Detainee ruling comes after 'years of hell'
- Thread starter CBC News
- Start date
It was, indeed.
Now if the onerous provisions of the anti-terror act are allowed to die, we may have at least partially recovered from the idiotic attacks on civil liberties that occured after 9-11.
What we DO need in this country is a law that allows us to eject non-Canadian citizens from the country NOW, who cares to where?
Top court overturns security certificates, gives MPs year to draft new law
By Jim Brown
OTTAWA (CP) - The Supreme Court of Canada, in a landmark ruling hailed as a victory for civil liberties, has told Parliament to find a new way of dealing with foreign-born suspects accused of harbouring terrorist sympathies.
In a 9-0 judgment Friday, the court overturned the current system of security certificates used by Ottawa to detain and deport non-citizens on public safety grounds, saying the regime violates the Charter of Rights.
But Justice Beverley McLachlin, writing for the unanimous bench, suspended the full legal effect of the ruling for a year. That will give legislators time to rewrite the law and comply with constitutional principles that guarantee fundamental justice and prohibit arbitrary detention.
Peter Van Loan, the Conservative House leader in the Commons, said it will take time to study all the implications of the ruling, but he signalled that the Tories will get to work quickly.
"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," Van Loan told the House.
Public Safety Minister Stockwell Day, a staunch defender of the certificate system in the past, issued a written statement promising to respond in a "timely and decisive fashion" to the ruling.
But he also hinted at partisan battles to come, branding his Liberal opponents "soft on terrorism" and portraying the Conservative government as "unwavering in its determination to safeguard national security."
At a later news conference, Day appeared to play down the impact of the court decision, suggesting it should be read as upholding the "general principle" of security certificates but requiring some reforms. "We will look at the changes that are necessary," he said.
Johanne Doyon, the lawyer for Moroccan native Adil Charkaoui, one of three men who challenged the certificate system, described the judgment as a "nearly total victory." She predicted the government wouldn't dare try to deport any of the three during the grace period it will take to revise the law.
Chakaoui, at a news conference in Montreal, noted that although he is free on bail he still has to wear an electronic monitoring bracelet and comply with other strict conditions on limit his movements.
"I've never been found guilty of any crime," he said. "I don't know how the Harper government is going to react. Will they continue to harass me, or will they see reason and clear my name?"
Matthew Webber, who represents Algerian-born Mohamed Harkat, saw the judgment as an indication that "for the next year we'll be playing a bit of a waiting game."
He said his client, who is also free on bail, will be going back to court to try to loosen his release conditions that now amount to virtual house arrest.
Harkat's Canadian-born wife Sophie called the ruling far better than she expected. "I've said many times in the past four years that I've been very disappointed in the justice system (and) in Canada itself. But today I'm proud."
John Norris, representing Syrian-born Hassan Almrei, said the ruling couldn't have been clearer. "The court has resoundingly struck down the legislation and found that it is fundamentally flawed."
Unlike the other two men, Almrei remains behind bars at a federal prison in Kingston, Ont. But his legal team intends to return to court, in light of the judgment Friday, to try to win his release on bail.
All three men are accused by the Canadian Security Intelligence Service of having ties to al-Qaida and other overseas terrorist groups. All deny the accusations.
The high court's judgment also applies to two other men who weren't technically part of the appeal - Egyptian natives Mahmoud Jaballah and Mohammad Mahjoub, who also deny any terrorist links and are fighting deportation to their homeland.
Critics have long denounced the security certificate system, which can lead to deportation of suspects on the basis of secret intelligence presented to a Federal Court judge at closed-door hearings.
Those who fight the allegations can spend years in jail while their cases work their way through the legal system. In the end they sometimes face removal to countries with a track record of torture.
The Supreme Court wasn't asked, and didn't offer, a definitive opinion on whether it's ever permissible to send someone to a country where torture is a risk. That issue is being litigated in other proceedings.
But the ruling Friday condemned the practice of presenting evidence behind closed doors, with no lawyer for the accused present and with only a sketchy summary of the allegations made public.
McLachlin acknowledged there may be legitimate reasons for keeping some sensitive material secret. But she concluded the present process "fails to ensure the fair hearing that (the Charter) requires before the state deprives a person of life, liberty and security of the person."
She suggested Parliament could solve the problem in several ways - for example, by allowing special security-cleared lawyers to attend the closed-door hearings, to challenge the government evidence and to protect the rights of the accused.
A similar system of "special advocates"' is used in Britain, and former Liberal justice minister Irwin Cotler was considering it for Canada when his party lost the last election.
Another approach could be to give the Security Intelligence Review Committee, the civilian body that oversees CSIS, a role in the process. The committee used to play such a role, but lost it when the law was amended several years ago to shift the responsibility to Federal Court.
Another possibility, said McLachlin, would be the process used in some criminal trials arising from the 1985 Air India bombing. Lawyers for the defendants were allowed to see some sensitive evidence to help them mount their defence, but had to promise in writing not to share the material with their clients.
Yet another approach was taken by the inquiry into the Maher Arar affair, which used a security-cleared lawyer as a so-called amicus curiae, or friend of the court, to help the presiding judge assess the quality of secret evidence.
McLachlin made no effort to impose any one model, leaving the ultimate decision to Parliament.
On the other key point at issue, she concluded the present detention process for suspects awaiting deportation is too arbitrary, because some have better access to bail hearings than others depending on their precise legal status.
McLachlin solved that problem by "reading into" the law a guarantee that all detainees should be brought before a judge to have their case reviewed within 48 hours. That provision is effective immediately.
Copyright © 2007 Canadian Press
By Jim Brown
OTTAWA (CP) - The Supreme Court of Canada, in a landmark ruling hailed as a victory for civil liberties, has told Parliament to find a new way of dealing with foreign-born suspects accused of harbouring terrorist sympathies.
