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Government argues security certificates necessary to protect national security

randyval

TRIBE Member
http://www.cbc.ca/story/canada/national/2006/06/14/scoc14062006.html

Lawyers for the federal government argued before the Supreme Court on Wednesday that national security outweighs the rights of individuals.

The government side is defending the use of security certificates, which allow the indefinite detention of non-citizens who are accused of being threats to national security.

Three men who have been detained are challenging the practice.

On Tuesday, their lawyers argued the certificates violate the Charter of Rights.

Security certificate detainees are only allowed to see summaries of the case against them.

Some of the justices' most probing questions were on the issue of secret evidence.

Justice Rosalie Abella asked how a detainee such as Mohammed Harkat could defend himself from allegations he knew so little about.

"It just seems to be general allegations of the organizations, and how it works and how they recruit sleepers and so on. I don't see any specific information that Mr. Harkat could take home and say 'this is how I respond to this,' " she said.

But government lawyer Bernard Laprade responded that the need to protect secret information trumped the detainees' right to mount a well-informed defense.

"The summary is a breakdown of the raw information. You're not going to get that. That raw information is the very reason why the information is protected," he told the court.

Laprade said the first duty of a government is to protect national security. Without national security, he said, individual rights are meaningless.

But some of the judges took issue with that line of argument. Justice Louis LeBel appeared unconvinced and said if Canadians have security but no individual liberties, then they may as well be living in North Korea.

The Supreme Court isn't expected to rule for some months. But the outline of a decision may already be emerging.

The judges have asked repeatedly about the possibility of empowering a special advocate, with a clearance to hear secret evidence, someone who can look out for the rights of the detainee in the secret hearings.
 

~atp~

TRIBE Member
Lawyers for the federal government argued before the Supreme Court on Wednesday that national security outweighs the rights of individuals.
If this is taken seriously, it is the beginning of the end.
 

Ditto Much

TRIBE Member
randyval said:
The government side is defending the use of security certificates, which allow the indefinite detention of non-citizens who are accused of being threats to national security.
hmmm non-citizens, really let their embassy and diplomats raise and objection.


randyval said:
The judges have asked repeatedly about the possibility of empowering a special advocate, with a clearance to hear secret evidence, someone who can look out for the rights of the detainee in the secret hearings.
Someone on the governments side once again
 

judge wopner

TRIBE Member
i have mixed feelings about this.

very few security certificates are ever actually issued. judges who review the evidence behind closed doors have the option to cancel the certificate if they dont feel the evidence is strong enough.

doesnt the rarity of actual certificates being actioned speak to the seriousness of them? and that they arent given out in a haphazard manner with no regard for law and the legal process?

i agree that the accused should be able to see the evidence against them, and i also agree indefinite detainment without knowing the charge is against any measure of human rights, but is there any instance we shouldnt release some information, where your personal rights are subjugated to national security issues, but only in the strictest most dire scenario's to prevent abuse of the system or corrosion of our human rights records?

these certificates are applied to non-citizens, what i dont get is are they allowed to return to their nation origin during this detainment, or is there concern they would face tourture/death when they return, making them our issue to deal with permanently?
 
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Shug

TRIBE Member
these certificates are applied to non-citizens, what i dont get is are they allowed to return to their nation origin during this detainment, or is there concern they would face tourture/death when they return, making them our issue to deal with permanently?
This point was raised by CJ Beverley McLachlin... when torture from the home nation is feared for the individual, deportation is ruled out, point blank... then she went on to say:

"What does the world do with somebody who is truly dangerous wherever they go? Is freedom really an option?"

I know I'm a biased lefty commie pinko, but this is what I read from that statement:

What do you do when you can't formally charge someone because they're proven to have committed no crime, but yet you suspect that they may be thinking about committing one, or in the very least, thinking dissidous thoughts against the government?

Is freedom really an option?


