Colin Perkel. The Gobe and Mail. November 4, 2008

TORONTO — It’s simply too soon to decide whether parts of Canada’s new national security legislation might be unconstitutional, a Federal Court judge ruled yesterday. Chief Justice Allan Lutfy said that he did not have a factual basis to decide whether the revamped law tramples the rights of foreigners detained as suspected terrorists under national security certificates. “This constitutional motion is supported with little, if any, adjudicative facts or evidence,” the court held. “The motion is substantially based on legislative facts or … constitutes a ‘facial constitutional challenge’ of the impugned provisions in the new legislation.”

At issue are gag orders that apply to security-cleared lawyers known as special advocates, appointed to test the government’s secret intelligence used against detainees.

The special advocates argued the muzzle provisions go well beyond ensuring legitimately classified information remains off limits to the public. They said the rules undermine their ability to do their jobs.

Toronto lawyer Lorne Waldman, a special advocate who brought the challenge, expressed disappointment at the ruling, but noted the court was careful not to shut the door to a further challenge.

“It doesn’t prevent us from raising all of these arguments again later on,” he said. “He just said we should have waited.”

Mr. Waldman said he would consult with his client, Hassan Almrei, a Syrian detained without charge for seven years, to see if an appeal should be filed.

The new law was enacted this year in response to a Supreme Court of Canada condemnation of the old legislation as unfair.

At issue was the secrecy that left detainees, and their lawyers, in the dark regarding the evidence used to detain them as a national security risk.

The government argued that revealing sensitive intelligence to suspects and lawyers, and essentially the public, would threaten Canada’s safety and its ability to obtain information from other spy services.

The new legislation, enacted by the Harper government, created the position of special advocates who have access to classified information, which they can challenge in closed court. However, they are forbidden from discussing the information with the detainees or their lawyers.