Indefinite Detention of Terrorism Suspects—Canada

It would be nice if the United States were the only country that has a policy of indefinite detentions of people merely accused of terrorism, but the fact is, most countries are turning that way. The United Kingdom, for example, has flirted a number of times with the policy, and the courts there have been a little less agreeable to the idea than American Courts.^[1] Canada, too, has such a policy, implemented in Canada’s Immigration Act in 1978, and it is facing a challenge about whether such policies are legal.^[2]

Canada’s Supreme court has opened “hearings on [the] controversial security certificates, which permit secret court hearings, undisclosed evidence, and infinite incarceration.”^[3] The government claims that such detentions “on national security grounds are necessary to fight terrorism.”^[4] Challenging the policy are “five suspected terrorists, including Adil Charkaoui, Mohamed Harkat and Hasan Almrei, Muslims accused of having ties to Al-Qaeda.”^[5] Some signs suggest that the Supreme Court is not quite receptive to the government’s basic argument, which is that “[p]rotecting security…is a condition sine qua non of the very existence of the rule of law in [a] democratic system of government.”^[6] Security, said Justice Louis LeBel, cannot overshadow all rights, because “[i]f we don’t have the rest we’ll be living in North Korea.”^[7] Other Justices seemed “receptive to suggestions that Canada could adopt a system that exists in the United Kingdom, where independent, security-cleared lawyers are appointed as ‘special advocates’ to attend secret hearings and challenged governmental lawyers.”^[8] They also seemed concerned that the defendant’s lawyers may not have proposed a strong alternative, “short of simply releasing their clients into the community. ‘What does the world do with someone who is truly dangerous wherever they go?’ asked Justice Beverley McLachlin. ‘Is freedom really an option?’”^[9]

One option would be what Jose Padilla argued while he was detained as an enemy combatant in the United States: just bring them to trial. Of course, the government eventually did, and the arguments against Mr. Padilla are nothing remotely related to what he was accused of doing. That may be the real concern that governments have: if they bring these individuals to trial, they risk losing, either because there isn’t any evidence, or because they have mistreated the individual to a degree that any evidence elicited from the defendant is inadmissible.

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[1] See Vikram Dobb, et al., Terror Law an Affront to Justice: Judge, Guardian (UK), Apr. 13, 2006.
[2] Indefinite Jailing of Terror Suspects Necessary, Canadian Court Told AFP (via Yahoo!), Jun. 14, 2006.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Janice Tibbetts, Security Laws Before Supreme Court, CanWest News (via Canada.com), Jun. 14, 2006.
[9] Id.