A Future Ruled by Law

Craig Forcese and Hilary Homes

Ottawa Citizen Special

September 1, 2005

One easure of a society's values is how it treats those it fears most, including suspected terrorists. Four events now unfolding will

determine what sort of civilization Canada has become: Adil Charkaoui's Supreme Court case, underway as of last week; Parliament's review of Canada's anti-terrorism law; the Maher Arar inquiry; and several anticipated Federal Court decisions on whether alleged terrorists will be deported to countries likely to torture them.

Let's review what is at stake:

- Does an accused terrorist have a right to due process? Canada has brought criminal charges against only one accused terrorist -- a Canadian citizen. In five other cases, such as that of Mr. Charkaoui, it has instead relied on immigration "security certificates" -- procedures for the deportation (and detention, pending removal) of persons deemed security threats.

Our system of justice is based on the bedrock notion that an accused is entitled to know -- and test -- the case against him or her. Yet security-certificate detainees have limited access to the government's case, built on security intelligence. At best, detainees receive sanitized summaries.

- Can a suspected terrorist be deported to torture? As foreigners, the security-certificate detainees have no unqualified right to remain in Canada. But international law is utterly emphatic about one thing: These foreigners have an absolute right not to be deported to torture. In 2002, the Supreme Court held that Canada's Constitution precludes deportation to torture in most instances. But by failing to ban the practice outright, the court left the door open a crack.

The question will likely be revisited in one of the security certificate cases now before the Federal Court. Only one answer satisfies Canada's international obligations: no one may ever be deported to torture.

- If torture precludes the deportation of a suspected terrorist, may they be detained indefinitely? Canada's courts have so far ducked the question: since Canada still allows possible deportation to torture, and since the government still seeks its detainees' deportation, no detention has yet become indefinite. Still, many of the men subject to security certificates have been behind bars for long periods: as of today, three of the detainees will have been in prison (without trial on any charges) for more than four and a half years. This is a period of detention longer than the average sentence for an attempted murder conviction in Canada.

- Is there any room in Canadian law or policy for "extraordinary rendition" to face torture? At issue in the Arar inquiry is whether Canadian officials collaborated in the detention and torture in Syria of Mr. Arar. Similar questions are being asked in relation to others, like Ottawa's Abdullah Almalki.

The list of legal and moral principles violated by any Canadian complicity in the maltreatment of these people would be a long one. If the inquiry determines that there was Canadian involvement, the government's response must be resolute, firmly demonstrating that Canada will not outsource torture.

- If we can't remove suspected terrorists to face torture or detain them without trial indefinitely, what do we do with them? Our answer must be no different from that for other alleged criminals: give them fair trials in Canada's criminal courts.

These would not be easy prosecutions for the government. As in organized-crime cases, the challenge would be reconciling due process with the need to protect informants.

But difficult prosecutions are no justification for playing footsie with torture and indefinite detentions without trial.

Craig Forcese teaches security law at the University of Ottawa and is a member of Amnesty International. Hilary Homes is Amnesty International Canada's campaigner on international justice, security and human rights.