Canadian Court Limits Detention in Terror CasesBy IAN AUSTEN
Published: February 24, 2007
OTTAWA, Feb. 23 — Canada’s highest court on Friday unanimously struck down a law that allows the Canadian government to detain foreign-born terrorism suspects indefinitely using secret evidence and without charges while their deportations are being reviewed.
The detention measure, the security certificate system, has been described by government lawyers as an important tool for combating international terrorism and maintaining Canada’s domestic security. Six men are now under threat of deportation without an open hearing under the certificates.
“The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process,†Chief Justice Beverley McLachlin wrote in the ruling.The three men who brought the case are likely to remain jailed or under strict parole because the court suspended its decision for a year to allow Parliament to introduce a law consistent with the ruling.
The decision reflected striking differences from the current legal climate in the United States. In the Military Commissions Act of 2006, Congress stripped the federal courts of authority to hear challenges, through petitions for writs of habeas corpus, to the open-ended confinement of foreign terrorism suspects at Guantánamo Bay, Cuba.A federal appeals court in Washington upheld the constitutionality of that law this week, dismissing 13 cases brought on behalf of 63 Guantánamo detainees. Their lawyers said they would file an appeal with the Supreme Court. In two earlier decisions, the justices ruled in favor of Guantánamo detainees on statutory grounds but did not address the deeper constitutional issues that this case appears to present.
At a news conference in Montreal, a defendant, Adil Charkaoui, praised the Canadian court’s decision.
“The Supreme Court, by 9 to 0, has said no to Guantánamo North in Canada,†said Mr. Charkaoui, who is under tightly controlled, electronically monitored house arrest.
Stockwell Day, the Canadian minister of public safety, said Friday, “It is our intention to follow the Supreme Court ruling.â€
He added, “We are taking in stride what they did say and we will look at the changes that are necessary.â€
The decision is also the latest in a series of events that has seen Canada reconsider some national security steps it took after the Sept. 11, 2001, terrorist attacks. Last September, a judicial inquiry rebuked the police for falsely accusing a Syrian-born Canadian, Maher Arar, of terrorist connections. Those accusations, in 2002, led United States officials to fly Mr. Arar to Syria, where he was jailed and tortured. Earlier this year, the Canadian government reached a $9.75 million settlement with Mr. Arar and offered a formal apology. The commissioner of the Royal Canadian Mounted Police also resigned for reasons related to the affair.
Canada’s Parliament is divided over whether to continue two antiterrorism measures introduced in 2001 that are set to expire on March 1. The opposition Liberal Party, which had brought in the law, does not want to continue its special preventive arrest powers or the secret court hearings it permits, which resemble grand jury hearings in the United States. Two other portions of that law have been struck down by courts in Ontario.
“We’ve started to see the rollback,†said Alex Neve, the secretary general of Amnesty International Canada.
“Today the Supreme Court of Canada has said, ‘Make sure you put human rights at the center of how you prevent terrorism.’ â€
The security certificate system was introduced in a 1978 immigration law and has been used 27 times, mostly before September 2001. It allows the government to detain people indefinitely if the minister of public safety and the minister of immigration conclude that they are a threat to national security. The certificates, once signed, are reviewed by a federal judge who can rule to keep any or all of the evidence secret.
While Amnesty International and other groups have long campaigned against the certificates, the issue attracted relatively little attention for many years. Historically the certificates were issued against people who were accused of spying in Canada and who were swiftly deported.
The current cases, however, have become more prominent because they generally involve people who have been jailed for years without charges, using secret evidence and, in many cases, without bail.
The sparseness of evidence makes it difficult to assess if there is any connection linking the men. The authorities say they have tied five of them in various ways to Al Qaeda. A sixth was arrested in 1995 and has been out on bail since 1998. He is charged with being a fund-raiser for the Tamil Tigers in Sri Lanka.
Hassan Almrei, a Syrian arrested in Mississauga, Ontario, in 2001, is the only one directly involved in this case who remains in jail.
Linda Greenhouse contributed reporting from Washington, and Christopher Mason from Ottawa.
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