From sleeper cells to 3-sided cells: Justifications for security certificates expressed during the debate on Bill C-3

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1 From sleeper cells to 3-sided cells: Justifications for security certificates expressed during the debate on Bill C-3 Presented at the Canadian Association of Refugee and Forced Migration Studies (CARFMS) conference, June 16, 2008 Janet Cleveland, Ph.D. When one reads the debates in Canada s House of Commons concerning Bill C-3, the bill to institute a new security certificate regime, it becomes apparent that one of the major arguments used to justify security certificates is the presumed existence of sleeper cells. The basic premise is that security certificates are needed in order to quickly deport non-citizens who have not committed any criminal acts, nor even conspired to commit criminal acts, but who adhere to an ideology that might someday lead them to commit terrorist acts or who have connections with foreign terrorist organizations. In short, the explicit rationale for security certificates is that they are needed to get rid of foreigners suspected of holding beliefs that might possibly lead them to commit terrorist acts, but who have never actually committed or conspired to commit a terrorist act in Canada. Insofar as security certificates are based primarily on suspected evil intentions and possible terrorist ideological leanings, rather than on tangible criminal actions, it is virtually impossible for the person held under a certificate to prove his innocence. One of the main demands of opponents of security certificates is that when a person is suspected of being a security threat, he or she should be charged and tried according to criminal law, whether or not the person is a citizen. This position rests on the premise, enshrined in the Canadian Charter of Rights and Freedoms, that all persons residing in Canada have the right to equality before the law and to due process guarantees, whether or not the person is a citizen. The government s response to this argument was summed up by Dave MacKenzie, Parliamentary Secretary to the Minister of Public Safety, during the debate on seconding reading of Bill C-3: this is not about people who are charged in Canada with crimes committed in Canada. This is really about people who are not eligible to be in Canada and for crimes that may or may not have been committed in other places. They may belong to terrorist organizations. It is not about committing crime in Canada. 1 In other words, the government position is that one must use security certificates rather than laying criminal charges because the person is not actually suspected of committing a crime in Canada. Instead, the person may or may not have been involved in criminal offenses in another country, or may have belonged to a terrorist organization, or hold beliefs consistent with those of certain terrorist organizations. Government MPs, along with many opposition MPs, were also constantly at pains to underline that Canadians had nothing to worry about because security certificates cannot be used against Canadian citizens. For example, in his opening statement on behalf of the Conservative government on second reading of Bill C-3, Dave MacKenzie said: 1

2 While we encourage immigration, Canadians also insist on vigilance against people and organizations taking advantage of our generosity and openness. They pose a danger to our nation and, in some cases, to other nations around the world. They have committed serious crimes, or violated human rights or even taken part in terrorism. These people are not welcome in Canada. Canadians do not want our doors to be open to people who endanger our national security and the safety of our communities. 2 Certificates have been issued against spies, terrorists and extremists. They can never be used against a Canadian citizen, and that is a very important part. 3 When the debate on second reading of Bill C-3 resumed on November 19, 2007, Dave MacKenzie said: Some people come to Canada and pose a grave threat to our nation. A small minority yes, but a group that we must address. Some of them have committed serious crimes abroad and have affiliations to terrorist organizations. Their intentions in coming to Canada may not be innocent. They may be here to continue committing these crimes or to recruit others to their cause. Canada cannot become a safe haven for these people. 4 While calling for amendments to Bill C-3, Serge Ménard, the Bloc Québecois Public Safety critic, made it clear that he shares the belief that security certificates are needed to face the threat posed by sleeper cells. Mr. Ménard stated that: since 9/11, that fear has emerged among security services. They concluded that some of these people had been sent to the United States and were leading a perfectly normal life, without having to maintain any contact with security organizations and that, one day, they were called and asked to participate in an operation. They were even convinced that many of those who had participated in that operation did not know exactly what they were going to do, but were willing to participate in an illegal or terrorist operation. This is what is known as a sleeper cell. And this fear of sleeper cells means that there is now a greater tendency to use security certificates than in the past. 5 There is no evidence that they conspired to commit a crime. In fact, if they had conspired to commit a crime, the solution would be to charge them and bring them before the courts. All we have are reasons to believe they were here to commit a terrorist act at some point. 6 In response to a comment by Penny Priddy, the newly appointed NDP Public Safety critic, Serge Ménard emphasized that the difference between the NDP and the Bloc was the Bloc s acceptance of the government premise that sleeper cells pose a threat that cannot be resolved through criminal law procedures. He said: 2

