More on the breaking story of the Canadian Security Certificate
having been declared UNCONSTITUTIONAL !
zgrams at zgrams.zundelsite.org
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
=====
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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