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The Security Certificate Procedure--The Problem is not with the Courts

September 30, 2009 by lorne

Public Safety Minister Peter Van Loan recently expressed concern that the government’s ability to fight terrorism is being undermined because judges are no longer deferring to the government in the cases of non-citizens suspected of terrorist involvement. His statements reveal a serious lack of understanding about the role played by the different pillars of our democracy—the Executive, the Legislature and the Judiciary. In our democracy the role of the Judge is to interpret and apply the law passed by parliament. And if a Cabinet Minister believes that there is a problem with the law then it is his prerogative to introduce legislation to correct any deficiencies. And ultimately it is the role of the legislature to pass the laws.

In the context of the security certificate cases that means that one of the roles of the Judge hearing a case is to make rulings whether evidence can be kept secret or must be disclosed in order to ensure a fair process. This is a role that parliament entrusted in our judges. And in the case of Adil Charkaoui, Justice Tremblay Lamer made a ruling adverse to CSIS and determined that CSIS ought to disclose more information. In response, CSIS exercised its right to refuse to disclose the information and withdrew it from the proceedings. The Court was then left with no evidence to sustain the allegations and Mr. Charkaoui was freed.

If the Government takes issue with the decision of Justice Lamer Tremblay it has recourse through the Appellate review process and undoubtedly in the coming days it will exercise that right. It will then be up to the Appellate Courts to determine whether or not the Justice was correct in her ruling. And if indeed the Courts do decide to uphold the initial decision, the Government will have to comply with the ruling. However, it can choose to introduce legislation to remedy any defects that it perceives arise as a result of the decisions of the Court. And if the Courts find that the legislation is inconsistent with the Charter, the Government still has the last word—it can invoke the notwithstanding clause. This is how our democracy works. And indeed it is this system of checks and balances that is its strength.

The Charkaoui case was not the recent only adverse decision of the Courts in a security certificate case. Undoubtedly Minister Van Loan’s remarks were also addressed to the recent decision of Justice Noel to lift almost of all of the bail conditions on Mohammad Harkat, another person who has been made the subject of a security certificate. In Mr. Harkat’s case, it was recently revealed that CSIS had provided inaccurate information to the Court about the reliability of an informant. As a result the lawyers representing Mr. Harkat’s interests filed an abuse of process motion arguing this conduct brings the administration of justice into disrepute. Although the Court has not yet ruled on the motion, the lifting of the bail conditions is a strong sign of the Court’s displeasure over CSIS’s handling of the case.

Is Minister Van Loan suggesting that the Court was wrong to take umbrage with CSIS over its filing of inaccurate evidence before the Court? I would certainly hope not. Because in our democracy all government agencies have a duty of absolute candour to the Courts and the filing of inaccurate information is a very serious matter. By making public this conduct the Court was contributing to the rule of law by ensuring that CSIS was held accountable for its conduct. Even intelligence agencies must be subject to the rule of law.

Undoubtedly these legal setbacks have cast into doubt the viability of the security certificate process. How effective is it as a tool if it costs millions of dollars each time a certificate is issued where if the ultimate result is uncertain? Not very.

Canada is not the only country confronting the issues of how and when intelligence can be used as a basis for restricting individual rights. In the United Kingdom the Government introduced Control Orders. In the United States President Obama is musing about what can be done with some of the high risk Guantanamo detainees. Each country will have to find its own solution. And in each country the Courts will have a role to play first in applying the law and then in determining its compliance with constitutional norms.