For those trying to follow the effects of post-9/11 security crackdowns, the trail through Toronto courts over the last number of months is sure to confuse. This week in another of the seemingly endless series of hearings, Mahmoud Jaballah, one of five Muslim immigrants held in the Metro West Detention Centre without charges under suspicion of terrorist involvement, was denied bail. In a strange turn of events, however, these security cases are being heard not under the much-criticized anti-terrorism Bill C-36, with its sweeping powers of investigation and arrest, but under the immigration security certificate procedure. Critics charge that this process, part of the CSIS apparatus, is a blank cheque for arrest without warrant, open-ended detention and secretive proceedings.
And, ironically, many of those who have criticized C-36 say that, scary as it may be, that legislation at least contains such rudiments of due process as specific charges, disclosure of evidence and cross-examination.
Sharryn Aiken, a faculty member at Queen's University and a former president of the Canadian Council of Refugees, contends that it's a matter of principle that the most appropriate way to deal with criminals of any kind is through the criminal justice system - not through immigration hearings.
"I don't want to be suggesting that Bill C-36 is terrific, but on the other hand I would far prefer that the criminal justice system be invoked. It's easier for the government to deport people than to charge them. Deportation merely sends the problem to somebody else.'
Furthermore, a nation's good international behaviour as identified by United Nations treaties mandates criminal trials, not haphazard relocations, according to long-time refugee lawyer Barbara Jackman. "If there's any international obligation we have, it's to prosecute or extradite, not to deport where there is no legal consequence for wrongful acts,' she says.
Critics are bothered that evidence in the certificate procedure remains classified and unavailable to the defence except for a short summary. They're also dismayed because anyone arrested under this procedure will never face criminal charges or have the advantage of a lawyer's cross-examination, making guilt or innocence a moot point.
Then there's the fact that C-36 actually includes a definition of terrorism, while C-11, the act that newly empowered the security certificate procedure in 2001, does not.
Immigration procedures also involve an easier burden of proof. A security certificate, signed off by the solicitor general and the minister of immigration, indicates only the "reasonable" possibility of a national security risk - which is basically a good maybe.
If the security certificate is deemed reasonable, the outcome is an automatic deportation order - a serious punishment if you consider, for instance, that one of the five, Hassan Almrei, is from Syria. Almrei, whose certificate was upheld in November, was granted a temporary stay of deportation until the risk of torture is assessed.
C-11 detractors also question how well qualified federal court judges, who preside over security certificate hearings, are to decide these matters. Under the previous immigration bill, it was the Security Intelligence Review Committee that presided in at least some cases.
While the latter sounds more ominous than the blandly named federal court, many who know the territory have described the SIRC hearings as fairer and want to extend the process to all immigrants, not just permanent residents, as was the case before C-11. According to U of T law professor Audrey Macklin, "It seems to be the general view among those with experience of the process that the SIRC was more expert and therefore more confident about reviewing state action than are the federal court judges. They are, in the end, only generalists."
Jackman agrees. "I have my criticisms of CSIS, but SIRC has expertise," she says. CSIS agents would testify in secret at SIRC hearings, but lawyers were able to cross-examine through intermediaries. "In (security certificate cases), who knows what the judge is getting? The judges are not equipped to decide what is national security or not. We could actually win cases with SIRC."
Paul Copeland, a criminal lawyer who has represented clients in a number of immigration cases, has also stood before SIRC and says that process, though problematic, was vastly superior. "You had an independent - or semi-independent - and sometimes thoughtful board member,' he says.
The ability to cross-examine, albeit through an intermediary, allowed Copeland to prove that one client, an Armenian who'd been accused of making a bomb with a product called QuickStart, purchased at Canadian Tire, had actually used it to start his car, a matter that would never have been clarified if the evidence had remained secret.
A final note: while summary deportation can ruin and possibly end an innocent person's life, consider for a moment how ineffective the process is in deterring actual bloody-minded terrorists.
In 1996, under pressure from the Clinton administration, the Sudanese government deported an individual who had sought asylum in that country, citing him as national security risk. That was Osama bin Laden. We know how the story goes from there.