ICLMG joins other rights groups to denounce the Strengthening Canadian Citizenship Act as discriminatory and anti-Canadianposted on August 20, 2015 | in Category Canada's Immigration Policy | PermaLink
Date: August 20, 2015
Toronto, August 20, 2015 - The International Civil Liberties Monitoring Group (ICLMG) is joining its voice to the British Columbia Civil Liberties Association (BCCLA) and the Canadian Association of Refugee Lawyers (CARL) to denounce the Strengthening Canadian Citizenship Act (formerly Bill C-24) as unconstitutional and anti-Canadian.
BCCLA and CARL have launched a constitutional challenge to the new Citizenship Act, a federal law relegating over one million Canadians to second-class status.
The lawsuit argues that the new Citizenship Act, in force since the passage of Bill C-24, creates a two-tier citizenship regime that discriminates against dual nationals, whether born abroad or in Canada, and naturalized citizens. These Canadians will now have more limited citizenship rights compared to other Canadians, simply because they or their parents or ancestors were born in another country.
Under the new law, these Canadians could see their citizenship taken away if convicted of certain serious crimes in Canada or abroad (including in a country that does not have due process or rule of law). New Canadians who became citizens after the passage of Bill C-24 could also lose their citizenship if they move abroad for work, school, or family reasons. Other Canadians would not be vulnerable to losing their citizenship.
"The ICLMG opposed Bill C-24 since it was tabled in Parliament" said Monia Mazigh, National Coordinator of the ICLMG. "The Strengthening Canadian Citizenship Act is a step backward for our democracy and rule of law principle. With this new Citizenship Act, Canadians are divided into two classes: those who will keep their Canadian citizenship no matter what and those who can be stripped of their Canadian citizenship if some federal bureaucrats decide so. Thus, if you are born in Canada but you have parents or ancestors from another country, your Canadian citizenship is worth less. It can be revoked not by the court but by the government and this is unacceptable by any democratic standards."
Despite the public outcry, the criticisms and concerns formulated by legal experts, academics and media commentators, Bill C-24 became law.
"The ICLMG is really happy to support this constitutional challenge and to send a strong message that the Canadian citizenship should have the same meaning for all Canadians regardless of their genetic background."
- 30 -
For more information about the legal challenge, contact:
Sarbjit Kaur, Kaur Communications
For more information about the ICLMG, contact:
Anne Dagenais Guertin, Communications and Research Coordinator
613-241-5298 ext. 2, [email]
CSIS relied on no-torture 'assurances' from foreign agencies, memo revealsposted on July 06, 2015 | in Category CSIS | PermaLink
Source: The Canadian Press & CBC News
Date: Jul 03, 2015
CSIS bound by federal policy on sharing information with foreign groups
Newly released memos show Canada's spy agency revealed its interest in people to foreign partners in two cases after receiving assurances the individuals would not be tortured — a practice human rights advocates say shirks the law and puts vulnerable detainees at risk.
In one case, the Canadian Security Intelligence Service got the green light from a high-level internal committee to interview a Canadian detained abroad as long as captors gave "proper assurances" the person would not be abused, the CSIS documents say.
In another case, the spy service received the go-ahead to send information to an allied agency about a terrorist target of mutual interest if such "assurances" were provided, the internal CSIS memos reveal.
The two cases were among 10 instances in which the CSIS information sharing evaluation committee applied a ministerial directive on the use and sharing of information that may have been tainted by torture or could give rise to someone being brutalized in an overseas prison cell.
The Canadian Press used the Access to Information Act to obtain CSIS notes outlining the 10 cases — with names and other identifying details stripped out — as well as a spring 2014 memo to spy service director Michel Coulombe.
The two cases in which CSIS sought promises that individuals would not be abused raise "a red flag," said Alex Neve, secretary general of Amnesty International Canada, who called the practice an end-run around international legal obligations.
Alex Neve, secretary general of Amnesty International Canada, says it is not reliable for CSIS to rely on assurances from foreign parties that individuals of interest will not be tortured.
"That's always problematic from a human-rights perspective," he said in an interview.
