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Canadian Anti-Terror Law Not Struck Down - Only Fair Trial Demanded

When the Supreme Court of Canada's decision on Security Certificates (the governments right to hold non-resident Canadians suspected of terrorist activities indefinitely without trial) was announced, headlines everywhere shouted that Canada's anti terror legislation had been found unconstitutional. In actual fact what the Court had ruled was that indefinite imprisonment on the grounds of suspected terrorism was on occasion necessary for reasons of national security, but defendants did deserve a chance to defend themselves, know the charges against them, and have proper representation in court.

They ruled that the Canadian government had a year to come up with a solution to this aspect of the Security Certificate law or face the possibility of it being declared unconstitutional. The Court suggested the Canadian government look to a system the British have developed to deal with the same set of circumstances.

But according to lawyers who have worked in the British system, it is fact unworkable and no more then a …"fig leaf of respectability and legitimacy to a process which I found odious." Ian Macdonald was a senior member of the team of defence lawyers who were responsible to help defend those detained on the British equivalent of Security Certificates, and obviously from that quote did not think very highly of the system.

Ten years ago Prime Minister Tony Blair of Great Britain authorized the formation of a special panel of defence attorneys who were given the highest possible security clearance. These lawyers were then allowed to represent those individuals being held under the security act by cross examining security agents, and arguing before judges for disclosure of material the state was using as evidence.

But Mr. Macdonald, whose retirement two years ago from the fifteen-member lawyer's panel causes a political furor, said the system was flawed and the hearings were a sham. Since his resignation one other lawyer has resigned, and nine others appeared before a British House of Commons constitutional committee saying they did not believe the process made it possible that those detained received justice.

It is interesting to note that the former Liberal Party of Canada Public Safety Minister Anne McLellan in the previous government had considered this alternative in 2005. For unknown reasons she did not pursue the matter, but it can only be assumed that she or her staff deemed it unworkable for some reason or another.

The problem Mr. Macdonald said was the fact they were dealing with vague security risk assessments as provided by special agents, not hard and fast facts like is normal in a criminal law case. So instead of a report by a police officer stating so and so was seen meeting with so and so and carrying away an AK-47 and enough plastic explosive to blow up Buckingham Palace they would receive comments like; he's of Syrian descent, was seen in the company of people who have in the past been considered potential threats, and he could represent some sort of threat to the crown.

That's not really the type of information a lawyer can rebut very easily, because he is not being told anything conclusive. But instead of those cases being dismissed for lack of evidence the Certificates were issued and defendants detained indefinitely. Hence Mr. Macdonald's fig leaf comment and his refusal to keep working for the panel of lawyers.

Will Canada's Supreme Court justices be satisfied with a result of that nature, where only the appearance of due process is given? Will they insist the government ensure that a real case has to be made against defendants not just vague assurances that he or she posses some sort of threat to peace and stability? A case that will allow a defence attorney to examine real evidence being used against his or her client and enable him or her to mount some semblance of a defence?

If not there would be no real point in appointing any lawyers because it would just be wasting the taxpayer's money. I think the Court should have insisted that not only does the government come up with a system where the defendant can contest their confinement, but are also forced to offer assurances that the system implemented is more then just a veneer of respectability over the same old process.

What the Supreme Court of Canada did last Friday, February 23rd /07 was not strike down the idea of indefinite confinement under the Security Certificate system, but they reinforced the right of every person in our society to have representation during legal proceedings against them no matter what the circumstances. It's now up to the government of Canada to comply with this ruling, and hopefully in a way that is more then just the illusion of justice.

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