by Kent Roach Source: The Ottawa Citizen URL: [link] Date: March 7, 2012
It has recently been revealed that last summer, Minister of Public Safety Vic Toews authorized CSIS in “exceptional cases” to send information to foreign entities even if there was a substantial risk that it would result in torture. Have we learned nothing from the Arar and Iacobucci inquiries held into the torture of Canadians held abroad?
The directive — written in Ottawa’s Orwellian language where torture becomes mistreatment — pays lip service to some of the recommendations of the Arar Commission. The director of CSIS will now have to consider the views of the Department of Foreign Affairs (and any other agency) before sending information to Syria or some other country that uses torture.
There are references to Canada’s international and Criminal Code obligations not be complicit or participate in torture, but no substantive engagement with those obligations.
It is tempting to blame Canada’s descent from a leader on human rights to a nation associated with torture (even as the U.S. right repudiates it) on Toews and his government, but the story is more complex.
Canada went offside on torture immediately after 9/11. The Supreme Court accepted that while deportation to torture is never justified under international law, it might in “exceptional circumstances” be permissible under the Charter. In 2009, the Federal Court of Appeal refused to apply the Charter even as it assumed that Canadian Forces handed off Afghan detainees to torture. There are echoes of these regrettable decisions in the July, 2011 directive.
Canadian courts have so far refused to allow deportation to torture, but the government has held this argument in reserve in the security certificate cases. Courts have, however, deferred to dubious ministerial determinations that there is no substantial risk of torture. In one case, we deported a suspected Sikh terrorist to India when the UN Committee Against Torture was satisfied that he would be tortured.
To its credit, Canada appointed two inquiries into whether Canadian officials were complicit in the torture of Maher Arar and other Canadians held in Syria. The inquiries found disturbing practices of Canadian agencies sending questions to the torture chambers of Damascus. The Arar inquiry called on all Canadian agencies to re-evaluate their policies on information sharing.
Toews’ July, 2011, directive is not what reformers had in mind. Some may believe Canada should not ignore intelligence about a possible bombing in Canada because it was obtained by torture. The directive makes clear that in such situations, the priority will be security.
But the July 2011 directive goes beyond so-called protective uses of such intelligence and contemplates that CSIS can send information to foreign agencies even in the face of a substantial risk that those agencies will use the information to capture and torture terrorist suspects. The director of CSIS is required to balance Canada’s security interests against the risk of torture. But the government always has an incentive to prefer security over human rights, especially in cases where its citizens’ own rights will not be violated.
Toews is famous for his concern for law and order, but there is danger that the directive could result in Canadian officials aiding and abetting torture abroad, which is a crime in Canada. Information can be sent even if there is guilty knowledge that it will likely result in torture. Guilty intent is also required, but one can aid and abet torture without desiring it or even intending it will occur.
But Toews may not risk criminal liability should the director of CSIS exercise his discretion not to inform him. The directive also fails to require the director to notify the Security Intelligence Review Committee (SIRC) after the fact that the service has triggered its exceptional circumstances provisions in relation to intelligence and torture.
Remember SIRC? They are the watchdog of CSIS. They had better be on their toes given this directive. Alas the government has rejected the Arar Commission’s and SIRC’s own recommendation that the watchdog needs more powers to follow the information sharing trail in the post-9/11 environment. Moreover, SIRC has been without a permanent head since the resignation of Arthur Porter in November, 2011.
This is a dangerous game. We should all be concerned about the danger of complicity in the brutal practice of torture.
Kent Roach is a professor of law at the University of Toronto and a former member of the research advisory committee of the Arar Commission. He is the author of The 9/11 Effect: Comparative Counter-Terrorism.
Source: The Law Union of Ontario URL: [link] Date: February, 2012
In 2007 the Supreme Court unanimously struck down the existing security certificate regime, holding that the section 7 guarantee of a fair hearing required either that the secret case be disclosed to the named person, or that a substantial, meaningful substitute be found. Parliament responded by introducing special advocates - security-cleared counsel charged with representing the interests of the named person in closed hearings. This appeal calls into serious question the adequacy of the special advocate regime as a substitute for full disclosure to and participation of the named person, especially given the limits placed on the special advocates' ability to communicate about the proceedings and to cross-examine human sources.
