Original author: unsigned editorial
Source: The Toronto Star
URL: [link]
Date: March 11, 2007

Is Canada rolling out the welcome mat for Al Qaeda and other terrorists?

Prime Minister Stephen Harper would like the public to think so, now that Parliament and the courts have rolled back some security laws and procedures adopted in haste after the 9/11 attacks with a view to thwarting a terror onslaught.

In the past month, the Supreme Court has ruled unconstitutional parts of Canada's "national security certificate" process that has been used to detain for years on end a few non-Canadians suspected of having ties to terrorists. Judges have been ordering suspected terrorists released from jail, under strict supervision.

And Parliament has rejected extending two anti-terror laws – preventive arrest and investigative hearings – that were set to expire under a sunset clause.

All this has prompted Harper to fear-mongering. Stéphane Dion's Liberals have chosen "internal caucus politics over the national security of Canadians," Harper has charged. The Conservatives, in contrast, "will not be dropping the issue."This implicit threat to reverse the will of Parliament and the Supreme Court may appeal to those who fear Canada has "gone soft" on terror. Certainly, it is hardball law-and-order politics, prior to an election.

But at root Harper wants to fix something that does not need fixing. He should back off, and let Parliament and the courts prevail as they affirm our rights.

Canadians aren't throwing in the towel to terror. We are simply coming to our collective senses after the panic of 9/11. Our justices and lawmakers are restoring a healthier balance between the rights we cherish and national security.

With respect to the controversial security certificate process, the Supreme Court unanimously told Parliament to rewrite a law that goes too far, requiring judges to approve security certificates and detentions on the basis of secret evidence the accused cannot see or challenge. The process is wildly skewed.

"Before the state can detain people for significant periods of time, it must accord them a fair judicial process," Chief Justice Beverley McLachlin wrote. That's hardly throwing out a welcome mat for Al Qaeda. It is a vigilant reaffirmation of an ancient legal principle that protects all of us.

Moreover, solutions raised by the Supreme Court, including naming special advocates for detainees, who would have sufficient security clearance to view the government's case and challenge it, would hardly tilt hearings in favour of real terrorists. Quite the reverse. What they would do is let innocent detainees defend themselves.

And the Supreme Court was not reckless. It gave Parliament a year to fix this procedure.

Parliament, for its part, was also wise to let preventive arrest and investigative hearings lapse from the law books.

It is impossible to make a compelling case for these measures. They have never been used. They erode civil rights because they let the authorities hold people for up to a year without charge, and compel people to testify about terrorist threats, even if the testimony is self-incriminating. They are tools of a police state, not a free society. We are better off without them.

Finally, Canada's Federal Court has balked at holding terror suspects indefinitely, without charge. And rightly so.

This past week Mahmoud Jaballah became the fourth suspect held on a certificate to be granted bail, after being jailed for more than five years.

Jaballah and four others suspected of having links to Al Qaeda have been deemed inadmissible to Canada and ordered deported, but have fought their deportation orders, arguing they will be tortured and killed. That has left them in a legal limbo.

The judges have granted bail to four of the five, after concluding that whatever risk they still pose can be contained by imposing conditions on their release.

Those conditions are tough. They amount to virtual house arrest, and include electronic monitoring bracelets, constant supervision and tapped phones.

Canadians are rightly concerned about terrorism. But we expect Parliament and the courts to fiercely guard our rights. That balance is being finely observed, by an active Parliament and vigilant justices, after a season of folly.

And the Prime Minister is wrong to suggest otherwise.

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