Federal lawyer fears security case backlogposted on December 09, 2004 | in Category Security Certificates | PermaLink
A federal lawyer warned yesterday that national security cases will get bogged down by Charter challenges if Federal Court judges decide they have the power to address constitutional questions. Donald MacIntosh said Parliament devised an expeditious process to remove foreign nationals who threaten national security. The security certificate process set out in the Immigration and Refugee Protection Act allows the government to detain and deport terrorist suspects based, in part, on evidence that remains secret. Allowing accused terrorists to use the Charter of Rights and Freedoms to challenge decisions made by Federal Court judges -- they assess the reasonableness of security certificates -- would lead to long, complex cases, Mr. MacIntosh said. "Charter arguments tend to be complex and protracted affairs," he said, "and it would defeat Parliament's intent that such matters be dealt with in an expeditious fashion."Mr. MacIntosh made the argument in asserting that Federal Court Justice Eleanor Dawson had no jurisdiction to hear the Charter challenge launched by Paul Copeland, lawyer for Ottawa's Mohamed Harkat.
Mr. Harkat, 36, is accused of being an al-Qaeda sleeper agent. The federal government had him arrested and detained under a security certificate issued two years ago. He faces deportation to his native Algeria if Justice Dawson finds it was reasonable to issue the certificate.
Mr. Copeland told court yesterday that he was perplexed by the government's contention that the Charter does not apply to a hearing that's to determine whether his client is a terrorist.
"It is an argument that would make John Ashcroft proud," he charged, referring to the controversial former U.S. attorney general.
Mr. Copeland said the argument is equivalent to the one Mr. Ashcroft made in asserting that the rule of law does not apply to "enemy combatants" held at Guantanamo Bay, Cuba.
The Charter, he argued, applies to all legislation in Canada, including the one that governs the security certificate process.
Mr. MacIntosh, however, noted the law specifically prohibits an appeal of the Federal Court's finding on the security certificate's reasonableness. Any constitutional challenge to the law itself, he argued, should be made in a separate civil action.
The exchange occurred as Judge Dawson considered whether she had the jurisdiction to hear the constitutional challenge launched by Mr. Harkat. That challenge went ahead even though Judge Dawson has yet to rule on whether she can decide the Charter question.
Mr. Copeland told court that the process used to determine whether Mr. Harkat is a terrorist fails the "sniff test."
"What we are doing here does not comply with fundamental justice," he said. "It's almost like the sniff test: it doesn't smell right; it doesn't feel like fundamental justice."
The court process, he said, is so secretive that it denies Mr. Harkat the basic right to respond in a meaningful way to the allegations levelled against him.
Because Mr. Harkat was excluded from secret hearings where detailed evidence against him was presented, Mr. Copeland said, he had no way of testing the credibility of that evidence.
"The question we should be asking is: is this the best we can do?" he told court.
Mr. MacIntosh conceded that the security certificate process may be frustrating, but he insisted that doesn't make it unconstitutional.
"The fact that the scheme is undeniably difficult to operate under doesn't mean it violates the principle of fundamental justice," he said.
Mr. MacIntosh noted the Federal Court of Appeal has already upheld the security certificate process as fundamentally just in a decision that the Supreme Court refused to reconsider.
Judge Dawson reserved her decision on the constitutional challenge.
Mr. Harkat, who worked as a pizza delivery man and gas station attendant in Ottawa, will mark his second anniversary behind bars on Friday.
Canada's spy agency alleges that he travelled to Afghanistan from Pakistan in the early 1990s and met with Abu Zubaydah, a top al-Qaeda lieutenant. Mr. Harkat has testified that he worked as a warehouse manager in Pakistan in the early 1990s after fleeing political persecution in Algeria.
He insists that he has never been to Afghanistan, has never met Mr. Zubaydah and has nothing to do with al-Qaeda.
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