It also comes in the wake of incredibly troubling revelations about the extent of CSIS' reliance on information obtained as a result of torture, both in these proceedings and more generally. First to come to light was a 2008 letter from Jim Judd, then the Director of CSIS, to the Minister of Public Safety, warning that the current security certificate proceedings - including the Harkat case - could be rendered unsustainable if the opposition succeeded in passing an amendment to exclude information believed on reasonable grounds to have been obtained as a result of torture or cruel, inhuman or degrading treatment. This was followed more recently by the release of a 2010 directive from Public Safety Minister Vic Toews instructing that where there is a serious risk to public safety, CSIS can use and share torture-tainted information in order to protect lives and property.
Information derived from torture has no place in Canadian society, much less in Canadian courtrooms. The Law Union of Ontario calls on the Federal Court of Appeal to vindicate Mr. Harkat's constitutional right to natural justice and a fair hearing, and to affirm Canada's commitment to the abolition of torture throughout the world.
Les certificats de sécurité : porteurs de graves violations des droits humains
Les certificats de sécurité : porteurs de graves violations des droits humains
Déclaration de la Ligue des droits et libertés 16 février 2012
La Ligue des droits et libertés s’oppose de longue date aux certificats de sécurité. Elle s’est également opposée au projet de loi C-3 qui visait à réformer les certificats de sécurité, dont la mécanique avait été déclarée inconstitutionnelle par la Cour suprême du Canada le 23 février 2007, dans le jugement Charkaoui.
La Ligue estime en effet que les modifications proposées, dont l’introduction d’un avocat spécial, n’avaient aucunement pour effet de régler les problèmes fondamentaux posés par le régime de certificat de sécurité, problèmes que nous trouvons important de rappeler :
a) L’utilisation des certificats de sécurité donne lieu, dans la réalité, à une détention de durée indéterminée ou à la perte, pour une durée indéterminée, de la liberté et du droit à la vie privée en vertu de régimes d’assignation à résidence surveillée et d’ordonnances de contrôle – ce qui constitue une violation de la justice naturelle et des obligations internationales du Canada en vertu du Pacte international relatif aux droits civils et politiques;
b) L’utilisation des certificats de sécurité mène à la déportation, à la détention, à l’assignation à résidence surveillée et aux ordonnances de contrôle sur la foi d’allégations vagues et générales fondées sur des renseignements secrets qui n’ont pas été prouvés hors de tout doute raisonnable ;
c) L’utilisation des certificats de sécurité fait en sorte que des personnes désignées vivent pour une période indéterminée sous la menace de la déportation vers la torture, ou sont effectivement déportées vers la torture – ce qui constitue une violation des obligations internationales du Canada en vertu de la Convention contre la torture et les traitements cruels, inhumains et dégradants ;
d) Le régime des certificats de sécurité est discriminatoire puisqu’il s’applique uniquement aux non-citoyens, créant ainsi un système de justice à deux vitesses, et ce, contrairement aux garanties d’égalité devant la loi et de justice fondamentale enchâssées dans la Charte canadienne des droits et libertés.
Pour la Ligue des droits et libertés, la possibilité de priver quelqu’un de sa liberté et de l’expulser du Canada en recourant à des preuves secrètes et possiblement obtenues sous la torture (d’autant plus que le gouvernement a tout récemment confirmé avoir donné l'ordre au SCRS de ne pas écarter des informations obtenues sous la torture lorsque "la vie humaine ou la sécurité publique ou la propriété est menacée") est tout simplement inacceptable et ne peut trouver de justification compte tenu des obligations qu’impose le plein respect des droits humains.
Harkat's evidence `evasive . . . implausible,' federal government lawyer argues
By Andrew Duffy Source: The Ottawa Citizen URL: [link] Date: February 23, 2012
OTTAWA - A federal lawyer says an Ottawa man facing deportation under a federal security certificate had ample opportunity to defend himself from terrorism allegations under Canada's revamped security law, but chose not to use that opportunity.
David Tyndale told the Federal Court of Appeal Wednesday that Mohamed Harkat could have given a detailed defence against federal allegations he associated with terrorists but instead chose to be evasive and contradictory. Harkat's defence, Tyndale argued, was not limited to mere denials as his lawyers have suggested.
