As the police use anti-terror laws to harass climate protesters at the Heathrow climate camp, governments around the world are making copycat versions of Britain’s detention and secret trials powers. Canada is not usually viewed as an authoritarian state, but Stephen Harper’s right-wing government, elected in January 2006, is pushing through legislation based closely on the provisions enacted into British law under New Labour. A human rights organisation is warning of “secret trials and a binge of government secrecy” set for the autumn parliamentary session in Canada using Britain’s “special advocates” system as a model.
A constitutional conflict broke out in Canada at the end of February as the Supreme Court ruled, in a unanimous 9-0 decision, that the country’s notorious secret hearing procedure was unconstitutional and violated the country’s Charter of Rights and Freedoms. The clash between the Supreme Court and the government closely paralleled that in Britain, where an 8-1 decision by the House of Lords in December 2004 ruled that police could not detain foreign suspects indefinitely without bringing them to trial.
A Kafkaesque security certificate process has been condemned as “fundamentally flawed and unfair” because it is secret, with no procedural safeguards and the person named in the certificate is not informed of the case against them. The security certificates allow the authorities to detain and remove a person considered to be a security threat. Signed by the solicitor-general and the minister of citizenship and immigration, and endorsed by a judge of the Federal Court, they have been issued 28 times since 1978. The Federal Court of Canada, which is appointed by the government, is now trying to legitimise secret trials by having special advocates, or “security-cleared” lawyers who will be able to hear secret evidence in the absence of the accused and their lawyers.
Tensions are building because although the Supreme Court ruled against the certificate procedure, it suspended its judgment from taking effect for a year, thereby giving Parliament time to write a new law. The government-appointed Federal Courts Administration Service has been given an August 31 deadline to turn in a report about the so-called security certificates, which, is already shaping the process before anything is tabled in Parliament.
The Federal Court has commissioned an immigration lawyer and a university professor to produce a study on the British special advocates system in an attempt to legitimise secret trials. Matthew Behrens, writing for the Campaign Against Secret Trials, has denounced the “special advocates” system. He has shown that it is in fact a special advocate for the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP). Behrens points to British barrister Ian Macdonald QC’s statement before the Canadian Parliament last February in which he explained why he resigned as a British special advocate: “I was giving legitimacy to a system… completely contrary to all kinds of traditions of a) fairness and b) the fact that ever since Magna Carta, we don’t imprison people unless they’ve had a proper trial.”
Behrens says that Canada’s role as part of a global national security system in which the rights of certain targeted populations are sacrificed in the nebulous name of security. “The rights being violated, needless to say, are basic human rights that apply to all people, regardless of citizenship status.,” he argues, in an in-depth analysis circulated by Homes Not Bombs, the Toronto chapter of Action for Social Change. He says that claims by CSIS and RCMP that threats cannot be revealed to the public are comparable to tactics used by anti-Communist Senator Joe McCarthy during the red-baiting 1950s. The CSIS has claimed that animal rights activists, First Nation “extremists”, elements of the anti-globalisation movement and Sunni Muslims are threats to Canada’s national security. Sounds like a story we hear every day in Britain, doesn’t it?
Corinna Lotz, AWTW secretary