I'm just very suspicious of thier definition of "dangerous"... like the US' definition of the term "terrorist" (under PATRIOT) - which includes domestic computer hackers, animal activist groups, and political dissidents. In one instance, they arrested this dumbass using a laser pointer on planes going over his house as a 'terrorist' (Source).
 

judge wopner

TRIBE Member
Shug said:
This point was raised by CJ Beverley McLachlin... when torture from the home nation is feared for the individual, deportation is ruled out, point blank... then she went on to say:

"What does the world do with somebody who is truly dangerous wherever they go? Is freedom really an option?"

I know I'm a biased lefty commie pinko, but this is what I read from that statement:

What do you do when you can't formally charge someone because they're proven to have committed no crime, but yet you suspect that they may be thinking about committing one, or in the very least, thinking dissidous thoughts against the government?

Is freedom really an option?

i dont think they are obtaining security certificates against a common political activitst, nor have they obtained them against people who publically critisize the government, of the 3 men currently under indefinite detainment, there is considerable public knowledge of hteir assosication with members of violent radical groups. agian, this is evidence presented in public media sources, that i have no clue if are actually true, nor do any of us know the details of the secret evidence used to secure the certificate.


its a slippery slope for certain, and thats probally what teh dissenting judges were concerned about. im curious to read their decision.

i am weary of any system enacted in secret, yet i dont think one could make a case that no info should be secret because the simple fact that investigations are ongoing w/ agents in the field who are put at risk if they spill the beans. its as grey as it gets w/ respect to detainment of non-citizens on canadian soil for sure.

when is the written decision due?
 

Vincent Vega

TRIBE Member
~atp~ said:
If this is taken seriously, it is the beginning of the end.
Easy there drama queens (you too Boss) ;)

Recall the Federal Government invoking the War Measures Act during the FLQ crisis in a previous generation, responding to a previous terrorist threat....it was temporary, it was argued (by some) to be necessary, it pissed off a lot of people due to the related suppression of civil liberties.....but it was hardly "the end!"

While there are many aspects of this issue (indefinite detainment, no access to evidence) which I find upsetting, I do not believe for a second that this small handful of individuals has been scooped up randomly and for nothing. And as non-citizens, I'm not sure how deeply entitled they should be to protection under our "system." As evidenced in recent cases (Charkaoui, Harkat), the deportation option, which would ordinarily be exercised here, poses a concern in that the possible consequence of deportation would violate one of our fundamental principles of justice. So at least the courts are attempting to strike some sort of balance.

I would still liketo see them properly tried in court, so that this "evidence" may bear the same burden of scrutiny as any other. If the case is strong, then the Crown will succeed. Problem is, what if the case is not good enough to stand up in court? What if you "know" that the defendant is up to no good, but that it can't be proven to the letter of the law? What then.....do we just take a chance and hope that nothing happens? By my read, this is what the Security Certificate is attempting to address.
 

Boss Hog

TRIBE Member
So... they would only do it for a short time then everything would go back to normal after?

I just don't want to get too overdramatic about it.
 

Vincent Vega

TRIBE Member
Boss Hog said:
So... they would only do it for a short time then everything would go back to normal after?
Perhaps. I don't know really. None of us do. I just fail to see how using this certificate to hold 3 or 4 non-citizens of questionable repute will lead us down the very slippery slope to "the end."


EDIT: Apologies if Keith's post was tongue-in-cheek
 
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Boss Hog

TRIBE Member
So you don't think this is at all a smaller piece of a bigger picture, an indication of a larger shift in our country's policies?

It's on the back of some minds, see.
 

Shug

TRIBE Member
Recall the Federal Government invoking the War Measures Act during the FLQ crisis
This is a very poor comparison, imho. Plus, comparing Harper's gov't to Trudeau's feels like some kind of Canadian mortal sin.

What's scary to me, in watching this unfold, is the knowledge that legal precedent coupled with ambiguous wording of law leads to compromising positions. With watching the public's reactionism down south, and the executive branch continually taking advantage of that, it makes me apprehensive in seeing the potential for the same stirrings up here. I don't trust the intentions of the current gov't... some of you do.

