Due Process and Counter-Terrorism

The issue

When constitutional safeguards are not observed, mistakes are made that both harm innocent individuals and their families, and do not keep us safer. Further if mistakes are made and innocent individuals wrongly targeted, it means those who are actually guilty remain at large and free to continue their criminal activities. The Charter states that no one can be deprived of their rights to life, liberty and security except in accordance with the principles of fundamental justice.

 

We continue to fight against disproportionate knee-jerk reactions to terrorist threats – such responses overlook the robust broad powers already existing in the Criminal Code and other laws in place – and argue for more and more state powers and new offences which may cast a far-too-wide and ineffective net, while simultaneously threatening to normalize exceptional powers. Such exceptional powers, if normalized, will alter the free and democratic State cherished by Canadians, without necessarily keeping us any safer.

 

CCLA believes that due process, principles of fundamental justice and fairness must run through all counter-terror efforts. Canada’s justice system is built upon key democratic rights including the right to counsel, the right to a fair trial, the right to know the case against you and to make full answer and defence, the right to be free from arbitrary and prolonged detention, the right to habeas corpus, and the right to presumption of innocence. Many of these rights have come under threat in the post 9/11 era, as individuals suspected of being terrorists have been stripped of basic rights.

Our recent work

2014 supreme court

In some terrorism cases, it is impractical to provide the accused with all the information that underlies the case against them, such as the identities of the informants against them. This is because if they turn out to be terrorists, they could go after informants. To fix that problem, “special advocates” are sometimes appointed as an intermediary who can look at all the information and represent the accused’s interests. 

Harkat was accused of coming to Canada to engage in terrorism and was appointed a special advocate. However, communication restrictions were placed between the special advocate and Harkat and his lawyer. 

A fair hearing means that everyone deserves the right to know the case against them and to make a full defence. 

Our lawyers went to court to argue that the communication restrictions were an unacceptable violation of the right to have a fair hearing. The Supreme Court decision strengthened our case for proper communications by stating that there was a presumption in favour of the accused being able to communicate with the Special Advocate. The decision also makes it harder for the government to deny information to the accused.

There is no question that the protection of national security affects how we comply with values of fundamental justice, but national security concerns cannot serve as a justification for failing to provide fundamental justice protections