Many Canadians are outraged that the government has given its secret security and police forces new repressive powers to help conduct the U.S.-initiated “War on Terror.” A central aspect of these powers is the increased use of security certificates.
What are security certificates, anyway?
Security certificates have a long history in Canada, one that predates our current obsession to use them to construct Muslims as “the others”, the enemy. Our governments have long internalized the Machiavellian insight that to foster hostility against a group and then to attack it is an effective way to get approval for strong and wise leadership.
These certificates permit foreign-born nationals to be detained that is, to be imprisoned without being charged. A security certificate gives our very secretive secret security police forces the right to have people detained on the basis that the secret police deem them to be a threat. Whether or not this threat makes sense is to be evaluated by a court not subject to the usual public scrutiny.
This procedure is noteworthy because, in a liberal democracy, public access to the processes of law is considered to be a non-negotiable safeguard. It ensures that persons accused of having committed “ordinary” crimes will be treated evenhandedly, with respect and fairness.
In contrast, if people are detained by means of a security certificate, they can be deported to the country of their birth, even if that country is known to use torture as a method of interrogation. In these cases, deportation can take place even if there is insufficient evidence for a criminal charge to be laid. In other words, the decision to deport involves granting fewer safeguards to the person being deported than it does to someone reasonably suspected of murder or rape, for example.
Two examples amongst the (regrettably) many available, serve to illustrate the problem. Earlier this year on July 3 the Toronto Star reported that a man who had been in detention since August 2002 that is, for nearly two years and who had never been charged with an offence of any kind, was to be deported to India even though a United Nations committee on torture had indicated
that the fear that the deportee might be tortured was well-enough based to warrant a review. There has been no hue and cry about our monstrous attack on an un-convicted person’s liberty and physical safety.
Or consider the story of a man from Algiers who has been released after spending three years in detention without ever having been charged with a crime. He is to be deported to Algiers. The secret-service forces’ suspicions are the basis for this loss of freedoms.
Whatever happened to our much-vaunted sense of fair play, to the trappings of justice that we cite with pride, to the sacrosanct nature of individual rights that a mature liberal polity like Canada hails as its finest achievement? Whatever happened to Canada’s tediously repetitive self-righteous claims that it respects human rights, unlike the countries that need its help, even its military help, to become decent and democratic?
Challenging the legality of security certificates
In mid-June, 2006, the Supreme Court of Canada finally began hearing the arguments raised by three Muslims who challenged the constitutionality of the security certificates used against them by Canada’s secretive guardians of our freedoms. What was particularly interesting during the hearings was the extent to which the political leanings of the judge were commented on by the media. This public acknowledgement of the idea that judges might have political preferences, that they are not neutered decision-makers, is dangerous to Canada’s self-characterization as a liberal democracy under the rule of law.
While study after study shows that most Canadians intuitively feel that the law and its functionaries favour the rich and famous, normally this does not seriously affect the judiciary’s standing as an independent institution. In large part this is the consequence of the vast amount of cultural garbage about the independence and integrity of our system of justice. Is there some knotty social or political problem, like deaths due to infected blood samples or water contamination? Appoint a judge to inquire and to report; s/he can be trusted to search for truth and justice without fear or favour!
This portrayal of wise, deliberative, unbiased decision-making is hugely succes-sful because it is supported by the methodology used by the judiciary when settling disputes. This methodology studiously ignores those social facts that raise questions about economic inequality and the power of the few over the many.
Courts of law operate on the pretence that there is a widespread consensus on essential values and that, within our shared understanding, there will be individual disputations that need to be settled by neutral judges. The resulting decisions are said to rest on rational criteria derived from principles and concepts that transcend history and the politics of the moment. This effectively obscures the political nature of the courts’ decision-making, and this in turn helps cultural and opinion leaders to present the judiciary as being above the fray, the one institution not corrupted by bribery, nepotism, self-serving goals and the drive for power over the citizenry.
Mainstream journalists who endorse the Canadian aspect of the “War on Terror” think the Supreme Court of Canada has a tough problem before it. But on the face of it, the question before the Supreme Court of Canada is not a particularly difficult one. Arguments for extending government’s powers at the expense of rights and entitlements that individuals have won over time are false. They cannot be justified in the realm where liberal democratic reason is supposed to prevail over political and economic power. In other words, the Supreme Court must rule that security certificates are unconstitutional. If it does not, it will become clear that the Supreme Court is just another arm of the state.
The security-certificate process assumes that due process should not apply to persons accused of terrorism. This changes the burden of proof in fundamental ways. First, the crime has been defined loosely. Under the tenets of the rule of law, this is a major problem. Second, the thought, speech, associations, beliefs and activities of individuals are criminalized, even though no independent tribunal has yet found them to be criminal. This also poses problems under the principles of liberal law and philosophy, which maintain the right of individuals to do and think as they see fit unless the way they exercise these rights are explicitly prohibited by a clear and properly passed law. Finally, the use of these certificates attracts instant punishment; the usual overview process is not required to jail suspects. This is contrary to everything we as Canadians do and profess to believe.
One law for the rich…
Consider: While Conrad Black faces twelve charges of racketeering, money laundering, wire fraud and obstruction of justice, he has not been tried, let alone been convicted, of any of these offences. He may turn out to be a criminal, but he is entitled to be deemed innocent until it is proved beyond reasonable doubt in a properly run court of law that he has committed well-defined crimes.
