Word has come down to us that today the Supreme Court of
Canada will announce its decision on whether or not Ernst Zundel's petition
for leave on the constitutional challenge to the Canadian Security
Certificate Act will be accepted. To put it more crudely, today's decision
will tell the world whether or not a thousand years of Anglo-Saxon
jurisprudence, imported from England to safeguard Canadians from government
brutality, will be given the boot.
Since the Canadian judicial system has just about been taken
over by the cohorts of the New World Order, none of us expect a miracle. The
Court is packed with Zundel foes, several of them Jews who have been
vociferous for years in protest against Zundel to speak his mind on history
and on the so-called "Holocaust".
For the record, here is what Amnesty International, even
though equally poisonously hostile to any help extended or even offered to
Ernst Zundel personally, has said about the deadly, Soviet-style Security
Certificate Act. In a powerful Open Letter to Deputy Prime Minister Anne
McLellan on March 31, 2004, Amnesty International pleaded passionately with
the Canadian government to step back from the brink to out-and-out
dictatorship.
When Peter Lindsay, who heads Ernst Zundel's defence team,
tried to file this Amnesty International letter as an exhibit, he ran into
objections from Murray Rodych, counsel for the Canadian Security and
Intelligence Service (CSIS) at the hearing.
"Should we have to try to search down whether an
unsigned letter from Amnesty International sent to Anne McLellan is perhaps
a draft?" the obstructionist Rodych demanded.
Over the noon break Peter Lindsay was able to satisfy the
Crown's nitpicking and obtained a signed photostat of the Amnesty letter on
the organization's letterhead.
The text of the Amnesty International letter follows.
The Honourable Anne McLellan
Deputy Prime Minister and Minister of Public Safety and Emergency
Preparedness
340 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
By Fax: 990-9077
March 31, 2004
Dear Deputy Prime Minister McLellan,
We are writing this open letter to you to underscore
Amnesty International's serious concerns with respect to the security
certificate provisions that have been part of Canada's immigration
legislation for a number of years.
Over the past several years, Amnesty International has, on
numerous occasions, written to the Canadian government, highlighting
individual cases in which we considered that the security certificate
process was resulting in violations of a number of fundamental human
rights. We are aware of at least six individuals who are currently being
held pursuant to security certificates. These individuals have been in
detention for an extended period now, close to four years in one case.
We repeat Amnesty International's concerns below and urge
that you take immediate steps to reform the security certificate process
to bring it into full compliance with Canada's international human rights
obligations. In doing so, we remind the government that the Immigration
and Refugee Protection Act itself, in s. 3(3) (f), requires that the law
be "construed and applied in a manner that complies with
international human rights instruments to [part of sentence missing]
Unfair Proceedings
Amnesty International is of the view that the security
certificate process may very well result in arbitrary detention and thus
violate the fundamental right to liberty. The process does not conform to
a number of essential international legal standards, which are meant to
safeguard against the very possibility of arbitrary detention. Detainees
are not informed of the precise allegations against them. They see only a
summary of the evidence that is being used against them. Evidence may be
presented in court in the absence of the detainee or his or her counsel.
The detainee is not afforded a right to examine any and all witnesses who
have been the source of that evidence. Furthermore, the Federal Court
considers only the "reasonableness" of the decision to issue a
security certificate and does not substantively review it.
Amnesty International recognizes that special measures may
need to be taken in cases involving security matters, but any such
measures must be consistent with international law. We realized, for
example, that the government may have concerns about protecting the
identity of certain sources or witnesses. If so, specific and targeted
measures should be taken to address those particular concerns, rather than
through the wide sweeping approach of the current legislation. In any
case, in view of the potential for a wide interpretation by the detaining
authorities of security information which may be the basis for a decision
to detain, and because decisions to detain in such cases are often based
on a prediction about an individual's future actions, it is imperative
that there be full and effective judicial scrutiny of such decisions,
beyond the test of "reasonableness" that is the present
standard.
