Last week, three men went before the Supreme Court of Canada to appeal their detention under the controversial national security certificates, which are used to deport suspected terrorists who are not Canadian citizens.
It was the first major test of Canada's legal reaction to terrorism in the wake of the Sept. 11, 2001, attacks in the U.S.
The federal government argued that protecting security trumps everything else .
Lawyers for the defendants countered that the certificates violate the Constitution
To shed further light on the issue, globeandmail.com invited national security expert David Harris to take your questions and to defend the use of the certificates
To provide the other side of the argument, globeandmail.com's Scott Deveau posed some questions to John Norris, a criminal lawyer in Toronto, who is co-counsel for three men being held on security certificates - Hassan Almrei, Mohammed Mahjoub and Mahmoud Jaballah.
Scott Deveau: What are your main concerns about the use of security certificates in Canada?
John Norris: We have three main concerns. The first is the secrecy of the proceeding. No one is able to challenge the government's evidence effectively. The second is the length of time these proceedings have been taking. Parliament may have intended them to be expeditious, and designed the process accordingly, but the complexity of the cases and the important issues they raise suggest that Parliament vastly under-estimated the time that would be required. The third concern is the highly restrictive bail regime that governs these proceedings. While some individuals have been able to secure release, others who should be released have continued to be detained because the bar has been set too high and the procedures adopted unduly favour the government's position.
Scott Deveau: What did the judges ask when presented your arguments in the Supreme Court of Canada?
John Norris: The Court's main concern was over what to do with someone who is "truly dangerous." When this individual is not a Canadian citizen, why would Canada keep that person here? We attempted to answer this in several ways. How one decides who is "truly dangerous" is one of the key issues in this case. The procedures adopted under the Immigration and Refugee Protection Act are ill-suited to yielding reliable decisions about who is a danger and who is not. Even if we identify individuals who are genuine dangers to Canada, it is inconsistent with our international obligations simply to banish these people from Canada and make them someone else's problem. And where even truly dangerous individuals face a real risk of torture or other serious human rights violations if removed from Canada, then we are obliged under international law to find other solutions, as England, for example, has done.
Scott Deveau: Should national security take precedence over the rights of the individual?
John Norris: The question is based on a false premise. It is wrong to think that fewer protections for individual rights entails greater security. Jailing individuals indefinitely solely on the say-so of the secret service might make attacks more difficult, but it makes us all less secure against the coercive powers of the state. The best guarantee of national security is a rights-respecting legal and political order to which all members of society feel they belong. Respect for individual rights and liberties is a constitutive value of Canadian society that we must never sacrifice, even if we would be "safer" from some kinds of threats without it.
Scott Deveau: Could you suggest a more effective way of monitoring security threats than the use of these certificates?
John Norris: I would begin with the observation that the threats to Canada's national security are generally over-stated. The primary source of information about these threats is state agencies with a vested interest in making the threat appear as large as possible in order to secure for themselves the greatest powers and resources. That said, there are several alternatives available that would be more fair to the affected individual. The objective is to minimize the person's ability to harm Canada's interests. Even the simple fact of public exposure can be sufficient to do this. Where there is a basis to do so, criminal charges can be laid. In cases where that is not possible, a recognizance with conditions could be imposed under the Criminal Code. Parliament may need to consider creating other options. The key point here is that immigration measures are not the best way to accomplish what needs to be accomplished.
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