Original author: Canadian Press
Source: 900News.com
URL: [link]
Date: March 26, 2005

TORONTO (CP) - Canada's system of jailing suspected foreign terrorists indefinitely or deporting them to countries where they face a real risk of torture is under growing scrutiny and will likely have to change significantly, several experts say.

Judges, politicians and civil libertarians have been grappling with a system that does away with some of the most basic protections Canadians cherish in the interests of national security.

Those protections include the right not to be detained arbitrarily, the right to know the evidence the state has when it detains someone and the right to test that evidence in open court.

The issue of how best to protect the country while safeguarding basic individual rights is taxing democracies around the world."Terrorism has evolved to exploit every weakness in a democratic society and to use it to the utmost," says John Thompson, president of the Toronto-based Mackenzie Institute, which studies political instability and terrorism.

What is clear is that a single wrong call could have consequences too horrible to contemplate.

Ottawa security expert Martin Rudner says Federal Court judges may become increasingly reluctant to shoulder the responsibility for making that call.

"The question, ultimately, is: Who's accountable? What the courts are saying is, 'We don't want to be accountable for a terrible mistake in either direction'," says Rudner, director of the Canadian Centre of Intelligence and Security Studies at Carleton University.

The clearest example came last month in Montreal, where a federal judge ordered Adil Charkaoui, 31, a suspected Moroccan terrorist detained for two years, released on stringent bail conditions.

Supporters and civil libertarians hailed the decision.

But critics say releasing suspected terrorists on bail transfers the risk to society at large. It also leaves the problem of monitoring compliance with bail conditions to police, intelligence officials and those who stand as surety.

"If the judge feels the conditions are necessary, isn't there really a threat and therefore shouldn't the people still be in prison?" says Rudner.

"The courts here are just replicating the (larger) debate but shifting the onus in effect to the streets."

Matthew Behrens, founder of the Campaign Against Secret Trials In Canada, wants to take on some of that responsibility.

He recently offered to pledge $5,000 of his own money as bail for Mohammad Mahjoub, an Egyptian refugee who Canada's intelligence service says was a leading member of an al-Qaida-related terrorist organization.

"There's never been a single iota of evidence presented to show that there's a risk. There's a lot of paranoia, there's a lot of fear but it's not actually been substantiated by anything," says Behrens.

"The strength of your democracy is going to be based in large part on the amount to which you allow certain rights to exist. And if you start taking away people's rights based on mere speculation . . ."

Mahjoub, 44, who came to Canada in 1995, has been in a Toronto jail for almost five years as one of five suspected Muslim terrorists now under a national security certificate.

All deny terrorist involvement and all have been held for lengthy periods, usually in solitary confinement.

"These issues, which used to remain pretty hidden and obscure from public gaze, have become much more part of the broader public debate about how Canada is prosecuting its own war on terror," says Wesley Wark, a professor at the Munk Centre for International Studies in Toronto.

"There's some kind of emerging consensus that immigration security certificates aren't working properly."

Under the security-certificate process, implemented more than two decades ago, the government can detain non-citizens without charge or trial indefinitely pending deportation.

The only recourse for detainees is to ask a Federal Court to decide whether the certificate is reasonable, a ruling based on evidence supplied by intelligence services that neither the accused nor their lawyers can see.

Only the judge is allowed to review the secret evidence and the ruling cannot be appealed.

Exasperated defence lawyers have consistently complained that their ability to defend their clients is seriously obstructed, and Amnesty International has condemned the process as draconian.

Critics argue that intelligence can be faulty, especially if supplied by foreign governments.

"Most of our systems evolved fighting domestic terrorism. We didn't have to worry about stuff like this," says Thompson.

The situation becomes even more difficult in cases where a deportee faces the risk of torture in their home country.

The Supreme Court of Canada has ruled such deportations can only take place in "exceptional circumstances," but to date, those circumstances have not been defined.

Two federal judges recently ruled it would be "patently unreasonable" to deport given that Canadians find even the concept of torture shocking and abhorrent.

"That's a very serious problem for all democracies. We don't want to do that. Constitutionally in Canada we cannot do that," says Rudner.

Others argue kicking suspects out might simply put them back into the global pool of terrorism.

But if deportation is not an option, the vexing question of what to do with detainees remains unanswered - and the Supreme Court of Canada may end up deciding, if politicians don't do so first.

Civil libertarians want suspected terrorists charged and tried in open court - the way Canadian citizens would be.

However, being forced to disclose evidence, carries its own risks.

"The legal protections are sometimes an impediment to security," says Thompson.

The most obvious is exposure of informants that would open them to retaliation from the targeted groups.

The recent Air India trial showed the perils when a key Crown witness was murdered.

Similarly, revealing details of investigations by intelligence officials could blunt their effectiveness.

For these reasons, spy agencies in the past have often opted to allow their quarry to go free. But when the danger is a terrorist attack, that option quickly becomes unpalatable.

To get around some of the problems inherent in open-court proceedings, the Americans have sometimes resorted to shipping suspected foreign terrorists to Guantanamo Bay - away from prying defence lawyers and normal judicial process.

"That's the danger," says Rudner.

"If the legal system in democracies becomes one in which the security authorities come to the conclusion that they can't get justice in the system, they're going to make a natural adaptation.

"They won't arrest people and detain them in-country. They'll shift them out of jurisdiction to places where they can be incarcerated."

Ultimately, the answer might be found in some still-to-be-mapped-out middle ground, experts say.

One way might be to have suspected terrorists charged and tried in Canada, with a security-cleared lawyer appointed by the courts to oversee evidence that would otherwise be kept secret.

While such a lawyer wouldn't report back to the accused, it would provide the kind of independent safeguard critics say the current system is lacking.

Critics say that still discriminates against non-citizens, something Britain's top court recently ruled against.

Another problem is that a suspect may not have actually committed an offence in Canada.

Behrens says he believes mounting legal and public pressure will be the undoing of the current regime

"We're hoping that one day a judge is going to say no - that this process is completely wrong," says Behrens.

"We're getting a little bit closer (to that) because more people are aware of what's going on."

Wark agrees that growing public disquiet, prompted in part by pressure groups, is "having an effect."

Politicians and Parliamentary committees have all begun to take note and Justice Minister Irwin Cotler is also looking for ways to make the process both safe and fair.

"So what's the perfect answer?" says Thompson. "I don't think there is one."