- The Washington Times - Friday, February 23, 2007

OTTAWA — One of Canada’s most contentious anti-terrorism provisions was struck down yesterday by its Supreme Court, which declared it unconstitutional to detain foreign terror suspects indefinitely while the courts review deportation orders.

The 9-0 ruling was 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 accused by the Canadian Security Intelligence Service of having ties to al Qaeda 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 attorneys should have a right to respond to the evidence used against them by intelligence agents and noted that a law in Britain allows special advocates to review sensitive intelligence material.

The Justice Department did not 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.

Although the security certificates have been around for decades, their use became more contentious after the September 11, 2001, attacks, 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.


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