Amnesty International has repeatedly drawn attention,
worldwide, to instances where the failure to comply with international
human rights standards regarding fair trials has led to wrongful detention
and other human rights violations. In the present circumstances, Amnesty
International considers that individuals detained pursuant to a security
certificate are effectively denied their right to prepare a defence and
mount a meaningful challenge to the lawfulness of their detention. This is
in contravention of Canada's obligations under articles 9 and 14 of the
International Covenant on Civil and Political Rights.
While some of the provisions in articles 9 and 14 apply
specifically to individuals who have been formally charged with a criminal
offence, which is not the case in the issuance of a security certificate,
they are nevertheless widely recognized as reflecting general principles
of law and are relevant in so far as they set out the basic essential
elements of a fair hearing. Furthermore, some of the provisions apply to
all detainees, such as those guaranteeing the right to challenge the
lawfulness of their detention. That right to challenge must be in accord
with recognized international fair trial standards.
Other international standards highlight the importance of
ensuring that all detainees enjoy the same level of fairness. The UN Body
of Protection of all Persons under any Form of Detention or Imprisonment,
adopted by the UN General Assembly in 1988 establish that anyone who is
detained shall be given an "effective opportunity: to be heard by a
judicial or other authority, has the right to defend him or herself, and
shall receive "prompt and full communication" of any order of
detention "together with the reasons therefore." The Basic
Principles on the role of Lawyers, adopted in 1990, underscore that
lawyers must be given access to "appropriate information, files and
documents" so that they can provide their clients with
"effective legal assistance." Amnesty International considers
that these standards require that the detainee be given detailed reasons
as to why he or she is detained, access to the full evidence that is being
used against them, and a substantive hearing to examine the lawfulness of
the detention.
On the basis of these concerns, Amnesty International has
repeatedly urged the Canadian government to reform the security
certificate process so as to bring it into line with Canada's
international human right as obligations, incision by ensuring a
substantive review of the reasons for detention and by making all evidence
available to the individual detained so that any potentially unfounded
allegations can be effectively and meaningfully challenged.
Protection against Refoulement
Amnesty International is doubly concerned about the
fundamentally flawed and unfair security certificate process because it is
frequently applied in cases where the likely outcome is deportation to a
country where the individual concerned is at serious risk of torture or
other grave human rights violations. Given such potentially severe
consequences, it is all the more critical that the security certificate
process fully comply with international human rights standards governing
arrest and detention.
International law is absolute, no one should be deported
to a country "where there are substantial grounds for believing that
he or she would be in danger of being subjected to torture."1 The
United Nations Committee against Torture, in 2000, informed Canada that it
is a violation to the UN Convention against Torture to deport an
individual to face a substantial risk of torture, including when there are
security concerns. In 2002, the Supreme Court of Canada, in the Suresh
case, recognized that international law provides absolute protection
against being returned to torture, but left open a possibility that such
returns might be allowed under the Canadian Charter of Rights, in
extraordinary circumstances which the Court did not define.
There is a mechanism in Canadian law which requires an
assessment to be carried out by an immigration officer prior to
deportation to determine whether an individual does face a substantial
risk of torture. However, if a security certificate has been issued and
found to be "reasonable" by a judge, that possibility is no
longer available to the individual concerned. Both before and since, the
Suresh ruling Amnesty International has urged the Canadian government to
amend Canadian law so as to clearly prohibit any individual being returned
to country where there is a substantial risk of torture.
Conclusion
Amnesty International is very much aware that the
government alleges that individuals detained pursuant to security
certificates constitute a danger to the security of Canada. However,
Amnesty International urges Canada to adopt a response to security
concerns what does not result in violations of such fundamental human
rights as the protections against arbitrary detention and torture.
Canada's response should instead focus on bringing individuals to justice
in criminal proceedings that meet international fair trial standards. That
is the best means of ensuring both that both justice and security will
prevail.
Sincerely,
Alex Neve
Secretary General
Amnesty International Canada
(English-speaking)
Michel Frenette Director Amnistie Internationale Canada Francophone