3 I believe the member [Penny Priddy] understands that the fundamental difference between our position and hers is the issue of sleeper cells. Does she believe that there are terrorist organizations in the world today that are training people and sending them to democratic countries with orders to lie low and lead an exemplary life until the day they are told to commit a terrorist act with other people? They have not yet done anything illegal, but one day, they will. 7 In an unguarded moment, Penny Priddy deviated from the official NDP line and said: Mr. Speaker, are there cells throughout the country? I do not know, but I believe there to be. She then quickly attempted to get back on message by adding: However, if people are in Canada living an exemplary life and breaking no laws, perhaps they have changed their minds or disavowed themselves from their original training. I do not know. 8 Ms. Priddy s spontaneous reaction to Mr. Ménard s question reflects how deeply ingrained the image of sleeper cells has become in our collective imagination since The insidious fear that the nice Muslim family living next door might turn out to be al- Quaeda operatives feeds xenophobic prejudices and has allowed both Conservative and Liberal governments to justify the use of security certificates. Ed Komarnicki, Parliamentary Secretary to the Minister of Citizenship and Immigration for the Conservative government, explained in greater depth the government s rationale for using security certificates against non-citizens suspected of being a security threat, rather than proceeding under the Criminal Code. Referring to a recommendation made by the House of Commons Standing Committee on Citizenship and Immigration in April , Mr. Komarnicki said: The committee also recommended that the government institute a policy stating that charges under the Criminal Code would be the preferred method of dealing with permanent residents or foreign nationals who were suspected of participating and contributing to or facilitating terrorist activities. However, there is a difference between a criminal act and the intention necessary to make that act criminal and someone who is not yet in that stage who will be a potential danger to the safety or the national security or to individuals. Therefore, the two acts need to be dealt independently of each other. 10 Criminal proceedings seek to convict, and if a conviction is obtained, should apply a punitive sentence as decided by the court. That is when a crime is alleged to have been committed or when a series of actions or intentions breaches an existing law in Canada. In some cases, individuals may not have progressed to that stage, nonetheless they are a threat to our national security or the safety of a person. While the security certificate process is meant to remove inadmissible individuals from Canada, it has no punitive design. 11 3

4 As I have already said, the basis for proceeding with the security certificate process under the Immigration and Refugee Protection Act is whether the person is admissible to Canada and therefore subject to further removal. On the other hand, the only basis on which criminal proceedings are conducted is when, following an independent investigation by the police, a review of the evidence shows that there is a reasonable prospect of conviction and that to the prosecution, it is in the public interest to proceed with the charge. 12 Mr. Komarnicki concluded his remarks by firmly asserting the government s intention to act as gatekeepers who will not only prevent undesirable foreigner from entering Canada, but also eject any that might have already slipped in: We must continue to have the ability to remove from our country inadmissible persons who pose a grave and severe threat to Canadians. Whether it is a foreign spy, a terrorist, a member of a violent organized crime group or a person who has committed heinous human rights atrocities overseas, these people cannot and they must not be allowed to stay in Canada. It would be like closing the barn gate after the horses have left. We do not do that. We do not leave the gate open. We have to be gatekeepers. 13 Liberal MP Derek Lee forcefully echoed the government s position that Canadians need not worry about the argument that security certificates are unfair or that they do not respect due process because they may only be used against non-citizens: Every week there are dozens of people being removed from Canada as illegal immigrants. These are people who do not have status here, people who should not be here. We must always remember that we are not dealing with Canadians. We are dealing with non-canadians. The security certificate provisions do not involve Canadians, only non-canadians. The non-canadian category includes people with no status and people who have permanent resident status but are not citizens. 14 Mr. Lee went on to offer a particularly lurid (and specious) argument in support of security certificates: I will just offer a hypothetical example, one that is not too bizarre. I will refer to the mythical Carlos the Jackal, who I understand is now deceased. Imagine that person had been found living in Moose Jaw under an alias and we wanted to remove him from this country, but he had not committed any offences in Canada. Would he have been a simple deportee? Would we invite him for a hearing in front of an immigration officer and then tell him to come back a week later when a decision would be made? Would we ask him if he wanted a lawyer? We have lots of procedural fairness available to people subject to deportation proceedings. The answer with respect to my example is clear. We would probably want to remove him quickly. We would have classified national security 4

