February 24, 2007 Thomas Walkom NATIONAL AFFAIRS COLUMNIST http://www.thestar.com/printArticle/185320
OTTAWA–Canada is on its way to becoming a civilized country again. The Supreme Court has ruled that if the government wants to lock up people indefinitely without charge, it has to at least let them muster a defence.
In the post-9/11 world, this counts as progress.
Yesterday's court ruling deals with what are known as security certificates. These are ministerial orders that allow the government to jail non-citizens without charge and then deport them.
Lawyers for five Muslim men who have been jailed for up to six years under these certificates hailed the decision as a victory for human rights – which perhaps it was.
But it's worth noting that the court did not invalidate the entire security certificate regime. It just told the government it has to be more respectful of the Constitution. More important, the top court has yet to address the most controversial element of Canada's immigration laws – the question of what to do to those that the government wants to deport as security risks even though it knows they will almost certainly face torture in their homelands.
That question is due to be addressed by a lower court, probably later this year.
Still, yesterday's decision does go some way to clearing up a law that has become a searing embarrassment for Canada.
Since 2001, it has allowed the government to jail any foreigner, whether legally or illegally in the country, that it deems a security risk.
The government does have to convince a federal court judge that its decision is reasonable. But under the law as currently written, it can do so by providing the judge secret evidence.
The upshot is that the accused and his lawyers never get the chance to see or challenge the details of the government's case.
In some instances, the alleged security risk is not even permitted to know the specific offence, if any, that he is accused of.
That's drawn criticism from Amnesty International, Human Rights Watch and the United Nations.
And it's been no fun for the immigrants who've been held for years in some form of detention without ever being criminally charged. They've had their lives, and in some cases their health, effectively destroyed.
So yesterday's ruling does mark a turning point.
First the court has said the government must give non-citizens swept up by the security services a better chance to defend themselves.
The judges said that didn't necessarily mean letting the detainees see the secret intelligence the government uses as evidence. But at the very least, the court said, the government must be just a little bit fairer.
That could involve allowing specially vetted lawyers to see the secret evidence and argue on the detainees' behalf. Or it could involve giving federal court judges more discretion to independently decide what to keep secret.
The court gave Parliament a year to come up with a new law that would satisfy it on this count.
Second, the nine justices ruled that all non-citizens, whether permanent residents or refugee claimants, have to be treated equally – effective immediately. The law as written is harsher on refugee claimants.
Third, the court said that the government has to come up with better reasons to keep so-called terror suspects jailed indefinitely. In particular, the court said, the government must be able to prove that after a long time behind bars, a suspect remains a threat.
Successive Liberal and Conservative governments have long argued that the law as written is just fine. They say that if those detained under a security certificate want to get out of jail, they can go back to their home countries.
But the court put paid to that bit of quaint sophistry. It noted that in the real world, immigrants from countries with dodgy human rights records may face torture if they are returned to their homelands and that in such cases the choice the government provides is no choice at all.
Yesterday's ruling does not answer all of the prickly questions that have arisen since the 2001 attacks on New York and Washington. Canada still has to grapple with how it deals with foreigners who want to remain in the country after the government deems them undesirable.
In the past, such matters were simpler. An ordinary criminal who was not a citizen could be deported after serving his jail time. A spy, like the Russian agent nabbed last year, could be unceremoniously turfed.
But the so-called war on terror has made everything more complex. Now, a person who once travelled in the same region of the world as someone alleged to be a terrorist, risks being labelled a terrorist himself.
That's the case with Adil Charkaoui, one of the security certificate six who is now out on bail under strict judicial supervision. The Montreal man's other public sins, as laid out by the government, include opening a pizzeria (the security services say this indicates he was trying to "integrate himself into Canadian society" as part of a sleeper cell) and taking karate lessons.
So what are we to do with such a pizza-loving, karate-kicking immigrant?
Should we strip him of his permanent residency status and deport him back to Morocco to face a dubious fate at the hands of that country's notoriously unfriendly security services? Should we keep him here under house arrest indefinitely? Should we charge him with a crime and put him on trial? Should we let him get on with his life?
The court didn't provide a definitive answer to these questions. But it did say we should give Charkaoui and anyone else detained under security certificates a bit of a break.
Which in these grim times is a victory.