The Supreme Court of Canada (SCC) unanimously ruled today that federal security certificates, used to detain suspected terrorists, are unconstitutional.
The 9-0 judgment found that the system violated the Charter of Rights.
The certificates allowed government officials to use secret court hearings, indefinite prison terms and summary deportations when dealing with non-citizens accused of having terrorist ties.
"There is a problem... because the people that are named are not given a chance to see all of the evidence against them," said CTV's Rosemary Thompson at the SCC.
"That violates a section of the charter that would require a fair trial."
The top court focused on the fact that most of the evidence in such cases is commonly heard behind closed doors, without any lawyers representing the accused.
That process is a violation of fundamental justice, wrote Chief Justice Beverley McLachlin.
She suggested Parliament could solve the problem in several ways -- for example, by allowing special security-cleared lawyers to attend the hearings.
McLachlin also concluded the present detention process for suspects is unconstitutionally arbitrary, because some people have better access to bail hearings than others.
She solved that problem by "reading into" the law a guarantee that all detainees should be brought before a judge to have their case reviewed within 48 hours.
The court is giving Parliament one year to write a new law that adheres to constitutional principles. Until that time, the court has suspended the judgment from taking legal effect.
The ruling comes in response to a constitutional challenge of the certificates.
Constitutional challenge
The SCC heard arguments last June from lawyers of three men -- Syrian-born Hassan Almrei, Algeria-native Mohamed Harkat and Morocco-native Adil Charkaoui -- who had spent years in detention under the security certificates.
Almrei remains in prison, 80 days into a hunger strike; while Harkat and Charkaoui have been released into house arrest on strict conditions.
The three men have no connection with each other, except that they've all been accused by Canadian officials of having an association with al Qaeda or people within the terrorist group. None of the men have ever been charged criminally.
Instead, the government has used the certificates to try to deport the men.
The judgment is not saying that the detentions are wrong, but that the accused must have access to the evidence against them, said Thompson.
"Nothing is really going to happen to them in the next year. The current regime will exist for the next year," she said. "What is going to change is the way these hearings take place."
Under the previous conditions, the certificates had to first be signed by federal ministers of immigration and public safety.
Then they had to be upheld by a federal court justice in hearings that could be done behind closed doors with secret evidence and without a lawyer representing the accused.
The men all decided to fight deportation, a decision that kept them behind bars as their cases went through the legal system.
Lawyers for Almrei and Harkat were seeking reforms to the system. Charkaoui's team was arguing that the whole system should be scrapped.
'A nearly total victory'
Barbara Jackman, a lawyer for Almrei, said the ruling has a couple of significant points:
- The government has to justify the need to detain on a continuing basis
- If a detainee goes to court to resist deportation to torture it is no longer counted against the detainee's chances of getting out of jail.
Almrei's legal team said they plan to go back to court now to try and win his release until the final resolution of the case.
Johanne Doyon, counsel for Charkaoui, described the judgment as a "nearly total victory" for the three challengers.
Doyon predicted the government wouldn't dare deport any of them during the one-year grace period it will take to revise the law.
At the hearing last June, lawyers for the federal government argued that the certificates were necessary to safeguard Canada from terrorism.
Public Safety Minister Stockwell Day has always defended the current system. He argues that detainees can end their problems at anytime by accepting the case against them and leaving the country.
A Senate report released Thursday recommended reforms to the certificate system that would increase rights to those accused -- including providing them with security-cleared lawyers, known as special advocates.
The report also calls for rules to be eased on bail hearings and for suspects not to be deported to countries where torture is a risk.
Friday's judgment also affects two other men in similar legal positions -- Mahmoud Jaballah and Mohammad Mahjoub, both from Egypt.
With files from The Canadian Press
