Justice prevails in security cases (Toronto Star editorial)

posted on September 30, 2009 | in Category Security Certificates | PermaLink

by Unsigned editorial
Source: The Toronto Star
URL: [link]
Date: September 30, 2009

Is Canada's ability to fight terror being hobbled by Federal Court judges who are making it hard for officials to keep foreign suspects in detention indefinitely, or on a tight leash?

Public Safety Minister Peter Van Loan worries that may indeed be the case. "It raises questions about whether we can protect national security and I can tell you I am concerned," he told Canwest News Service this week. "I spend a fair bit of time thinking about it."

Van Loan's remarks came in the wake of judicial blows last week to Canada's controversial "national security certificate" regime – the law that allows Ottawa to hold foreign terror suspects in preventive detention indefinitely, or under close watch, until they can be deported.One judge ordered Adil Charkaoui, an alleged Al Qaeda sympathizer, unshackled from his tracking device, leaving him a free man. That was after government lawyers chose to withdraw evidence against him rather than comply with an order to release a public summary of it. Speaking for the government, the lawyers disputed the judge's view that disclosure wouldn't harm national security.

Another ruling eased restrictions on Mohamed Harkat, an alleged Al Qaeda agent.

Increasingly in such cases, judges are insisting that, before the courts sanction prolonged detention or onerous supervision, the Canadian Security Intelligence Service and other agencies provide credible evidence that suspects are dangerous. That seems reasonable to us.

As the Charkaoui case illustrates, if CSIS can't or won't comply, suspects may go free. Van Loan worries about turning such people loose. It's certainly not ideal, but it may be the least bad option available.

If CSIS refuses to provide evidence to justify such draconian measures, or if its evidence is thin, the courts can't be expected to keep people in jail or under supervision forever. CSIS has a reasonable burden of proof to meet.

It's not as if Canada were powerless to defend itself. Four of the "Toronto 18" group of terrorists have been convicted in connection with a truck bomb plot. And surely it isn't beyond CSIS's ability, when push comes to shove, to keep tabs on Charkaoui, Harkat and the few others who were being held on certificates and have now been released into the community.

As Supreme Court Chief Justice Beverley McLachlin noted in a thoughtful speech just last week, Canada must "fight terrorism while maintaining our constitutional rights and freedoms to the maximum extent possible." Moreover, she said, "the state bears the burden under the constitution of justifying intrusions on guaranteed rights."

This is not the first time McLachlin has felt the need to spell out these principles.

Preventive detention is repugnant in a free society. It is indefensible when evidence is non-existent or flimsy. That's something Van Loan must also consider, as the courts uphold the basic rights of individuals.

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