July 28, 2003, Maclean's


A top lawyer says terrorists win when due process is subverted


THERE IS A LAND where the government can arrest non-citizens, throw them in jail for an indefinite period of time, and then remove them from the country, all in virtual secrecy. This is a land where, for certain people, civil liberties and rights of due process don't exist. No, this is not China or Cuba. This is Canada -- a country I believed understood the transcendent importance of safeguarding civil liberties. But against those whom Ottawa secretly determines are a threat to national security, the government can act, and is now acting in alarming ways. Has Canada gone mad? Shades of Guantánamo Bay -- where the U.S. has imprisoned hundreds of suspected terrorists without trial -- colour the government and the judiciary.

The Immigration and Refugee Protection Act allows the immigration minister and solicitor general to sign a "security certificate" against a foreign visitor or an individual with permanent resident status, declaring that person "inadmissible" to Canada. The certificate, based on information provided by the Canadian Security Intelligence Service, has been used 27 times in the last 10 years, including five times since the Sept. 11 terrorist attacks.

The security concerns listed in the act are general and vague, and include "engaging in terrorism, or acts of violence that would or might endanger the lives or safety of persons in Canada," or simply being a "danger to the security of Canada." Under the certificate, a foreign visitor is immediately subject to arrest and can be held indefinitely without bail. For a person with permanent resident status, a Federal Court judge must start a review within 48 hours. If the judge finds the detention warranted, the permanent resident can be held without review for six months. Incredibly, neither the accused nor his lawyer is entitled to be present when the judge determines if further detention is warranted.

In both cases, by the seventh day of custody, a Federal Court judge must start to review the government's evidence. Again, neither the accused nor his lawyer is entitled to be present. The evidence can be hearsay, double hearsay, triple hearsay. It's the judge and government lawyers sitting together making fundamental decisions about someone's liberty, without them being there to listen, object, question, protest or even to agree.

A summary of the evidence must eventually be presented to the accused, but even then the government can withhold any or all evidence if a judge rules that providing the information risks national security. In a subsequent hearing, the accused is given an opportunity to be heard, but this hearing is inherently unfair because the accused can only respond to the summary of the allegations. At this hearing, the judge does not determine whether the accused is actually a security threat or whether the secret evidence is reliable. The judge's only role is to assess whether the issuance of the certificate was "reasonable." Only three times has a certificate been overturned on review. In one case, a certificate against Mahmoud Jaballah, an Egyptian refugee claimant, was overturned in 2000. However, Jaballah was arrested the following summer under a second security certificate, and the father of six has been held in solitary confinement in Toronto's Metro West Detention Centre ever since.

The accused cannot appeal and can be quickly deported, even to a country where he may be tortured. Worse, the accused's lawyer is kept in the dark about the evidence. Bruce Engel is a thoughtful Ottawa lawyer doing his best to represent Mohamed Harkat, a 35-year-old Algerian refugee who has been held in protective custody since his arrest in the capital in December 2002 on suspicion of being an al-Qaeda operative. He says the summary of the evidence against his client is pitifully vague. What, he wonders, if the government has arrested the wrong person? How can the wrongfully accused defend themselves if they have no idea what the evidence is?

It's astounding that we are living under a government that, in defence of freedom and liberty, can keep someone not charged with any crime in solitary confinement for years based on secret information. It's terrible to contemplate that people can lose their livelihood based on information they cannot question. It's unthinkable that such people have absolutely no right of appeal or review, a glaring violation of a basic tenet of the rule of law: the right to appeal the decisions of a lower court.

We are living in a time when the defeat of terrorism is on everyone's mind. But that doesn't mean we are supposed to simply trust the government to act wisely on correct information. The rule of law is the bedrock of our nation, not blind faith in the unchecked judgment of government officials. Any country that lives by a rule of "trust us, there is no need for due process," is totalitarian. We should be ashamed that there is a process in security cases that can be compared to the ignominious Star Chamber, a medieval English court that was dismantled by Parliament in 1641, but whose name survives to describe arbitrary, secretive proceedings.

The challenge is to figure out a way to deal with the threat of terrorism without losing the freedoms that make Canada the great nation it is. Everyone must be able to respond to their accusers, whether in the realm of a criminal trial or a security hearing. We must demand that persons threatened with loss of liberty, livelihood and possibly life, be provided with someone in this process who can protect them from false and unsupported allegations. Let the lawyer for the accused participate in the meetings with judge and government. Let a lawyer have some opportunity to effectively question the accusations. I shudder at the thought of those who have suffered wrongful convictions. It's terrifying that in ordinary criminal cases, following a trial by judge and jury, after a full opportunity to cross-examine one's accusers and question all the government's evidence, mistakes are still made.

How many mistakes could the government be making in security cases? Agents working for CSIS respond to tips. False tips in criminal cases can be uncovered through independent investigation and cross-examination. But with security issues shrouded in secrecy, there is virtually no way of knowing whether the tipster has run amok in the desperate fight against terrorism. It's not beyond the realm of possibility that a security certificate is issued based on information from corrupt government agents.

History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. When our nation allows fundamental freedoms to be sacrificed, we invariably come to regret it. Earl Warren, former chief justice of the U.S. Supreme Court, wrote over 35 years ago: "It would indeed be ironic if, in the name of national defence, we would sanction the subversion of one of those liberties which make the defence of our nation worthwhile."

In the global struggle against terrorism, Canadians are in possession of the ultimate weapon. It's the weapon of an unassailable idea -- individual rights, liberty and the dignity of the individual. It would be a tragic paradox if we should surrender any part of this heritage, for we should then have done to ourselves from within what we fear most from without. We must remain forever vigilant about any encroachment on personal freedom and individual liberty, of citizens and non-citizens alike.

Terrorism is an acute danger and if al-Qaeda is operating inside Canada, it's a genuine danger -- a genuine fifth column. In fact, the U.S. continues to gather intelligence indicating that Canada may be a haven for certain terrorist cells. We should not forget people like Ahmed Ressam, who was arrested crossing the U. S. border from Canada in December 1999 with explosive material that he admitted was intended for the destruction of the Los Angeles airport. But, Ressam's conviction came without jeopardizing the rule of law. I wholeheartedly support the "lock-them-up and throw-away-the-key" reaction. But I say, first provide them with the kind of justice that makes Canada great. As Benjamin Franklin said: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." We defeat our own ends if we adopt the techniques of totalitarianism. If we really believe in democracy, we must have faith enough to fight for its preservation with the tools of freedom.