That's where the our difference in opinion lies in interpreting this situation, essentially.

What if you "know" that the defendant is up to no good, but that it can't be proven to the letter of the law? What then.....do we just take a chance and hope that nothing happens?
Yes. Because of the concept of innocent until proven guilty, one of the basic tenets of the Western justice system.

And "knowing" someone is up to no good (without evidential proof that can be proven in the court of law) is not only subjective to the beholder, but ambiguous in terms of "no good". This is why law exists - to clarify subjective ambiguity. To codify and consciously allow ambiguity into legislation is willingly opening the doors to discriminatory ad hoc law.
 

Vincent Vega

TRIBE Member
Shug said:
Yes. Because of the concept of innocent until proven guilty, one of the basic tenets of the Western justice system.

And "knowing" someone is up to no good (without evidential proof that can be proven in the court of law) is not only subjective to the beholder, but ambiguous in terms of "no good". This is why law exists - to clarify subjective ambiguity. To codify and consciously allow ambiguity into legislation is willingly opening the doors to discriminatory ad hoc law.
Well let's be argumentative in a rather basic and hypothetical manner: let's just imagine that in the course of an investigation, a search of an individual's home and/or computer turned up clear and conclusive evidence of a plot to committ a terrorist (man I've grown to hate that word) act. Right down to plans, dates and times. But let's also say that the search was conducted without proper warrant and authorization and is thus later ruled inadmissible in court (as it would be under our system of justice). As a result, the charges get withdrawn and the individual is allowed to stroll out untouched. Are you cool with that?

(I'll answer your other points in a sec)
 

deafplayer

TRIBE Member
Commentary No. 85

Spies, not Soothsayers: Canadian Intelligence After 9/11

Reid Morden

Fall 2003

Author:Reid Morden is a former Director of the Canadian Security Intelligence Service (CSIS), Deputy Minister of the Department of Foreign Affairs and International Trade (DFAIT), and President and CEO of Atomic Energy of Canada Limited. He is currently President, Reid Morden & Associates, which provides advice and comment on intelligence, security, and public policy issues.- Fall 2003.


…Bill C - 36, in particular, has drawn the attention and criticism of a wide range of citizens….

The problem with the Anti-terrorism Act is both conceptual and specific. Conceptually, the new law diminishes due process protections as it seeks to introduce counter-terrorist measures, allegedly in conformity with the Canadian Charter of Rights and Freedoms. The specific problem with the Bill is the very definition that it introduces. The definition of “terrorism” is so wide that it could easily include behaviour that doesn’t remotely resemble terrorism. Once the “terrorist” label is fastened on an individual, organization or suspect, then the rules of procedural justice are more easily suspended.

The Act also gives the Solicitor General the virtually unreviewable power to act on the advice of CSIS or the police in branding activities and organizations as “terrorist”. It is no secret that the communities most vulnerable to being listed are those which are visibly identifiable as racial, ethnic or political minorities, recently arrived in Canada as immigrants and refugees. Yet these are the communities most dependent on their organizations for language and relocation services, as well as to that vital link to their homeland.

Much has also been made about the provisions in the Act for preventative arrest and investigative hearings. The Minister of Justice at the last minute tried to soften the extreme nature of these powers by providing a sunset clause under which the Bill would be reviewed after five years. In my view, the sunset clause is simply an excuse for intellectual and political laziness. Failing to come to grips with the fact that these provisions, in an unprecedented way, override fundamental freedoms of religion, expression and association which are at the core of section 2 of the Charter, will clearly trigger a Charter challenge. Whether the government’s sunset clause is a compromise that meets the “demonstrably justifiable” test of the Charter is something that the courts will ultimately decide.

