Sliding down the slippery slope

While Canadian courts got one right on Thursday with a ruling that effectively paved the way for federal legislation that will confirm the right of same sex couples to marry, I think the courts got one wrong the next day.

Security certificates warranted, judges say

Controversial security certificates used to imprison suspected terrorists without charges on secret evidence are constitutional, a federal court ruled yesterday.

Human rights activists have denounced the certificates, which currently have six men in jail, as Canada's "dirty little secret."

But the Federal Court of Appeal yesterday endorsed the process that has kept accused Al Qaeda operative Adil Charkaoui behind bars for 19 months without charges.

"The detention of a permanent resident pursuant to a security certificate is not an unjustified and unconstitutional measure when the evidence discloses that he might be a danger to national security," the ruling said.

"The appellant has been unable to demonstrate that the procedure for reviewing the reasonableness of the security certificate issued against him ... do not meet the requirements of the Charter," it said.

Security certificates are a provision of the Immigration and Refugee Protection Act that grant the federal government the power to deport non-Canadian citizens if they pose a risk to the country's safety.

The three-judge panel noted that Charkaoui's right to release is under "constant supervision and judicial protection, to ensure that it is not unlawfully or unjustly breached."

And the secret hearings that go hand-in-hand with security certificates are warranted to safeguard Canadians, the judges said in an 89-page ruling.

"We are satisfied that this necessity to protect national security can justify derogations from the system or process that usually prevails," they wrote.

I'm often sceptical of slippery slope arguments but I make an exception when it involves the government's right to act in secret. Democracy dies behind closed doors.

What this ruling does is uphold the government's right to deny an individual the presumption of innocence and the right to face his accuser by invoking "national security." If the government and the courts can justify this kind of treatment of a non-citizen, how far away are we from extending this kind of treatment to citizens?

And how far away are we from something like this:

Mystery Cloaks Couple's Firing as Risks to U.S.

May 5, the day that changed Aliakbar and Shahla Afshari's lives, began like most others. They shared coffee, dropped their 12-year-old son off at Cheat Lake Middle School here, then drove to their laboratories at the National Institute for Occupational Safety and Health, a federal agency that studies workplace hazards.

But that afternoon, their managers pulled the Afsharis aside and delivered a stunning message: they had failed secret background checks and were being fired. No explanations were offered and no appeals allowed. They were escorted to the door and told not to return.

Mrs. Afshari, a woman not prone to emotional flourishes, says she stood in the parking lot and wept. "I just wanted to know why," she said.

Seven months later, the Afsharis, Shiite Muslims who came from Iran 18 years ago to study, then stayed to build careers and raise three children, still have no answers.

They have been told they were fired for national security reasons that remain secret. When their lawyer requested the documents used to justify the action, he was told none existed. When he asked for copies of the agency's policies relating to the background checks, he received a generic personnel handbook.

The only explanation the Afsharis can come up with is their association with a man who, in turn, has been investigated for his association with an organization that hasn't been outlawed but has drawn some attention from the FBI. In other words, it sounds like a case of guilt by association. It sounds an awful lot like the Maher Arar case.

This isn't as severe an action as imprisoning someone for nineteen months and then deporting him. But then, for all we know, the threat to national security represented by the Afsharis isn't as great and the standard of evidence may be lower. And there's the problem with secret evidence. We don't know what the standards are.

In the first case, the Canadian example, you can argue that the judges who review the evidence and decide that the Security Certificate is legitimate serve as the safety valve. But since when do we count on judges to determine what constitutes a legitimate threat to national security? Do they teach that in law schools these days?