Will liberty carry the day?

I begin to hope.

This, from today's Globe and Mail... My emphasis in red.

Security trumps all, Crown tells top court
Judges fire back on contentious security certificates, KIRK MAKIN reports
KIRK MAKIN

OTTAWA -- National security is an interest so vital that it trumps almost any other interest imaginable, a federal lawyer told the Supreme Court of Canada yesterday in a hard-driving defence of the security certificate system used to deport suspected terrorists.

"National security is not a societal interest like any other, such as the cost of drugs or investment in the health-care system," Crown counsel Bernard Laprade said.

"It is an absolute necessity. Without it, all the other rights become theoretical. Without it, we wouldn't be here to discuss these questions today. I don't want to be alarmist, but without it, there is nothing else."

"Mr. Laprade, if we don't have the rest, we'll be living in North Korea," Mr. Justice Louis LeBel interjected on the second day of a court test of the security certificate system.

Mr. Laprade also waved aside accusations that Arabs and Muslims have been the sole focus of security certificates, saying this is not only incorrect, but it ignores the reality that Osama bin Laden and the al-Qaeda terror network are overwhelmingly an Arab and Muslim phenomenon.

"Non-citizens do not have an absolute right to come into this country and stay here," he added.

Three detainees -- Adil Charkaoui, Mohamed Harkat and Hassan Almrei -- have asserted that the certificates breach their right to life, liberty and security of the person. They are supported at the hearing by a raft of intervenors that include Amnesty International, the Canadian Bar Association, the Canadian Civil Liberties Association, the University of Toronto and the Canadian Council for Refugees.

Tuesday, many of the 34 lawyers present in court rose to make their case that security certificates are an unjustifiable and dramatic departure from democratic legal traditions and that the court must excise their worst excesses or scrap them altogether.

Shortly before the Crown's case began yesterday, lawyer Neil Finkelstein of the Federation of Law Societies urged the court to create a right to legal counsel as an "unwritten constitutional principle."

He said this would ensure that people in the position of the detainees are not deprived of the fundamental case against them and of the right to instruct counsel properly.

Within minutes of launching the government's case in favour of security certificates, Mr. Laprade was on the defensive. Eight of the nine judges kept him hopping with a steady, two-hour barrage of questions that repeatedly diverted him from his prepared remarks and forced the Crown lawyer to confront the most contentious areas of the certificate process.

The judges grilled Mr. Laprade especially hard on the fact that evidence against detainees is heard in secret by a judge who decides whether the government has "reasonable" grounds to order their deportation on national security grounds.

The certificate procedure makes the same judge responsible for ensuring that the legal interests of the detainee are observed, and that the government's evidence and allegations do not go unchallenged.

Judge LeBel, Chief Justice Beverley McLachlin, Madam Justice Rosalie Abella and Mr. Justice Ian Binnie took turns peppering Mr. Laprade with questions about how a judge can play the role of cross-examiner in a secret session, and how a detainee would perceive the fairness of the process if his only defender is the presiding judge.
"There is nobody there whose only job is to poke holes," Judge Binnie said.

But Mr. Laprade called it "offensive" to refer to the proceedings as secret trials, because the presiding judges work hard to keep them fair in the absence of lawyers for the detainees.

"The judges are doing exactly what we wish them to do and nothing less," he said.

"In reading their decisions, I don't see anything that would allow me to believe that justice has not been rendered and that they have not been a legitimate and useful attempt to reach the truth."

Madam Justice Louise Charron tried to pin Mr. Laprade down about the sparse evidence summaries that detainees receive.

"I've looked at the Harkat summary, and I don't really see any specific information Mr. Harkat can take home with him . . .," she said.

"You're not going to get that," Mr. Laprade replied. "The raw information is the very reason you are not going to get it. It is being protected."

Mr. Laprade said it could be disastrous if an information leak were to result in a genuine terrorist getting inside information about the identities of confidential informants or strategic plans.

Asked by Judge Abella whether this sort of information has ever leaked out of hearings that involve a more liberal flow of evidence, Mr. Laprade said it would be impossible to know.

"This suggests that we can tag information and follow it around the world," he said.

Besieged again by requests from the judges to rate alternative ways of structuring certificate hearings, Mr. Laprade finally said: "The problem with your question is that you're asking me to develop policy positions, when I believe that is a problem for Parliament that requires a judgment call. I believe it is not for litigants to make -- it's for Parliament."

The court reserved its decision yesterday after hearing a final word from Barbara Jackman, a lawyer for Mr. Almrei.

"Refugees make claims in Canada based on the very grounds that are before you -- secret trials and suspicion of membership in [outlawed] organizations," she said. If the court approves the certificate process as it exists, she said, repressive regimes abroad will see the system as an endorsement of their own dark practices.

"This case is fundamental not just for Canada, but for the rest of the world," she said. "I just want to remind you that the context is crucial, and it is global."