Tuesday, February 27, 2007

Detention solution found wanting in Britain

Globe and Mail
26 Feb. 2007
Suggested fix blasted by lawyers who tried to make it work


From Monday's Globe and Mail

The British fix proposed by the Supreme Court of Canada to deal with rights violations in immigration security detention orders has been branded inadequate and unworkable by British lawyers who tried to make the model work.

Ten years ago, Tony Blair's government created a panel of special advocates with the highest security clearance to act for detained foreign nationals suspected of being security risks.

The special counsels were authorized to hear the state's case against suspects in closed hearings, cross-examine intelligence agents and argue before judges for the disclosure to suspects of information the state was using to justify their detention.

But Ian Macdonald, a senior member of the panel who created a political furor when he resigned two years ago, told The Globe and Mail last night that the special advocate system was inherently flawed and that hearings in which the advocates participated were often a sham.

Another lawyer on the 15-member panel, Rick Scannell, resigned a month later. And nine other members told the British House of Commons constitutional committee they did not believe the system makes it "possible . . . to ensure that those detained can achieve justice."

Anne McLellan, public safety minister in the previous Liberal government, said in late 2005 that she was giving thought to adopting the British model but never acted on it. She was travelling last night and was unavailable for comment.

The Supreme Court declared unanimously on Friday that foreign nationals detained or deported under so-called security certificates as a danger to Canada must be allowed to know the state's case against them and be able to mount a meaningful defence. It gave the government one year to fix the law.

The ruling was hailed in the media as a victory for civil libertarians but in fact, and perhaps more interesting, it underscored what U.S. legal scholars refer to as "the Constitution is not a suicide pact" doctrine, said constitutional lawyer Neil Finkelstein, counsel for the Federation of Law Societies of Canada at the security certificates hearing.

What the Supreme Court said is that it's all right for the state to breach the constitutional rights of some in order to protect Canadian society as a whole -- hence, the meaning of the Constitution not being a suicide pact -- but the breach must be minimal.
As Toronto civil rights lawyer Clayton Ruby said yesterday: "I would have hoped for more. I would have hoped there would have been a declaration that indefinite detention of non-citizens on grounds of [suspected] terrorism is never justified. Never. And they said, 'Well, it can be in some circumstances.' "

Appearing on the CTV program Question Period, Public Safety Minister Stockwell Day had no criticism of the decision, noting that the court had accepted the principle of the security certificates and indefinite detention.

Opposition Leader Stéphane Dion welcomed the court's call for new safeguards and appeared to approve of the proposal for special advocates.

But Mr. Macdonald, the British barrister, said in an interview, he found himself with the often bootless task of dealing with vague "assessments" of intelligence agents rather than hard evidence of wrongdoing that police -- who are often excluded from security cases -- are trained to provide. And as he told British MPs, he came to see his job as bringing "some kind of fig leaf of respectability and legitimacy to a process which I found odious."

With a report from Campbell Clark


Winnipeg Free Press
Conservatives 'sustain' security certificates
Government may tweak regime struck down by Supreme Court

Tue Feb 27 2007

By Andrew Mayeda
OTTAWA -- Only days after the Supreme Court struck down parts of the security-certificate regime as unconstitutional, Prime Minister Stephen Harper vowed to "sustain" the system used to detain non-citizens believed to pose a national-security threat.

The Supreme Court ruled Friday that withholding evidence from individuals detained on security certificates violates the Charter of Rights and Freedoms.

On the day the ruling was released, Harper's ministers would only say the government would respond to the decision in a "timely and decisive fashion." In his first comment in the Commons on the ruling, Harper went a step further and confirmed the government plans to continue using security certificates in some form.

"The Supreme Court said that the security certificate process is necessary for public safety in the fight against terrorism. It did find some provisions unconstitutional," Harper conceded.

However, he said the ruling "laid out for Parliament a pretty clear road map on how to rectify the legislation so that we can continue to sustain the security-certificate regime."

Harper's comments gave the strongest indication yet the government plans to tweak the regime, rather than scrap it.

Although the Supreme Court struck down parts of the system, it gave the government one year to rewrite the immigration law that enables security certificates.

Under the system, the government can detain permanent residents and foreign nationals without charge and seek to deport them. A Federal Court judge weighs the evidence in private, in the absence of the individual or his lawyer.

Meanwhile, Public Safety Minister Stockwell Day made it clear Monday the government has no intention of closing the $3.2-million "immigration holding centre" near Kingston, Ont., where three men are being held on security certificates.

Critics have dubbed the holding centre "Guantanamo North," in reference to the U.S. military prison in Guantanamo Bay, Cuba, where detainees have made allegations of torture.

New Democrat MP Bill Siksay noted the three men -- Mohammad Mahjoub, Mahmoud Jaballah and Hassan Almrei -- have been on hunger strike at the facility for nearly three months. He called on Day to appoint the federal correctional investigator to probe the men's complaints, and asked if the minister would start negotiations on their release.

Day rejected the idea of creating "another layer of bureaucracy to deal with the problem," noting the government already has Red Cross officials visit the facility on a regular basis and makes available a "health-care practitioner" every day.

-- CanWest News Service