Canada's security certificate system is a classic case of national security trumping individual rights; at least that's how the certificate system is being characterized by some parliamentarians and the news media. The United States and Britain offer contrasting perspectives but can also inform Canada's debate.
The Canadian system allows the government to indefinitely detain foreign-born terrorism suspects on the basis of secret evidence without charges being filed. Certificates can lead to deportation based on evidence presented only to a judge in a closed-door hearing. On Friday, the Supreme Court of Canada unanimously struck down the certificate system, determining that it violates the Charter of Rights.
As a practical matter, the law is of immediate concern to only a handful of suspects, but it has enormous significance for all Canadians at a time of heightened concern about threats to both physical safety and civil liberty in a liberal democracy that is supposed to have a reputation for successfully merging individual and collective rights. Cast, as it often is, in zero-sum terms, the matter has elicited more smoke than light.
Last year, the U.S. Congress passed the Military Commissions Act. It meant federal courts were denied authority to hear challenges, by way of petitions for writs of habeas corpus, to indefinite confinement of foreign terrorism suspects at Guantanamo Bay. An appeals court in Washington recently upheld the constitutionality of this law. There is little reason to doubt that most of the detainees in U.S. custody will eventually be released, or that the courts will be dealing with plaintiffs seeking damages.
As The New York Times has reported, in the two years after the 9/11 attacks, the U.S. government detained more than 5,000 foreigners. Most were charged with minor offences, such as overstaying a tourist visa, and many were forced to wait months for Federal Bureau of Investigation clearance after agreeing to leave the country. The Times noted: "Not one was convicted of a crime of terrorism."
According to the Canadian Security Intelligence Service, one of the Canadian detainees, Syrian-born Hassan Almrei, who remains incarcerated, entered Canada on false papers, belongs to an international network of jihadists and stands accused of sending money to Osama bin Laden's network. He has admitted attending mujahedeen training camps in Afghanistan in the 1990s. And an RCMP search of Mr. Almrei's computer turned up images of Osama bin Laden, guns, a jet cockpit and a security badge. But there might be better ways to deal with these types of risks under Canada's security certificate system.
As the Supreme Court noted, there are a number of ways to effectively address the tension between security certificates and rights found in the Charter. Here, it's British law that may be the most instructive. Under the Prevention of Terrorism Act of 2005, detention in prison is replaced by "control orders," whereby the government can conduct surveillance and monitor the activities of individuals suspected of being a terrorist threat. But the law also mandates judicial approval and review. Control orders must be based on intelligence that the court assesses. Such orders are limited in scope and duration, although they can last up to 12 months. They set conditions on a suspect's movement not unlike those of house arrest.
The British watch-and-wait approach has fared no worse - some say better - than the U.S. practice of quick seizure followed by lengthy detention. Most important, it has provided greater safeguards for individual rights, while still effectively protecting the citizenry against major terrorist attacks. In the long run, it may prove to be the best middle course.
History tells us that Canadians may chose a blend of both British and U.S. approaches. But given the Supreme Court judgment and the clear and present security threat the certificate program is aimed at, something will need to be done if Canadians want to remain secure without sacrificing the rights inherent in the Constitution.
Hrach Gregorian is president of the Washington-based Institute of World Affairs and associate professor in the graduate program in conflict analysis at Royal Roads University in Victoria.