On June 13th & 14th, the Supreme Court of Canada has been hearing a challenge to the Canadian Security Intelligence Service (CSIS) Certificates or, as they are more commonly known, the Orwellian "security certificates". In the name of protecting "national security", the Security Certificates provide for the arrest and indefinite detention of non-Canadian citizens. Currently, Hassan Almrei, Moe Harkat (to be released to house arrest within the coming days), Mahmoud Jaballah and Mohammed Mahjoub are being held in "Guantanamo North", a newly constructed ‘administrative’ (so-called because the men have not been charged with any specific crime) detention centre near Kingston. The fifth man is Adil Charkaoui who, although released early last year, remains subject to severe restrictions.
While listening to the questions posed by the Supreme Court Judges, one is struck by the following particular and troubling fact. We do not know whether the men currently being detained or being subjected to severe restrictions have committed any act of violence that would warrant either their arrest or detention. Worse still is that, at no point during the two-day proceedings, was this fact referenced by anyone at the Supreme Court. Although the arguments made by the lawyers of Charkaoui, Harkat and Almrei varied widely, an argument premised on a notion against pre-emptive arrest and detention was never made.
Media speculation would have us believe that the Supreme Court is made up of Canada’s most brilliant minds, and so it was indeed disappointing that the focus of the hearings was not upon such facts but instead upon remedying the current legislation with an attempted definition of "national security", allowing for an Amicus Curiae ("Friend of the Court") and the ever-bizarre question ‘…but what do we do with people who could, potentially, maybe one day be a threat…?’ Perhaps the crystal balls normally used to respond to such a query may very well rest hidden beneath the Honourable Bench?
Even if we set aside the inclination to believe that references to our national security may be made solely on the basis of rallying hysterical support for draconian measures, at the heart of this argument sits the concept of pre-emptive acts. This notion is an illustration of something deeply troubling in much of today’s global political sphere at large. It is a shame that Canada has become party to it.
At stake in these matters – which extend beyond the trauma inflicted on individuals caught within the Kafkaesque web of Security Certificates – are the principles on which our Country was built. To assume the Security Certificates only have relevance within a Canadian context is to deny the direction in which the ‘West’ appears to be shifting at a surprisingly rapid pace. It is a gross understatement to say that Canada’s buy-in to pre-emptive acts is disturbing.
Assume that we are at war; assume that we exist in a most severe time of imminent threat and danger to Canada. In such a case, there has always existed the jus ad bellum principle of approach to war. As that concept had been structured, there was no room for pre-emptive acts. In this day, and if you want to swallow the Bushian doctrine that we are living in a state of perpetual war, then devastating pre-emptive strikes (or in this case: pre-emptive arrests and detentions) are among the necessary means to guarantee world order and national security.
Once more, and for the record, it is necessary to remind ourselves that none of the men in question have committed any act of violence. Since the ‘evidence’ is secret, one can presume that they might be held based on an imaginary trajectory which may or may not indicate their potential to act violently.
This argument in support of pre-emptive detention and arrest could lead us to jail men who were abused as children, since the chances are, given what our statistics indicate, that they may one day abuse their partners. But it does not follow that they necessarily will do this, and so we do not exercise this natural extension of the concept of pre-emptive acts because it is unjust to arrest or detain based on a possible interpretation of intention. More importantly, because we are speaking within the confines of the law where individuals are innocent until proven guilty, the proof of guilt rests within the execution of the act, and must be proven beyond a reasonable doubt or at the very least, with the presence of physical plans for the act.
Again, let us be reminded that this shift in Canada’s approach –” away from jus bellus – is one that is occurring on a global scale. Neither the Security Certificates nor the Supreme Court decision exist solely within the confines of Canada’s borders. Although nearly all arguments made on behalf of the detainees were brilliant, there was one particular moment which stood out. During her rebuttal, Barbara Jackman, one of Hassan Almrei’s lawyers, referred to the global context and weight of the decision that will be rendered by the Supreme Court of Canada.
Recognising the global repercussions of this decision is critical. Currently, Canada is among the dominant core group sitting within the international balance of powers. This is a privilege which, as history has already so clearly taught us, is one that will not last forever. Decisions we make today will remain with us when we are no longer among the powerful.
The Supreme Court of Canada has the ability to define Canada’s legacy beyond a world that has come to act out –” brutally – of fear and of racially motivated interests. The decision to be rendered by the Court will have the impact of changing habits across the world; one such habit will be that of the State when it acts within the context of pre-emptive acts. If the Supreme Court engages the arguments with which it has been presented from within the murky haze of today’s both real and fabricated fears, the unfortunate consequence may be the loss of the changing face of Canada as many of us have come to know and love it.
And if it is this poor legacy that we leave, then one can only hope that when Canada is one day no longer among the powerful core group, those who will dominate will exercise a greater level of tolerance and care for those who are vulnerable.