5 information which could not be disclosed on the street because it would reveal some of our procedures and protocols on dealing with security matters. So, getting rid of Carlos the Jackal would require a special procedure, and that is the security certificate procedure that we have developed. In that particular hypothetical case, he is not a permanent resident; he has no status in Canada; he is hiding here; and he is to be removed to his country of citizenship. This is not a rendition. This is simply a removal to his country of citizenship; and in that case, there were probably a lot of countries looking for him. 15 This attempt to conflate persons held under security certificates with Carlos the Jackal is deliberately misleading. Carlos the Jackal was a convicted criminal who openly admitted to having killed and maimed innocent civilians through bombings carried out in public areas. The individuals currently held under security certificates, on the other hand, have never been charged, much less found guilty, of any criminal acts, and have repeatedly affirmed their innocence. Speaking before the Standing Committee on Public Safety and National Security, Stockwell Day, Minister of Public Safety, played on the tired old myth that Canada has an overly generous refugee process with endless appeals: So what do we do in a situation where a person is deemed inadmissible because they are a threat, but they do not accept that designation and they say they're staying? And they can stay. They can appeal. Appeals take place every day. Thousands of appeals take place, and we have a generous appeal system. In fact, people can appeal that status. Once you start an appeal, maybe by claiming refugee status, that appeal can go on, in some cases, for years. The dilemma is, here you have a person deemed to be dangerous, and yet they're making an appeal. 16 Minister Day then evokes one of his favourite myths, that of the three-sided cell: we call it a three-sided detention facility. It only has three sides, meaning that the person can return to their country of origin at any time. However, there are cases where the person says if they return to their country of origin they fear they will be tortured, so they are detained while the appeal takes place. 17 In response to a question from the NDP s Public Safety critic, Penny Priddy, Minister Day explained that the whole point of security certificates is to circumvent the procedural safeguards built into criminal procedures: This is different from pursuing somebody for a conviction for a crime. In the criminal process, you have to have evidence that stands up in a court of 5

6 law, sufficient that a person be convicted and actually put in prison. We re not talking about that when we re looking at a security certificate. It s understood that for any country that would have to go through the full range of criminal procedures to deem somebody inadmissible at the border, the border itself would collapse under the weight of that. 18 In a nutshell, two of the main arguments invoked by the government in support of security certificates are: - Security certificates can only be used against non-citizens, so Canadians have nothing to worry about. Seemingly, the government is of the view that the term Canadians does not include asylum seekers, refugees or permanent residents living in Canada. - Security certificates are needed when the government does not have evidence that stands up in court that an individual has committed or is conspiring to commit criminal acts in Canada. They are designed primarily for use against people suspected on the basis of their (supposed) ideology or their past actions. 1 Canada, House of Commons Debates, 19 November 2007, Vol. 42, no. 19, 1018 (Dave MacKenzie, Parliamentary Secretary to the Minister of Public Safety, Conservative Party). 2 Canada, House of Commons Debates, 26 October 2007, Vol. 42, no. 9, 459 (Dave MacKenzie, Parliamentary Secretary to the Minister of Public Safety, Conservative Party). 3 Ibid. 4 Canada, House of Commons Debates, 19 November 2007, Vol. 42, No. 19, 1017 (Dave MacKenzie, Parliamentary Secretary to the Minister of Public Safety, Conservative Party). 5 Canada, House of Commons Debates, 19 November 2007, Vol. 42, No. 19, 1022 (Serge Ménard, Bloc Québecois) Translation. 6 Ibid. 7 Ibid, Canada, House of Commons Debates, 19 November 2007, Vol. 42, No. 19, 1026 (Penny Priddy, NDP). 9 Detention Centres and Security Certificates. Report of the Standing Committee on Citizenship and Immigration, 13, Canada, House of Commons, April Canada, House of Commons Debates, 19 November 2007, Vol. 42, No. 19, 1027(Ed Komarnicki, Parliamentary Secretary to the Minister of Citizenship and Immigration, Conservative Party) 11 Ibid, Ibid. 13 Ibid, Canada, House of Commons Debates, 20 November 2007, Vol. 42, No. 20, 1085 (Derek Lee, Liberal Party). 15 Ibid, Canada, Standing Committee on Public Safety and National Security, House of Commons, 27 November 2007, SECU No. 4, 1 (Stockwell Day, Minister of Public Safety, Conservative Party). 17 Ibid, Ibid, 5. 6