Dec. 17, 2004

Canada's "dirty little secret"

CAROL GOAR, Toronto Star

International Human Rights Day usually passes without notice in Canada. There aren't many egregious violations of human rights to talk about.

This year, things were different. On Dec. 10 &emdash; the 56th anniversary of the adoption of Universal Declaration of Human Rights &emdash; the Federal Court of Appeal handed down a ruling that got a lot of people talking.

A three-judge panel affirmed Ottawa's right to use security certificates to detain suspected terrorists without charging them or giving them full access to the evidence against them. The court said such treatment &emdash; while unusual &emdash; was neither unjustified nor unconstitutional.

This procedure makes it virtually impossible for a person accused of threatening Canadian security to mount a credible defence. It strips him or her of the presumption of innocence until proven guilty, on which Canada's justice system is based. It gives the state the power to deport individuals for reasons they will never know.

"People's lives are being destroyed but they face no charges and they have no effective way to defend themselves," said Ed Broadbent, former leader of the New Democratic party.

"For many Muslims and Arabs, security certificates embody an arbitrary and non-transparent legal process that they never expected to find in a democratic country," said Riad Saloojee, executive-director of the Canadian Council on American-Islamic Relations.

"Is the government insensitive to the human drama of those jailed through an unjust process?" asked Bloc Québécois backbencher Meili Faille.

"The security certificate process denies both justice and security," said Alex Neve, secretary-general of Amnesty International Canada.

"These secret trials may be Canada's worst dirty little secret," said Deborah Bourque, president of the Canadian Union of Postal Workers.

It would be easy to dismiss these comments as typical left-wing caterwauling &emdash; except for one detail. Fifty-one law professors at 16 universities across the country have spoken out against security certificates. The Canadian Bar Association has questioned their use. Representatives of the Criminal Lawyers' Association and the International Commission of Jurists have registered their disapproval. And growing numbers of ordinary Canadians are uneasy about depriving non-citizens &emdash; no matter how suspicious they look to authorities &emdash; of the right to a fair hearing.

"I think it's building," said Neve. "People no longer take at face value that these procedures are warranted. They don't want to be told: Just have faith in the system.

"I'm not suggesting we have a popular revolution on our hands," the human rights activist stressed. "But there is a growing sense of disquiet. Two years ago, if I'd mentioned security certificates in a speech, people wouldn't have known what they were. Now I see heads nodding and I get questions."

Public Safety Minister Anne McLellan, who must sign every security certificate issued, sees no cause for concern. The government uses such certificates sparingly, she says, and takes great care to weigh the rights of the individual against the security of the state. "While controversial in the minds of some, they have been reviewed by the courts," she reminded parliamentarians last week.

This leaves civil libertarians with a limited number of options.

They can &emdash; and undoubtedly will &emdash; seek to appeal last Friday's judgment to the Supreme Court of Canada. Although the lower courts have consistently sanctioned the use of security certificates, there is still a chance that the country's highest court will find that they violate an individual's right to be free from arbitrary detention.

They can &emdash; and intend to &emdash; raise the question of security certificates when Parliament begins its three-year review of the Anti-Terrorism Act, known as Bill C-36, in the New Year. Although these certificates pre-date the anti-terrorism legislation (they have been a provision of the Immigration and Refugee Protection Act since 1991), human rights activists will argue that they are a counter-terrorism tool, one too draconian for a nation that prides itself on upholding the rule of law and respecting basic democratic principles.

Finally, they will try to mobilize public opinion. Attitudes have already begun to shift. The deportation and torture of Maher Arar, a Syrian-born Canadian citizen, in 2002, jolted the nation out of its post-9/11 funk. People started asking pointed questions about how the Royal Canadian Mounted Police and the Canadian Security Intelligence Service operate. They started looking at other cases &emdash; Project Thread, for example, in which 19 Toronto-area students were thrown into jail on suspicion of being terrorists &emdash; through wary eyes. They started wondering how high a price anation should pay to protect itself.

"There's still a lot of work ahead to build the kind of concern that leads to political change," Neve acknowledged. "But I do sense increasing dubiousness and concern."

That might not count for much in a court of law. It might not sway McLellan or produce any change in police procedures or security tactics.

But by next International Human Rights Day, the voices of dissent could be too strong to ignore.