[wvns] Canada's post-9/11 balancing act
The post-9/11 balancing act
Ottawa Citizen
http://www.canada.com/components/print.aspx?id=6d7c29d8-a630-4852-85ce-f66bef4707d4
Security certificates are an important tool for protecting Canada
against international terrorism, but they've given too free a hand to
our security agencies. In a landmark ruling yesterday, the Supreme
Court provided useful directions toward a better balance.
Under the Immigration and Refugee Protection Act, if you're not a
citizen and both the immigration and justice ministers agree you're a
significant security risk, they can ask a federal judge to order you
deported. But if your home country is likely to treat you badly,
Canada can't kick you out. You end up incarcerated, not allowed to be
free in Canada, but also not subject to deportation.
Locking up suspected foreign terrorists on security certificates has
been a painful compromise most Canadians accepted only reluctantly.
Today, most of the people subject to security certificates are alleged
Islamist terrorists from authoritarian countries such as Syria,
Algeria, Morocco and Egypt. As radicals, they'd pose a threat to
innocents if they were allowed loose in Canada, but they'd be pretty
certain to be tortured and perhaps killed in their homelands. We don't
send people into situations like that -- indeed, it's against Canada's
laws to do so.
Hence we seal them away in detention, not free within Canada but free
to leave the country if they want -- if they'd rather go home
voluntarily, or somewhere else willing to take them.
The judges, in their unanimous ruling, don't deny the threat of
terrorism, or the difficulty of dealing with people such as Adil
Charkaoui, Hassan Almrei and Mohamed Harkat, the three men whose
appeals made it to the Supreme Court. Parliament has tried to deal
with a genuine security problem, the court said, one that justifies
some different approaches to evidence and proof.
But it doesn't justify abandoning our fundamental ideas of justice.
Different processes don't necessarily mean different standards.
The current system doesn't do enough to make sure the government has
its facts straight. Because there isn't enough scrutiny of what the
authorities allege against people like Mr. Charkaoui, Mr. Harkat and
Mr. Almrei, we can't be sure they really are the bad guys the
authorities say.
Canada's security agencies thought Maher Arar was a bad guy and they
were wrong. As a Canadian citizen, he wouldn't have been subject to
the security-certificate regime, but he's living, bruised proof that
evidence is sometimes not examined closely enough. The judges say the
system Parliament designed to handle foreigners posing security risks
in Canada doesn't do enough to double-check. A federal judge reviews
security certificates to make sure they're reasonable, but in an
effort to protect national security, the subjects of the certificate
don't get to hear all the evidence against them. That's a problem.
"The judge is ... not in a position to compensate for the lack of
informed scrutiny, challenge and counter-evidence that a person
familiar with the case could bring," Chief Justice Beverley McLachlin
wrote for the court. "Such scrutiny is the whole point of the
principle that a person whose liberty is in jeopardy must know the
case to meet. Here that principle has not merely been limited; it has
been effectively gutted. How can one meet a case one does not know?"
Parliament could adopt the British system, which is substantially like
ours except that the subject of the certificate gets a
security-cleared lawyer to advocate for him. The lawyer and client
don't get to speak after the lawyer sees secret information, but at
least someone in the proceedings is speaking for the detainee.
Alternatively, the federal judges reviewing the certificates could get
much more sweeping investigative powers. As it is, they can ask the
security authorities hard questions, but have limited power to compel
detailed answers. They're stuck somewhere between the role of
inquisitor and that of referee, and could do their jobs better if they
were one or the other.
Either way, detainees deserve more right to respond to the
authorities' allegations. And the judges' second order, that the law
include mandatory reviews to make sure that detainees still pose
threats, is an obviously worthy change. Two security detainees, Mr.
Charkaoui and Mr. Harkat, have been released on strict conditions
after years of detention, on the grounds that they no longer need to
be incarcerated to protect Canadians, but the right to such
consideration isn't guaranteed.
The Supreme Court has given Parliament a year to fix things, before
the security-certificate regime gets thrown out completely. Security
certificates are the latest entry on a list of anti-terrorism tools
that need the government's attention, and are probably the easiest to fix.
The Harper government should do so without delay, but clearly the
balance between security and civil rights needs to be examined again,
calmly and carefully, in pursuit of a new national consensus.
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