Secret evidence allowed in deportation cases 2007
Special section of
Immigration Act permits closed-door hearings from which suspects and defence counsel are barred
COLIN FREEZE
From Monday's Globe and Mail
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
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
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
Section 86 cases frequently
involve foreign groups blacklisted as terrorist entities. Mr. Boulakia, for example, represents an alleged associate of
The law was also used to a
send Sikh separatist, a Babbar Khalsa
member, back to
Another case involved the
government's bid to deport a Nigerian-born teenager with ties to an
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."