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More on the breaking story of the Canadian Security Certificate having been declared UNCONSTITUTIONAL !

zgrams at zgrams.zundelsite.org
Fri Feb 23 11:20:02 EST 2007


-- 




Still breaking...

Here is the first write-up out of Canada.  What is interesting here 
is that not a single word about Ernst's "special treatment" is 
mentioned - namely that he was the only one EVER who was deported as 
a "national security risk" under this pernicious law called the 
Security Certificate.

Incidentally, Ernst's cell was next to Almrei's, and sometimes, when 
it was possible, they would share a few words or even a snippet of a 
newspaper dug out of some garbage can!

Ingrid

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    Court strikes down security certificates

KIRK MAKIN

Globe and Mail Update

OTTAWA - The Supreme Court of Canada has voted unanimously to strike 
down a controversial federal procedure used to deport suspected 
terrorists as being a violation of life, liberty and security of the 
person.

The security certificate process is hopelessly flawed and must be 
redrafted by parliament to eliminate the extreme secrecy in which 
hearings to determine the reasonableness of certificates take place, 
the court said.

While carefully paying heed to fears of terrorism and the special 
difficulties of protecting national security, the court said that 
certain elements of fairness cannot be dispensed with -- including 
the right of a detainee to know the case against them and to make 
full answer and defence.

"While there is a risk of catastrophic acts of violence, it would be 
foolhardy to require a lengthy review process before a certificate 
should be issued," the court said.

However it said the various forms of review in which a designated 
lawyer is empowered to act on behalf of detainees could pass 
constitutional muster.

Writing for a unanimous court, Chief Justice Beverley McLachlin 
suspended the effects of the ruling for one year to give the Federal 
Government time to craft a new security certificate process.

However, foreign nationals will benefit immediately from one aspect 
of the ruling which grants them a bail review within 48 hours of 
their first being detained -- a far shorter period than they must 
currently wait.

The court said that while federal court judges who conduct security 
certificate reviews do play an unusually active role in testing 
secret evidence, they are not unacceptably "co-opted" by the process.

It said that there may always be some evidence that cannot be 
disclosed and must be heard in a secret hearing, yet that must be as 
minimal as possible.

"It may simply be so critical that it cannot be disclosed without 
risking national security," Chief Justice McLachlin wrote.

"This is a reality of our modern world. If Section 7 is to be 
satisfied, either the person must be given the necessary information 
or a substantial substitute for the information must be found. 
Neither is the case here."

It said that the onus on governments to move quickly in a proceeding 
becomes greater with passing time.

"Stringent release conditions . . . seriously limit individual 
liberty," the court added. "However they are less severe than 
incarceration."

The court said that the security certificate provisions do not 
violate the Charter right to equality or constitute cruel or unusual 
punishment.

Enshrined within the Immigration and Refugee Protection Act, the 
security certificate process has been a target of constant, harsh 
condemnation from civil libertarians.

The provisions, which pre-date the Sept. 11, 2001, terrorist attacks, 
allow for a non-resident to be designated as a risk to national 
security, detained indefinitely, and ultimately deported.

The detainees and their counsel are provided with only a vague 
summary of the allegations against them. Evidence to back up the 
allegations is given in secret to a judge, and neither the accused 
nor their lawyer can attend.

The three men behind the Supreme Court challenge - Adil Charkaoui, 
Mohamed Harkat and Hassan Almrei - had all spent several years behind 
bars before being released recently under tight conditions of house 
arrest and their agreement not to communicate with a wide range of 
individuals.

The conditions of their detention - in a special holding unit 
nicknamed Guantanamo North - led some of the detainees to resort to 
desperate tactics such as hunger strikes.

The constitutional challenge was far and away the most important case 
on the Supreme Court docket last year. Critics of security 
certificates made no secret that it would be a test of the court's 
mettle at a time when they say sacred individual rights are being 
sacrificed to widespread fear of terrorist acts.

They looked to the court to issue a ringing endorsement of individual 
rights, comparable to recent decisions from England's House of Lords 
and the U. S. Supreme Court.

After hearing arguments last June from a courtroom packed with 
government officials, intervenor groups and lawyers for three men who 
had spent years in detention under security certificates, the court 
reserved judgment.

The court was left with three main choices: It could leave the 
provisions intact; strike them down and ship them back to Parliament 
for a full reformulation; or take it upon itself to "read in" new 
elements that would make them constitutional.

Besides going against the grain of centuries of fundamental legal 
principles, critics have complained that the detainees face the 
prospect of being deported to face torture or execution in a foreign 
country known for human rights abuses.

In the end, they say, security certificate detainees have been left 
with a false choice between indefinite detention in Canada and being 
deported to face torture and possible death.

However, federal lawyers told the Supreme Court judges that 
non-citizens do not have an absolute right to remain in Canada, and 
that national security is an interest so vital that it trumps almost 
any other interest imaginable.

"National security is not a societal interest like any other, such as 
the cost of drugs or investment in the health-care system," Crown 
counsel Bernard Laprade told the court during the hearing.

"It is an absolute necessity," he said. "Without it, all the other 
rights become theoretical. Without it, we wouldn't be here to discuss 
these questions today. I don't want to be alarmist, but without it, 
there is nothing else."

On several occasions during the hearing, the judges interjected to 
cool the federal rhetoric. "Mr. Laprade, if we don't have the rest, 
we'll be living in North Korea," Mr. Justice Louis LeBel observed at 
one point.

Specifically, lawyers for Mr. Charkaoui, Mr. Harkat and Mr. Almrei 
asserted that the certificates breached their right to life, liberty 
and security of the person. They were supported at the hearing by a 
raft of intervenors that include Amnesty International, the Canadian 
Bar Association, the Canadian Civil Liberties Association, the 
University of Toronto and the Canadian Council for Refugees.

They argued that security certificates are such an unjustifiable and 
dramatic departure from democratic legal traditions, the court had 
little choice but to excise their worst excesses or scrap them 
altogether.

The judges focused particularly closely during the hearing on the 
denial of legal counsel, and appeared to be striving for ways to 
safeguard national security while still permitting detainees to 
obtain details about the allegations against them.

Several judges also expressed concern that the security-certificate 
procedure forced their Federal Court colleagues to act as both 
cross-examiner and defender of the accused person's rights during 
secret proceedings in his absence.


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