Terror in the SCC – Day 1

The world’ media is focussed on how the Supreme Court of Canada is addressing the use of security certificates in terror trials. The BBC, the Chicago Tribune, NDTV in India, and even a Korean wire service have all covered the case.

There doesn’t seem to have been a lot of commentary in the blogosphere – though an interesting take was that the appellants’ counsel were apparently setting up a media spin that the court was insufficiently independent from the government.

Here is what the reporters in the court are saying about the questioning:

Chief Justice Beverley McLachlin grappled with the conundrum of how to handle security threats without shipping suspects back to countries where they risk torture or death. What should Canada do with the “hard cases” — people who may threaten public safety but cannot be evicted because of torture concerns. “What does the world do with somebody who is truly dangerous wherever they go?” she asked. “Is freedom really an option? Are not the only options permanent detention in a country like Canada or sending them back to a country that is even worse? That’s what my concern is.”

In response to claims the government can’t deport suspects if they face a risk of torture, and can’t indefinitely detain them without a fair trial, the Chief Justice said the challenge is stark. She asked whether a newcomer to Canada can expect more in a time of international crisis.

“What are we to do with someone who is a danger to Canada . . . simply cast them off our shores?” one counsel replied. “We don’t have to cast them off,” the Chief Justice said. “But the alternative is detaining them. I’m asking about the hard cases.” Debate also sparked over what options Canada has if terrorist suspects claimed they would be tortured if sent back to their native lands. “Would it be that anyone, no matter how dangerous or how terrible, would have to be left here?” the Chief Justice asked. She also pointed out that since Mr. Harkat and Mr. Charkaoui are free on bail, the system appears to be showing flexibility.

Justice Rosalie Abella described the tough case before the judges as “a struggle for solutions.”

Justice Louis LeBel pointed out that defence lawyers are presented summaries of the evidence against terror suspects. But defence counsel countered that the “summaries are too much of a summary. They are a general outline and they don’t communicate enough information to the defence.”

Justice Ian Binnie noted that the government must have tools to prevent acts not yet committed. “The whole point is that it’s intended to be preventative,” said Binnie. “Does the state sit on its hands until something terrible happens, and then prosecute if anybody is alive … to prosecute?”

Judge Binnie took issue with a lawyer for the Canadian Arab Federation — R. Douglas Elliott — who said the fact that all five security-certificate detainees since 2001 are Arab and Muslim smacks of racial profiling and stereotyping. “Is there any evidence that there are people from different [racial] groups that have not been proceeded against?” Judge Binnie asked. “You have them being 100 per cent of the detainees versus being 2 per cent of the total population,” Mr. Elliott said. “At the very least, it is suggestive of racial profiling.”

“I think there has to be a special advocate (in the Canadian system),” Harkat’s lawyer, Paul Copeland told the court. “Without a model of that sort, it violates fundamental justice.” The “special advocates” suggestion was well received by Justices Ian Binnie, Rosalie Abella and Louis LeBel who all asked for more information on how the system worked.

Today, lawyers for the Crown in right of Canada will make their case, arguing that secrecy is necessary to protect intelligence sources; also that the cost of putting even a single person under constant surveillance is exorbitant.

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