Canadian Court Strikes Down Terror Program

The Supreme Court of Canada on Friday struck down the government's right to detain foreign terrorism suspects indefinitely and without trial, saying the system violates the country's bill of rights.

The Justice Department had insisted that the "security certificate" program is a key tool in the fight against global terrorism and essential to national security.

But in a 9-0 judgment, the high court found the system violates the Charter of Rights and Freedom. It suspended the judgment from taking effect for a year, to give Parliament time to rewrite the part of the Immigration and Refugee Protection Act that deals with the certificates.

The certificates were challenged on constitutional grounds by three men from Morocco, Syria and Algeria — all alleged by the Canadian Security Intelligence Service to have ties to al Qaeda and other terrorist groups.

"The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process," Chief Justice Beverley McLachlin wrote in the ruling.

Opponents of the system say it violates the human rights of those who have no access to the evidence against them and who would face torture or death if deported to their native countries.

Barbara Jackman, an attorney who represents one of the men who has been detained for six years, said the Supreme Court decision in no way compromises national security.

"It only strengthens our democracy," she said. "It's an indication to other countries that to detain people and mistreat them, it's not satisfactory. There are ways to provide fair hearings in the face of national security concerns."

Federal law currently allows sensitive intelligence information to be heard behind closed doors by a federal judge, with only sketchy summaries given to defense attorneys.

If those foreigners choose to fight deportation, they can spend years in jail while the cases go through the courts. Even if they are freed, they risk being labeled as terrorists.

Though the security certificate program has been around since the 1970s, its use became more contentious after the Sept. 11, 2001 terrorist attacks on the United State, and more suspect since Ottawa used faulty intelligence in a case that led to a US$9 million apology to another former terrorism suspect, Maher Arar.

Five Arab Muslim men currently stand accused of terrorist links under the certificates; and all five deny any ties to terrorism. It was not immediately clear if the three men still in detention would be released or remain jailed until the law is rewritten.

The most notable is Adil Charkaoui, 33, a native of Morocco. The former University of Montreal student and pizzeria operator was arrested in Montreal in 2003 and was freed on bail under strict conditions in 2005. He is accused by the Canadian Security Intelligence Service of belonging to the Moroccan Islamic Combatant Group, which has ties to al Qaeda and a history of terrorist attacks in Spain.

CSIS also claims Ahmed Ressam, convicted in 2001 of plotting to blow up Lost Angeles International Airport, identified Charkaoui as someone he met at an al Qaeda training camp in Afghanistan — a contention denied by Charkaoui.

Native Algerian Mohamed Harkat, 37, was arrested in Ottawa in 2002 and freed on bail with strict conditions last year. He is accused of once belonging to the Islamic Salvation Front, at the time a legal organization in Algeria, and of being an al Qaeda sleeper agent.

Egyptian Mahmoud Jaballah, 44, is a former Toronto Islamic school principal. The father of six was arrested in 1999 in Toronto, freed after his first security certificate was quashed by the courts, but arrested again in 2001 on a new certificate.

He is still in jail, staging a hunger strike to protest his conditions.

Jaballah is accused by CSIS of membership in Egyptian Islamic Jihad, which has ties to al Qaeda. He acknowledges having known Canadian citizen Ahmed Saad Khadr — a lieutenant of bin Laden killed in Afghanistan — but says he was only a casual acquaintance. He also says CSIS is relying on erroneous information from Egyptian intelligence. A Canadian judge has ruled that, if he's deported, it can't be to Egypt because of the risk he'd be tortured there.

Mohammad Mahjoub, 46, is also a native of Egypt. Arrested in 2000 in Toronto, he was granted bail last week, but still awaiting release. He is accused by CSIS of belonging to Vanguard of Conquest, an Egyptian group with ties to al Qaeda. He admits he once worked on a farm in Sudan owned by Osama bin Laden, and that he had contact with his lieutenant, Ahmed Saad Khadr, but denies any involvement with terrorism.

Hassan Almrei, 32, is a native of Syria who was arrested in Toronto in 2001. He's still being detained in an Ontario facility and has been on a hunger strike to protest his conditions. He admits that he lied to CSIS about some details of his past, but says he did so because he feared being wrongly labeled a terrorist. He is accused by CSIS of attending al Qaeda training camps in Pakistan and Afghanistan and of supporting Islamic extremists in Tajikistan.