There has to be a better way

The Montreal Gazette, Editorial, February 8, 2005

Adil Charkaoui has been held in jail for almost two years, and hardly anyone knows why. Some people in the Canadian security establishment know, and two cabinet ministers who signed a "security certificate" know, but nobody else does. There's got to be a better way.

Charkaoui, 31, is an immigrant from Morocco. The government wants to deport him back to that country - he is not a Canadian citizen - and he's fighting deportation.

Why does the government want him deported? Because, they say, he's a terrorism risk. And for that the evidence is ... sorry, classified. So he's held on this rarely-used certificate, under immigration law.

There's a word for governments which can hold people in jail indefinitely on no charge. That word is tyranny. Charkaoui's case raises the most fundamental issues of how to reconcile freedom with security.

In general terms, Canadians are probably prepared to accept that pre-emptive arrests of terrorism suspects - prior restraint - can be acceptable under some circumstances. But very few Canadians, we think, would accept two years of detention without charges. Charkaoui is one of six people, five of them Muslim, currently being held this way in Canada.

Until he finally testified in court in Montreal yesterday, Charkaoui didn't help his own case by refusing to answer any questions that the presiding judge in his matter, Federal Court Justice Simon Noel, has wanted to ask him about the secret evidence against him.

The judge wasn't all that forthcoming yesterday, as Charkaoui took the stand in open court, where he is seeking bail. Charkaoui's contention on the stand, that the American political right might have been behind the attacks of Sept. 11, 2001, will not win him much favour among ordinary Canadians who know better.

But no matter. The primary onus here is on the government to give Charkaoui a better sense of the evidence against him, and to do so in a public way.

It's true that the government would happily let Charkaoui go if only he accepted deportation to Morocco. But his life and family are here, and he says he could face torture by the Moroccan government.

By definition the public doesn't know what kind of evidence the government has in such cases. But evidence that can't be made public isn't evidence, it's gossip.

If Canadians are going to accept giving the state extraordinary powers of arrest and detention, the exercise of those powers will have to be demonstrably reasonable. And there is no way to do that without more public disclosure of evidence.

There will certainly be instances in which judges will see the wisdom of withholding evidence that might compromise the identity of an informant, or inadvertently reveal the identities of people under investigation. But in general, judges are going to have to look for ways to push the envelope and press for maximum possible disclosure. There's just too much potential for abuse of power otherwise.