"It's not reliable. And we have been deeply concerned about the ways in which governments around the world have been increasingly relying on assurances."
Many western governments have resorted to the use of "diplomatic assurances" to circumvent their obligations under international law, said Ottawa human-rights lawyer Paul Champ.
Not adequate protection
Courts and United Nations bodies have held — and, more tragically, experience has confirmed — that assurances are not adequate protection against torture and should not be used as an excuse for practices that might contribute to abuse, he said.
"Canada's own experience in Afghanistan amply demonstrated that repeated assurances from the Afghan government did not stop Canadian-transferred detainees from being tortured."
CSIS spokeswoman Tahera Mufti said the agency was "very cognizant" of its legal and ethical obligations in sharing information.
"We are very careful to ensure that everything we do to keep Canadians safe is consistent not just with Canadian law but Canadian values."
The federal policy on foreign information-sharing, ushered in by the Conservative government, has been roundly criticized by human-rights advocates and opposition politicians who say it effectively condones torture, contrary to international law and Canada's UN commitments.
A four-page 2010 framework document, previously released under the access law, says when there is a "substantial risk" that sending information to, or soliciting information from, a foreign agency would result in torture — and it is unclear whether the risk can be managed through assurances or other means — the matter should be referred to the responsible deputy minister or agency head.
In deciding what to do, the agency head will consider factors including the threat to Canada's national security and the nature and imminence of the threat; the status of Canada's relationship with — and the human rights record of — the foreign agency; and the rationale for believing that sharing the information would lead to torture.
In one of the 10 CSIS cases, just such a scenario emerged: a two-fold CSIS request to check with foreign agencies about a Canadian target and to interview a foreign national detained abroad with knowledge of the target was referred to the CSIS director for a final decision when the committee ruled the request could well lead to someone being tortured.
In the end, there was no need for the CSIS director to make the decision, as the information was acquired through other means with no perceived risk of mistreatment.
CSIS, the RCMP, the Canada Border Services Agency, National Defence and the Communications Security Establishment, Canada's electronic spy agency, are bound by the federal policy on sharing information with foreign agencies.
The newly released notes discuss formal risk assessments carried out by the Mounties in 2013-14 that led to rejection of all five requests from police investigators to send or receive information.
In one RCMP case, a request to interview a Canadian held in a foreign prison was denied due to the assessment that detainees face a risk of torture and other degrading abuse in order to extract confessions.
© The Canadian Press, 2015
Copyright © CBC 2015
OTTAWA: Bill C51 Opponents March Through Byward Marketposted on April 21, 2015 | in Category Bill C-51 | PermaLink
Source: The Ottawa Citizen
Date: April 19, 2015
Opponents of the federal government’s proposed anti-terrorism legislation brought a second round of protests to Ottawa and other Canadian cities Saturday, and an organizer said an online petition calling for the bill to be scrapped is nearing 200,000 signatures.
“We haven’t really seen anything like this in years. It’s remarkable,” said David Christopher, a spokesman with OpenMedia.org, one of the groups behind the petition.
Several dozen protesters gathered outside the prime minister’s offices on Wellington Street and marched through the ByWard Market to the U.S. Embassy. Similar rallies were planned in as many as 30 cities, organizers said.
In March, more than 300 people protested the anti-terrorism bill in Ottawa.
“The U.S. is symbolic of this kind of anti-terror legislation. When I go talk to people about the bill, the comment I always get back is ‘oh, we’re becoming just like the U.S.’ ” said Sam Heaton, a leader of Saturday’s demonstration.
The government says the legislation will give important new powers to the Canadian Security and Intelligence Service to protect Canadians from security threats. But critics contend that it goes too far, giving CSIS too many tools to invade Canadians’ privacy without putting enough oversight in place to keep watch on the spy agency.
As of Friday afternoon, the petition (stopc51.ca) had more than 194,000 names on it. That’s the most since a similar online petition against then-Justice Minister Vic Toews’ online surveillance Bill C-30 topped out at around 150,000 names in 2012, David Christopher said.
After a cabinet shuffle, Toews’ replacement, Rob Nicholson withdrew the bill in 2013 because of the public opposition.
