Friday, December 4, 2009

Guantanamo North: Terrorism and the Administration of Justice in Canada

By Robert Diab, Fernwood Publishing, 120 pages,.

Western governments followed the Bush administration's example after 9/11 and used that tragedy as cover for increased government encroachment on personal liberties. Swept up in terrorism-inspired hysteria, most of the public did nothing, and in fact approved much of this power grab by the state. Safety in the short run seemed more important than ideals about freedom and curbing state power.

Now that some of the 9/11 dust has started to settle, and we no longer fear terrorists behind every tree, increased government power doesn't seem like such a good deal. The 2001 Anti-Terrorism Act and related amendments, as to the Canada Evidence Act, could potentially infringe too much on our rights as outlined in the Charter of Rights and Freedoms.

An effective way to examine newfound government activities is through the experiences of those unfortunate enough to have their freedoms curtailed by these laws. Guantanamo North, the outcome of a Masters of Laws study, sets the theoretical framework, offers some legal history, and presents the cases of individuals targeted by Canada.

Diab does a good job of addressing several issues at once, and tying them all together in the exceptional conclusion of the book, where the sort of big questions we expect from legal philosophers do get asked.

First, Diab focuses throughout the book on the 2001 legislation's undermining of the age-old presumption of innocence, so central to English common law. Diab warns that “Out of an abundance of caution, we have proceeded to treat these men as guilty and to forgo the need to present evidence in a full trial. We have held them in an administrative limbo that is officially neither a detention pending deportation nor a punishment, but simply an indefinite incarceration. We have preferred to deal with these cases using the language of risk management rather than crime and punishment.”

Secondly, the secrecy behind many of the trials makes it nearly impossible for the accused to defend themselves, given that their lawyers cannot refute all of the charges. Diab believes in the common law system, whereby a suspect can robustly challenge the accusations. This component is missing when the government does not allow defendants and their lawyers the right to see all the information. Diab struggles to find a solution, calling for, at least, special advocates with security clearance allowed to see all the evidence so as to provide a more vigorous challenge to the government's accusations, something that is essential to justice and the respect of human rights.

Thirdly, Diab questions the need for and goodness of the expansion of “state privilege.” He offers the Arar case as an example of the dangers of expanded state privilege. Not all questions regarding the affair have been answered by the inquiry because the government “invoke[d] the new secrecy provisions of the Anti-Terrorism Act to conceal much of the testimony of CSIS and RCMP personnel on their role in the incident, and to censor significant portions of the Inquiry's final report. Questions remain about the complicity of Canadian officials in Arar's torture and imprisonment in Syria.”

Diab laments the growing gulf between “practice and principle in the administration of justice.” Ottawa is failing to adequately follow the ideals of justice, and is denying people their full rights. Diab worries that the new measures taken by Canada's Parliament are permanent, whereas other countries had sunset clauses to emphasize the temporary nature of these increased governmental powers. Judges' independence have been compromised, as has the justice of the entire legal system in Canada. Criminal suspects are treated differently by the arresting authorities and the judiciary if they are suspected terrorists, which means that we are not all equal under the law.

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