``That's not what Mr. Harkat was limited to: It's what he chose to do on a number of occasions,'' Tyndale told the appellate court.
Harkat's defence team has asked the Appeal Court to strike down the federal government's revamped security certificate law, introduced in 2008, as unconstitutional.
The previous version, used to detain and deport foreign-born terror suspects, was effectively struck down by the Supreme Court in February 2007. The high court said the process was so secretive it denied defendants the fundamental right to meet the case against them.
The Harkat case is the first to test whether the government's revised security certificate law can withstand a challenge under the Canadian Charter of Rights and Freedoms.
Harkat's lawyers say the process still does not allow defendants to meet the case against them since they're only given an outline of allegations due to national security concerns. The allegations, they say, lack critical details, such as the information's origin.
Harkat, an Algerian refugee, is appealing a December 2010 Federal Court decision by Judge Simon Noel, who upheld the government's case against Harkat, declaring him an active and dangerous member of the al-Qaida network.
Tyndale said that although Harkat was not allowed access to classified information, his legal proxies - lawyers known as special advocates - were.
Because the new security certificate process allows for legal proxies, Tyndale argued, it meets the Supreme Court's standard for a fair hearing as it offers a meaningful substitute for full disclosure.
Harkat was given written summaries of the classified information used against him and his special advocates were allowed to challenge that evidence in closed hearings, Tyndale said.
``The issue here isn't that Mr. Harkat didn't know the case he had to meet,'' Tyndale argued, ``but that his evidence was found to be evasive, contradictory and implausible.''
By way of example, Tyndale pointed to Harkat's defence against the government allegation that he ran a guest house in Peshawar, Pakistan, for jihadists, and also worked as a chauffeur for Chechen rebel leader Ibn Al-Khattab in 1994 and 1995.
Harkat admitted that he lost his job working for a Muslim charity in June 1994. But in his testimony, he offered little explanation of what he did between that time and September 1995, when he arrived in Canada, Tyndale said.
``Mr. Harkat gave a response, but his response was effectively, `I didn't do a lot at that time.' Judge Noel didn't believe it.''
Tyndale said that while Harkat had enough information to meet the case, ``his choices of responses didn't turn out well for him.''
The case against Harkat relied heavily on written summaries of telephone conversations recorded by CSIS between 1996 and 1998. In keeping with what was then internal policy, however, CSIS, Canada's spy agency, destroyed the original recordings.
Defence lawyers have asked the Appeal Court to overturn the finding that Harkat is a terrorist and throw out the summaries entered into evidence.
Harkat's lawyer Matthew Webber said the summaries were filtered for security information, not evidence, and cannot be trusted as an accurate reflection of what was said.
Webber said Harkat's ability to defend himself was unfairly restricted since he could not challenge the translation of the recordings, voice identification or other potential flaws.
After the previous security law was struck down in 2007, Parliament drafted a new law which gave terror suspects the right to be represented by special advocates and to receive written summaries of evidence heard in-camera.
by Andrew Duffy Source: The Ottawa Citizen URL: [link] Date: February 21, 2012
[PHOTO: Mohamed Harkat’s case is the first to test the revised law used to deport foreign-born terror suspects with a challenge under the Canadian Charter of Rights and Freedoms. The previous version was effectively struck down by the Supreme Court in February 2007. Parliament drafted the new law in 2008. Photograph by: Jean Levac, Ottawa Citizen]
OTTAWA — Canada’s new and improved security certificate law continues to deny terror suspects the detailed information they need to defend themselves, the Federal Court of Appeal has heard.
Norm Boxall, a lawyer for Ottawa’s Mohamed Harkat, told the appeal court Tuesday that the government introduced important safeguards when the law was remade in 2008 but did not go far enough.
“This scheme is admittedly better, but it falls short,” Boxall said in arguing that the law should again be declared unconstitutional.
The Harkat case is the first to test the revised law with a challenge under the Canadian Charter of Rights and Freedoms.
The previous version, used to deport foreign-born terror suspects, was effectively struck down by the Supreme Court in February 2007. The high court said the process was so secretive it denied defendants the fundamental right to meet the case against them.
Parliament drafted a new law that gave terror suspects the right to be represented in secret hearings by special advocates — defence lawyers with security clearance — and to receive written summaries of evidence heard in-camera.
