James Morton past president of the Ontario Bar Association Just a few weeks after Prime Minister Stephen Harper raised fears of left-wing ideologues on the bench, Public Safety Minister Peter Van Loan said he fears for the government's ability to fight terrorism. Van Loan complained of "an increasingly complex legal environment" in which judges are no longer deferring to the government in its efforts to deport foreign suspects. "It raises questions about whether we can protect national security," he said. Certainly it has been a difficult few months for the government's anti-terrorism policy. Judges have not been notably supportive of government positions. The Federal Court of Appeal recently upheld a ruling requiring the government to ask the Americans to bring Omar Khadr to Canada. That case is going to the Supreme Court but most observers do not see a government victory as likely. Three security certificate cases, in which non-Canadians are subject to deportation on ministerial certificates, also look close to collapse. But in each of these cases – the very cases Van Loan was commenting on – collapse has not been the result of judicial activism but because of weaknesses in the cases themselves.Adil Charkaoui, a Moroccan-born father of three, spent the past six years in prison, under house arrest or under GPS surveillance, despite his continual denials of any involvement in terrorism. The court hearing his case said at least some of the evidence against Charkaoui had to be disclosed so he could defend himself. The court's decision that evidence should be subject to review by an accused is hardly the conclusion of a judicial radical. In response, government lawyers withdrew much of the evidence saying it had to be kept secret to protect national security. As a result, the case against Charkaoui failed. Mohamed Harkat, a former pizza delivery man from Ottawa, also obtained more freedom than he has had since his arrest seven years ago. He had been under an especially restrictive form on house arrest; that ended. The court also ordered government agents to cease monitoring Harkat's mail and other communications, and to take down surveillance cameras installed outside his house. The case against the Algerian-born man was temporarily suspended after federal investigators misled the Federal Court about the credibility of an intelligence informant. Syrian-national Hassan Almrei of Toronto may also have the case against him thrown out in light of recent revelations that one of the federal informants against him was deceptive and another source never took a lie-detector test, despite earlier claims that he had taken such a test and passed. Judges have a difficult role when dealing with terrorism and claims of national security. They must balance the rights of those accused against the needs of the nation. Unlike totalitarian states, Canada has judges as a buffer to ensure a proper balance is maintained. In security certificate cases, the judge has the limited task of ensuring the certificate is "reasonable." The judge reviews the evidence prepared by the government. Hearsay is admissible as evidence. All or part of the evidence may be heard in secret, without the accused being present, if the judge deems that airing it publicly may hurt national security or put the safety of any individual at risk. The task of review is assigned to the court by statute – judges who merely signed off without full review would be neglecting their duty. And the judges have been fulfilling their duty. Even in the deportation context, the right of the accused to see the case against them is fundamental. Limiting that right, as happens with security certificates, makes the judge's task even harder – doing a careful and searching review of the evidence is precisely what a judge is supposed to do. National security is not served by naming people terrorists without proper proof, and requiring the government to show that its position is "reasonable" is hardly a high standard. Terrorism is a clear and present danger and must be dealt with seriously. As the recent results (including a 14-year sentence) in the Toronto 18 terrorist-cell trials show, when a terrorism case is brought to criminal trial, Canadian courts can and do deal with the matter properly. Unlike the form of government many terrorists seek to impose, Canada is a nation of law with rights and duties held in a balance by the courts. That balance does act, as it is intended to act, as a check on unbridled state power. Judges are doing their job in maintaining that balance. James Morton is a Toronto lawyer with Steinberg, Morton, Hope and Israel LLP. He teaches evidence at Osgoode Hall Law School.
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