Top court judge questions whether we afford to presume innocence in the face of terrorism

The Ottawa Citizen
Monday, March 21, 2005

Byline: Cristin Schmitz
Source: The Ottawa Citizen

In a post-9/11 world where the state itself could be destroyed by an act of terror, Canadians may have to revisit whether they still buy the legal maxim that "it is better for 10 guilty men to walk free than for one innocent man to be punished," says Supreme Court Justice Ian Binnie.

"That proposition is tested when you get to matters of security and counter-terrorism," Judge Binnie told a symposium on counterterrorism and law at the University of Ottawa last week.

He pointed to the recent prosecution of a suspected terrorist in Britain during which one of the English court of appeal judges asked whether "it is better that this country should be destroyed, together with the ideals it stands for, than that a single terrorist should be detained without due process?"

Judge Binnie added: "He is saying why should any of them go free, lest the state be destroyed by terrorist acts? How does one get the balance right between our traditional criminal law position of 10 to one and the new equation suggested by (the English court) of, in effect, zero to one?"

The judge's questions were discussed by panellists including human rights activist Monia Mazigh, former Supreme Court chief justice Antonio Lamer and David Harris, the ex-CSIS chief of strategic planning.

He argued that "the greatest threat to our rule of law is terrorism," and in matters of international security it is "absolutely necessary" for courts to show deference to state agencies because they have more expertise, information and resources on such matters than do judges.

"But at what point does that deference stop?" he asked.

"How much deference is too much? At what point do you say: 'We don't believe the emperor has any clothes. We accept that there is a problem. We accept that it must be approached with great seriousness, and with all the resources appropriate, but at the end of the day one has to say ... the rights of those suspected must be given effect to.'"

Judge Binnie queried what the right approach would be if a suspected "sleeper" agent, with alleged terrorist links, were brought before a Canadian court without proof of having committed any crimes, and the federal government wanted to deport him to a country where he would be at risk of torture.

"What is the solution consistent with the Charter?" asked the judge. "He has done nothing of which you could bring a criminal prosecution. None of his activities were violent. A number of countries have had to face this problem. What do you do with such people? Do you simply turn them back into the general population, even though there is evidence collected by security authorities that they represent a potential danger to the public?"

Mr. Lamer said Canadian judges who preside over closed hearings for people detained on security certificates "have the obligation to summarize as much as possible, without revealing highly sensitive information, ... the evidence and give it to the person who is detained."

Ms. Mazigh stressed the presumption of innocence must still apply in cases of suspected terrorism.

She said members of the Arab and Islamic communities, including her husband, Maher Arar, have been visited by RCMP and told they will be put on a terrorist watchlist if they refuse to answer questions without a lawyer present.

"Who is applying these (anti-terrorism) laws?" asked Ms. Mazigh. "What kind of control is there? Where is the oversight? And how can we have a body who is going to do oversight if we don't have a truly open debate in the society about this law, and the impact of this law on this particular community living in this country?"

However, Mr. Harris said the average "well-educated, sophisticated" Canadian, including the average judge, "is a generation behind in understanding the nature and scope and severity of the threat we face today. We have to imagine what the result on society will be if and when these kinds of events with mass casualties ... develop," he said.

"You might wake up one morning and you find out two or three major cities have disappeared. What level of panic might we be looking at under those conditions? What kinds of arbitrary measures might be demanded by people?"

Mr. Harris said he is "not particularly keen" on watering down legal protections available to Canadians in anti-terrorism cases, but suggested different rules could apply to foreign residents in Canada.

"We have got a system that has always tended, traditionally, to make those distinctions" that non-citizens are "sort of on probation" when they get to Canada.