But Boxall said the measures did not afford Harkat the ability to defend himself against “bald allegations” of terrorist involvement.
Harkat knew the general outline of the government’s case, but not the detail that would have allowed him to challenge information, counter false allegations or expose the lies of informants, he argued.
“In order to challenge and meet a case, you have to know the foundation of it,” Boxall said. “Detail has to be met with detail.”
In December 2010, Judge Simon Noel upheld the government’s case against Harkat, declaring him an active and dangerous member of the al-Qaeda network. Among other things, Noel concluded Harkat had ties to an Egyptian terrorist group, Al Gamaa Al Islamiya (AGAI).
Boxall said the judge’s AGAI finding highlights the problem with the new legislation.
There were only two publicly revealed pieces of evidence, he said, in support of the AGAI claim: à La Presse newspaper article which identified Harkat (through an alleged alias) as a member of the group; and a written summary of a wiretapped conversation between two unnamed targets, in which one characterized Harkat as a member of the AGAI who was “not tasked to do great things.”
Boxall asked the appeal panel rhetorically: “How does one meet or challenge that?”
Similarly, he said, Noel found that Harkat had been to Afghanistan. But there was no evidence heard in public that described where he went or what he did, Boxall said.
Harkat in his own testimony denied ever being to Afghanistan.
“You can’t meet or challenge it,” Boxall said. “Harkat can deny it, but the court can say, ‘Well, we don’t believe you.’”
It means, he argued, that security certificate cases are still predominantly — and unfairly — decided in secret.
Boxall said the introduction of special advocates has not overcome the law’s basic flaws. Special advocates, he told the appeal court, play a limited role since they cannot communicate with the terror suspect, nor can they independently investigate allegations or introduce new evidence into secret hearings.
The government’s case against Harkat relied heavily on wiretap evidence.
But Harkat was provided only written summaries of those conversations since the original recordings, made between 1996 and 1998, were destroyed by CSIS in keeping with its then internal policy. Harkat’s lawyers contend the missing tapes make it impossible to challenge the accuracy of voice identification, foreign language translations or to put the conversations into context.
The government has been trying since December 2002 to deport Harkat to his native Algeria.
A former pizza delivery man who has lived in Ottawa since September 1995, Harkat contends he will be tortured or killed if returned to the North African country.
The appeal hearing is expected to conclude Thursday with an in-camera session before the three-judge panel.
by Danielle Bell Source: The Ottawa Sun URL: [link] Date: February 21, 2012
Accused terrorist Mohamed Harkat has nearly exhausted legal avenues but refuses to consider what will happen if he loses his latest battle.
Lawyers for Harkat at the Federal Court of Appeal on Tuesday argued secret proceedings, the destruction of original material by CSIS, and limitations of special advocates were among reasons why he cannot effectively challenge or meet his case, which violates the Canadian Charter of Rights and Freedoms.
Harkat, who is alleged to have ties to al-Qaida and an Egyptian terrorist organization linked to the 9/11 attacks, has been fighting for nearly a decade to stay in Canada, since he was arrested on a federal security certificate.
“It creates a situation where the public has to be taking it on faith,” said Norm Boxall, one of Harkat’s lawyers. “It creates potential damage to the administration of justice and the reputation of the court that’s dealing with it.”
Harkat faces deportation and what he contends would be torture or death if he is sent back to Algeria.
In 2007, the Supreme Court of Canada ruled the security certificate unconstitutional because it relied on secret evidence, which denied his right to a fair trial. Tuesday marked the first day of appeal arguments about the constitutionality of the security certificate since the government introduced special advocates in 2008.
While the scheme has improved, said Boxall, it remains less than adequate since special advocates, who do not have the same powers as public counsel, are so limited. Harkat’s certificate was upheld in 2010 by a federal court judge.
Being denied the basis to challenge the credibility of informants or refute allegations is unfair, said Boxall, and the case is then essentially being decided in secret.
“The principle of fundamental justice is not met simply by saying Mr. Harkat had the opportunity to respond,” said Boxall. “It’s not enough to respond. You have to be given the opportunity to challenge the information.”
Outside court, Harkat, who maintains his innocence and denies links to terrorism, said simply he will wait for the decision.