This time, OpenMedia.org and its partners are targeting Bill C-51, and Christopher said his organization is seeing an increase in the number of people going beyond simply clicking on an online petition.
“We had 12,000 people in one day write to their MPs about it. These numbers are blowing our old statistics out of the water,” Christopher said.
Paul Dewar, the NDP MP for Ottawa-Centre, said the success of the petition shows the growing frustration with a government that won’t listen to Canadians.
“It’s showing how unpopular the bill is and how stubborn the government is being. It shows that it’s not just something inside the Ottawa bubble. It’s something across the country,” he said.
Liberal MP Wayne Easter said his party has some reservations about the bill but will support it anyway because it thinks the security measures are needed.
“We are hoping that the government will see the light and implement parallel legislation in terms of national oversight and see the need to institute some sunset clauses and a mandatory review,” Easter said. “They could still do that.”
The OpenMedia.org petition isn’t the only list naming Canadians who oppose the bill. Green Party leader Elizabeth May has tabled at least seven petitions against the bill in the House of Commons. Her list has reached around 4,400 pen-and-ink signatures.
The bill is up for debate in the House of Commons late next week, with a vote expected in the following week.
© 2015 Postmedia Network Inc. All rights reserved.
VIDEO: Filmmaker Amar Wala on CBC's Qposted on February 17, 2015 | in Category Security Certificates | PermaLink
Date: November 3, 2014
This interview is from November 2014.
Suspect tortured by CIA figured in Canadian security casesposted on January 09, 2015 | in Category Mohamed Harkat | PermaLink
Source: The Globe and Mail
Date: December 10, 2014
The scathing report on the CIA’s brutal interrogation techniques from the U.S. Senate repeatedly mentions a terrorism suspect called Abu Zubaydah, describing how the torture inflicted on him yielded no valuable information.
Abu Zubaydah is the source the Canadian government cited a decade ago in court documents about two suspects arrested in Canada, Adil Charkaoui and Mohamed Harkat.
Canadian judges eventually ruled that the evidence Abu Zubaydah gave to his U.S. interrogators was not reliable, even though federal lawyers at one point insisted there was no coercion.
The government argued that the information implicating Mr. Charkaoui was “obtained freely and without constraint,” according to a Federal Court ruling in July, 2004.
In the case against Mr. Harkat, the government told the judge there was “no proof, on a balance of probabilities, that evidence obtained from Abu [Zubaydah] was obtained as a result of torture,” a 2005 ruling said.
“Abu Zubaydah frequently ‘cried,’ ‘begged,’ ‘pleaded,’ and ‘whimpered,’ but continued to deny that he had any additional information on current threats to, or operatives in, the United States,” the report says.
When asked at an event in Ottawa on Wednesday about Canadian officials using information obtained from torture, Foreign Affairs Minister John Baird replied: “Canada doesn’t torture anyone, period.” He did not elaborate.
Abu Zubaydah is a stateless Palestinian whose real name is Zayn Al-Abidin Muhammad Husayn. He became the CIA’s first detainee after the attacks on Sept. 11, 2001. He was arrested in Pakistan in March, 2002, then flown to a secret CIA site in Thailand.
Because he was wrongly thought to be a high-ranking lieutenant of Osama bin Laden, he was repeatedly questioned about whether he knew of other al-Qaeda plots and operatives. Kept in isolation for 47 days, he was tortured starting in August, 2002, the Senate report says.
The next spring, Mr. Charkaoui, an immigrant of Moroccan origin, was arrested in Montreal under a national security certificate.
Most of the evidence against Mr. Charkaoui was secret. However, in a declassified court filing in 2003, the Canadian Security Intelligence Service said it had been told by “a foreign intelligence service” that Abu Zubaydah had recognized Mr. Charkaoui after being shown a photo and added that the Montrealer was someone he had seen in Afghanistan.
Around the same time, Ottawa cited evidence from Abu Zubaydah in a security certificate case against Mr. Harkat, an Algerian immigrant living in Ottawa.
