The security certificate system as a tool of anti-terrorism is dead. Last week, the government abandoned its case against Adil Charkaoui, supposedly as a lesser evil to disclosing information it says would jeopardize national security. Four other cases continue, and the government could “win” a few in the short-term. But even if the government demonstrates a reasonable basis for its allegations, the saga will continue – security certificates are supposed to be about deportation. And that prospect seems vanishingly remote because of the risk that the four remaining individuals will be tortured if deported. All of this means the government will inevitably need a “Plan B” for the future. So what now? Faced with similar dilemmas in designing law as a tool of anti-terrorism, other states have done two things of note. First, they have used the criminal law with greater vigour than Canada. Second, some have tinkered with conventional legal standards to authorize constraints on liberty outside of criminal prosecutions. Back to basics: criminal law
The first strategy is, relatively speaking, uncontroversial. There are, of course, difficult challenges. The question of national security confidentiality is ripe in criminal cases, as much as it has been in Canada's security certificate cases.In a criminal matter, where national security confidentiality and a fair trial cannot be reconciled, the government may be forced to elect for disclosure over security, or see its case fail. But this is a difficult balance best established in a criminal trial, rather than in a security certificate system that cannot accomplish its stated goals of removal from Canada anyway. It is notable that Canada's criminal law reaches far enough now in penalizing terrorism-related activity. New offences pepper the statute books since their post-9/11 reorganization. They could capture much – if not all – of the actions apparently at issue in the security certificate cases, although they could not apply to the actual individuals in question because their alleged conduct predates the new crimes. Focusing on criminal law would also prompt a necessary cast change. Canada's security intelligence service – CSIS – has been involved in security certificates for a long time. It has, however, little experience with a process in which the accused person actively contests government claims, aided by highly experienced “special advocates.” The experience has clearly pained CSIS, and the agency's reputation has been deeply tarnished by its failures to apprise judges of weaknesses in its cases. CSIS has likely learned a lot and with procedural rules now more clearly established, one would expect an improved performance in the future. But why convert CSIS into an agency that does courtroom evidence well? Such a conversion risks detracting from the different role CSIS is supposed to serve – providing intelligence to guide actions by government. For all its own troubles, the RCMP is a police force that lives daily with courts. Shifting the focus of anti-terrorism efforts to criminal law would give investigative primacy to the RCMP, and place CSIS in a supporting role. That is how it should be when an accused person's liberty is at stake. Special detention regimes
In designing a Plan B, the government might be tempted to emulate Britain and Australia. There, so-called “control orders” and prolonged detention without charge allow governments to react quickly on information insufficient to sustain a criminal conviction. Certainly, the government may need to act pre-emptively, in an effort to disrupt nascent terrorist threats. It is indisputable, however, that the terrorism crimes in Canada's post-9/11 statute book allow much more pre-emptive action than was the case beforehand. One crosses the line of a criminal offence very early in the preparation of an actual act of terrorist violence. The so-called “Toronto 18” cases are partial evidence of that fact. Moreover, Parliament will eventually re-enact the expired “preventive detention” provisions of the anti-terrorism criminal law, allowing short-term detention prior to the imposition of so-called “peace bonds.” While it has its own shortcomings, this system is to be preferred over its British and Australian counterparts. Not least, Canadian proceedings would be in presumptively open courts, not closed-door hearings. There is no doubt that the liberty of more people could be more readily limited if Canada followed Britain. But it is difficult to argue that the absence of a British-style system in Canada truly puts public safety in peril. There is also the small matter that a free society cannot eliminate all risks and still be free. The architects of Plan B must be governed by this truth. It is time to give the criminal law a fair shake. ,i>Craig Forcese teaches national security law at the University of Ottawa's law school.
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