Canadian Court puts security certificates in limbo

Kirk Makin and Tenille Bonoguore

Globe and Mail Update and Canadian Press

http://www.theglobeandmail.com/servlet/story/RTGAM.20070223.wscoc0223/BNStory/National/home



The Supreme Court of Canada has voted unanimously to strike down a controversial federal procedure used to deport suspected terrorists as being a violation of life, liberty and security of the person.

The security certificate process is hopelessly flawed and must be redrafted by Parliament to eliminate the extreme secrecy in which hearings to determine the reasonableness of certificates take place, the court said on Friday.

While carefully paying heed to fears of terrorism and the special difficulties of protecting national security, the court said that certain elements of fairness cannot be dispensed with -- including the right of a detainee to know the case against them and to make full answer and defence.

"While there is a risk of catastrophic acts of violence, it would be foolhardy to require a lengthy review process before a certificate should be issued," the court said.

However it said the various forms of review in which a designated lawyer is empowered to act on behalf of detainees could pass constitutional muster.

Writing for a unanimous court, Chief Justice Beverley McLachlin suspended the effects of the ruling for one year to give the Federal Government time to craft a new security certificate process.

However, foreign nationals will benefit immediately from one aspect of the ruling which grants them a bail review within 48 hours of their first being detained -- a far shorter period than they must currently wait.

In the House of Commons, Conservative House leader Peter van Loan offered formal thanks to the court for its decision and signalled that the Tories would get to work trying to bring the legislation into accord with the Charter.

"We will be reviewing that decision and seeing if there is a way to — and we are confident we can — reconcile the need to protect the security of Canadians with the directions to Parliament from the court," Mr. van Loan said.

The ramifications of the decision will extend far beyond Canada's border, says Alex Neve, secretary general of Amnesty International Canada.

Speaking at a news conference following the judgment's release, Mr. Neve said the ruling debunked government claims that the security certificate system was fine.

"It's a ringing, profoundly important endorsement of one simple bedrock truth: Security is all about human rights," Mr. Neve said.

The ruling strengthens the Arar Commission's position in "conveying an unequivocal message" that fundamental rights will not be countenanced by the nation's senior judges, he said.

"That will be heard outside Canada as well in courtrooms, legislatures around the world, and it helps to reverse the global rollback in human rights that has been such a worrying trends worldwide since September 11th," he said.

The court said that while federal court judges who conduct security certificate reviews do play an unusually active role in testing secret evidence, they are not unacceptably "co-opted" by the process.

It said that there may always be some evidence that cannot be disclosed and must be heard in a secret hearing, yet that must be as minimal as possible.

"It may simply be so critical that it cannot be disclosed without risking national security," Chief Justice McLachlin wrote.

"This is a reality of our modern world. If Section 7 is to be satisfied, either the person must be given the necessary information or a substantial substitute for the information must be found. Neither is the case here."

It said that the onus on governments to move quickly in a proceeding becomes greater with passing time.

"Stringent release conditions . . . seriously limit individual liberty," the court added. "However they are less severe than incarceration."

The court said that the security certificate provisions do not violate the Charter right to equality or constitute cruel or unusual punishment.

The security certificate process -- enshrined within the Immigration and Refugee Protection Act -- has been a target of constant, harsh condemnation from civil libertarians.

The provisions pre-date the Sept. 11, 2001, terrorist attacks, and allow for a non-resident to be designated as a risk to national security, detained indefinitely, and ultimately deported.

The detainees and their counsel are provided with only a vague summary of the allegations against them. Evidence to back up the allegations is given in secret to a judge, and neither the accused nor their lawyer can attend.

The three men behind the Supreme Court challenge – Adil Charkaoui, Mohamed Harkat and Hassan Almrei – had all spent several years behind bars before being released recently under tight conditions of house arrest and their agreement not to communicate with a wide range of individuals.

The conditions of their detention – in a special holding unit nicknamed Guantanamo North – led some of the detainees to resort to desperate tactics such as hunger strikes.

Mr. Almrei's lawyer Barbara Jackman said, without Friday's judgment, her unmarried client would have "had a very hard time" obtaining release from prison.

"This decision makes it at least possible that a court may release him without requiring that he have a wife to supervise him," Ms. Jackman said.

Her co-counsel John Norris said the court had risen above the "rhetoric of national security."

"They have recognized the fundamental importance of preserving the security of all of us, but, at the same time, have stated in the clearest possible terms that that must never be done at the expense of fundamental fairness," Mr. Norris said.