“I hope the judge understands all the problems with this legislation and that I don’t have a fair trial,” Harkat. “It just goes on and on and on. I don’t want to jump steps ahead. I’ll see what the judge decides.”
Depending on the ruling, there could be a new hearing, according to Boxall outside court.
The appeal proceeding is expected to conclude on Thursday.
by The Canadian Press Source: The Winnipeg Free Press URL: [link] Date: February 21, 2012
[PHOTO: Mohamed Harkat is seen during a break at the Federal Court of Appeal on the first day of arguments on the constitutionality of security certificates in Ottawa Tuesday Feb.21, 2012. THE CANADIAN PRESS/Adrian Wyld]
OTTAWA - A lawyer for Mohamed Harkat says the security certificate process being used to deport the Algerian refugee is unconstitutional.
Harkat, a former Ottawa pizza delivery man, faces removal from Canada under a certificate that declares him a security threat due to alleged terrorist links.
He denies any involvement with political extremism.
Lawyer Norm Boxall is telling the Federal Court of Appeal the security certificate system is fundamentally unfair because Harkat doesn't know details of the allegations against him.
The Supreme Court of Canada struck down the system five years ago, saying it violated the Charter of Rights and Freedoms.
But the government revamped the process and reissued certificates against Harkat and others in early 2008.
A judge ruled in late 2010 that the retooled certificate system was constitutional. Harkat is challenging that ruling this week.
As public counsel of Mr Mahjoub and lawyers, we support the constitutional challenge of IRPA in Harkat which is necessary and in the interest of Justice.
The amendments that produced what is now Division 9 of the Immigration and Refugee Protection Act (IRPA) following the Supreme Court of Canada judgment in Charkaoui I (2007) were the Parliament’s attempt to find a “substantial substitute” for proper disclosure to the named person in information relied on by the Ministers against non-citizens like Mr. Harkat or Mr. Mahjoub.
However, this continuation of what is nothing more than secret trials against individuals in Canada still fails to respect the Canadian Charter of Rights and Freedoms (‘Charter’) and still fails to meet the requirements of the judgments rendered in Charkaoui I.
The case will have a significant impact on our client’s case, in which disclosure, the use of information gleaned from torture or otherwise illegally obtained, and the use of unfair/unethical practices in the investigation have also come to light.
In Mr. Mahjoub’s case, in February 19, 2010, the Federal Court indicated that a “substantial portion of the information in the SIR originates from foreign agencies” and that Mr. Mahjoub could not be informed as to which of these foreign agencies have received requests for waivers of the third party rule and what the replies to any such requests would have been. The Court also found that Mr. Mahjoub would not receive disclosure of a summary of the security intelligence information emanating from foreign agencies. In the same judgement, the Court reserved its decision as to whether this non-disclosure violates Mr. Mahjoub’s rights under section 7 of the Charter.
This alleged undisclosed information relates to “allegations that are critical to the Ministers’ case.” A CSIS witness recognized the importance of disclosure of the information in question, in light of its relation to the Ministers’ central allegations:
“ The SAs note that the information in question is on the alleged xxxxxxxxxxx and on Mr Mahjoub’s alleged xxxxxxxxxxxxxxxxxx. These allegations are critical to the Ministers’ case. The SAs point out that the Service’s witness, jfdkfjlsjfkd, recognized the important of disclosing such central allegations (…)” [emphasis added]
In light of this information and in light of other experiences with the Security Certificate process, even the Special Advocates have taken the position that the Special Advocate procedure is not an adequate substitute for Mr. Mahjoub’s ability to know the Ministers’ case; that they were not in a position to deal with these allegations or call evidence to rebut them; and that only Mr. Mahjoub and his public counsel could do so:
“ The SAs note that, pursuant to paragraph 83(1)(e) of the IRPA and section 7 of the Charter, Mr Mahjoub is entitled to be reasonably informed of the case against him. The SAs argue that this does not require that Mr. Mahjoub be provided with xxxxxxxxxxxxxx that supports the main allegations, but rather a summary which provides the “gist” of the information, as they proposed. The SAs further argue that with regards to the information on fgjgjgjgj the special advocate procedure is not an adequate substitute for Mr. Mahjoub’s ability to know the Ministers’ case. The SAs submit they would not be in a position to deal with these allegations or to call evidence to rebut these allegations. Only Mr. Mahjoub, with the assistance of his public counsel, could do this.” [emphasis added]
However, the motion filed more than a year ago to quash the certificate and to release Mr. Mahjoub on this basis was postponed by the Court to be heard only at the end of the process.
