, and removal
is to a country that a) has a poor record on torture and b) whose own national
security interests are engaged by the individual’s suspected acts or
affiliations.  Moreover, this
scenario is likely to recur even if, instead of security certificate, the
government resorts to the regular inadmissibility proceedings under the Immigration and Refugee Protection Act (IRPA).  This may be a different system, but it
creates the same incentive to contest removal, and the same constitutional
issues in terms of detention and removal to torture.


The Inadequacies of
Immigration Law


raises the question of whether immigration law can ever be used as an effective
tool of anti-terrorism.  (There is
an argument that, factually, immigration remedies just displace the security
risk – fortifying the Canadian border does not reduce the playing field for
terrorists elsewhere.  Still, I can
see how displacement may still be strongly desirable, especially if it disrupts
a terrorist agenda.)


Examining the question from the
narrower perspective of “legally, can immigration law ever be used as an
effective tool of anti-terrorism” my answer would be: Yes, to the extent
immigration law can be used to, e.g.,
pre-screen suspected terrorists before arrival in Canada (for example, security
checks and the issuance of visas). 
Yes, to the extent suspected terrorists/terrorist affiliates who do
arrive in Canada are subject to removal to a country that doesn’t torture. No,
in other circumstances.



No Removal to Torture,


To expand on this last statement:
the IRPA at present does permit removal where national security interests are
substantial enough, even where there is a serious prospect of torture. But
international law does not.  As
discussed in NSL, Article 3 of the Torture Convention is unequivocal: no removal, no matter what, “where there are substantial
grounds for believing that he would be in danger of being subjected to torture.”  Article 3 further specifies: “For the purpose of determining whether there are such
grounds, the competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of
human rights.” (It is worth noting that the UN Human Rights Committee has
construed the International Covenant on Civil and Political Rights, Art. 7, as
containing an equivalent restriction).


Accordingly, any application of
the IRPA (or the Charter of Rights and
) that would allow removal in the face of these “substantial
grounds for believing” would violate our international obligations. It really
is that simple.


Much ado has been made about the
Supreme Court’s 2002 decision in Suresh
that seemed to open the door a crack under the Charter to removal to torture where
the extenuating circumstances were dire enough. I think, personally, that that
crack no longer exists.  Suresh wasn’t dealing squarely with the
issue – the comment was obiter.  Since 2002, the courts seem to have
become much less sympathetic to government national security claims.  Most importantly, as I argue at p.577
of NSL, the Supreme Court has also since reaffirmed its commitment to interpret
the Charter in keeping with Canada’s international obligations.  And, as noted, those international
obligations are unambiguous.



No Guarantees from


frequently cited solution to the conundrum of removal to torture is the concept
of “diplomatic assurances”; essentially, supplementary promises from the
receiving state that it won’t abuse the person upon his or her return.  If credible, these assurances would
vitiate the “substantial grounds to believe” the person will be tortured.  As discussed in NSL, p.576, assurances
are regarded as doubtful guarantees by the human rights community and attracted
negative commentary by the Supreme Court in Suresh
(and in subsequent Federal Court cases).


assurance concept has been pursued most earnestly in the United Kingdom.  Human Rights Watch has prepared an
overview of this policy.  This
approach earned a conditional blessing from the House of Lords in its 2009
decision of RB v. Secretary of State.
 Essentially, whether the assurance
displaces the reasonable grounds to believe threshold is a question of fact,
dependent (among other things) on the state in question and the nature of the
assurance.  (See in particular, the reasoning of Lord Phillips in
paragraphs 106-126, Lord Hoffmann in paragraphs 182-194 and Lord Hope in
paragraphs 235-242).


I find it hard to believe that those facts ever add up to a viable assurance in
the Canadian context. The problem with assurances, of course, is that they constitute
a promise not to do something that is already
illegal in conventional and customary international law and, invariably, the
law (and perhaps even the constitution) of the torturing country. It strains
credulity that when these robust sources of obligation prove ineffectual, some
supplementary memorandum of understanding will prove effective, especially if
that understanding includes no on-going monitoring by the deporting country of
the returnee’s status.  The
following are, for me, a sobering and damning indictment of assurances:


the assurance is not enforceable in
international law.  It is not a
treaty obligation. The deporting state would have no standing to enforce it,
even assuming that there was an international venue competent to assume
jurisdiction over the dispute.


a diplomatic assurance issued by one branch of government – the foreign
ministry, for example – may be done completely in good faith and have no impact
whatsoever over the actions of the security services. As CSIS director Fadden
commented in his recent speech, “in some countries the intelligence agencies
are more influential than their foreign ministries”.  Whether a security service will feel bound by a diplomatic
assurance entered into by some other branch of government is no sure bet.  


even if the security service itself agrees to the assurance, compliance depends
entirely on a cost-benefit analysis: what is the cost of non-compliance against
the benefits of violating the agreement. A country that views its key national
security interests imperiled by the actions of the terrorist entity with which
the returnee is implicated and which takes the view that extreme
interrogation/intimidation is in its interests may have strong incentives to
violate the agreement. The countervail is the disrepute that country would then
be held in by the deporting country (assuming the latter even found out about
the abuse, an uncertain possibility). That disrepute might imperil future
returns and other forms of intelligence cooperation. 