Government lawyers told Justice Eleanor Dawson of the Federal Court that Abu Zubaydah had identified Mr. Harkat “by his physical description and his activities, including that he operated a guest house … for mujahedeen travelling to Chechnya.”
By then, news reports had started to raise the possibility that Abu Zubaydah was mistreated after his arrest.
Mr. Charkaoui brought up the concern when he challenged his detention.
In his ruling in July, 2004, Federal Court Justice Simon Noël said he heard secret evidence from government lawyers that Abu Zubaydah was not tortured. “They claim that [Abu Zubaydah] was not mistreated. They presented some evidence in the absence of Mr. Charkaoui and his counsel for the purpose of supporting this claim,” the judge wrote.
Justice Noël decided not to take the statement from Abu Zubaydah into consideration.
Mr. Charkaoui was cleared in 2009, when the government withdrew its evidence against him rather than comply with a court order to reveal more of its information.
Mr. Harkat also tried to argue that the allegations against him were coerced from Abu Zubaydah. Federal lawyers told Justice Dawson the onus was on Mr. Harkat to prove there was torture.
Justice Dawson decided nevertheless to give no weight to the allegation because the court could not assess the context of Abu Zubaydah’s incriminating statements.
By 2010, the government came back with new allegations that Mr. Harkat knew Abu Zubaydah, citing conversations that appeared to have been wiretapped. The national security certificate against him has been upheld and he remains under house arrest.
The 525-page U.S. Senate report says the CIA repeatedly claimed falsely that Abu Zubaydah provided key information about other suspects. In fact, the report says, the best information he provided stemmed from non-violent questioning by Federal Bureau of Investigation agents.
With a report from Steven Chase in Ottawa
© Copyright 2015 The Globe and Mail Inc. All Rights Reserved.
[VIDEO] The Agenda with Steve Paikin: Secret Trials, Secret Evidenceposted on December 05, 2014 | in Category Mohamed Harkat | PermaLink
Date: November 27, 2014
Click on the image below to watch the 32 minute television show online.
About the video:
The Canadian government can use a legal tool called a 'security certificate' to detain and deport non-citizens suspected of terrorist activities using secret evidence the accused and their lawyers cannot see. Over the last decade, five Muslim men - dubbed the Secret Trial Five - have been detained in Canadian prisons without charges under security certificates. The Agenda convenes a panel to discuss the security and civil liberty issues surrounding this legal tool.
Copyright © 2014 The Ontario Educational Communications Authority (TVO)
Secret Trials, Torture, and Deporting People Under the Radarposted on December 05, 2014 | in Category Security Certificates | PermaLink
Source: The Agenda - TVO.org Website
Date: November 27, 2014
On May 14, 2014, the Supreme Court of Canada upheld the constitutionality of the Canadian security certificate regime in Canada (Citizenship and Immigration) v. Harkat. In existence since 1978, security certificates have been a focal point for human rights advocates concerned with the growing size and reach of Canada’s national security apparatus. The decision is a turning point in the use of secret evidence in Canada.
Certificates enable the government to arrest and detain individuals on the grounds that such persons pose a threat to national security, have violated international (human rights) law, or have engaged in serious or organized criminal activity. Evidence supporting these allegations is collected, in large part, by the Canadian Security Intelligence Service (CSIS), and includes sensitive information that cannot be disclosed to anyone lacking high-level security clearance – including the person named in the certificate and his/her counsel. Among those permitted to view the evidence in secret hearings are a small group of “designated” Federal Court judges. If a judge finds that there is a reasonable basis for the allegations, the named person is subject to deportation from Canada.
The adequacy of this new Special Advocate system was the central issue in the Harkat case. The Court decided that parliament's improvements brought the regime into line with the Charter, but only if named persons receive an “incompressible minimum amount of disclosure” and Special Advocates receive the materials and resources needed to perform their statutory roles. It instructed the Federal Court to be vigilant in ensuring that these standards be met on a case-by-case basis. This approach places a great deal of responsibility on a small group of judges and lawyers.
The Supreme Court also upheld the finding of a Federal Court judge that the certificate issued against Mohamed Harkat is reasonable. So what happens next?