Meanwhile the Court found that CSIS used information derived from torture, and didn’t have a mechanism to filtered the information admissible under IRPA. Not only did CSIS deliberately decide not to exclude information obtained unlawfully and as the result of the use of torture or cruel, inhuman or degrading treatment or punishment, but also engaged in the interception and monitoring of all conversations between Mr. Mahjoub and his lawyers during the investigation and the Court proceedings from approximately 1996 to 2010.
As a result, a motion to the effect that the conduct of CSIS and the Ministers in the investigation, the issuance of the certificates, and the continuation of the proceedings against Mr. Mahjoub amounts to an abuse of process, is pending due to this unprecedented, negligent and unfair conduct.
Déclaration de Le Coalition pour la surveillance internationale des libertés civiles
Conférence de presse Jeudi, 16 février, 2012 Propos de Roch Tassé Coordonnateur national Coalition pour la surveillance internationale des libertés civiles
En 2007, la Cour Supreme concluait unanimement que les dispositions de la Loi sur l’immigration et la protection des réfugiés concernant les certificats de sécurité étaient anti-constitutionnels et incompatibles avec la Charte canadienne des droits et libertés. La Cour reconnaissait que la non-divulgation d’informations utilisées dans la décision de détenir ou de déporter une personne est une violation de l’article 7 de la Charte, qui guarantit “… le droit à la vie, liberté et sécurité de sa personne ; qu’il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale”. Le Parlement avait un an pour corriger la situation.
Un plus tard, le gouvernement modifiait les disposition avec l’introduction de “l’avocat special”, à qui on accordait des pouvoirs limités d’agir au nom des détenus, mais sans régler le problème de fonds.
Le nouveau mécanisme permet toujours l’utilisation d’informations secrètes qui demeurent innaccessibles à la personne visée et à la défense. Il rend encore possible de détenir ou de déporter un individu, non pas sur la base de preuves solides requises par une cour de justice, mais sur la base de rapports et de conclusions du SCRS et de ses partenaires. Les critères de preuve admissible sont les plus bas de tout le système judiciaire canadien. Certaines informations utilisées peuvent être le fruit de la torture. Bien que l’avocat spécial puisse contester les rapports et les conclusions des agences de renseignement, il ne peut contre-intéroger la source des renseignements utilisés, par exemple un détenu dans une prison étrangère, ou un agent d’un autre pays.
Ultimement, le nouveau régime qui menace de mener à la deportation de Mohamed Harkat ou qui continue de justifer la détention de Mohammad Mahjoub depuis bientôt 12 ans, ne répond pas aux exigences du jugement de la Cour Suprême. Il perpétue la menace de la déportation vers la torture, et faute de déportation, ne règle pas la question de la détention indéfinie.
Un tel abus de justice est inacceptable et nous sommes d’avis que le cas doit retourner devant la Cour Suprême.
La seule façon de respecter les exigences guaranties par la Charte, et en accord avec les principes de justice fondamentale, est une poursuite en vertue du code criminel, ou de nouvelles dispositions avec des critères de preuve équivalents. S’il existe des preuves contre eux, les individus visés doivent avoir la possibilité de se defendre lors d’un process public et equitable, incluant l’accès aux elements de preuves utilisés contre eux.
D’ici là, nous demandons au gouvernement de suspendre la déportation de Mohamed Harkat.
Click on the photo of Mohamed to see all items related to him. DEC 9, 2010: A federal court judge today ruled to uphold the 2nd security certificate against Mohamed Harkat, finding it "reasonable." Justice Simon Noel found against Mr. Harkat and upheld the regime of secret hearings and judicially sanctioned rendition to torture.
This fight is not over. The Justice for Mohamed Harkat Committee will re-double its efforts to see that justice is done for Mohamed Harkat and that the odious security certificate system of injustice is abolished once and for all.
Here is the contact information for Sophie Harkat.