Ottawa A new set of security certificates related to a number of alleged terrorists in Canada were signed Friday, narrowly beating a Supreme Court-imposed deadline that would have effectively crushed the old set of certificates.
Security certificates issued under a new law passed just this month were entered into federal court on Friday. The certificates are issued against five men, all suspected of being involved in Islamic terrorism. Most of the men are no longer in prison, but instead living under strict movement restrictions and surveillance. The suspects' detention has sometimes been referred to as a “three-walled prison,” because at any time they are free to leave Canada. However the suspects have repeatedly challenged the allegations and secret evidence against them.
In 2006, the Supreme Court found that parts of the previous legislation dealing with security certificates violated the Charter of Rights. The court gave the government one year to fix the law, or see the current security certificates expire. This Friday marked the last working day before the court deadline.
On Friday, the Justice Department designated a new class of lawyer to address the discrepancy in the law, designating 13 “special advocates” to argue against secret evidence presented in terrorism cases against immigrants.
The new class of lawyers has created much debate in legal circles, with some lawyers complaining the designation amounts to a fig leaf for a still-unpalatable process, whereas other lawyers have argued they should at least give the new proceedings a shot.
Under the old security-certificate legislation, suspected terrorists could be kept from seeing the evidence against them for reasons of national security. Under the new legislation, such suspects would be able to have an advocate - act on their behalf. Such advocates would be able to meet at length with suspects, and then see all the secret evidence against them. However, after the advocates have seen the evidence, their subsequent contact with the suspect would be severely limited.
The previous set of certificates were issued to six men. However one of those men appears to be left out of the new set. No new certificate was issued for Manickavasagam Suresh, an alleged Tamil Tiger fundraiser.
Public Safety Minister Stockwell Day has praised the new legislation as the best of its kind in the world. However he has also said he expects the new law to be challenged in court again.
The list of 13 lawyers, named by Justice Minister Rob Nicholson, include some of the Canada's best-known legal luminaries, lawyers with hard-won expertise in dealing with national-security secrecy claims.
While chosen by the government, the special advocates are no stooges. Many have battled government secrecy in past security-certificate cases and during judicial inquiries.
The Justice Department had run a special advocates school this week, to tutor the lawyers in why national-security secrecy claims are made and why they must be upheld. The special advocates will be allowed to talk to their clients before they see the secret evidence against them, but not after the special advocates learn the totality of the allegations.
Much of the reason for has to do with foreign relations. Canadian security agencies, which describe themselves as “net importers” of intelligence from foreign agencies, complain that the information pipeline would be compromised if they divulge sensitive secrets passed along by others. To spill other countries secrets then, is seen as tantamount to jeopardizing national security.
The security-certificate procedure the special advocates will be taking part in is a measure designed to kick out potentially dangerous immigrants, who do not have the same legal rights as criminally accused persons in Canada. The government need only convince a Federal Court judge that there is a “reasonable suspicion” an individual is a threat to the security of Canada. Parts of the case can be made in secret.
The special advocates include many veterans of Mr. Justice Dennis O'Connor's inquiry into the Maher Arar affair, including Lorne Waldman, Paul Cavalluzzo, Barbara McIsaac, and Ronald Atkey. They had respectively represented Mr. Arar, Judge O'Connor, the government of Canada and served as an amicus curiae, or friend of the court.
Two defence lawyers in ongoing security certificate case have also been appointed special advocates. Paul Copeland and John Norris who have spent years railing against government secrecy during these cases.
The designation of special advocates may mean they finally get to know the totality of the evidence against their clients, but they will also find themselves in the awkward position of keeping government secrets once they hear them.
The other special advocates include Nancy Brooks, Gordon Cameron, Francois Dadour, James Duggan, Anil Kapoor and Ivan Whitehall.