Secret evidence allowed in deportation cases
Special section of Immigration Act permits closed-door hearings from which suspects and defence counsel are barred
From Monday's Globe and Mail
November 12, 2007 at 4:42 AM EST
Call it a “security certificate lite”: In nearly a dozen cases since 9/11, Canadian officials have sought to invoke an obscure power that allows for secret evidence in deportation cases – keeping suspects ranging from alleged terrorists to a reputed teenaged member of the Crips gang in the dark about the full extent of the allegations against them.
Section 86 of 2002's Immigration and Refugee Protection Act has allowed the government to bar suspects and defence lawyers from secret hearings where federal agents have told adjudicators about evidence they felt to be “injurious to national security or to the safety of any person” if otherwise disclosed.
The power mirrors the controversial “security certificate” procedure that the Supreme Court of Canada deemed unfair and unconstitutional last year, but is completely distinct from it. Parliament is considering a law intended to plug holes in both procedures, by allowing “special advocates” to make cases for the defence inside secret hearings.
Security-certificate cases are much better known, as they involve higher-level national-security threats. Federal cabinet ministers sign off on certificates allowing authorities to detain suspects until deportation. Presiding Federal Court judges have been using the power to keep five terrorism suspects jailed or under strict surveillance.
Section 86 is like the security certificate's little sister, a less heavy hammer designed to deal with a lower level of perceived threat. Immigration-enforcement officers initiate these cases at hearings before the Immigration and Refugee Board.
“It's exactly the same, the only difference is you're not in jail,” said Raoul Boulakia, a Toronto defence lawyer fighting one such deportation.
He says Section 86 is deeply problematic and arbitrary, even compared to security certificates. Bureaucratic adjudicators lack the national-security expertise of judges, Mr. Boulakia argues, adding that he questions why relatively low-level officials can start secret evidence hearings.
Neither procedure alleges any sort of crime, as criminal cases would oblige police to prove their allegations to a standard of “beyond reasonable doubt” in open court, disclosing all evidence, including any secret sources or foreign intelligence. What is alleged instead is only “reasonable suspicion” of involvement in nefarious groups, links that the government argues would nullify foreigners' claims to Canada. Even under the much lower threshold, officials sometimes feel it prudent to go behind closed doors.
Section 86 cases frequently involve foreign groups blacklisted as terrorist entities. Mr. Boulakia, for example, represents an alleged associate of Columbia's FARC guerrilla movement.
The law was also used to a send Sikh separatist, a Babbar Khalsa member, back to India last year. And before that, the government sought to use the power against five failed Algerian refugee claimants with ties to Afghan training camps
Another case involved the government's bid to deport a Nigerian-born teenager with ties to an Ottawa street gang know as the Ledbury Banff Crips. The claims for concealing the allegations flowed from the concerns of a witness who did not want to openly testify about the suspect's gang ties.
On appeal, the defence successfully argued the government had overclaimed secrecy. “This wasn't al-Qaeda,” defence lawyer Chantal Tie said in an interview. “You're talking here about a neighbourhood youth gang.”
The man suspected of being a gang member, Ikemfuma Ayalogu, had been stopped more than 70 times by police, but Ms. Tie said her client was not once convicted of a crime. She suggests authorities used Section 86 as an end run around standard procedures.
“The secret stuff was totally inappropriate,” Ms. Tie said. “… There were all kinds of allegations, but he wasn't given a fair opportunity to respond to them.”