Patrick Grady
The Judiciary and Politicians put Canadian National Security At Risk
Febuary 28, 2007

In spite of long being on Al-Qaeda’s hit list, Canada has yet to suffer a terrorist attack since 9/11. While the alleged conspirators behind a terrorist plot in Toronto were apprehended last summer, and many other plots have also been disrupted according to CSIS, Canada remains vulnerable.

The Anti-Terrorism Act enacted hastily in a flurry of worry has not taken many potential terrorists off the streets. Only one person, Momin Khawaja, has been charged under its terrorism provisions with participating in the activities of a terrorist group plotting a bombing in London and facilitating their activity and only one investigative hearing has been held in the Air India trial. Nevertheless, the Act, being available if needed, still provided Canadians with a degree of security.

The more time that has passed since the horrific attacks on New York and Washington, the more complacent Canadians have become. And following the Arar Inquiry, which unfortunately discredited and demoralized the RCMP, Canadians have become more concerned to prevent perceived violations of human rights and less worried about national security. This mood has emboldened our Courts and the opposition parties to mount a threefold assault on Canada’s anti-terrorism laws under the banner of the Charter of Rights and Freedoms.

The first strike was delivered last October when an Ontario Superior Court judge struck down the legal definition of terrorist activity in the Anti-Terrorism Act in a response to an appeal by Momin Khawaja. The judge found that defining a terrorist act as being committed for “political, religious or ideological purpose, objective or cause” is an infringement on freedom of religion, thought and association guaranteed in Section 2 of the Charter. This decision, if not overturned by the Supreme Court, will seriously weaken the preventive aspects of the Anti-Terrorism Act, which created new offences criminalizing activities, such as participation in a terrorist group, that occur before a terrorist event and enabled terrorist groups to be treated as criminal organizations for purposes of surveillance.

The second punch was from the Supreme Court on February 23 when it announced its unanimous decision last week that the procedure under the Immigration and Refugee Protection Act for determining whether a security certificate is reasonable and the detention review procedures both infringe Section 7 of the Charter. This may not seem so damaging because the Court gave Parliament a year to fix the offending provisions of the Anti-Terrorism Act. And it even kindly suggested how to do it, namely that the establishment of a special counsel to act for the named person in hearings vetting confidential security information and the reduction in the period for a mandatory detention review for named persons be reduced to from 120 days to 48 hours as required for permanent residents.

The third blow came on February 27 from the hand of opposition parties who voted down the government motion extending two important provisions in the Anti-Terrorism Act – the investigative hearing and preventive arrest powers – which were scheduled to sunset on that day. In doing so, the opposition disregarded a parliamentary committee recommendation made last October that these two measures be extended until 2011. And, speaking of collateral damage, the termination of the power to hold investigative hearings will also cripple the inquiry into the Air India bombing, which has upset Bob Rae and most of all its head Justice John Major.

The problem about the Supreme Court decision in the security certificate case is that it’s one thing to make a suggestion to Parliament for how to make its legislation consistent with the Charter, it’s quite another to get such legislation through a minority Parliament, especially now that the opposition parties have already displayed their willingness to compromise national security by not extending the two expiring provisions of the Anti-Terrorism Act.

For the NDP and the Bloc voting down the extension of the provisions was par for the course. More troubling was the readiness of the Liberals to sacrifice national security to appeal to their ethnic constituencies. A Liberal Party with Stéphane Dion at the helm and beholden for delivering a key block of votes that put him over the top at the Liberal Leadership convention to his citizenship and immigration critic Omar Alghabra, a long-time opponent of the Anti-Terrorism Act, and to Navdeep Bains, is not the same Liberal Party as that which was responsible for introducing the Anti-Terrorism Act. But, for what it’s worth, at least some old-time Liberals like former ministers John Manley and Anne McClellan spoke up for the Anti-Terrorism Act and one Liberal MP Tom Wappell even voted in favour of the extension. There were thirteen other Liberals also who didn’t vote against the extension. These included former Liberal Justice Minister Irwin Cotler who abstained and twelve others, including former Prime Minister Paul Martin, who didn’t show up for the vote. However, this wasn’t good enough and the motion to extend the anti-terrorism powers was voted down by 159 to 124 margin in the House of Commons.

Another problem with the Supreme Court’s proposal for special counsels in security certificate cases is that it could jeopardize Canada’s access to national security information from our allies. And they certainly may have reasonable grounds for concern that their intelligence may not remain confidential if it is shared with counsel for terrorism suspects. For example, Attorney Lynn Stewart of the Center for Constitutional Rights in the United States passed information from her client the blind Sheikh Omar Abdel Rahman, who was behind the 1993 World Trade Center bombings, to his followers. Other lawyers, unlike judges, could be similarly unreliable.

Following the 1985 Singh decision conferring Section 7 Charter rights on everyone managing to set foot on Canadian soil, any prospective terrorist can come to Canada and make a refugee claim and be guaranteed full access to Canada’s legal system. And the appeals in Canada can be almost endless. For instance, the poster boy for delay is convicted terrorist Mahmoud Mohammad Issa Mohammad, who lied to come to Canada as a landed immigrant, and who has successfully fought deportation in the courts for over 18 years.

In the Suresh decision in 2002, the Supreme Court ruled that “barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter.” More recently in 2006, this decision was applied by the Federal Court to prevent the deportation of Mahmoud Jaballah who is being held under a security certificate. And this was after the judge acknowledged in his opinion that there were reasonable grounds to believe that Jaballah was a “communications link” in the 1998 East Africa embassy bombings that killed more than 200 at U.S. embassies in East Africa in 1998.

It is an unfortunate fact that many Canadian deportations take so long and get so much publicity that even if the authorities back home had no intention of incarcerating or interrogating the deportee by the time it’s over they may well have changed their mind.

Barring a change of heart from the Liberals, the combined results of the Suresh judgement and last week’s decision is frightening. A prospective terrorist will be able to waltz right in to Canada and make a bogus refugee claim. Even if the claim is ultimately rejected, he will not be able to be deported under a removal order because of the naturally endemic threat of torture in his home country or to be detained under a security certificate, which will no longer exist. In fact, the terrorist will be allowed to roam free and plot at will. The police and Canadian Security Intelligence Service will, of course, be able to try keep him under surveillance. But this didn’t work very well for the case of Ahmed Ressam, the would-be Millennium bomber, who was only caught by an alert U.S. border patrol agent at Blaine Washington when he tried to cross the border with a trunk full of explosives on his way to the Los Angeles Aiport.

If it turns out that there’s a terrorist strike that could have been prevented, the blood will be on the hands of all those who chose to weaken the laws protecting Canada from the threat of terrorism at this critical time.

Patrick Grady is an economist with and the author of Royal Canadian Jihad, a novel about terrorism in Canada.