Top court rules against security certificates

Last Updated: Friday, February 23, 2007 | 9:49 PM ET

CBC News

The Supreme Court of Canada has struck down the security certificate system used by the federal government to detain and deport foreign-born terrorist suspects.

In a 9-0 judgment handed down Friday, the court found that the system, described by the government as a key tool for safeguarding national security, violates the Charter of Rights and Freedoms.

Sophie Harkat gives a thumbs-up to supporters as she leaves the Supreme Court in Ottawa Friday.
(Tom Hanson/Canadian Press)

The high court gave Parliament one year to re-write the law that's keeping three men at the centre of the case in legal limbo.

The system was challenged on constitutional grounds by three men — Algerian-born Mohamed Harkat, Moroccan-born Adil Charkaoui and Syrian native Hassan Almrei, who have all denied having ties to al-Qaeda and other such groups.

"It's a very good decision and we're certainly very pleased," said lawyer Barbara Jackman, who represents Almrei. "What the Supreme Court decided was the law was not fair."

The court said while it might not be arbitrary to detain the suspects in the first instance, it's arbitrary to continue the detention without a review for such a long time, she said.

The decision "upheld the principle" of security certificates, but indicated that some changes need to be made, Public Safety Minister Stockwell Day said Friday in Ottawa.

"We are going to look at the ruling carefully and it is our intention to follow the Supreme Court's rulings," Day said after a day of talks with U.S. and Mexican officials on a range of issues, including security measures. 

"I'm optimistic that we will be able to put these changes in place."

Special counsel advised

The court said the men, who are accused of having ties to al-Qaeda, have the right to see and respond to evidence against them. It pointed to a law in Britain that allows special advocates or lawyers to see sensitive intelligence material, but not share details with their clients.

In its ruling, the court said while it's important to protect Canada's national security, the government can do more to protect individual rights.

But the court suspended the judgment from taking legal effect for a year, giving Parliament time to write a new law complying with constitutional principles.

Critics have long denounced the certificates, which can lead to deportation of non-citizens on the basis of secret intelligence presented to a Federal Court judge at closed-door hearings.

Those who fight the allegations can spend years in jail while the case works its way through the legal system. In the end, they can sometimes face removal to countries with a track record of torture, say critics.

Harkat, held for 3½ years without being charged, was freed on bail in June 2006 under a long list of conditions. Charkaoui, jailed for 21 months, was released on strict bail conditions in February 2005.

Almrei, detained since October 2001, remains inside a Kingston, Ont., immigration holding centre.

The judgment is of interest to two other men who were not technically part of the case but are in similar legal positions — Mahmoud Jaballah and Mohammad Mahjoub, both born in Egypt.

The government is using the Immigration and Refugee Protection Act's security certificates to try to deport all five men.

"I think it means that none of the men can actually be removed within the next year," Jackman said.

"As I understand the judgment, after a year, these certificates will be quashed, so the government has to start all over again if they intend to continue alleging that the person is a security threat."