This may be a reasonably potent countervail where the
assurance is given to, e.g., the
United States or the United Kingdom – states with whom the torturing state may
have important relationships. 
Canada’s place in the hierarchy of global power is very different, and
the countervail is accordingly much weaker.  Moreover, for a long time, the government has repeatedly
urged (in submissions on the need to protect foreign-provided intelligence from
disclosure and elsewhere) that Canada is a practical supplicant in the world of
information-sharing.  All told, the
government’s evidence in Canada Evidence
and security certificate cases is that we receive more intelligence
from our partners than we give – we need them more than they need us.  In Mr. Fadden’s words: “just as we have
diplomatic links with countries with poor human rights records, so must there
be intelligence links. If Canada’s only intelligence sharing took place with
countries that had pristine human rights records, there would be little we
could do to track threats across a turbulent planet.” It seems very unlikely
indeed that we would truly imperil or curtail a relationship with a foreign
state’s intelligence services over the treatment of someone we ourselves regard
as a security threat.


Also of note, our record in terms of forestalling
torture appears to be spotty, even where we do (presumably) have influence. The
record of treatment of battlefield detainees transferred from the Canadian
Forces to Afghan authorities in Afghanistan is now a matter of some
controversy, but it seems very likely that some number of them have been
maltreated.  This is true even with
the prisoner transfer arrangements concluded between Canada and Afghanistan –
arrangements that while imperfect, are probably more demanding than anything
likely to be found in a diplomatic assurance.



            In sum, diplomatic assurances are an unsustainable
solution to the inadequacies of immigration law as a tool of anti-terrorism.


Plan B


the solution must come from a completely different body of the law. RCMP
Commissioner Elliot championed a criminal law-led approach
in an October 2009
speech, and it is a view I also expressed in my op-ed. 


be clear, the criminal law is no solution to the dilemmas posed by the five
anti-terrorism security certificates that have proven so contentious (that is, those
of Almrei, Charkaoui, Harkat, Jaballah, and Mahjoub).  The alleged behaviour that has been used to implicate these
individuals pre-dates the anti-terrorism provisions in the Criminal Code and Security of
Information Act
added by Bill C-36 in 2001.  This criminal law cannot, for constitutional reasons, be
applied retroactively.


these individuals have been incarcerated and subject to restraints on liberty
for length periods of time, and courts have now universally agreed that that
fact attenuates the security threat they are alleged to pose. Put another way,
if they were dangerous, they are now less dangerous and that danger can be
contained by measures short of detention and even the initially very strict
limitations on liberty imposed on their initial release. Plan B should not,
therefore, be driven by a preoccupation with these five individuals – it risks
contorting policy to fit the peculiarities of a handful of cases.



The Criminal Law’s



the criminal law now reaches very far in terms of terrorist activity.  As discussed in NSL chapter 7, it has a
strong preemptive dimension, encompassing behaviour that once would have been
unassailable in criminal law because it was “merely preparatory” to an actual
offence.  Indeed, it captures much
– if not all – of the sorts of actions apparently at issue in the security
certificate cases.  Note, for
example, the provisions included (rather incongruously) in the Security of Information Act:


(1) Every person commits an offence who, at the direction of, for the benefit
of or in association with a foreign entity or a terrorist group, induces or
attempts to induce, by threat, accusation, menace or violence, any person to do
anything or to cause anything to be done


(a) that is for the purpose of
increasing the capacity of a foreign entity or a terrorist group to harm
Canadian interests [a very broadly defined concept, set out in section 3]; or


(b) that is reasonably likely to
harm Canadian interests.




(2) A person commits an offence
under subsection (1) whether or not the threat, accusation, menace or violence
occurred in Canada.


(3) Every person who commits an
offence under subsection (1) is guilty of an indictable offence and is liable
to imprisonment for life.



(1) Every person commits an offence who, for the purpose of committing an
offence under … 20(1), does anything that is specifically directed towards or
specifically done in preparation of the commission of the offence, including


(a) entering Canada at the
direction of or for the benefit of a foreign entity, a terrorist group or a
foreign economic entity; …



(2) Every person who commits an
offence under subsection (1) is guilty of an indictable offence and is liable
to imprisonment for a term of not more than two years.




Note also this provision from the Criminal Code:


83.18 (1) Every one who knowingly
participates in or contributes to, directly or indirectly, any activity of a
terrorist group for the purpose of enhancing the ability of any terrorist group
to facilitate or carry out a terrorist activity is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten years.




(3) Participating in or
contributing to an activity of a terrorist group includes … (d) entering or
remaining in any country for the benefit of, at the direction of or in
association with a terrorist group …


the latter provision, entering Canada to serve as a “sleeper” for a terrorist
group is almost certainly a crime. 
Under the former provision, entering Canada for the purpose of
extorting, e.g., Tamils to provide
financial support to the Tamil Tigers (a terrorism financing offence) would
likely be guilty of a crime.



