Editorial: Canada's vexing security cases

Toronto Star, Friday, February 18, 2005

Canada has not felt the need to detain many alleged terrorists before or after the 9/11 attacks. But the few we do hold sorely test our legal system.

One Egyptian man, Mohamed Mahjoub, has been locked in a Toronto detention centre for nearly five years, since June, 2000, without being charged with a crime, set free or deported. He is one of a small group of Arab men who made their way here, were deemed inadmissible because of suspected terrorist links, and who have been fighting deportation for years, claiming they will be killed or tortured if sent home.

Mahmoud Jaballah, another Egyptian, has been held four years. Hassan Almrei, a Syrian, for three. Mohamed Harkat, an Algerian, for two.

And until yesterday when he was released on $50,000 bail, Adil Charkaoui, a Moroccan, had been held for nearly two years.

Only two others are being held on rare but draconian national security certificates: Manickavasagam Suresh, an alleged Tamil Tiger supporter, has been held for nine years. And Holocaust denier Ernst Zundel, for two.

Canadian officials contend the five Arabs have ties to Osama bin Laden or other terrorists, have trained in terror camps, have used false documents or have other unsavoury connections. As foreign nationals, they can be held until they can be deported. Canadians would have to be tried.

The men all deny links to Al Qaeda or other terrorists. One says he trained in a bin Laden camp, but only to fight the Russians in Afghanistan. Another says he worked for bin Laden, but only in a legitimate job. Another says he is simply a victim of mistaken identity.

This leaves Canada's federal court judges weighing probabilities, not hard evidence, as they ponder these cases. The Crown argues the men are terrorists, at times citing secret evidence that is not fully disclosed. The detainees proclaim their innocence, without fully knowing the charges against them. Defence attorneys are also hobbled.

Some of these considerations no doubt moved Justice James Hugessen of Federal Court to say this of the security certificate process, six months after 9/11: "We hate it." Parliament must weigh that view in its mandatory review of Canadian security laws, which were toughened three years ago. While the certificates predate 9/11, and most Canadians feel their application protects national security without trampling civil liberties, there may be reason to demand greater disclosure by the Crown, a more open process and to consider alternatives to indefinite detention or expulsion.

Justice Eleanor Dawson seemed to signal as much a few weeks ago when she ruled that a federal immigration official should have had far more information than the Canadian Security Intelligence Service provided, before deciding that Mahjoub required deportation.

Critics of the system have long argued Ottawa should be required to present stronger evidence, take into account whether a suspect's detention and notoriety has made him less of a threat, and consider whether strict bail conditions can serve the same purpose as detention.

Justice Simon Noel's decision yesterday setting Charkaoui free on bail breaks fresh ground on this issue. Charkaoui must respect a curfew, wear an electronic monitoring bracelet, stay with his family, and limit his personal contacts and computer use.

Justices Dawson and Noel and their colleagues on the bench have good reason to "push the envelope" looking out for detainees' rights.

Chief Justice Beverley McLachlin of the Supreme Court has said judges must be "very conscious of the need to maintain liberty and to ensure that Canada remains a democratic and liberal and free country where freedoms are impinged as little as possible." These judges are doing their duty.

While Ottawa must have sweeping power to detain people indefinitely if they pose a risk and to deport them, the Charkaoui ruling reminds us there are other options to protect the public.

Importantly, these are options that do not offend core Canadian values, devalue human life or put us on the wrong side of international law.