In a 9-0 judgment Friday, the court overturned the current system of security certificates used by Ottawa to detain and deport non-citizens on public safety grounds, saying the regime violates the Charter of Rights.
But Justice Beverley McLachlin, writing for the unanimous bench, suspended the full legal effect of the ruling for a year. That will give legislators time to rewrite the law and comply with constitutional principles that guarantee fundamental justice and prohibit arbitrary detention.
Peter Van Loan, the Conservative House leader in the Commons, said it will take time to study all the implications of the ruling, but he signalled that the Tories will get to work quickly.
"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," Van Loan told the House.
Public Safety Minister Stockwell Day, a staunch defender of the certificate system in the past, issued a written statement promising to respond in a "timely and decisive fashion" to the ruling.
But he also hinted at partisan battles to come, branding his Liberal opponents "soft on terrorism" and portraying the Conservative government as "unwavering in its determination to safeguard national security."
At a later news conference, Day appeared to play down the impact of the court decision, suggesting it should be read as upholding the "general principle" of security certificates but requiring some reforms. "We will look at the changes that are necessary," he said.
Johanne Doyon, the lawyer for Moroccan native Adil Charkaoui, one of three men who challenged the certificate system, described the judgment as a "nearly total victory." She predicted the government wouldn't dare try to deport any of the three during the grace period it will take to revise the law.
Chakaoui, at a news conference in Montreal, noted that although he is free on bail he still has to wear an electronic monitoring bracelet and comply with other strict conditions on limit his movements.
"I've never been found guilty of any crime," he said. "I don't know how the Harper government is going to react. Will they continue to harass me, or will they see reason and clear my name?"
Matthew Webber, who represents Algerian-born Mohamed Harkat, saw the judgment as an indication that "for the next year we'll be playing a bit of a waiting game."
He said his client, who is also free on bail, will be going back to court to try to loosen his release conditions that now amount to virtual house arrest.
Harkat's Canadian-born wife Sophie called the ruling far better than she expected. "I've said many times in the past four years that I've been very disappointed in the justice system (and) in Canada itself. But today I'm proud."
John Norris, representing Syrian-born Hassan Almrei, said the ruling couldn't have been clearer. "The court has resoundingly struck down the legislation and found that it is fundamentally flawed."
Unlike the other two men, Almrei remains behind bars at a federal prison in Kingston, Ont. But his legal team intends to return to court, in light of the judgment Friday, to try to win his release on bail.
All three men are accused by the Canadian Security Intelligence Service of having ties to al-Qaida and other overseas terrorist groups. All deny the accusations.
The high court's judgment also applies to two other men who weren't technically part of the appeal - Egyptian natives Mahmoud Jaballah and Mohammad Mahjoub, who also deny any terrorist links and are fighting deportation to their homeland.
Critics have long denounced the security certificate system, which can lead to deportation of suspects on the basis of secret intelligence presented to a Federal Court judge at closed-door hearings.
Those who fight the allegations can spend years in jail while their cases work their way through the legal system. In the end they sometimes face removal to countries with a track record of torture.
The Supreme Court wasn't asked, and didn't offer, a definitive opinion on whether it's ever permissible to send someone to a country where torture is a risk. That issue is being litigated in other proceedings.
But the ruling Friday condemned the practice of presenting evidence behind closed doors, with no lawyer for the accused present and with only a sketchy summary of the allegations made public.
McLachlin acknowledged there may be legitimate reasons for keeping some sensitive material secret. But she concluded the present process "fails to ensure the fair hearing that (the Charter) requires before the state deprives a person of life, liberty and security of the person."
She suggested Parliament could solve the problem in several ways - for example, by allowing special security-cleared lawyers to attend the closed-door hearings, to challenge the government evidence and to protect the rights of the accused.
A similar system of "special advocates"' is used in Britain, and former Liberal justice minister Irwin Cotler was considering it for Canada when his party lost the last election.
Another approach could be to give the Security Intelligence Review Committee, the civilian body that oversees CSIS, a role in the process. The committee used to play such a role, but lost it when the law was amended several years ago to shift the responsibility to Federal Court.
Another possibility, said McLachlin, would be the process used in some criminal trials arising from the 1985 Air India bombing. Lawyers for the defendants were allowed to see some sensitive evidence to help them mount their defence, but had to promise in writing not to share the material with their clients.
Yet another approach was taken by the inquiry into the Maher Arar affair, which used a security-cleared lawyer as a so-called amicus curiae, or friend of the court, to help the presiding judge assess the quality of secret evidence.
McLachlin made no effort to impose any one model, leaving the ultimate decision to Parliament.
On the other key point at issue, she concluded the present detention process for suspects awaiting deportation is too arbitrary, because some have better access to bail hearings than others depending on their precise legal status.
McLachlin solved that problem by "reading into" the law a guarantee that all detainees should be brought before a judge to have their case reviewed within 48 hours. That provision is effective immediately.
Copyright © 2007 Canadian Press
I have voted conservative in the last 3 or 4 federal elections. The way this unfolds will be a decisive voting matter for me. If they do everything in their power to defy the court ruling or play games with legal smokescreens to essentially continue with the same program it would be impossible for me to support them. I won't support anyone who intentionally skirts the Charter of Rights. That is a matter of trust. If they can't be trusted to protect one part of it how can they be trusted to protect any of it.
I'll give them the benefit of the doubt at this moment and assume they will uphold the Charter in good faith. If they don't, the rest of what they stand for will mean nothing to me.
I'll give them the benefit of the doubt at this moment and assume they will uphold the Charter in good faith. If they don't, the rest of what they stand for will mean nothing to me.