The security certificate process within the Immigration and Refugee Protection Act is not a criminal proceeding, but an immigration proceeding. The objective of the process is the removal from Canada of non-Canadians who have no legal right to be here and who pose a serious threat to Canada and Canadians.
The Government of Canada issues a certificate only in exceptional circumstances where the information to determine the case cannot be disclosed without endangering the safety of any person or national security.
The security certificate process has been in place since 1978. Since 1991, only twenty-seven individuals have been subject to certificate proceedings. All individuals subject to a certificate have been deemed to be inadmissible for reasons of national security, violating human or international rights, or involvement in organized or serious crimes.
The length of time it takes to remove an inadmissible person is determined by a range of factors and is different from one case to another. In more straightforward cases, removal can occur very expeditiously. Individuals currently subject to security certificates have exercised their right to pursue appeals of removal decisions made against them. This has delayed removal in many cases.
In its February 2007 ruling in Charkaoui v. Canada, the Supreme Court recognized that one of the most fundamental responsibilities of government is to ensure the security of its citizens. The Court found that additional safeguards should be incorporated into the process to better protect the rights of individuals subject to a certificate.
On October 22, 2007, the Government of Canada introduced Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificates and special advocates) in the House of Commons to respond to the Supreme Court's ruling. The new legislation introduces a special advocate into the certificate process, whose role will be to protect the interests of the person subject to a certificate during closed proceedings. The Bill received Royal Assent on February 13, 2008.
The Minister of Public Safety and the Minister of Citizenship and Immigration review and sign security certificates. Once signed, security certificates are referred to the Federal Court. The Immigration and Refugee Protection Act allows the federal government to use, and a judge to consider, classified information in closed proceedings. The information in these proceedings must be kept confidential because disclosing it would seriously harm the government's ability to protect Canadians.
An unclassified summary of the case is provided to the subject to inform the person and their counsel of the case against them. The summary must include sufficient information to reasonably inform the individual of the circumstances giving rise to the certificate, but it does not include anything, in the opinion of the judge, that would be dangerous to national security or the safety of any person if disclosed.
During the closed proceedings, the special advocate will have the ability to challenge the Government of Canada's claim that the disclosure of information used to support the security certificate would be injurious to national security or would endanger the safety of any person. The special advocate will be authorized to cross-examine witnesses and make submissions to the Court. In addition, the special advocate will be able to communicate with the subject of a security certificate without restriction until such time as they see the confidential information upon which a certificate is based.
The judge will also hear evidence and testimony from the person named in the certificate before ruling on whether a certificate should be upheld or not. The person may also call witnesses to testify in his/her defence.
In some cases, a judge may order the person detained during the security certificate removal process to protect national security or public safety. However, a person subject to a security certificate is free to leave Canada at any time and return to their country of origin.
The Government of Canada takes very seriously its obligation to safeguard public safety and national security. It is also committed to respecting individual rights under the Canadian Charter of Rights and Freedoms and to uphold international human rights obligations.