Striking a balance between safety, civil rights

It will be interesting, indeed, to see what the minority Conservative government does about its controversial terrorism laws now that the Supreme Court of Canada has added its voice to those of the laws' critics.

The top court's unanimous ruling came as Parliament was preparing to vote on a proposed three-year extension of some key portions of the Anti-Terrorism Act which permit preventive arrests and special investigative hearings.

In striking down the key elements of the security certificate system used by the federal government to detain and deport foreignborn terrorist suspects, the court found that the system - long described by government officials as an essential tool for safeguarding national security - violates the Canadian Charter of Rights and Freedoms.

But the court, in a decision written by Chief Justice Beverley McLachlin, decided to give the government a full year to comply with its reasoning by amending the legislation to make it comply with constitutional imperatives.

Peter Van Loan, the Conservative House leader in the Commons, offered formal thanks to the court for its decision and signalled that the government would get to work trying to bring the legislation into accord with the Charter.

The lawyer for Algerian-born Mohamed Harkat, one of the three terrorist suspects who brought the case before the high court, said the judges delivered almost exactly what they were asked for.

"The only thing they did different from what we suggested was that they gave the government a year to redraft the legislation," Toronto lawyer Paul Copeland told CBC Newsworld.

"We had said 'do it much faster; if you're going to suspend your decision, suspend it for three months, make Parliament work quickly because our client is in a horrible situation.'"

Johanne Doyon, counsel for Moroccan native Adil Charkaoui, described the judgment as "nearly total victory" for the three challengers, and predicted the government wouldn't dare deport any of them during the one-year grace period it will take to revise the law.

John Norris, representing Syrian-born Hassan Almrei, said the court "has resoundingly struck down the legislation and found that it is fundamentally flawed."

Unlike the other two men who are currently free on bail, Almrei remains in detention. But his legal team intends to go back to court, in light of the ruling, to try to win his release pending final resolution of the case.

Critics have long denounced the certificates, which can lead to deportation of noncitizens on the basis of secret intelligence presented to a federal court judge at closed-door hearings. Those who fight the allegations can and do spend years in jail while the case works its way through the legal system. In the end they can sometimes face removal to countries with a track record of torture.

The top court concentrated on the fact that most of the evidence in such cases is commonly heard behind closed doors, with no lawyer for the accused present and with only a sketchy summary of the allegations ever made public.

In finding that process a violation of fundamental justice, Chief Justice McLachlin suggested Parliament could solve the problem in several ways - for example, by allowing special security-cleared lawyers to attend the hearings, challenge the government evidence and thereby protect the rights of the accused.

The chief justice also concluded that the present detention process for suspects is unconstitutionally arbitrary, because some people have better access to bail hearings than others, depending on their precise legal status.

All three of the men whose cases were at issue are alleged by the Canadian Security Intelligence Service to have ties to al-Qaeda and other overseas terrorist groups. However, all three deny the accusations.

In approaching the issue, the chief justice noted that ensuring the safety of its citizens is "one of the most important responsibilities of a government," adding that this may require it to act on information that cannot be disclosed and to detain some individuals as a threat to national security. "Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees."

Perhaps the appropriate solution will be for the federal government to prepare a list of senior lawyers and retired judges from which a person targeted by a security certificate could appoint an amicus curia (friend of the court) to test the security information and ultimately assist defence counsel in ensuring that all the rules of fundamental justice are followed.