Wednesday, June 17, 2009

The Federal Court of Canada and "national security"

Federal Court flexes muscles on security
By: Janice Tibbetts

15/06/2009 1:00 AM | Comments: 0

OTTAWA -- The Conservative government's national security agenda has been set back by a steady losing streak in the Federal Court, a trend that analysts attribute to an emboldened bench that is finding its voice and growing out of a tendency to defer to lawmakers as it did in the early years after 9-11.
In the last two months, the traditionally cautious court has issued stinging decisions ordering the government to repatriate terror suspect Omar Khadr from Guantanamo Bay and bring Canadian Abousfian Abdelrazik home from Sudan.

Judges have also issued three biting critiques of the Canadian Security Intelligence Service, accusing the spy agency of possibly lying to the court about its intelligence information and being complicit in torture of Canadians abroad.

"It's the end of the honeymoon period -- when national security trumped everything," said Michael Byers, a civil libertarian and a political scientist at University of British Columbia. "Judges are now fighting back."

The 38-year-old court, based in Ottawa, toiled away in relative obscurity on federal issues such as immigration, competition law and trademark until it was thrust into the spotlight eight years ago as the adjudicator of the war on terror in the post 9-11-era.

"There was a learning process," said Toronto lawyer Paul Copeland, who once got into trouble with the law society for publicly stating that the court "kisses the government's ass" on national security matters.

Copeland, who has defended non-Canadians detained on government security certificates out of suspicion that they pose national security threats, believes that as the events of 9-11 become more distant, the courts are invoking the Charter of Rights to hold the government to account in justifying its actions.

"I think there has been a shift," he said, noting that the same court, several years ago, upheld the federal security certificate regime, which permits the government to hold non-Canadians indefinitely without charge. The Supreme Court of Canada later struck down part of the federal power.

The court's scathing ruling on Abdelrazik, which lambasted Foreign Minister Lawrence Cannon for being "nonsensical" in turning his back on the stranded Canadian, who has spent time in and out of detention in Sudan, was written by Justice Russel Zinn, one of only two Federal Court judges appointed by the Harper government. Zinn, in his June 4 ruling, ordered the government to bring Abdelrazik home to Montreal within 30 days.

Abdelrazik was arrested while visiting his mother in Sudan in 2003 and for the last year has been living at the Canadian Embassy in Khartoum. His passport has expired.

The RCMP and CSIS, Canada's spy agency, say they have no information linking him to criminal activity.

"What we're seeing emerge is the power of the charter when it comes to testing Canadian civil rights protections," said Wark.

"What's new in the post-9-11 period is that the charter is being tested in a national security context."

-- Canwest News Service

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