Proving Crimes


criminal offences is another story, and is the true disincentive to pursuing
this Plan B.  Criminal proceedings
are open – much more so than the security certificate proceeding – and
disclosure rules are robust (although the difference between the two bodies of
rules has been narrowed by the Supreme Court’s Charkaoui II ruling).


Accordingly, if the evidence to be deployed against
an individual comes from an allied security service, extreme sensitivity over
its disclosure would likely terminate a prosecution – as discussed in NSL,
chapter 10, the “third party rule” and “originator control” make disclosure of
foreign-provided intelligence a damning sin in intelligence sharing circles.  Likewise, domestic security services are
extremely wary of their own sources and techniques being dragged into open
court. The Canada Evidence Act does
provide a means for protecting this information from disclosure.  It also allows a trial judge to toss
criminal charges if non-disclosure would produce an unfair trial.


This reality makes criminal trials possible in the
following circumstances:


The information supplying state consents to the
disclosure of the key inculpatory information; or,


In the absence of that consent, a
security-sanitized summary of the evidence can be prepared that accommodates
the national security preoccupation while not materially impairing the fairness
of the trial; or


3.     The
Canadian security services have enough inculpatory evidence of their own which
does not prejudice their own sources and techniques to support a conviction
(note that the common law has long recognized informer privilege in criminal


(There is, of course, a fourth possibility: Canada ignores
the third party rule, and uses foreign-provided intelligence in criminal
prosecutions without consent. Such a course of action would almost certainly
destroy Canada’s relationship with foreign intelligence services, putting in
great peril further information sharing of a sort that may be absolutely
critical to Canada.  I do not,
therefore, believe that this fourth possibility merits discussion).


Option 3 appears to be in play in the “Toronto 18”
proceedings.  Option 2, in effect,
arose in the Khawaja case (through
the Canada Evidence Act).  Option 1 is the most thorny issue. The
bottom line is that every state faces the dilemma of the third party rule in
terrorism cases – modern terrorism straddles borders and implicates a whole web
of information sharing networks. To the extent each state treats the third
party rule as absolute – and refuses to consent to disclosure in the court
proceedings of another state – each pursues a policy that may, applied against
it, imperil its own prosecutions. The result is a sort of intelligence “beggar
thy neighbour” approach.


In these circumstances, states must consider requests
for disclosure of their shared intelligence carefully (and not dismiss them out
of hand, or demand secrecy for even the most banal information).  Indeed, it seems wise to develop
protocols on how and where information can be disclosed in court proceedings,
perhaps concluded initially between states with similar legal systems. These
protocols would vitiate CSIS’s complaint in some of the security certificate
cases that even asking for permission
to disclose foreign provided intelligence creates the impression that the
agency is soft on secrecy, and not to be trusted.



(As an aside, I would not support the introduction of
IRPA-style special advocates in criminal cases. It departs too radically from
our criminal law tradition to exclude the accused from his or her own trial – I
can’t see it being desirable or constitutional or (given recent successful
prosecutions in Canada) necessary. 
That said, I think there is a
role for special advocates to represent the interests of the accused in the
collateral Canada Evidence Act
proceedings where decisions on the disclosure of secret evidence to the accused
are made).




to a Plan B focused on the criminal law also often urge that there will be
instances where actions needs to be taken immediately, perhaps even
precipitously, to disrupt a terrorist plot before evidence of a quantity or calibre
to support a conviction beyond a reasonable doubt has been collected.


noted, the post-2001 terrorism provisions reach very far into once “merely
preparatory” behaviour.  It stands
to reason that these urgent scenarios arise less often if behaviour several
steps removed from actual terrorist violence is criminalized.  But of course, urgent situations where
the criminal law is not yet engaged will still arise, even if more rarely.


In these circumstances, the state does need a
tool.  As discussed in NSL, chapter
14, the United Kingdom and Australia both have tools of preventive detention
and so-called “control orders” that remove or limit the liberty of action of
terrorist suspects.  Comparative systems
of preemptive detention – or detention without charge – are described in a report
by the UK human rights organization
, Liberty.


Canada’s system of so-called “preventive detention” –
sunsetted several years ago – is modest in comparison.  The bill currently before Parliament
would restore this same system.  As
I will describe in a supplemental blog, I believe that this system is
appropriate (although the bill deserves some tightening up). I think it is enough,
in the absence of a very compelling case grounded in the actual facts of the
Canadian security situation that something more draconian is necessary.





sum, I believe that as a legal matter, the tools for an effective system of
anti-terrorism are available, even though the back of the immigration approach
is broken.  I defer to RCMP
Commissioner Elliot on whether the sort of plan B that I support – a back to
basics criminal law approach – is adequately financed.  His view is that law enforcement has
been the poor cousin in the post-9/11 terrorism strategy.  His opinions on this point are
certainly consistent with what I’ve heard from others.  All of this leads to my final (and
perhaps banal) conclusion: Rather than throwing more money at security
certificates, we should now be better financing criminal investigations.