Kirk Makin, The Globe and Mail
February 24, 2007
Ottawa forced to scramble after top court overturns key parts of controversial detention measures
OTTAWA – The Supreme Court of Canada struck down the key provisions of controversial immigration security certificates yesterday as being grossly unfair to terrorism suspects, and the clock began to tick on a year-long grace period in which Parliament must fashion an acceptable substitute.
The historic, unanimous decision left the law in limbo and muddied already unclear waters for the suspects directly affected by this ruling. The federal government will now have to scramble to find a mechanism that better balances civil liberties with national security.
In its 9-0 ruling, the court refused to mend the controversial provisions themselves, but made it clear that any future law must allow defendants to know the case against them and to mount a meaningful defence.
The ruling also paid careful attention to fears of terrorism, and to the precarious task legislators face in protecting national security from potentially horrific threats. But it said that, ultimately, any restrictions on civil liberties must be minimal.
The three appellants who won yesterday’s challenge – Adil Charkaoui, Mohamed Harkat and Hassan Almrei – have lived for years in fear of being deported back to countries where they say they face torture and death.
John Norris, a lawyer for Mr. Almrei, said: “I would be shocked if the government moved to remove any of these men in the next year. Even if it tried to, I am quite sure the Federal Court would step in and prevent that happening. They all face torture.”
In a news release yesterday, Public Safety Minister Stockwell Day said the government is reviewing the court’s ruling and “intends to respond in a timely and decisive fashion to address the court’s decision.” However, he also took shots at an Opposition he deemed “soft on security and soft on terrorism,” saying the Conservative government “remains unwavering in its determination to safeguard national security.”
Mr. Charkaoui, who was detained in 2003, said yesterday that he will fight to clear his name, and joined critics who accuse the government of trying to politicize Canada’s court system. He is still under tight security provisions, such having to wear a tracking device around his belt.
The security-certificate procedure was created almost 30 years ago and was used against about two dozen foreign nationals from various countries prior to 2001.
Supporters of the detainees and their lawyers were exultant about the ruling yesterday. Mr. Harkat’s wife, Sophie Harkat, wept uncontrollably as she tried to describe to an Ottawa press conference what it has been like to see her husband endure years of solitary confinement and, more recently, highly restrictive house arrest. The terms of his arrest included having his home phone calls intercepted and severe restrictions on whom he could meet and when he could leave home.
“It has been four years of hell for us,” she said. “He has been my source of motivation and inspiration and, unfortunately, he can’t be here to share this with me today.”
Alex Neve, Canadian director of Amnesty International, said the decision will reverberate through legislatures and courtrooms around the world, and provide a model for other countries attempting to deal with security at a time of increased international terrorism.
“The government has a year to come up with something. A year isn’t very long in law reform, so this is something they are going to have to work on very quickly and do so in a very transparent and accountable fashion that allows for consultation.
“At the same time, a year is too long for the men themselves, who have been held in detention in some instances for six years, and can’t wait another year for a fair process to be designed. None of them are going to be out tomorrow – that is clear. But I think real pressure comes from this decision. The Supreme Court of Canada has said unanimously that this process is unacceptable. We’ll certainly be calling on the government to fashion something much more immediate that remedies their cases – whether or not it becomes the long-term model Canada decides to use.”
The court ruling said that regardless of whether their deportations have already been ruled “reasonable” by the courts, security certificates naming the five men will expire in a year. It gave the government until then to either launch new certificates, under a process that meets constitutional muster, or let the detainees go.
While the court shied away from amending the security-certificate process itself, it made an exception when it comes to a provision that forces non-residents to wait until 120 days after a certificate has been found “reasonable” before they can apply for bail. (In contrast, permanent residents can apply for release 48 hours after first being detained.)
Supreme Court Chief Justice Beverley McLachlin said there was no valid reason for the difference and she proceeded to “read in” an amendment that will immediately give foreign nationals the same 48-hour wait.
In its central finding, the court said that secret hearings used by government lawyers to show judges their evidence against detainees violate the right to life, liberty and security, and thereby breach a fundamental tenet of the Charter of Rights and Freedoms.
Chief Justice McLachlin said that the absence of defence counsel and proper disclosure is fatal to any notion of fairness. “Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations,” she said.
In emergencies, it may not be practical to provide detainees with evidence against them quickly, in full or at all, the court conceded. “It may be so critical that it cannot be disclosed without risking public security. This is a reality of our modern world. It is clear that there may be a need for some flexibility regarding the period for which a suspected terrorist may be detained.
“Confronted with a terrorist threat, state officials may need to act immediately, in the absence of a fully documented case,” the ruling continues. “It may take some time to verify and document the threat. Where state officials act expeditiously, the failure to meet an arbitrary target of a fixed number of hours should not mean the automatic release of the person, who may well be dangerous.”
However, the government cannot lean on the threat of emergencies to be insensitive to the fact that continued detention “may have important, indeed chilling, consequences for the detainee,” the court said. “The protection may not be as complete as in a case where national security constraints do not operate, but to satisfy Section 7 [of the Charter], meaningful and substantial protection, there must be.
“It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and, at the same time, are less intrusive on that person’s rights.”
The court referred approvingly to a practice in Britain whereby “special counsel” are appointed to represent the interests of detainees. This sort of protection is perfectly feasible and “remains as fundamental to our modern conception of liberty as it was in the days of King John,” it said.
While the court would not go as far as to say that long periods of detention under the process constitute cruel and unusual punishment, it said that the onus on the government to justify its actions will become greater as time goes by. Provided that there are proper opportunities for judges to engage in a “robust, ongoing review” of detentions, it said, even a lengthy incarceration may be acceptable.