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Secret Evidence Plays Growing Role in Canada’s Immigration Courts

TORONTO, Nov 9 2013 (IPS) - Gossip and rumour based on secret intelligence sources may be all that is needed to deport a foreign national from Canada on national security grounds, legal experts say.

Secret evidence has been used “in a whole range of immigration procedures,” such as applications for permanent residence or citizenship in Canada, “which do not involve actual hearings but are simply administrative procedures,” says Sharryn Aiken, a Queen’s University law professor and immigration and refugee expert.

"It is next to impossible for the person concerned to mount a response to the allegations against them." -- law professor Sharryn Aiken

“What we are seeing is a stunning intensification of the use of secret evidence in a range of procedures,” she told IPS. “What we have seen, frankly even before 9/11, [but] a trend that has intensified in the aftermath of 9/11, is the increasing tendency of the federal government to criminalise and securitise non-citizens.

“And by that I mean to basically subject non-citizens – and in particular Muslim and Arab men, as well as other racialised non-citizens from certain parts of the world – to a disproportionate degree of suspicion and scrutiny.”

Toronto immigration lawyer Barb Jackman agrees, reporting that she has found 100 examples of Federal Court of Canada immigration and refugee cases where secret evidence has been applied against immigrants already in Canada or other foreign nationals outside the country who are arriving and sponsored by families or employers.

“The [Federal] Court has not generally questioned the secret evidence. It seems very comfortable with deciding cases on secret evidence without the assistance of counsel to challenge or question that evidence,” Jackman said.

One difficulty for the accused is that there is “a different threshold in terms of burden of proof required for the immigration proceeding” in Canada, says Mike Larsen, a criminologist at Kwantlen Polytechnic University in British Columbia.

Immigration officers and adjudicators consider “an objective reasonable suspicion or balanced probability standard, as opposed to a criminal proceeding [in Canada] where you have [beyond] reasonable doubt,” Larsen told IPS.

Jackman says her own client, Douglas Gray Freeman, faced “gossip” from U.S. intelligence files before the Federal Court.

Freeman is an African-American and U.S. citizen who fled to Canada in 1969 after shooting and wounding a police office in Chicago in what he described as an act of self-defence during a period of racial tension in the U.S.

Freeman (not his original name) married a Canadian woman, fathered children and worked quietly and illegally at the main reference library in Toronto. His presence was eventually discovered and he was extradited back to the U.S. where in 2008 he pleaded guilty to a single count of aggravated battery, for which he served a 30-day jail sentence. Freeman also donated 250,000 dollars to a charity and was given two years probation.

His subsequent effort to immigrate legally to Canada and reunite with his family has been met with tough opposition from Canadian authorities. After a hearing before the Federal Court of Canada, Justice Anne Mactavish ruled in October that Freeman was denied “procedural fairness.” Despite the lack of evidence, the government had claimed that he had “terrorist” links with the Black Panther party.

Jackman says other federal court cases have popped up involving intelligence mistakenly released from the Canadian Security Intelligence Service and based on unnamed informants.

“There may be cases where [the government authorities] have ‘hard’ evidence but in most I think it is soft intelligence, which is based on talking to people and constructing an image of the person from rumour and gossip,” she said.

Meanwhile, the Canadian courts have been wrestling with the constitutionality of the security certificate provision in the immigration and refugee protection act, which also allows for secret evidence.

It was not introduced by the current right-wing Conservative government but by the previous centrist Liberals in 2001, when the latter were in power and “overhauling” Canadian immigrant law, says Aiken.

Since 1991, Canada has issued security certificates against several foreign nationals on its territory on the basis that they are national security risks who should be deported back to their home country.

The security certificates allow authorities to indefinitely detain those who resist the removal process with a court challenge. One of them involves a successful refugee claimant from Egypt, Mohammad Mahjoub, who has been imprisoned without trial for 13 years while fighting deportation.

But Canadian authorities are running into resistance from the courts, which have ruled that foreign nationals cannot be sent back to countries known to practice torture in their criminal justice systems to elicit confessions for alleged crimes.

The Supreme Court of Canada in 2011 also ordered the cancelling of a security certificate against the Moroccan-born Adil Charkaoui and the amending of the security certificate system because it was unconstitutional in its then current form. The Canadian government followed through with new security advocate provisions in the legislation.

But Aikin calls the new provisions problematic because the accused person has limited access to the security advocate, who cannot disclose the secret intelligence information gathered on him or her.

“The general pattern of withholding contact after the special advocate has had access to the evidence means it is next to impossible for the person concerned to mount a response to the allegations against them,” she says.

Secret evidence is still being introduced in other immigration and refugee situations, not related to security certificates, where judges and adjudicators routinely deny people access to security advocates, says Janet Dench, the executive director of the Montreal based Canadian Council for Refugees.

Here, people are “worse off” because they often face the secret evidence against them without a lawyer present, Dench told IPS.

“What we are concerned is that …if the government stopped using security certificates because it may not be productive for them, they were not getting the results they wanted. So, [they] will just use the secret evidence in the other procedures,” Dench says.

Meanwhile, Melissa Anderson, a communications spokesperson for the Immigration and Refugee Board of Canada, says an increasing number of refugee cases involving national security are being transferred from the IRB to the Federal Court.

In those circumstances, the Minister of Public Safety and the Canada Border Services Agency then become engaged in what turns into an admissibility hearing and a more “adversarial process,” to boot, Anderson told IPS.

“My understanding and I don’t have any statistics on it is that the Minister of [Public Safety] is participating in more refugee protection claims than ever before.”

 
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