Judges cool to 'security over rights' claim
Jun. 15, 2006. 07:00 PM
JIM BROWN
CANADIAN PRESS
OTTAWA — Protecting national security is the key to maintaining a free and democratic society, say federal lawyers defending their arsenal of legal weapons for evicting terrorist suspects from Canada.
But they appeared to have some difficulty selling that assertion to the Supreme Court of Canada on Wednesday.
Government counsel Bernard Laprade said that without an assurance of public safety, "we wouldn't be here" discussing the personal liberties guaranteed by the Charter of Rights.
"Protecting national security is not just an option or a policy choice, such as the amount to be invested in health care," he said. ``It is the sine qua non to the very existence of the rule of law and our democratic system of government."
Laprade was arguing in support of controversial federal security certificates that can lead to indefinite detention of foreign-born terrorist suspects, and to their eventual deportation based on secret evidence presented at closed-door hearings.
Some of the nine judges were clearly reluctant to accept the view that security must always trump individual rights in such cases.
Public safety may be important, observed Justice Louis LeBel, but it's not the whole of the law.
"If we don't have the rest we'll be living in North Korea."
Justice Morris Fish interjected that the true task is to balance the competing interests of the state and the individual, not to give absolute priority to one or the other.
"We're in a very difficult position," said Fish. "We're trying to reconcile the requirements of national security with the principles of fundamental justice."
Throughout the two-day hearing, the judges put pointed questions to lawyers for both sides, often hinting they would prefer a compromise to an all-or-nothing verdict.
They reserved judgment at the close of proceedings Wednesday and are not expected to deliver a ruling for several months.
The government, despite its claim that security is the keystone of liberty, was clearly taking no chances on the outcome.
If the court decides to strike down the deportation law, said federal lawyer Urszula Kaczmarczyk, it should at least suspend the ruling for a time to allow Ottawa to come up with a new system.
"We would suggest 12 months would be time (enough) to allow Parliament to re-draft and re-introduce legislation."
Without such a grace period, she warned, there would be a legal vacuum in dealing with foreign-born terrorists that could present a ``danger to Canada's security."
Three men, Moroccan-born Adil Charkaoui, Syrian native Hassan Almrei, and Algerian-born Mohamed Harkat, are asking the court to overturn the security certificate system as a violation of the Charter of Rights.
Two others, Egyptians Mohammad Mahjoub and Mahmoud Jaballah, are not technically part of the challenge, but their fates likely hinge on the outcome.
All are accused by CSIS of having links to Al Qaeda. All deny the allegations and say they could face torture if deported to their homelands.
Much of the argument before the high court centred on whether the secret hearing process should be scrapped entirely or merely reformed.
The main reform proposal would see the appointment of security-cleared lawyers to attend closed-door hearings as "special advocates" with the power to challenge government evidence.
A variety of models, differing in detail but all based on Canadian or British legal experience, have been proposed.
Laprade was unconvinced by any of them.
"What evidence do we have that what is being proposed is clearly superior to what we already have?" he asked.
Justice Ian Binnie retorted that, whatever their shortcomings, the alternative systems would likely do a better job of protecting the rights of the accused.
"If there is somebody there, apart from the judge, attempting to test the evidence . . . is that not better than nothing?" said Binnie.
Under current immigration law, the government can issue security certificates deeming any non-citizen suspected of terrorist ties to be a security risk and subject to deportation.
The evidence, usually based on secret material gathered by the Canadian Security Intelligence Service, is heard in private by a Federal Court judge, with only a sketchy summary provided to the defendant.
Anyone fighting deportation under the system can spend years in jail while the case makes its way through the courts.
http://www.thestar.com/NASApp/cs/ContentSe...ol=968350116467
Jun. 15, 2006. 07:00 PM
JIM BROWN
CANADIAN PRESS
OTTAWA — Protecting national security is the key to maintaining a free and democratic society, say federal lawyers defending their arsenal of legal weapons for evicting terrorist suspects from Canada.
But they appeared to have some difficulty selling that assertion to the Supreme Court of Canada on Wednesday.
Government counsel Bernard Laprade said that without an assurance of public safety, "we wouldn't be here" discussing the personal liberties guaranteed by the Charter of Rights.
"Protecting national security is not just an option or a policy choice, such as the amount to be invested in health care," he said. ``It is the sine qua non to the very existence of the rule of law and our democratic system of government."
Laprade was arguing in support of controversial federal security certificates that can lead to indefinite detention of foreign-born terrorist suspects, and to their eventual deportation based on secret evidence presented at closed-door hearings.
Some of the nine judges were clearly reluctant to accept the view that security must always trump individual rights in such cases.
Public safety may be important, observed Justice Louis LeBel, but it's not the whole of the law.
"If we don't have the rest we'll be living in North Korea."
Justice Morris Fish interjected that the true task is to balance the competing interests of the state and the individual, not to give absolute priority to one or the other.
"We're in a very difficult position," said Fish. "We're trying to reconcile the requirements of national security with the principles of fundamental justice."
Throughout the two-day hearing, the judges put pointed questions to lawyers for both sides, often hinting they would prefer a compromise to an all-or-nothing verdict.
They reserved judgment at the close of proceedings Wednesday and are not expected to deliver a ruling for several months.
The government, despite its claim that security is the keystone of liberty, was clearly taking no chances on the outcome.
If the court decides to strike down the deportation law, said federal lawyer Urszula Kaczmarczyk, it should at least suspend the ruling for a time to allow Ottawa to come up with a new system.
"We would suggest 12 months would be time (enough) to allow Parliament to re-draft and re-introduce legislation."
Without such a grace period, she warned, there would be a legal vacuum in dealing with foreign-born terrorists that could present a ``danger to Canada's security."
Three men, Moroccan-born Adil Charkaoui, Syrian native Hassan Almrei, and Algerian-born Mohamed Harkat, are asking the court to overturn the security certificate system as a violation of the Charter of Rights.
Two others, Egyptians Mohammad Mahjoub and Mahmoud Jaballah, are not technically part of the challenge, but their fates likely hinge on the outcome.
All are accused by CSIS of having links to Al Qaeda. All deny the allegations and say they could face torture if deported to their homelands.
Much of the argument before the high court centred on whether the secret hearing process should be scrapped entirely or merely reformed.
The main reform proposal would see the appointment of security-cleared lawyers to attend closed-door hearings as "special advocates" with the power to challenge government evidence.
A variety of models, differing in detail but all based on Canadian or British legal experience, have been proposed.
Laprade was unconvinced by any of them.
"What evidence do we have that what is being proposed is clearly superior to what we already have?" he asked.
Justice Ian Binnie retorted that, whatever their shortcomings, the alternative systems would likely do a better job of protecting the rights of the accused.
"If there is somebody there, apart from the judge, attempting to test the evidence . . . is that not better than nothing?" said Binnie.
Under current immigration law, the government can issue security certificates deeming any non-citizen suspected of terrorist ties to be a security risk and subject to deportation.
The evidence, usually based on secret material gathered by the Canadian Security Intelligence Service, is heard in private by a Federal Court judge, with only a sketchy summary provided to the defendant.
Anyone fighting deportation under the system can spend years in jail while the case makes its way through the courts.
http://www.thestar.com/NASApp/cs/ContentSe...ol=968350116467