- abrogates the principles of fundamental justice;
- constitutes arbitrary detention, and
- violates habeas corpus.
The idea that a non-citizen can be kicked out of the country based on secret evidence that only prosecutors and judges know about is insidious to say the least. The defendant only gets a heavily redacted summary and even then faces an uphill battle to clear his or her name. It's as if the decision has already been made. It has been used against some pretty undesirable people, such as Ernst Zundel who last week got five years in a German court for his anti-Semitic writings; but in that particular case it's not as if we didn't know the allegations, his works are a matter of public record.
But what if the name is right but the suspect is wrong? What if the top-secret information came from a country that enthusiastically supports torture like most Middle East states and even, to a certain extent, the current American regime? What if the evidence is just plain wrong, period?
Other countries, like the UK, have special advocates which have security clearances but are allowed to ensure the intelligence is up to snuff. This is a role analogously served in Canada by the Security Intelligence Review Committee, which oversees our spy operations but only for internal operations, not matters that make it to the courts. Perhaps it is time to expand SIRC's role so they can take on this advocacy role. Or a separate advocate's office can be set up, just as there is a Children's Advocate in some provinces for family law cases.
What's noteworthy is that all nine judges voted to strike down the certificates, including PMS' judge on the court, Marshall Rothstein. This fact alone tells me that the Supreme Court (including those members who normally side with the cops) is worried at the direction the Harper administration may be going in terms of law and order. Parliament has been given a year to fix the defects in the law and come up with something better; but in the meantime one must wonder whether the lower courts which are the workhorse of the judicial system are going to be stacked with police-friendly judges. And of course, there's probably going to be an election in the meantime which could prove as indecisive as the last two (and which in turn could throw the whole issue upside down, again).
For now, however, a very important victory for fair play. The courts have done what they were supposed to do in this case -- make sure that a deportation is based on the facts and that a defendant has the right to dispute those facts.
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