This article was originally published in Maclean's Magazine on March 12, 2007
Security Certificate System to Be Refined
Considering his government's key tool for keeping suspected terrorists locked up was supposedly yanked away in a landmark court ruling, Prime Minister Stephen HARPER is sounding pretty relaxed about the situation. "The Supreme Court said the security certificate program is necessary for public safety in the fight against TERRORISM," Harper said this week, in his first public comment on a ruling that made international headlines. He allowed that the decision went against "some provisions" in the controversial system that has led to a few non-citizens, some allegedly linked to al-Qaeda, being detained without trial for years. But he added, with an air of satisfaction, that the court had provided "a pretty clear road map" for fixing the rules to make them constitutional.
So much, it seems, for the breathless initial response suggesting the SUPREME COURT OF CANADA had gutted the security certificate system. Much of that reaction was generated by the celebratory news conferences held by lawyers who represented the detainees in the case. Johanne Doyon, lawyer for Adil Charkaoui, a Moroccan arrested under a security certificate in 2002, hailed the ruling as "a near total victory." And Charkaoui - who was released on bail in 2005 under the condition that he wear an electronic monitoring bracelet, among other strict conditions - offered up the day's juiciest quote, linking the unanimous judgment from Canada's top bench to the most notorious U.S. detention centre. "The Supreme Court, by 9 to 0, has said 'No' to Guantánamo North," he said.
It was a good line, but a bit of a stretch. In fact, Chief Justice Beverley McLachlin penned a careful ruling that upheld the validity of the security certificates, although she ordered Parliament to come up with a better review mechanism to protect the interests of those who have one issued against them. Security certificates have been part of the Immigration and Refugee Act since 1978. They are signed by the ministers of public safety and immigration to declare a non-citizen a national security threat. The person named in the certificate is then arrested for deportation. A federal judge can review the intelligence case against the suspect, but the detainees and their lawyers aren't allowed to know the secret details. Over the years, certificates have often been used to swiftly kick out suspected spies. The system only became controversial when alleged terrorists arrested after 9/11 couldn't be deported, under Canadian law, to home countries where they would likely face torture. That left them in legal limbo, not charged with criminal offences in Canada, but not shipped out, either. Lawyers for the three who brought the case to the Supreme Court - Charkaoui, Mohamed Harkat and Hassan Almrei - argued the system was fundamentally unjust. But McLachlin validated its core elements. "The realities that confront modern governments faced with the challenge of terrorism are stark," she wrote. "In the interest of security, it may be necessary to detain persons deemed to pose a threat. At the same time, security concerns may preclude disclosure of the evidence on which the detention is based."
But McLachlin said it isn't good enough to merely have a judge look at the case against a detainee. She instructed Parliament to find a better way, pointing to the British model, in which a special lawyer is assigned to review evidence, without revealing it to the suspect. University of Toronto law professor Kent Roach, an expert on Canada's anti-terrorism laws, said an even more promising home-grown procedure was devised by the judicial inquiry into the Maher Arar affair. The inquiry's lawyers were not only allowed to review the intelligence file on Arar, they were also permitted to ask him questions based on that information, carefully framing them to avoid disclosing secrets. "That's an improvement on the British system," Roach said. "The lawyer who has seen the secret evidence also gets to ask the directly affected person questions. Obviously, this is a delicate task." Doyon said she agrees the government should look closely at the Arar inquiry's solution to the problem of reviewing secret evidence. She is skeptical about the more limited British special advocates model.
Whatever the Harper government finally settles on to satisfy the court, though, the security certificate system isn't about to disappear. "First, the court gave Parliament a year to fix it," said Toronto constitutional lawyer Neil Finkelstein, who represented the Federation of Law Societies of Canada in the case. "Second, they suggested an easy solution to do that." And if that's all losing this big case amounts to, the winners might soon be wondering what it was they were celebrating about.
Maclean's March 12, 2007