In the next few months, the Supreme Court of Canada will have the opportunity to rule on the constitutionality of security certificates in the case of Adil Charkaoui. He is one of five Muslim men who the government claims have ties to terrorist groups. But he's one of the luckier ones. He was released on bail after 21 months of detention. Some of the other detainees have now been held without criminal charges for more than four years.
When public officials in Canada think the security of the country is being threatened, they rarely hesitate to invoke the extraordinary measure of indefinite detention without charge.
In 1946, after Igor Gouzenko exposed a Soviet spy ring, the RCMP arrested dozens of suspects who were detained in RCMP barracks, where they were interrogated for weeks.
Similarly, in 1970 the government invoked martial law in response to FLQ terrorist activities in Quebec. The FLQ was banned, the media censored and many people detained without charge.
Kafka's The Trial must surely have been the inspiration for the creation of the security certificate, which throws suspects into a legal twilight zone.
Suspects held on the certificates are not even entitled to hear the bulk of evidence against them. The accused do receive a summary, but this is generally thin on specifics, a poor substitute for the type of disclosure needed for a full answer and defence.
The evidence will be disclosed to a Federal Court judge, but the judge is in no position to assess the veracity of the charges. All the judge is empowered to do is assess whether the certificate is "reasonable."
It's hard to say that the terror suspects have been detained by operation of law when the law is standardless and the evidence used to invoke the law is hidden from scrutiny.
And one cannot overlook the fact that evidence gathered by intelligence agents is often of dubious quality.
The American government shamelessly tried to justify the invasion of Iraq with information obtained from an Iraqi defector code-named "Curveball." He was the primary source of the claim that Iraq had mobile biological labs. We have now found out that the one American official who met with him believed Curveball to be unreliable and an alcoholic.
The record of the Canadian Security Intelligence Service (CSIS) isn't much better. Just this week the agency charged with overseeing its operations concluded that CSIS has been giving false assurances to the government that the intelligence it's receiving from foreign agencies is not obtained by torture.
I do believe that, unlike communism and Quebec separatism, contemporary terrorism poses a serious threat to national security. There is a lot of hate flying around the planet, and I'm not suggesting that state officials sit idly by waiting for the next plot to explode.
But I fail to see how the indefinite detention of non-citizens upon secret evidence is the solution.
First, I wonder why immigrants are singled out for extraordinary legal measures. July's bombings in England clearly showed that citizens can also pose security threats.
Second, if our officials truly believed that the suspects were legitimate terrorist threats, would it not be more sensible to continue conducting surveillance and infiltrating with undercover operatives?
The goal of achieving long-term security is better served by the cultivation of reliable sources of intelligence than by a knee-jerk reaction to detain and deport without due process of law.
If the state really has no option but to conduct secret trials to remove a threat from Canada, why can we not provide security clearance for the appointment of special counsel for the detainee who can be given access to the evidence and be able to test, verify or refute the government's allegations?
The childhood mantra of "it's for me to know and for you to find out" is fine for schoolyard posturing, but we should expect more from our government when it throws suspects in jail.
Last week, the government finally agreed to move these suspects from provincial detention centres to federal penitentiaries, in light of the indeterminate nature of their incarceration.
The federal penitentiary is an improvement, but we should never be holding suspects without charge so that moving them to a penitentiary is seen as a gesture of humanity.
Alan Young is a law professor at Osgoode Hall. His column appears every other week. firstname.lastname@example.org