As with all men subject to a certificate post-9/11, Harkat claims he would be subject to torture or similar abuse if returned to his home country of Algeria. In the 2002 case of Suresh v. Canada (Minister of Citizenship and Immigration), the Supreme Court ruled that Canada is generally prohibited from deporting someone to face the substantial risk of torture or similar abuse. Derogating from Canada’s international legal obligations, the Court qualified this general prohibition by allowing for deportation to torture in “exceptional circumstances.”
One would think that, if ever there were an exceptional circumstance, it would pertain to something as serious as a security certificate. There is no precedent, however. Strictly speaking, there has not been a single case in which the government has successfully invoked the Suresh exception. In fact, courts have directly or indirectly rejected invocations of the Suresh exception in certificate cases involving Hassan Almrei, Mohammad Zeki Mahjoub, and Mahmoud Jaballah.
There are, however, good reasons to believe that deportation to torture has nonetheless occurred under the radar in deportation proceedings unconnected to certificates. In three cases – involving Mostafa Dadar, Bachan Singh Sogi, and Jama Warsame — Canada deported persons despite the fact that the UN Committee Against Torture decided that each of these men faced a substantial risk of torture. Warsame was to be returned to Somalia, even though he was born in Egypt and had lived in Canada since the age of 4. Tellingly, he was subsequently able to secure protection in the Netherlands.
Similarly, some of those alleged to have organized human smuggling aboard the MV Sun Sea were deported, despite there being a substantial risk of torture. Reports indicate that one of these men, Sathyapavan "Sathi" Aseervatham, was detained and tortured upon his return to Sri Lanka.
Unlike certificates, the procedures through which determinations of risk of torture are made have not been subject to rigorous judicial scrutiny. Persons who have been found inadmissible to Canada on the grounds of security undergo a three-step process.
An immigration official (IO) will conduct a Pre-Removal Risk Assessment (PRRA) to determine whether the individual faces a substantial risk of torture or similar abuse.
A security and intelligence analyst in the Canadian Border Services Agency will file a threat assessment.
A Ministerial Delegate (MD) will review these reports. If s/he decides there is a risk of torture, but an even greater threat to Canadian security, s/he may invoke the Suresh exception by issuing a “danger opinion." The affected person is not provided an oral hearing nor may s/he see classified evidence included in the reports.
National security has a tendency to politicize decisions of this nature. In several cases, an MD has ignored objective evidence of torture included in PRRA assessments. In a case involving Arshad Muhammad, an MD met with the Director General of Border Operations of CBSA, Glenda Lavergne, before issuing her decision to deport Muhammad. Fortunately, the Federal Court intervened, finding that the MD’s decision was unsupported by the factual record. In most cases, persons in Muhammad’s place lack the financial capacity to challenge these sorts of decisions, and may be deported before a court has a chance to intervene.
Importantly, none of these cases involved a person named in a certificate. While certificates undoubtedly raise important constitutional and moral issues, they are but one, decidedly small part of a larger assemblage of practices through which Canada screens, detains, and deports asylum seekers. As Harkat moves through the removal process, the Supreme Court may have occasion to reconsider the constitutionality of deportation to torture. This is urgent, given revelations concerning Canada’s role in the torture of Maher Arar and others.
In my view, a new approach must include assurances that decisions about the removal of security risks be based on law and the facts, be less subject to political interference, include greater disclosure or Special Advocates, and be subject to independent review. The gains made in the certificate regime will count for little, unless we also improve the ways in which decisions about deportation to torture are made.
Graham Hudson, associate professor and undergraduate program director for the Department of Criminology at Ryerson University, is appearing on The Agenda Thursday to discuss Canada's use of security certificates to detain suspected terrorists. Here, he expresses concerns about whether some Canadians deported as security risks have faced torture.
Copyright © 2014 The Ontario Educational Communications Authority (TVO)
ByTowne to screen film of five terror suspects jailed without trialposted on November 11, 2014 | in Category Mohamed Harkat | PermaLink
Date: November 9, 2014
Five men who were jailed without trial and never shown the evidence against them — it sounds like something from Soviet-era Russia, but it happened here and it’s still happening.
