The Supreme Court ruling last week that some provisions of Canada's anti-terror legislation are unconstitutional means the government will have to make changes in order to sustain the security certificate system.
In a landmark 9-0 ruling, the court found that security certificates used to detain three suspected terrorists from Syria, Morrocco and Algeria, who had challenged the system on constitutional grounds, violates the Charter of Rights and Freedoms.
Security certificates allow authorities to hold foreign born non-citizens indefinitely without charge, and without public disclosure of any evidence against them.
Prime Minister Stephen Harper said in the House earlier this week that the judgement laid out a "pretty clear road map" on how to rectify the legislation. The judgement won't come into effect for a year, giving Parliament time to craft a new law that abides by constitutional principles.
Meanwhile, the Conservatives lost more anti-terrorism powers on Wednesday when the House voted not to extend two controversial anti-terror provisions that were introduced by the Liberals after the September 11 attacks but were never used.
Security certificates have been part of immigration law in Canada for decades and have been used very sparingly to remove non-citizens from the country when violation of Canadian laws is suspected. Since 1978, security certificates have been issued only 27 times. None have been issued since 2003.
Kent Roach, Professor of Law at the University of Toronto, says the Supreme Court ruling was an important judgement because "it re-affirms basic rule of law principle, that if you are going to be detained then you should know the case against you."
However, he says there's nothing in the judgement that prevents the government from using immigration law security certificates as anti-terrorism law.
Roach says that with only two major anti-terror laws introduced thus far, Canada has been relatively restrained in its legislation to fight terrorism compared to Britain and Australia which have had "a constant stream of anti-terrorism laws being passed through parliament rather quickly."
He says the Canadian ruling is, "somewhat less of a bold or civil libertarian decision" in comparison to the House of Lords 2004 Belmarsh decision in Britain. Nine detainees who had been held in Belmarsh Prison under Britain's anti-terror legislation were released after the House of Lords voted that holding them was incompatible with European Human Rights laws.
The Supreme Court, however, did not order the release of six men currently being held under the security certificate system in Canada.
The British ruling deemed it "irrational" to rely upon immigration law as anti-terrorism law, given that terrorism threats can come from both citizens and non-citizens. In particular, the British ruling said it discriminates against foreigners.
The evolution of the debate in Britain is particularly relevant for Canada, says Roach. He cites the Belmarsh example and the July 2005 London bombings which led to criminal prosecution rather than deportation to country of origin, where the threat of torture may exist.
Roach says the Court hasn't said that indefinite detention is unconstitutional; it may be constitutional as long as the government allows "adversarial challenge to the evidence that the government presents against suspected terrorists." The British ruling nullified indefinite detention.
James Kelly, political scientist at the McGill Institute for the Study of Canada, views the Supreme Court's ruling as "a positive decision," given that it has come in the approach to the 25th anniversary of the Charter of Rights and Freedoms in April.
Kelly voices concern about the speed (less than three months) with which the Anti-terrorism legislation passed in the first place, and the "institutional imbalances" in government and Parliament. He says the lack of "institutional resources" for Parliamentary committee work does not allow for incorporating Charter values into enacted laws.
Despite the findings in the Maher Arar case, the Supreme Court didn't deal with the reliability and accuracy of the intelligence used in the security certificates.
Meanwhile, a group representing families of victims of the Air India bombing is urging federal politicians to support renewal of Canada's Anti-Terrorism Act. The Air India Victims' Families Association spokesman Bal Gupta says fighting over the provisions is an insult to the people killed in the 1985 Air India bombing.
It remains to be seen what alternative the government comes up with, but Roach believes the minority Conservatives may find it more difficult to pass new legislation than their counterparts in Australia and Britain which have majorities in their legislatures. But because all parties are contributing to the debate, "Parliament and society are in a better position to make an intelligent decision with regard to security certificates," says Roach.
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