Security Certificates declared unconstitutional

Posted by admin on Feb 23rd, 2007

Globe and Mail, 23 February 2007. Kirk Makin

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. 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.

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.

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

The provisions, which pre-date the Sept. 11, 2001, terrorist attacks, 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.

The constitutional challenge was far and away the most important case on the Supreme Court docket last year. Critics of security certificates made no secret that it would be a test of the court’s mettle at a time when they say sacred individual rights are being sacrificed to widespread fear of terrorist acts.

They looked to the court to issue a ringing endorsement of individual rights, comparable to recent decisions from England’s House of Lords and the U. S. Supreme Court.

After hearing arguments last June from a courtroom packed with government officials, intervenor groups and lawyers for three men who had spent years in detention under security certificates, the court reserved judgment.

The court was left with three main choices: It could leave the provisions intact; strike them down and ship them back to Parliament for a full reformulation; or take it upon itself to “read in” new elements that would make them constitutional.

Besides going against the grain of centuries of fundamental legal principles, critics have complained that the detainees face the prospect of being deported to face torture or execution in a foreign country known for human rights abuses.

In the end, they say, security certificate detainees have been left with a false choice between indefinite detention in Canada and being deported to face torture and possible death.

However, federal lawyers told the Supreme Court judges that non-citizens do not have an absolute right to remain in Canada, and that national security is an interest so vital that it trumps almost any other interest imaginable.

“National security is not a societal interest like any other, such as the cost of drugs or investment in the health-care system,” Crown counsel Bernard Laprade told the court during the hearing.

“It is an absolute necessity,” he said. “Without it, all the other rights become theoretical. Without it, we wouldn’t be here to discuss these questions today. I don’t want to be alarmist, but without it, there is nothing else.”

On several occasions during the hearing, the judges interjected to cool the federal rhetoric. “Mr. Laprade, if we don’t have the rest, we’ll be living in North Korea,” Mr. Justice Louis LeBel observed at one point.

Specifically, lawyers for Mr. Charkaoui, Mr. Harkat and Mr. Almrei asserted that the certificates breached their right to life, liberty and security of the person. They were supported at the hearing by a raft of intervenors that include Amnesty International, the Canadian Bar Association, the Canadian Civil Liberties Association, the University of
Toronto and the Canadian Council for Refugees.

They argued that security certificates are such an unjustifiable and dramatic departure from democratic legal traditions, the court had little choice but to excise their worst excesses or scrap them altogether.

The judges focused particularly closely during the hearing on the denial of legal counsel, and appeared to be striving for ways to safeguard national security while still permitting detainees to obtain details about the allegations against them.

Several judges also expressed concern that the security-certificate procedure forced their Federal Court colleagues to act as both cross-examiner and defender of the accused person’s rights during secret proceedings in his absence.

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