Filmmaker Amar Wala said he was shocked, as were many Canadians, to hear that five men men were detained in this country without due process.
In his first feature-length film, The Secret Trial 5, being screened in Ottawa next weekend, Wala tells the stories of Adil Charkaoui, Hassan Almrei, Mahmoud Jaballah, Mohamed Harkat and Mohammad Zeki Mahjoub. Each man each spent anywhere from three to seven years in jail, plus time in strict house arrest under the country’s controversial security certificates.
The law allows the government to detain and deport non-citizens if they are considered a threat to national security.
Under that law, these five men were never charged and never saw the evidence against them, said Wala.
“A person should never be held in prison without being charged with a crime,” he said. “That’s something we believe in, very deeply, in Canada. We believe in the right to a fair trial and we’ve abandoned that principle here. So I really hope that the film makes them understand just how these things effect people, not just the men but their wives, their children, their communities, us as a country.”
Sophie Harkat, wife of former pizza deliveryman Mohamed Harkat, said they are starting to feel a sense of freedom now that her husband’s strict house arrest conditions have been relaxed. The Algerian immigrant was issued a security certificate in 2002 and spent 43 months in prison, both at the Ottawa-Carleton District Detention Centre and the Kingston Immigration Holding Centre (dubbed “Guantanamo North”). After his release, he spent three and a half years under house arrest in Ottawa.
In a Supreme Court ruling, security certificates were deemed unconstitutional in 2007, but the law was amended the following year. Harkat has challenged the new law, but it was upheld in the spring. The government is now able to deport him.
Sophie Harkat said she hopes The Secret Trial 5 will shed light on his story and security certificates, in general.
“His family believes in him, we all believe in his innocence, but that’s not the important thing here,” she said. “Due process is the important thing. Due process for him, for the others and for anybody that will come after us.”
Wala raised about $50,000 through Kickstarter to fund the making of The Secret Trial 5. Now he and his fellow producers have started another campaign to fund a cross-country tour of the film.
The Secret Trial 5 will be at the ByTowne Cinema Nov. 16-18.
Copyright 2001-2014, Free Daily News Group Inc.
New anti-terror tracking measures will address 'black hole': CSISposted on October 16, 2014 | in Category Security Certificates | PermaLink
Date: October 16, 2014
Security lawyers warn that blanket intelligence source protection could endanger court proceedings
Public Safety Minister Steven Blaney has unveiled new federal plans to boost protection for intelligence sources, by giving them the same protections bestowed upon police informants in criminal cases.
The new bill, which will likely be tabled next week, is meant to clarify the current laws, the minister told reporters.
"CSIS is relying on those sources, since it is an intelligence agency, so that is why it is so critical and important that we enable CSIS with the same authority that other law enforcement agencies have … so CSIS can fully operate and protect Canadians within the scope of the law."
In response to a question on how such evidence could be tested in court without giving defence attorneys the ability to cross-examine sources, CSIS assistant director of operations Andy Ellis pointed out that the agency "has a very robust system in place" for gathering information.
"We make every attempt to ensure that the information we're getting is corroborated and accurate, and we do not act on single-source information."
Along with Ellis, he was joined by RCMP deputy commissioner Janice Armstrong.
'Black hole' on travel by suspected terrorists
The bill would also give Canadian security agencies greater powers to track terrorists abroad through expanded information sharing with partners.
Canada already relies heavily on the United States, Britain, Australia and New Zealand, fellow members of the so-called Five Eyes intelligence network.
Blaney acknowledged that such inter-agency co-operation "has happened at many levels in the past," but said the changes would explicitly authorize such practices.
"We now need to bring clarity to the law, so that these powers and these authorities that are within the law are clearly vindicated as we are facing this homegrown threat," he told reporters.
Ellis pointed to recent "thought-provoking" court rulings that, he said, had forced the agency to "reconsider how we undertook some of our operations to make sure that they were in keeping of what the courts had expected of us."
"Unfortunately, while we went about doing this, we held in abeyance the coverage of Canadians and other targets working abroad … representing a terrorist threat to Canada and to our allies," he noted.
"While that was held in abeyance, we had a black hole," he told reporters.
