Canada’s preventative detention scheme akin to internment camps

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June 18, 2014 by admin

“It is not an idiosyncratic jump to suggest that the use of the Security Certificate scheme today is akin to the use of internment by governments during the first and second world wars.”

Gar Pardy, Embassy – Canada’s Foreign Policy Newspaper, 06/18/2014
The dust is now settling around the manufactured crisis by the prime minister on the appointment of Justice Marc Nadon of the Federal Court of Appeal to the Supreme Court.

Lost in this latest governmental slippage on its own banana peel is any effort to look at the substance of a recent Supreme Court decision. Instead, the tendency has been to keep a scorecard of the wins and losses by the government, as if this was a sporting event rather than large commentaries on the future of our country.

Many of the recent decisions by the court have dealt with cases involving the government’s law and order agenda, which fundamentally puts more Canadians in prison and for longer periods. For the most part the court has chipped away at peripheral aspects of the new laws, but has refused to deal with the fundamental social and legal arguments that the government has used to buttress its attempt to undermine Canada’s long-standing policies regarding the incarceration of its citizens.

Proportionality, judicial discretion and rehabilitation as central elements in sentencing have been thrown overboard and replaced by a primeval urge for punishment and societal and personal revenge. This, in a country with one of the least and declining criminality records in the world.

The recent Supreme Court decisions will do little to push the government off its illusionary railroad leading to new prisons and overcrowded ones, going back to the last century.

The recently announced response of the government to the earlier Supreme Court decision on the unconstitutionality of existing prostitution laws illustrates the matter. The government’s response is to avoid dealing with the social and economic roots of prostitution, especially in respect of aboriginal communities, and instead plan to create new criminal categories that will add further to the need for additional prisons.

We do not need to look any further than the United States to see the futility and stupidity of the government’s approach on law and order. The United States has had a 40-year experiment in locking up large numbers of its citizens (one in four members of the Black male community has a criminal record); its prison population is now 2.2 million, the world’s largest.

A recent report by the American National Academy of Science for the US Justice Department provides details on just how devastating this law and order policy has been. One commentator said that the United States “has gone past the point where the numbers of people in prison can be justified by social benefits” and that imprisonment now is itself “a source of injustice.”

The New York Times in an editorial bluntly stated on May 25 “the American experiment in mass incarceration has been a moral, legal, social and economic disaster. It cannot end soon enough.”
In another decision (Canada v. Harkat) on May 14 the Supreme Court sided with the government on the validity of the Security Certificate issued against Mohamed Harkat, a foreign national living in Canada. In an earlier decision in 2007, Charkaoui v. Canada, the Supreme Court ruled that the certificates scheme “deprived named persons of their life, liberty, and security of the person in a manner not in accordance with principles of fundamental justice, contrary to s. 7 of the [Canadian Charter of Rights and Freedoms].”

As part of that earlier ruling the court wrote that the scheme

 “violated the principle that a person must have the ability to know and meet the case against him, because there was not full disclosure of the government’s case to the named person or any substantial substitute for full disclosure.”

The Supreme Court even went so far as to suggest that the Special Advocates scheme adopted in the United Kingdom would meet its charter concerns. Not surprisingly, the government did exactly that and in 2008 amended the Immigration and Refugee Protection Act so that Canadian Special Advocates could be appointed and “who would protect the interests of the named person in closed hearings after having received disclosure of the entire record.”

In its Harkat decision of 2014 the Supreme Court passed judgment on the very scheme it recommended to the government in its 2007 Charkaoui decision. A slam dunk for the government.

What is missing from this debate and decision-making by the Court is that any substantial recognition of a Security Certificate issued today means that the named individual will be locked up indefinitely or will be subject to strict release conditions. This is preventative detention.

There have been five such cases since 9/11, and all have been largely based on so-called evidence provided by foreign governments. These governments have not permitted their evidence to be tested in open court and the Canadian courts have been left to evaluate the validity of the evidence and whether or not it is tainted by the use of torture. It is not unreasonable to assume that in the five cases since 2001 torture was used, as the countries of citizenship of the five were Egypt, Algeria, Syria and Morocco.

It is not an idiosyncratic jump to suggest that the use of the Security Certificate scheme today is akin to the use of internment by governments during the first and second world wars. During the first war, Ukrainians were forced to register and about 8,600 men, women and children were interned under harsh and abusive conditions.

During the Second World War thousands of Japanese and Italians, many born in Canada, were declared to be enemy aliens and were interned in camps across the country. In many of the camps the conditions were such that to be interned was to be given a death sentence.

The legal environment for the Security Certificate cases today has improved in comparison to that of those interned during the wars, but the cases today are surrounded by hysteria and hypocrisy similar to that prevailing decades ago. The detention of almost 500 individuals during the October Crisis of 1970 offers graphic evidence that governments are not to be trusted when faced with security issues they do not understand.

In reading the decision of the chief justice in the Harkat case, I have a strong suspicion that she was not completely convinced of the case she was making for the validity of the Security Certificate against Mr. Harkat. Several times she referred to the fact that the IRPA scheme for Security Advocates “does not provide a perfect process,” obviously a reference to the Court’s 2007 decision in Charkaoui when it stated Security Certificates did not meet the principles of “fundamental justice.”

However, in its 2014 Harkat decision there is some sleight-of-hand word-smithing at work since the creation of the Special Advocates represents the need for “procedural fairness.” How the lack of principles of fundamental justice can be overcome by procedural justice is not explained by the chief justice.

At a minimum, this glides over a basic tenet of our rule of law system, that an individual has a fundamental right to know the details of the accusations and from where they originate, and to cross examine in open court the officials proffering the evidence. This does not happen, and will not happen, now that the Supreme Court has again legitimized the Security Certificate scheme.

Central to the certificate scheme are the Special Advocates selected by the government to act as intermediaries on behalf of the accused individuals. Surprisingly, the government has been able to find these advocates from among legal professionals and to have them act as the legitimizing force for the Security Certificate scheme.

In an analogous position the American Medical Association has strictly prohibited physicians from participating in legally ordered executions. This policy is widely supported by members of the American medical profession.

Perhaps lawyers in Canada might wish to examine the role they are now playing in the Canadian preventative detention scheme called security certificates. It is hoped that they would find their role contrary to their professional and ethical obligations. At this time that is the only way this dastardly scheme will disappear from our legal regime.
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Gar Pardy is retired from the Canadian Foreign Service and comments on public policy issues from Ottawa. He was an expert witness in one of the appeals involving an individual issued with a Security Certificate.

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