One must never forget that the existing criminal law in Canada already prohibits a broad range of terrorist activities, including agreements, attempts, assistance and counseling of crimes. But the Canadian government, in its race to catch up, went beyond the British and American legislation defining terrorist activities to include legal, political, religious and ideological protests that intentionally disrupt essential services. This definition then becomes the lynchpin for other new offences such as facilitating and instructing terrorist activities and participating in the activities of or harbouring those who commit terrorist activities. The overall effect is to lengthen the long reach of the criminal law in a manner that is complex, unclear and unrestrained.


http://www.csis-scrs.gc.ca/en/publications/commentary/com85.asp
 

Vincent Vega

TRIBE Member
Shug said:
1. This is a very poor comparison, imho. Plus, comparing Harper's gov't to Trudeau's feels like some kind of Canadian mortal sin.

2. What's scary to me, in watching this unfold, is the knowledge that legal precedent coupled with ambiguous wording of law leads to compromising positions. With watching the public's reactionism down south, and the executive branch continually taking advantage of that, it makes me apprehensive in seeing the potential for the same stirrings up here. I don't trust the intentions of the current gov't... some of you do.
1. Not really. It was an admittedly rudimentary and somewhat ad hoc comparison based on an earlier example of concerns surrounding the erosion of civil liberties in the wake of seemingly heavy-handed government policy.

2. What you are forgetting (intentionally or otherwise) is that "Harper's gov't" did not come up with this. The security certificate has been in place (at least in this context) for several years now and has survived multiple federal governments, not just the current one. In addition, I don't see this becoming the new standard nor do I see it being taken advantage of as far as Canadian citizens go, in response to your comparison with U.S. events and reactionism. Admittedly the potential exists.....but I don't see it transpiring.
 
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Boss Hog

TRIBE Member
I just had in interesting conversation with a couple of lawyers in my office who noted how Harper seems to be wanting to make some fairly big changes, be it stealthily.

And something tells me they're smarter than I am.

That was random.
 

Boss Hog

TRIBE Member
There's really not much more to tell. it was just a basic introduction (my boss introducing me to our lawyers) and a talk about Harper (after my boss told them abotu the GrowUpHarper thing).
 

judge wopner

TRIBE Member
Shug said:
This is a very poor comparison, imho. Plus, comparing Harper's gov't to Trudeau's feels like some kind of Canadian mortal sin.

What's scary to me, in watching this unfold, is the knowledge that legal precedent coupled with ambiguous wording of law leads to compromising positions. With watching the public's reactionism down south, and the executive branch continually taking advantage of that, it makes me apprehensive in seeing the potential for the same stirrings up here. I don't trust the intentions of the current gov't... some of you do.

That's where the our difference in opinion lies in interpreting this situation, essentially.



Yes. Because of the concept of innocent until proven guilty, one of the basic tenets of the Western justice system.

And "knowing" someone is up to no good (without evidential proof that can be proven in the court of law) is not only subjective to the beholder, but ambiguous in terms of "no good". This is why law exists - to clarify subjective ambiguity. To codify and consciously allow ambiguity into legislation is willingly opening the doors to discriminatory ad hoc law.

shug i see where you are coming from but you are quite off base with your legal analysis.

these are non-citizens, there are added laws taht apply to them w/ respect to determinations of "criminality" before being granted access to canada.

its similar to immigration applications, if you have a long history of crime, jail sentences and the like, your application may be turned down. we are not required to grant anyone who wishes residency or visiting rights in canada unless we can specificaly charge them with a crime that is valid under canadian criminal law.

suspicion and reasonable evidence that a person may pose a threat ,
are accepted grounds to keep people from entering the country. immigration adjudicators act under these guidelines in ruling on an application for citizenship or for visiting visas.

once on our soil they are granted virtually all the rights the charter of rights and freedoms demands, including not deporting them back to a nation that may tourture or kill the person.

again we arent required to make a grand legal case that a nation will tourture or kill a person upon deportation, we only need reasonable cause via historical norms of said state.

so the solution so far has been confinement until proper evidence is produced to make a formal charge or we get confirmation that the nation of origin will treat the person according to our requirements. (which is hard to do as well) hence why so many refugee applications from spotty states are denied but no deportation orders are made, one only need arrive on our soil to enjoy the benefits of the charter.
 
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