"We were unable to track where these people were, where they were moving, how they were moving and the nature of the threat they posed."
The new laws "will enable us to get back on the track we were on before to ensure we are able to perform the function that Parliament gave us in the first place."
The federal plan to bolster security powers follows a recent statement from the RCMP that the national police force has about 63 active investigations on 90 suspected extremists who intend to join fights abroad or who have returned to Canada.
'Highly dangerous' to extend witness protection: lawyer
Two lawyers with deep experience defending clients in national security cases have warned that extending blanket protection to spy sources could seriously endanger the fairness of court proceedings.
It could mean defence counsel and even judges would never have the right to question human sources who provide information on behalf of CSIS — such as when the government attempts to deport a terror suspect using a national security certificate.
Ottawa lawyer Norm Boxall, who represents Algerian refugee Mohamed Harkat in a security certificate case, told CBC News that there's no evidence such protections are required.
"These types of privileges can have far-reaching effects, and can close off information in cases where it would be important to have," he said.
"There is no problem to have a secret source — that can be done all the time, and within the existing law," he noted.
"The problem is when you have secret information and you choose to act on it, and that's the difference. If they want to use the secret information to enforce things — [for] deportation, or in criminal trials — they should have to produce the source."
Toronto lawyer Paul Copeland, who previously represented Harkat, said giving the class privilege to intelligence informants would be "highly dangerous."
"The only way you test evidence, in my view, is by cross-examining on it," he said in an interview.
"I think if they pass this class privilege, nobody will ever get at a human source in a national security case."
Copeland later served as a special advocate — a security-cleared lawyer who reviews and tests the federal evidence — in Harkat's certificate case.
He remains on the roster of special advocates periodically called to take part in security proceedings.
Cross-examining sources should be 'last resort': top court
The Federal Court of Appeal said in 2012 that human sources recruited by CSIS did not have the sort of blanket protection that shields the identities of police informants, even from the judge.
In the case of CSIS, this is instead decided on a case-by-case basis.
The Supreme Court agreed in a May ruling on the national security certificate regime that there should be no overarching privilege for CSIS sources.
The court noted the judge reviewing a certificate has discretion to allow the special advocates to interview and cross-examine such informants in a closed hearing, but said this should be "a last resort."
Making it standard practice to cross-examine CSIS sources, even behind closed doors, could "have a chilling effect on potential sources" and hinder the spy service's ability to recruit new ones, the court added.
Two judges — Rosalie Abella and Thomas Cromwell — dissented on the issue, saying CSIS informants are entitled to an assurance that the promise of confidentiality will be protected.
"This can only be guaranteed by a class privilege, as is done in criminal law cases."
Copeland points to a notorious chapter of the Harkat case in arguing there is good reason to test the credibility of human intelligence sources.
In a 2009 ruling in Harkat's case, Justice Simon Noel said CSIS "undermined the integrity" of the Federal Court's work by failing to disclose relevant details of a polygraph examination of a source.
CSIS neglected to tell him a secret informant failed portions of the lie-detector test — a lapse the spy service itself has called "inexcusable."
'Can't have their cake and eat it too'
Currently police can use information from secret informants to obtain search warrants or wiretap authorizations without fear the sources will be subject to cross-examination.
However, if those same informants are used as evidence of an accused person's guilt, the protection does not apply.
"They can't have their cake and eat it too," Boxall said.
"There is a real safeguard that's attached to the police informer privilege."
The new federal bill should include the same sort of protection to ensure fairness for someone facing allegations in a security proceeding, Boxall said.
Canada appears to be mistakenly following the British path as opposed to the American one, which sees informants testifying in court in terrorism cases and facing rigorous cross-examination, said Steve Hewitt, a senior lecturer in Canadian and American studies in the history department of the University of Birmingham in England.
"Informants provide information for a variety of reasons. Some are quite noble, others do it out of blatant self-interest, including the desire for money," said Hewitt, author of Snitch: A History of the Modern Intelligence Informer.
"There must be external scrutiny through a court of law or, inevitably, abuses of justice will occur."
© The Canadian Press, 2014