New Security Certificates Law Escapes Both Public Scrutiny and Democratic Dissent

By Wade Deisman and Mike Larsen

When the Supreme Court last February declared security certificates to be unjust, the mood amongst the five men currently held by such certificates was cautiously optimistic, though a far cry from festive.

Although the high court concurred with the petitioners in finding the then-extant security certificate process unconstitutional, its judgment fell short of fully denouncing the practice.

The decision contained caveats that quashed any hope for the men's immediate release, and placed their fates in a kind of suspended animation.

In fact, the high court suspended applying its judgment for a year to allow lawmakers time to decide how to proceed, and even outlined some ways the process might be modified.

The high court said that a better balance between the state's desire to protect secret information and an individual's right to a fair hearing might be achieved by introducing a special advocate into the security certificate process.

The court reviewed a number of special counsel models, including the amicus curiae format used in the Arar Inquiry, the model associated with the Air India trial, the process used for secret information under the Canada Evidence Act, the British Special Immigration Appeals Commission (SIAC), and the Security Intelligence Review Committee (SIRC) model.

Of these, the court emphasised the last, which attempts to preserve an adversarial process, and was used for security certificate cases until 2002.

In the following weeks, those involved in the challenge called for a full public debate on the court-identified models identified. But the government remained silent, apart from indicating it intended to draft new legislation.

Such public reticence seemed initially understandable—arguably excusable. After all, some argued, the government ought to take time behind closed doors to weigh its options and formulate a strategy aimed at meeting the court-imposed deadline.

As time wore on, however, this allowance wore thin. Some began to suspect that silence itself was a part of the strategy.

The government, critics charged, was not dragging its feet so much as biding its time, waiting until the last possible minute to introduce new legislation and create an eleventh-hour scenario that would deter dissent by creating a situation wherein anyone associated with its expression might run the risk of being seen as sympathizing with the five men being held, or worse still, being responsible for setting them free.

Whether or not this allegation is true, the fact remains that by the time Bill C-3 reached the Senate, the court's grace period had very nearly expired. Faced with a do-or-die situation, those in the upper chamber saw fit to forfeit a full interrogation of the new law in the name of a higher duty.

Normally, this kind of legislation would receive at least four weeks of Senate hearings. Bill C-3 was dealt with in a single 10-hour session. In the end, the Senate's decision contrasted sharply with the submissions made by the hastily-compiled group of witnesses, the vast majority of whom expressed serious misgivings with both the bill's content and the truncated legislative process that produced it.

Indeed, the only submission to the Senate in support of the bill came from the public safety minister himself.

The new security certificates law was so expertly manoeuvred through the system that it largely escaped both Scylla of public scrutiny and the Charybdis of democratic dissent.

So Canada now has a new security certificate process, but at what cost?

One obvious price is confidence in the fairness and probity of the new process. The new approach is based heavily on the British SIAC model despite expert testimony favouring Canada's SIRC system.

It places limits on contact between the advocate and the individual subject to a certificate once the advocate has had access to secret information.

This will make it difficult to seek simple but potentially important clarifications from the named individual.

Additionally, while the SIRC model immediately grants counsel access to the full dossier of government information except cabinet confidences, the new Canadian model merely allows an advocate to ask that certain data be made available.

This means that advocates will have to engage in fishing expeditions to get material that is not introduced by the government but might be of value to the case.

It seems only a matter of time before the special advocate system is challenged before the Supreme Court.

A second cost lies in the missed opportunity for broad participation in both debate and problem solving.

At every stage in the legislative process, the government was presented with detailed and reasoned criticism of its proposal; and, at every stage, meaningful debate and the opportunity to revise and strengthen the bill was short-circuited by assertions that that hesitation would endanger Canada's national security.

Even if the security certificate system is procedurally fair, its intended outcome is still deportation. In each of the five existing cases, this would involve returning an individual to a state known to engage in torture, contravening Canada's international obligations.

What can we learn from the delayed tabling of C-3 and how it was rammed through Parliament? Not much that is particularly novel or even profound.

Canadian democracy is still highly susceptible to the politics of fear. The spectre of complacency in the face of an unspecified terrorist threat can be leveraged to tilt the field in favour of fear and push aside major reservations and misgivings.

And, perhaps, that the façade of urgency can be fabricated as a matter of stratagem, for there is nothing so unifying as the illusion of exigency and the fiction of a heroic, come-from-behind, saves-the-day effort in the name of securing the country.

Wade Deisman is director of the Ottawa-based National Security Working Group and has taught courses on terrorism, law and policing at the University of Ottawa. Mike Larsen is a PhD candidate in sociology at York University, and a researcher at the York Centre for International and Security Studies.