Why does this respectful open-mindedness not apply to what the Toronto Star called the seventeen so-called “brown skinned homegrown terrorists” (or to the nineteen before them) arrested with so much fanfare in early June of this year? They were held on the basis of the newly minted anti-terrorist provisions of the Criminal Code, and as yet nothing has been proved in court against them (just as it was not proved in respect of the earlier nineteen). The usually tight-lipped sec-ret-service police forces were only too eager to disseminate their unproven bel-iefs about the detained people’s menacing conduct and intentions to the press.
That press (including the let-us-be-fair-to-the-Blacks Toronto Star) has been falling all over itself to publicize these alarming and alarmingly unchecked assertions. Of course, the media have provided themselves with a fig leaf by adding the word “alleged” to their unquestioning coverage of the arrests, a coverage that always manages to let it be known that, though the detainees are technically Canadian, they are not “real” Canadians like the pink-skinned people of Scottish or English origin who live in this country.
Waging wars on terrorists, foreign and brown-skinned ones, usually members of a religion that, historically, has been cast as the primitive/barbaric adversary of our much-more-civilized religious beliefs is useful to governments. It aids them to persuade populations to support a status quo of social, political and economic relations that actually does not favour them. It does so by giving people a reason to be afraid of and to bond with one another against a common foreign and alien enemy. Of course, the government does not say that is what its goal is. Rather, it avers that its coercive powers are used to ward off a clear and present danger to our way of life. But, the clear and present part of that claim is totally unproven and unverifiable.
Once this is appreciated, it’s clear how security-certificate practices threaten to undermine the legitimacy of the government’s position. And this places the judiciary in a bind. Conscious that its prestige rests on defending our claimed liberal values, the judges of the Supreme Court know they must not be seen as mere instruments of the present Canadian government. There is a possibility, then, that to protect its own legitimacy the Supreme Court might strike down these illiberal security certificates. The mere possibility of this reversal presented the politicians with a knotty problem.
Trying to tip the balance against justice
This explains the timing of the arrests of the seventeen, and the amazing flow of information about the arrested young men’s evil intentions. It explains the media’s easy access to the arrests, and the secret-service spokespersons in the aftermath of the arrests.
The events were timed and staged to create a tilted political milieu for the Supreme Court of Canada when it was to hear the challenge to the constitutionality of the security certificates.
As noted, judicial methodology, requiring a court to deal only with the facts and the law applicable to the case before it, could not have regard for political claims made outside the courtroom. Claims in court by the government that it should be trusted when it says it needed the powers it had given itself were not likely to be terribly convincing to judges who are historically aware of their need to be wary of state abuses of power. But could even the supposedly “blind and deaf to socio-political dramas” judicial functionaries have remained unaware of the hyperbole surrounding the seventeen, and of the alarming allegations of the government’s servants?
The white noise and heat that surrounded the arrests of the seventeen was intended to influence the Supreme Court of Canada. It was a reminder that, if the Court had it in mind to trim the government’s billowing national security powers, it should be a minor trim, one conducted with nail scissors instead of garden shears. Seventeen young people became fodder for the spindoctors in our secretive secret services.
Others can play at that game. But in order to be heard, arguments mounted against the security certificates must play on the judges’ belief in the importance of the judiciary as a civilizing and restraining institution in a liberal democracy. It must do so by relying upon voices and stories of events they will be inclined to respect. These should be voices and stories of events that can offset the shrillness of calls for the need to be watchful toward and suspicious of the carefully constructed “other.”
Here, I offer a story, which I ask readers to circulate. I ask readers to find similarly compelling stories. These should send them to politicians, to judges, to law societies, to lawyers for all parties to the constitutional challenge and to appropriate NGOs. They should be accompanied by a simple covering note, with words to this effect: “In a time of uncertainty, where calls are made for the dilution of our liberties to serve the common good, please consider the following.”
The Albie Sachs story
This is the story of Albie Sachs, expressed in his own words. Albie Sachs is a justice of the Constitutional Court of South Africa. He was a firm supporter of the then-outlawed ANC, when it opposed South Africa’s apartheid regime. He was imprisoned for his activist role and was the victim of an assassination plot by the South African secret police, in the course of which he lost one of his arms.
In a recent, May 16 interview in Times Online, Sachs noted: “The South African Security Forces had told the Government they simply couldn’t deal with terrorism in South Africa if they didn’t have power to lock up the people who they knew were planning to overthrow the State. It became known as the 90-day law. I was kept in solitary confinement simply on the grounds that I was suspected of being a terrorist, or was somebody who had information about terrorism, or was connected to terrorists. It started with 90 days. The next time I was detained it was the 180-day law. Everything that became especially vicious in our law enforcement the tortures, the disappearances, the violations started with the 90-day law. The whole criminal justice was turned inside out. In effect, instead of the judiciary being the agency that was in control making the basic decisions as to whether people were branded as criminals, sent to prison or not it was the police who were making those decisions.
“The thing about extraordinary measures is that they are never extraordinary enough. Once you start breaking that membrane called the rule of law (I’m not speaking about bending: you can afford to bend up to a certain point; you can make adjustments; you can take account of realities, of emergency situations), once you start rupturing that membrane of principles and rules developed by humanity over centuries, based on bitter, painful experiences, then the tear is never enough. That’s the problem with the exceptional. The exceptional becomes the normal, and then it becomes too little and then you have to make it more exceptional. And the dagger aimed at the enemy in the end is plunged into your own innards, perforating the very character of your own society and rupturing precisely what it is supposed to defend.”
Harry Glasbeek is a Professor Emeritus and Senior Scholar, Osgoode Hall Law School, York University. His latest books are Class Privilege: How Law Shelters Shareholders and Coddles Capitalism (2107) and the follow-up, Capitalism: A Crime Story (2018) both published by Between the Lines, Toronto. Professor Glasbeek is a frequent contributor to Canadian Dimension.