One of Canada's most contentious anti-terrorism provisions was struck down Friday by the nation's Supreme Court, which declared it unconstitutional to detain foreign terror suspects indefinitely while the courts review their deportation orders.
The 9-0 ruling was a blow to the government's anti-terrorism regulations. Five Arab Muslim men have been held for years under the "security certificate" program, which the Justice Department had insisted is a key tool in the fight against global terrorism and essential to Canada's security.
The court found that the system violates the Charter of Rights and Freedom, Canada's bill of rights. 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 covers the certificates.
The security 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-Qaida and other terrorist networks.
The law now allows sensitive intelligence to be heard behind closed doors by a federal judge, with only sketchy summaries given to defense attorneys.
The men have spent years in jail while fighting deportation orders. They risk being labeled terrorists and sent back to their native countries, where they face possible torture.
'Fair judicial process' required
The court called this a fundamental violation of their human rights.
"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 a ruling for all nine justices.
"The secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him or her, and hence to challenge the government' case," she said.
The court said the men and their lawyers should have a right to respond to the evidence used against them by intelligence agents and noted that a law in Britain allows special advocates to review sensitive intelligence material.
The Justice Department said it would have no immediate comment.
Two of the men are out on bail and remain under house arrest. Three others are being held in a federal facility in Ontario that has been dubbed the "Guantanamo Bay of the North," a reference to the prison at the U.S. base in Cuba.
Human rights activists and lawyers for the men hailed the ruling as a victory for those who believe fundamental rights and freedoms have been overshadowed by the demands of national security since the Sept. 11, 2001, attacks on the United States.
"This is a judgment that, quite frankly, I think we should all be very proud of, because our court has not bought into the rhetoric of national security," said John Norris, who represents one of the five. "They have recognized the fundamental importance of preserving the security of all of us, but at the same time has stated, in the clearest possible terms, that that must never be done at the expense of human rights."
Five Muslims held under rule
Although the security certificates have been around for decades, their use became more contentious after 9/11, and more suspect since Ottawa used faulty intelligence in a case that led to a $9 million apology to another former terror suspect, Maher Arar.
In that case, the Syrian-born Canadian was seized by U.S. authorities in New York and sent to Syria for questioning about suspected ties to terrorists. He was held in a cell for a year and tortured before being sent back to Canada, where he was cleared by a federal inquiry of any links to Islamic extremists.
Five Arab Muslim men now stand accused of terrorist links under the certificates, and all 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 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-Qaida and a history of terrorist attacks in Spain.
CSIS also claims Ahmed Ressam, convicted in 2001 of plotting to blow up Los Angeles International Airport, identified Charkaoui as someone he met at an al-Qaida training camp in Afghanistan — a contention denied by Charkaoui.
The others are Mohamed Harkat, an Algerian native arrested in 2002 and freed on bail last year; Mahmoud Jaballah, an Egyptian who remains in detention; Mohammad Mahjoub, also from Egypt and recently granted bail, although he has yet to be released; and Hassan Almrei, a native of Syria who was arrested in 2001 and is still in custody.