Canada's High Court Strikes Down Anti-Terror Law

Friday, February 23rd 2007, 6:18 pm
By: News On 6

OTTAWA (AP) _ One of Canada's most contentious anti-terrorism measures was struck down Friday by the Supreme Court, which declared it unconstitutional to detain foreign terror suspects indefinitely while the courts review their deportation orders.

The 9-0 ruling dealt a blow to the government's anti-terrorism regulations. Five Arab Muslim men have been held for years under the ``security certificate'' program, which the Justice Department had insisted is a key tool in the fight against global terrorism and essential to Canada's security.

The court found that the system violates the Charter of Rights and Freedom, Canada's bill of rights. It suspended the judgment from taking effect for a year, to give Parliament time to rewrite the part of the Immigration and Refugee Protection Act that covers the certificates.

The security certificates were challenged on constitutional grounds by three men from Morocco, Syria and Algeria _ all alleged by the Canadian Security Intelligence Service to have ties to al-Qaida and other terrorist networks.

The law now allows sensitive intelligence to be heard behind closed doors by a federal judge, with only sketchy summaries given to defense attorneys.

The men have spent years in jail while fighting deportation orders. They risk being labeled terrorists and sent back to their native countries, where they face possible torture.

The court called this a fundamental violation of their human rights.

``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 a ruling for all nine justices.

``The secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him or her, and hence to challenge the governments case,'' she said.

The court said the men and their lawyers should have a right to respond to the evidence used against them by intelligence agents. The court noted that a British law allows special advocates to review sensitive intelligence material.

Stockwell Day, the minister of public safety, noted that since the ruling does not take place for a year, the certificates would remain in place. He said in a statement the government would address the court's ruling ``in a timely and decisive fashion.''

Canada's Justice Department said it would have no immediate comment.

Two of the men are out on bail and remain under house arrest. Three others are being held in a federal facility in Ontario that has been dubbed the ``Guantanamo Bay of the North,'' a reference to the prison at the U.S. base in Cuba.

``This is a very great day, a great victory,'' said Adil Charkaoui, 33, one of those under house arrest, surrounded by family and supporters in Montreal. ``Today the Supreme Court of Canada in a 9-0 decision said no to Guantanamo North, no to arbitrary detention, no to indefinite detention.''

Charkaoui, a native of Morocco who was arrested in Montreal in 2003, is accused by the intelligence service of belonging to the Moroccan Islamic Combatant Group, which has ties to al-Qaida and a history of terrorist attacks in Spain.

The service also claims Ahmed Ressam, convicted in 2001 of plotting to blow up Los Angeles International Airport, identified Charkaoui as someone he met at an al-Qaida training camp in Afghanistan. Charkaoui denies it.

``I am not a terrorist,'' said Charkaoui, who was freed on bail in 2005 but is required to wear a tracking bracelet at all times. ``I have been repeating this for four years.''

Human rights activists and lawyers for the accused men hailed the ruling as a victory for those who believe fundamental rights have been curtailed in the name of national security since the Sept. 11, 2001, attacks on the United States.

``This is a judgment that, quite frankly, I think we should all be very proud of, because our court has not bought into the rhetoric of national security,'' said John Norris, who represents one of the five.

Barbara Jackman, who represents another detainee, said the Supreme Court decision in no way compromises national security. ``It only strengthens our democracy,'' she said.

``It only strengthens our democracy,'' she said. ``It's an indication to other countries that to detain people and mistreat them, it's not satisfactory. There are ways to provide fair hearings in the face of national security concerns.''

Although the security certificates have been around for decades, their use became more contentious after 9/11, and more suspect since Ottawa used faulty intelligence in a case that led to a $9 million apology to another former terror suspect, Maher Arar.

In that case, the Syrian-born Canadian was seized by U.S. authorities in New York and sent to Syria for questioning about suspected ties to terrorists. He was held in a cell for a year and tortured before being sent back to Canada, where he was cleared by a federal inquiry of any links to Islamic extremists.

Five Arab Muslim men now stand accused of terrorist links under the certificates. All deny the charges. It was not immediately clear if the three still in detention would be released, or remain jailed until the law is rewritten.

In addition to Charkaoui, the other four accused are Mohamed Harkat, a native of Algeria arrested in 2002 and freed on bail last year; Mahmoud Jaballah, an Egyptian who remains in detention; Mohammad Mahjoub, also from Egypt and recently granted bail, though he has yet to be released; and Hassan Almrei, a native of Syria who was arrested in 2001 and is also still in custody.