Terror in the SCC – Day 2

The court adjourned early yesterday. Apparently the court gave Crown counsel a tough time.

Some additional observations from questioning and comments:

Justice Louis LeBel said that “Public safety may be important, but it’s not the whole of the law. If we don’t have the rest we’ll be living in North Korea.” “The bar for procedural fairness must be even higher when deportation to face torture is at stake”.

Justice Morris Fish stated that the true task of the law is to balance the competing interests of the state and the individual, not to give absolute priority to one or the other. “We’re in a very difficult position. We’re trying to reconcile the requirements of national security with the principles of fundamental justice.”

The court was worried about the apparent one-sidedness of the security certificate process and the need for a better balance.

Justice Ian Binnie noted that, whatever their shortcomings, the alternative systems would likely do a better job of protecting the rights of the accused. “Surely, everybody would appear to agree … if somebody is there, apart from the judge, attempting to test the evidence … there is one individual whose focus is on probing the Crown’s case, is that not better than nothing?” “Having somebody whose job in there is to poke holes at the Crown?” “You say the judge can do it but that’s of no great comfort to the person who is the target of this investigation.”

Though government lawyers played the national security trump, the justices speculated that Parliament could better accommodate an individual’s right to know and answer allegations against him.

Chief Justice Beverley McLachlin said “It may not have been Parliament’s purpose when it designed “security certificates, but indefinite detention is a reality the court cannot ignore”. “Parliament doesn’t just get off by saying, `Well, we had a different purpose, so let the effect be much broader than our purpose'”.

Justice Rosalie Abella asked how a detainee could defend himself from allegations he knew so little about. “It just seems to be general allegations of the organizations, and how it works and how they recruit sleepers and so on. I don’t see any specific information that Mr. Harkat could take home and say ‘this is how I respond to this,’ “.

The justices reserved judgment after two days of proceedings and are not expected to deliver a ruling for several months.