Ottawa reinstates controversial security certificates

Posted by admin on Oct 22nd, 2007

Richard Foot. CanWest News Service, with files from Norma Greenaway. Monday, October 22, 2007

OTTAWA — Eight months after the Supreme Court declared one of Canada’s main anti-terrorism laws unconstitutional, the Conservative government has reintroduced the provisions with changes it says would protect the rights of the accused. Legislation unveiled Monday would preserve the controversial security certificate regime, but create room for “special advocates” — lawyers, acting on behalf of the accused, with access to the secret information the government uses to detain and deport suspects. Public Safety Minister Stockwell Day hailed security certificates as “an important tool to protect Canadians from terrorist threats,” but acknowledged that “the process should protect rights and freedoms in Canada.”

Liberal justice critic Ujjal Dosanjh said his party would support the legislation, Bill C-3, in Parliament, thereby avoiding another challenge to the minority government and risking a federal election.

Mr. Dosanjh also said the Liberals would approach the government’s planned reintroduction of preventive arrests and investigative hearings, two other anti-terrorism measures that his party rejected earlier this year, “with no preconceived notions or bias.” The government’s failed attempt to extend the measures for three years divided the Liberals last winter and sparked weeks of angry debate in the Commons.

Preventive arrest allows an arrest without warrant and three days of detention in a terrorism case. Investigative hearings allow judges to compel individuals to testify in terrorism investigations. The two provisions expired under a sunset clause in March, and the three opposition parties defeated the government’s bid to extend them. Critics said the move hobbled RCMP plans for investigative hearings related to the Air India disaster.

Government House leader Peter Van Loan said on Sunday that the government would reintroduce the two measures through the Senate, even though most legislation starts in the Commons. On Monday, officials declined to explain the unusual tactic or to say when it might happen. Earlier this year, a special Senate committee chaired by Liberal Senator David Smith recommended the measures be extended for three years, just as Liberal leader Stéphane Dion was ordering his Commons caucus to vote them down on civil liberties grounds.

Mr. Smith said yesterday the committee was comfortable with the measures, as long as other amendments are made to the anti-terrorism law, including removal of “political, religious or ideological motives” from the definition of a terrorist crime. “The Muslim community, in particular, just felt that that promoted racial profiling,” he said, “and our view is: If it’s terrorist in nature, who gives a hoot what the reason is? If we’re talking terrorism, the motive is irrelevant.”

He said senators would likely deal with the terrorist measures as a package that includes the security certificate bill. “We’ll deal with it with an open mind,” he said.

For now, the government is moving ahead with changes to the security certificates regime. This refers to an extraordinary legal measure in the federal immigration system that allows the government to arrest, imprison and deport foreign nationals or permanent residents who are suspected of links to organized crime, or who may pose a security risk to Canada.

Introduced in the Immigration Act in 1988, the provision was strengthened after the 9/11 attacks to give authorities a fast and efficient way to remove terrorist suspects from Canada, without having to lay charges in the criminal justice system.

It was challenged in the Supreme Court last year by three Muslim men who were accused of terrorist links and awaited deportation. In a unanimous ruling written by Chief Justice Beverley McLachlin, the court said the certificates violated the Charter of Rights and Freedoms in two ways.

However the court also acknowledged the necessity of such measures, noting that “one of the most fundamental responsibilities of a government is to ensure the security of its citizens.”

The court suspended its ruling for a year, specifically telling Parliament to fix the law and bring it in line with the Charter before February, 2008.

Bill C-3, as tabled yesterday, would give foreign nationals the same 48-hour detention limit as permanent residents, before a closed-door judicial review kicks in. More important, the legislation would create the position of “special advocates,” who would be appointed from a pre-approved list of security-cleared lawyers. These special advocates would have access to the government’s evidence, but would not be allowed to disclose it to the accused. Special advocates would also be able to argue before federal judges that certain evidence should not be kept secret, and they could cross-examine government witnesses.

NDP justice critic Joe Comartin said his party would not support the bill. “Right now it does not appear to meet the basic requirements we would want,” he said. “I think they’re simply responding with the absolute least amount that they feel they can get away with to fulfill the Supreme Court of Canada decision.”

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