Oct 24, 2007 04:30 AM Prodded by the Supreme Court, Prime Minister Stephen Harper's government has grudgingly agreed to raise the bar on the controversial "security certificate" regime that lets Ottawa arrest, jail and deport non-citizens who pose a threat to this country. In future, people like Mohamed Harkat, Adil Charkaoui and Hassan Almrei who successfully challenged the law will have a much-needed friend in court. Under the secretive process, the ministers of Public Safety and Citizenship and Immigration can issue a certificate against non-citizens who pose a threat. A Federal Court judge must weigh the evidence, give detainees a "summary" of the government's case stripped of sensitive intelligence, hear testimony from both sides, and then uphold or quash the certificates. If upheld, they serve as deportation orders.The problem with this, the Supreme Court ruled Feb. 23, is that "the secrecy required by the scheme denies the named person the opportunity to know the case put against him or her, and hence to challenge the government case." Routinely, judges hear state evidence behind closed doors with the public, the detainee and counsel excluded.

Ottawa must "do more to protect the individual," the court ruled.

Under Harper's proposed changes, a detainee may still be left in the dark as to the details of Ottawa's claims against him. But now a "special advocate" with security clearance will be named to "challenge the government's case." That was at the Supreme Court's suggestion.

The advocate can challenge Ottawa's demand that information on the detainee be kept secret, contest its reliability and cross-examine government witnesses who testify in secret. The advocate cannot normally share classified information with the detainee, but can be expected to bring pressure to bear for more openness and to expose weaknesses in the government case. That is a change for the good.

Once the new system is up and running, the Supreme Court will be in a position to decide whether fairness is indeed being delivered.

But after taking one step forward on the certificates from a civil rights point of view, Harper yesterday took two steps back by moving to reinstate "modified" versions of two draconian laws passed in haste after 9/11. The laws expired this year under a sunset clause.

One law, allowing "preventive arrest," empowered police to arrest Canadians and others and hold them for up to a year, without being charged, if a judge believed that will thwart a terror attack. The other law, on "investigative hearings," required people to give evidence about threats even if they were to incriminate themselves, though the testimony would not be used against them later.

These are police-state powers that restrict judicial oversight, override traditional rights against self-incrimination, and put the onus on detainees to prove their innocence. They were never needed, or used. Since 9/11 police have made many arrests without invoking them.

Parliament was right to let these measures lapse, given their threat to civil liberties. It should balk again at resurrecting anything similar.