The Supreme Court of Canada yesterday took away the government's ability to arrest foreign nationals and imprison them without trial, bail, or without being told why they had been arrested in the first place. The provisions of The Immigration Security Certificates allowed the federal government to imprison any foreign national without ever laying charges as long as there was a chance of them being a security risk.
The government didn't have to provide "beyond reasonable doubt" evidence, as is the norm in a criminal case, and was not required to reveal to the accused or any representation he was able to obtain, the evidence against him. The law has been on the books for almost 30 years and was used prior to 9/11, and on four occasions since. The three men who had brought the case to the Supreme Court are each being held based on accusations of them having ties to Al Quaeda.
In their decision the Court stated their main reason for finding against the provision was because it violated the Canadian Charter of Rights and Freedoms which promises all men will be treated as equal before the law. They have given the government exactly one years from now with which to amend the system or to drop the charges against the three men.
In reading out the unanimous decision, Chief Justice Beverley McLachlin said that the Court understood that when it came to the threat of terrorism, the government needed to be able to act with expediency, but, she added, there needed to be a means that proper procedures were followed. The court pointed to the British system of providing a special council for the defence in those situations – who could represent the accused.
The absence of defence council and the proper disclosure of evidence are fatal to any sense of fairness, as in fair trial. Without access to the evidence against them the accused have no way to mount a defence against the charges being brought against them. It was the secret hearings where government lawyers presented the evidence against defendants without anyone having a chance at rebuttal that the Supreme Court Of Canada found to be in such contradiction of the Charter of Rights and Freedoms.
The Chief Justice said that the Court understood that there were times that the security of the country depended upon the need to act on a perceived or potential threat when perhaps all the necessary evidence had not been accumulated. But she also said that did not mean the government could lock somebody up without trial indefinitely while they continued to gather evidence against them, especially if the accused have had no representation.
It was understood that the protection of the rights of the accused might not be as complete as in cases where National Security concerns don't play a role, but they can't be ignored completely. Steps have to be taken to ensure that as much protection as possible, as allowed by the situation, is provided to the defendant.
Public Safety Minister Stockwell Day was chosen to be the spokesperson for the government in response to the verdict, and issued a statement saying they would review the material and act in a timely and decisive means to address the court's decision. Since the court has given the government one year to make these changes, and an election is imminent, it would behove both the Liberals and the Conservative Parties of Canada to come up with an alternative approach. Either one of them has the potential to be the new government.
Reaction to the decision from other sources, like Amnesty International, was quite a bit more enthusiastic. Alex Neve, Canadian director of Amnesty, says other countries will be looking to Canada as a model for a balanced way of dealing with these extraordinary circumstances.
Since the terrorist attacks on Sept.11, 2001 there has been a tendency to disregard individual rights because of security concerns. Yesterday's decision by the Supreme Court of Canada represents a first step in restoring many of the individual freedoms that governments have chosen to ignore in their haste to be impressive with security.