Security Certificates and the war on terrorism

Just a few weeks after Prime Minister Stephen Harper raised fears of left wing ideologues on the bench Public Safety Minister Peter Van Loan said he fears for the government's ability to fight terrorism.

Van Loan complained of "an increasingly complex legal environment" in which judges are no longer deferring to the government in its efforts to deport foreign suspects. "It raises questions about whether we can protect national security ... " Van Loan continued.

Are judges actually running amok?

Certainly it has been a difficult few months for the government's anti-terrorism policy.

The Federal Court of Appeal upheld a ruling requiring the government to ask the Americans to bring Omar Khadr to Canada.

Three security certificate cases, where a non-Canadian is subject to deportation on Ministerial certificate, also look close to collapse.

But in each of these cases, the cases Van Loan was commenting on, the collapse isn't because of judicial activism but because of weaknesses in the cases.

Adil Charkaoui, a Morrocan-born father of three, won his liberty in Montreal when federal lawyers withdrew much of the evidence against him in court saying it must be kept secret to protect national security. The Court's decision that some limited evidence should be subjected to review by Charkaoui, the accused, is hardly the conclusion of a judicial radical.

Mohamed Harkat, a former pizza delivery man from Ottawa, also secured more freedom than he has had since his arrest seven years ago.

The case against the Algerian-born man has been temporarily suspended after federal investigators misled the Federal Court about the credibility of an intelligence informant.

Syrian-national Hassan Almrei of Toronto may also have the case against him thrown out in light of recent revelations that federal investigators had admitted that one of their informants was deceptive and another source never took a lie-detector test, despite earlier claims that he had taken such a test and passed.

Judges have a difficult role when dealing with terrorism and claims of national security. They must balance the rights of those accused against the needs of the nation. Unlike totalitarian states, Canada has judges as a buffer to ensure a proper balance is maintained.

In security certificate cases the judge has the limited task of ensuring the certificate is "reasonable". The judge reviews the evidence prepared by the government. Hearsay is admissible as evidence. All or part of the evidence may be heard in secret, without the accused being present, if the judge deems that airing it publicly may hurt national security or put the safety of any individual at risk.

The task of review is assigned to the Court by statute -- a judge who merely signed off without full review would be neglecting their duty. And the judges have been fulfilling their duty. Even in the deportation context the right of an accused to see the case against them is fundamental. Limiting that right, as happens with security certificates, makes the judge's task even harder -- doing a careful and searching review of the evidence is precisely what a judge is supposed to do.

Unlike the form of government many terrorists seek to impose, Canada is a nation of law with rights and duties held in a balance by the Courts. That balance does act, as it is intended to act, as a check on unbridled State power.

Judges are doing their job in maintaining that balance.