Supreme Court must rectify national travesty

August 31, 2005, Toronto Star



It's about time: Our Supreme Court will finally review the constitutionality of security certificates. In last week's decision, the court granted that opportunity to Moroccan Adil Charkaoui, currently on bail after being held for two years on terrorism allegations.

Four other Muslim non-citizens held under the certificates have already lived in limbo for a total of more than 14 years. And they have been subjected to conditions, as the U.N. Committee on Arbitrary Detention recently noted, that are more severe than those imposed on convicted killer Karla Homolka.

Two men on certificates, Hasan Almrei and Mohammed Mahjoub, have complained about systemic prison abuse during their nine-year tenure and are on prolonged hunger strikes. Almrei, held in solitary confinement for four years, is on day 69 of his hunger strike. He is not even asking for freedom; he is asking for an hour a day of exercise to keep his legs working properly.

Security certificates have been termed "Canada's dirtiest little secret." Even judges have been critical. Federal Court Justice James Hugessen lamented that the justices who listen to these cases "hate" the process. A judge sits alone looking at materials produced by only one party, and must then rule, given the one-sided and untested evidence, whether the certificate is "reasonable."

. The security certificate process is probably the most blatant challenge to the rule of law in this country. Who would have conceived of a Canadian law that guts the Charter of Rights and Freedoms and dishes out indefinite detention without charge, closed proceedings, secret evidence, and the possibility of deportation to torture?

Security certificates have ceased to be a peripheral issue affecting "non-citizens." A who's who of those critical of the process &emdash; and covering the gamut of Canada's political spectrum &emdash; bears this out: The Canadian Bar Association, Amnesty International, Human Rights Watch, former Tory cabinet minister Flora MacDonald, singer Bruce Cockburn, filmmaker Denys Arcand, writer June Callwood; Alexandre Trudeau and columnist Heather Mallick.

Last October, prominent academics and legal experts wrote to public safety minister Anne McLellan, expressing their "grave and urgent concern" over a process, they stated, is in "violation of universal norms of international law."

Even proponents recognize that the human rights record of the process is beyond redemption. The argument now in vogue is that we need the trade-off to make us safer.

But the reality is that security certificates do not make us safer.

They are not an efficient or effective process for truth-finding. The rule of law and the adversarial process are far more effective at unearthing the truth while protecting civil liberties.

There are numerous ways to make the process better &emdash; including security cleared counsel &emdash; but political will has proved lacking.

Minister of Justice Irwin Cotler, renowned as a human rights advocate, has been "open to reviewing the process" since his tenure.

But while he has been passionate on issues like decriminalizing marijuana, he has been derelict in speaking to abuses in his own backyard.

While he postures and postulates, Almrei and Mahjoub inch closer to death, deprived of ever having had the right to defend themselves in an open court.

Their families watch helplessly without even knowing why they were incarcerated in the first place. Their crimes, you see, are a state secret.

Let us all hope our top court rectifies this national travesty before it is too late.


Riad Saloojee is executive director of the Canadian Council on American-Islamic Relations.