Tuesday, September 29, 2009

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.


wsam said...

So, the system is working?

The Rat said...

The judge needs to decide what is "reasonable". Funny that in politics an NDP supporter and a CPC supporter can almost come to blows over what each considers reasonable but it is the greatest taboo to suggest a judge, usually appointed at least in part because of political affiliation, is in any way influenced by their ideological viewpoint.

Was it just coincidence that judges, especially in Quebec, were much more likely to donate to or volunteer for the Liberal party before receiving their appointment?

Big Winnie said...

Since when does a judge make a ruling based on party affiliation? The law of the land is what dictates a judge's decision and to say otherwise is nonsense.

Ti-Guy said...

Read the post next time, Rat.

The Rat said...

Read it yourself Ti-Guy.

But to be nice, I'll spell it out for you with a quote from the post:

" . . .the judge has the limited task of ensuring the certificate is "reasonable".

I'll even explain it further in case you're still having difficulty: A judge has to decide what "reasonable" is. Me, I think that maybe a judge appointed by a corrupt left-wing government that allegedly sold judgeships to loyal party members might define "reasonable" in the context of security certificates somewhat differently than one from a not-so-corrupt perhaps rightish party.

In fact, didn't the Liberal party say as much when the CPC began to appoint judges? Didn't the Liberal party say straight out they were afraid the CPC was going to appoint right wing ideologues? Why that would mean the Liberal party agrees that party affiliation or at least affinity could influence a judges decision making process!!

Greg said...


You should first provide support for your statement that judges are more likely to have given money to the Liberal party in Quebec. Was that this year? Last year? Over the past three decades?

Then, after that, you should show if this differs from the general population.

If 60% of campaign donations in Quebec go to the Liberals, it would be no surprise if 60% of donations from judges also went to Liberals.

Anonymous said...

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.__________________________

Indeed and that is exactly what whinging Van Loan and the Cons are crying about. The judges are not deferring to THIS governments unbridled wannabe state power.

The Rat said...

Greg, I'll give you this to chew on.

Liberals appoint Liberals to choose judges:

Legal experts say appointments of people with party ties is a political tradition that does not in itself compromise the way in which judges are selected -- as long as it's not the only criteria.

A Liberal states that Liberals reward supporters with appointments to the bench:

Last month, Corbeil grabbed headlines when he alleged that the party not only channeled cash kickbacks to "fake" campaign volunteers, but also awarded some with judicial appointments.

And finally, it's not just Quebec:

Would you be surprised to find out that almost all federal judges appointed from Saskatchewan are Liberal Party donors?

I would humbly suggest that if Saskatchewan can only elect one Liberal it is highly fishy that most judges there donate to the Liberal party.

Gene Rayburn said...

The National Post, CTV and Stephen Taylor? Why not try providing a less biased example for a change Rat. Oh wait, it would have to be left of Mussolini to be left for you eh Rat?

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