Terrorism and the Administration of Justice in Canada
Robert Diab’s work, Guantánamo North, offers a compelling and well-argued critique of the developments of Canadian counter-terror legislation and judicial and policing practices since 9/11, based on meticulous research and careful analysis. He demonstrates the role of parliamentarians in bringing into force measures that have eroded civil liberties on the basis of the flawed assumption that existing legislation was inadequate to deal with the threat to which we were all awakened by 9/11, and that new measures for investigation and prosecution were therefore necessary. The work convincingly shows that the civil liberties of certain targeted groups have not been the only casualties of the ‘War on Terror’ in Canada. A second flawed assumption - that the new processes of investigation and prosecution necessitate increased levels of secrecy - has resulted in substantial reductions in the transparency and accountability of the law enforcement, policing , and intelligence services of the Canadian state, which in turn may erode public confidence in institutions that are central to the maintenance of a functioning democracy. Diab demonstrates that the courts have collaborated in the fundamental and indefinite changes in the administration of justice, which he persuasively argues are not warranted.
In terms of civil liberties, Diab shows that the Canadian Anti-Terrorism Act, and the conclusions of various judges in cases pertaining to it, has made possible the conviction of persons for facilitating terrorism, despite those persons having no knowledge of the offence. It has also allowed for the inclusion of testimonies of witnesses compelled to give evidence against their will at the investigation stage, before any charges have been laid (In normal criminal proceedings in Canada, witnesses cannot be compelled to testify at the investigative stages). It has permitted the inclusion of secret intelligence by the prosecution officer, which is not made available either to the public or to the accused. It has permitted in camera (secret) hearings and ex parte hearings (the accused and their legal representatives are not present), fundamentally undermining the principle of habeas corpus that lies at the heart of the judicial systems of liberal democratic states. It has enabled an offence to arise in which an individual may be found guilty of membership of a terrorist organization, even before that organization has been afforded the opportunity to disprove its terrorist credentials. This possibility arises because, as Diab demonstrates, the Solicitor General needs nothing more than "reasonable grounds for belief" to justify his or her decision to list an entity as having "knowingly carried out, attempted to carry out, participated in, or facilitated a terrorist activity." In other words, no evidence is necessary. Taken to its logical conclusion, as Diab argues, such a belief could arise from information obtained by a foreign state that had used torture in the process of obtaining such information. It has allowed for indefinite detention without charge, under newly established "security certificates." Finally, it has permitted the deportation of foreign nationals and Canadian residents to states where there is a risk that they will be tortured.
Diab devotes the second chapter of the work to a detailed exploration of the ways in which the judiciary have facilitated the erosion of certain basic principles of justice. He shows that the claim of parliamentarians that in some cases the most basic human rights, such a right to life, liberty, and security of the person, and the right not to be deprived of those rights, must be suspended in defence of national security, has been upheld by the judiciary. This occurred in the case of Manickavasagam Suresh, a Sri Lankan refugee, deemed by the Canadian Security Intelligence Service to be a member of the Tamil Tigers. The Canadian state believed this organization to be involved in terrorism, but also knew that members of the group had been tortured by the Sri Lankan state. Suresh was eventually found not to have been directly involved in terrorism, yet the government issued an opinion that Suresh nevertheless constituted a threat to national security and should therefore be deported. In this case the Court concluded that the question of whether the balance between the threat of torture to the individual, and the threat to national security had been balanced correctly is one that the courts "are content to defer to the Minister her or himself." With reference to this and other cases, Diab carefully demonstrates that since 9/11, in cases where national security is perceived to be under threat, the Canadian courts have facilitated a situation in which the rights of the individual are trumped by national security considerations.
The final aspect of Diab's analysis concerns the erosion of accountability and transparency of policing practices that have emerged, again under the banner of protecting national security. This situation, he shows, has emerged in part because the Royal Canadian Mounted Police (RCMP) now has a much greater role in issues pertaining to national security, which has involved increases in the level in intelligence gathering by the police. As a result, appeals and complaints against policing practices have frequently been held in secret, which undermines claims that policing practices are fully accountable to the public. With reference to specific cases, especially the Arar review, he shows that a further balancing act is being conducted, whereby transparency, openness, and full disclosure are deemed important, but that they are frequently balanced with the need to protect national secrets. Diab persuasively argues that any measures aimed a improving reviews of RCMP activities are undermined since secrecy continues to shroud many of its activities.
Throughout, Diab laments the indefinite nature of the changes to counter-terror legislation in Canada, and contrasts this with the case of the UK, where certain counter-terror measures were introduced for a limited period only. Yet many of the curtailments of civil liberties that suspects were subjected to in Canada were also meted out on dozens of terror suspects in the UK. A focused comparison of the commonalities between these practices in various liberal democratic states, with a view to assessing the degree to which parliamentarians, judiciaries, and police forces shared ideas about counter-terror measures would make for a fascinating study, building on the work undertaken by the author here.
Diab's analysis leads him to the conclusion that the developments in counter-terror legislation and judicial and policing practices call into question the assumed universality of the presumption of innocence, as well as the notion that all subjects are equal under the law, since terror suspects are afforded far fewer rights than ordinary suspected criminals. They have also contributed, he argues, to the reproduction of social stereotypes and inequalities. These conclusions are certainly sustained by the preceding analysis, and justify his prescriptions that considerable shifts in attitude are necessary, both at the parliamentary and judicial level, as well as among the public. This, he maintains, can only be possible through better informing the public of the implications of the counter-terror legislation and the policing practices for the sustainability of essential democratic values. In this regard, his work constitutes an important and necessary contribution to public debate. - <i style="mso-bidi-font-style:normal">Ruth Blakeley, University of Kent, Canterbury UK in Labour/Le Travail, Volume 64 (Fall 2009).</i>