11 February 2008, Ziyaad Mia, Ottawa Citizen

Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning.

That sentence opens Franz Kafka's The Trial, which is the story of a man who finds himself arrested and increasingly tangled in a web of absurdity as he struggles unsuccessfully to find out why he has been arrested.

Joseph K.'s tale is not unlike that of five men detained on "security certificates," for whom absurdity has been a hallmark of their lives for several years. Under the security certificate process, the substance of the proceedings is undertaken in absence of the detainee and his lawyer.

Secrecy is antithetical to the rule of law and accountable government. In our system, the adversarial process is a shield against both outright abuse of power and well-intentioned mistakes by the state.

Last February, the Supreme Court of Canada declared the security certificate process contrary to the Charter's protection of "fundamental justice," which includes the right to know the case against you and the right to answer that case. The court ordered the federal government to draft a new law within one year to afford detainees a "substantial" and "meaningful" opportunity for "informed participation" in the process, while protecting sensitive information.

In short, the benchmark is to develop a "substantial substitute" for direct participation in the secret portions of the hearing.

The House of Commons recently passed Bill C-3 to amend the security certificate process. But the government's proposed changes are a stingy attempt to address real concerns about fairness. A robust consultation process would have generated better law with less opposition from civil society. Now we are faced with inadequate law being reviewed in a hasty process not conducive to reasoned deliberation.

Bill C-3 introduces a "special advocate," a security-cleared lawyer who will represent the detainee in the secret portion of the hearing and challenge the government's case. While this sounds acceptable on its face, the proposed legislation falls far short of the Supreme Court's benchmarks for fundamental justice. It is most likely unconstitutional. To more fully address the court's concerns, Bill C-3, at a minimum, would have had to:

- allow ongoing communication between special advocates and the detainee even after secret information has been disclosed to the advocate, with sufficient protections to prevent disclosure of secret information. This model has worked successfully in Canada in the Arar Commission;
- give special advocates access to all information in the government's file, not only that which is favourable to the government's position;
- allow special advocates to call evidence and witnesses;
- require special advocates to be experienced in national security matters and selected by a process independent of government; and
- explicitly prohibit any deportation to torture.

Recently on this page, professor Wesley Wark suggested that Bill C-3 is legislation born of a "relatively tranquil bi-partisanship," and fairness concerns ought to be tempered by the fact that only non-citizens are adversely affected by security certificates ("Security and freedom at an impasse," Feb. 7).

Canadians should not confuse the Liberals' political expediency calculations with thoughtful debate or a sign that civility has entered politics. As for the fact that non-citizens are involved, a lesser standard of justice based on status is not defensible on moral or constitutional grounds.

Mr. Wark intimates that without exceptional legislation like Bill C-3, our security agencies may dabble in dirty tricks. That logic replaces justice with expediency at the heart of the law-making enterprise, and that is precisely why Bill C-3 is fundamentally unsound.

Aside from being unjust, secrecy fails to make us any safer.   One need only look at the Arar Commission's findings, the Project Thread dragnet, the Air India and Iacobucci Inquiries, the fiasco of intelligence on Iraq and now Iran, or the Keystone Kops obfuscation surrounding the tragic death of Robert Dziekanski to see why the best guarantees of justice and security are transparency, accountability and the rule of law.

Ziyaad Mia is a former board member and current chair of the advocacy and research committee of the Canadian Muslim Lawyers Association.