[Ppnews] Canada - Court strikes down security certificates

[Political Prisoner News]

Court strikes down security certificates

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

KIRK MAKIN AND TENILLE BONOGUORE

Globe and Mail Update and Canadian Press

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.



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