Janice Tibbetts, Canwest News Service, June 15, 2009

The Conservative government's national security agenda has been set back by a steady losing streak in the Federal Court, a trend that analysts attribute to an emboldened bench that is finding its voice and growing out of a tendency to defer to lawmakers as it did in the early years after 9/11.

In the last two months, the traditionally cautious court has issued stinging decisions ordering the government to repatriate terror suspect Omar Khadr from Guantanamo Bay and bring Canadian Abousfian Abdelrazik home from Sudan.

Judges have also issued three biting critiques of CSIS, accusing the spy agency of possibly lying to the court about its intelligence information and being complicit in torture of Canadians abroad.

"It's the end of the honeymoon period -- when national security trumped everything," said Michael Byers, a civil libertarian and a political scientist at University of British Columbia.

The 38-year-old court, based in Ottawa, toiled away in relative obscurity on federal issues such as immigration, competition law and trademark until it was thrust into the spotlight eight years ago as the adjudicator of the war on terror in the post 9/11-era.

"There was a learning process," said Toronto lawyer Paul Copeland.

Copeland, who has defended non-Canadians detained on government security certificates out of suspicion that they pose national security threats, believes that as the events of 9/11 become more distant, the courts are invoking the Charter of Rights to hold the government to account in justifying its actions.

Byers also noted that the Federal Court is taking its cues from other courts, both in Canada and internationally, that have handed down national security rulings in which government powers have come under increasing scrutiny.

"I don't see this as a partisan struggle at all," Byers said. "I think the judges are doing what they do with great reluctance."