Headlines everywhere are proclaiming that Canada's anti-terror legislation had been found unconstitutional in a ruling by the Supreme Court last week. But in fact what the Court has ruled is simply this: although indefinite imprisonment on the grounds of suspected terrorism is on occasion necessary for reasons of national security, defendants do deserve a chance to defend themselves, know the charges against them, and have proper representation in court.
The Court gave the Canadian government one year to come up with a solution to this aspect of the “Security Certificate” law or face the possibility of it being declared unconstitutional. In addition, the Court suggested that the Canadian government consider a system the British have developed to deal with the same set of circumstances.
But according to lawyers who have worked in the British system, it is fact unworkable and no more then a …"fig leaf of respectability and legitimacy to a process which I found odious." said Ian Macdonald. He was a senior member of the team of defence lawyers who were responsible to help defend those detained on the British equivalent of Security Certificates.
Some years ago Prime Minister Tony Blair of Great Britain authorized the formation of a special panel of defence attorneys who were given the highest possible security clearance. These lawyers were then allowed to represent those individuals being held under the security act by cross-examining security agents, and arguing before judges for disclosure of material the state was using as evidence.
But Mr. Macdonald, whose retirement two years ago from the 15-member lawyer's panel causes a political furor, said the system was flawed and the hearings were a sham. His retirement two years ago from the panel caused a furor. Since then, another lawyer has resigned, and nine others appeared before a British House of Commons constitutional committee saying they did not believe the process made it possible for detainees to receive justice.
The former Liberal Party of Canada Public Safety Minister, Anne McLellan, had considered this alternative in 2005. For unknown reasons she did not pursue the matter, but it can only be assumed that she or her staff deemed it unworkable for some reason or another.
The problem, Mr. Macdonald said, was the fact they were dealing with vague security risk assessments as provided by special agents, not hard and fast facts as is normal in a criminal law case. So instead of a report by a police officer stating so and so was seen meeting with so and so and carrying away an AK-47 and enough plastic explosive to blow up Buckingham Palace, they would receive comments such as: he's of Syrian descent, was seen in the company of people who have in the past been considered potential threats, and he could represent some sort of threat to the Crown.
Not Easily Rebutted
That's not really the type of information a lawyer can rebut very easily, because he is not being told anything conclusive. But instead of those cases being dismissed for lack of evidence the Certificates were issued and defendants detained indefinitely. Hence Mr. Macdonald's fig leaf comment and his refusal to keep working on the panel of lawyers.
Will Canada's Supreme Court justices be satisfied with a result of that nature, where only the appearance of due process is given? Will they insist the government ensure that a real case has to be made against defendants, and not just vague assurances that he or she possesses some sort of threat to peace and stability? A case that will allow a defence attorney to examine real evidence being used against his or her client and enable him or her to mount some semblance of a defence?
If not, there would be no real point in appointing any lawyers because that would simply waste taxpayer's money. I think the Court should have insisted that not only does the government come up with a system where the defendant can contest their confinement, but are also forced to offer assurances that the system implemented is more then just a veneer of respectability over the same old process.
What the Supreme Court of Canada did last Friday was not strike down the idea of indefinite confinement under the Security Certificate system, but they reinforced the right of every person in our society to have representation during legal proceedings against them, no matter what the circumstances. It's now up to the government of Canada to comply with this ruling, and hopefully in a way that is more then just the illusion of justice.