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:


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:


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.

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.

February 2012 CCLA Concerned About Lack of Constitutional Safeguards in Security Certificate Process

The Canadian Civil Liberties Association (CCLA) continues to be concerned that Canada’s Security Certificate process unjustifiably impairs key constitutional rights, including due process and compliance with the principles of fundamental justice. We are concerned that Named Individuals continue to be unaware of the full details of the case against them, and continue to be impaired in making full defence. We argue that the introduction of Special Advocates does not cure these concerns, because the Special Advocate is also constrained in communications with the Named I ndividual. We are concerned that evidence obtained from torture has been found by Canadian courts to have formed the bases of some Certificates. We are concerned that Named Individuals face possible deportation to countries, where these Individuals fear they risk being tortured. Finally we are concerned that by using Security Certificates against non- Canadians, we are creating a second tier of justice for non - Canadians or permanent residents. CCLA believes that the Security Certificate process is not compliant with the Canadian Charter of Rights and Freedoms, does not demonstrably enhance national security, and fails to comply with Canada’s international law commitment to the absolute prohibition against torture.

by Jim Bronskill (CP) Source: Global TV News - Regina URL: [link] Date: February 16, 2012 OTTAWA - Opponents of Canada's security certificate regime are rallying around Mohamed Harkat as he heads to court to try to scuttle the controversial deportation tool. Harkat, a former pizza delivery man in Ottawa, faces removal to his native Algeria under a security certificate that declares him a threat to Canada due to alleged terrorist links. He denies any involvement with political extremism. Opponents say the security certificate system is fundamentally unfair because detainees are not given full details of the allegations against them. 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 — a decision Harkat will challenge next week in the Federal Court of Appeal. Alex Neve of Amnesty International Canada argued at a news conference Thursday the federal government failed to do a proper overhaul to ensure fairness. "Instead they tinkered," he said. "And the tinkering did not address the serious shortcomings." Green Party Leader Elizabeth May said the certificates represent an affront to all Canadians, not just Harkat. "Today it's him, tomorrow it could be you." Harkat was arrested more than nine years ago on suspicion of being an al-Qaida sleeper agent. Though allowed to live at home with his wife, he continues to wear an electronic tracking bracelet on his ankle, must check in with authorities weekly and cannot leave town without permission. © The Canadian Press, 2012

Don Davies, Official Opposition Citizenship and Immigration Critic, regrets that he cannot be here to reiterate New Democrats’ longstanding opposition to the security certificate process and renew our call to end it. While it is important that our courts have the tools to address legitimate security threats, detaining individuals without charge, without trial, and without conviction for years is not an acceptable answer. Security certificates introduce a fundamentally unjust element into our justice and immigration systems. This is why many courts have raised serious concerns. Attempts to remedy these concerns, such as the introduction of special advocates, have not eliminated the inherent injustices surrounding the system. These cases must be dealt with through a fair and open due process, not arbitrary, secretive measures. We cannot allow fear to usurp fundamental principles of our justice system. Don Davies, MP Vancouver Kingsway

The National Council of Canadian Muslims (formerly known as Canadian Council on American-Islamic Relations) today reiterates its opposition to the flawed Security Certificates process which fails to account for transparency and respect for due process.

The highly criticized process allows for secret evidence to be used to detain and deport non-citizens if they are deemed a threat to national security. If any security certificate detainee is guilty of wrong-doing, then they must be afforded the basic human right to due process; they should be able to hear and challenge the evidence against them. Deeming a detainee to be a terrorist, based on secret intelligence whose sources may be questionable, and then deporting him to face possible torture is not only inhumane, it is counter-intuitive.

We, once again, call on the federal government to report in detail on the implementation of the extensive recommendations made by Justice Dennis O’Connor in the two Arar Inquiry reports. Those recommendations call for sufficient oversight resources and mechanisms to protect essential rights and liberties and check the powers given to and wielded by our security agencies.

NCCM - National Council of Canadian Muslims | [link]

Par: Rene Hardy Source: Radio-Canada URL: [link] Date: 18 fév 2012 À quelques jours d'une nouvelle comparution devant la Cour fédérale d'appel, Mohamed Harkat soupconné d'activités terroristes, reçoit l'appui de deux députés de l'opposition et de groupes de défense des droits la personne. Ils demandent au gouvernement Harper d'abolir les certificats de sécurité. La chef du parti Vert, Elizabeth May, et le député néo-démocrate, Don Davies, estiment que la procédure va à l'encontre des valeurs canadiennes et souhaitent que la Cour fédérale d'appel la déclare inconstitutionnelle. Le coordonnateur de la Coalition pour la surveillance internationale des libertés civiles demande lui aussi l'annulation de ce système qui permet d'utiliser des informations secrètes inaccessibles à l'accusé et à la défense. Une procédure inacceptable Roch Tassé juge inacceptable le fait que des personnes puissent être détenues et déportées sur la base de rapports du Service canadien du renseignement de sécurité plutôt que sur des preuves présentées en cour. Depuis sa libération en 2006, Mohamed Harkat demeure soumis à une série de mesures dont le port d'un bracelet électronique. Mohamed Harkat n'a jamais cessé de clamer son innocence et de tenter de blanchir son nom. Il fait face à la déportation vers l'Algérie, son pays d'origine. (c) Radio-Canada.ca

by The Canadian Press Source: CTV News URL: [link] Date: February 7, 2012 Canada 'does not condone torture,' Toews says

OTTAWA — The federal government has directed Canada's spy agency to use information that may have been extracted through torture in cases where public safety is at stake. The order represents a reversal of policy for the Conservative government, which once insisted the Canadian Security Intelligence Service would discard information if there was any inkling it might be tainted. Public Safety Minister Vic Toews has quietly told CSIS the government now expects the spy service to "make the protection of life and property its overriding priority." A copy of the two-page December 2010 directive was obtained by The Canadian Press under the Access to Information Act. It drew swift condemnation from Amnesty International Canada, which said information obtained under torture "has no place in the justice system, full stop." The directive from Toews expands upon a May 2009 ministerial order that states CSIS must not knowingly rely upon information derived from torture, and have measures in place to identify such tainted information. The latest directive says in "exceptional circumstances" where there is a threat to human life or public safety, urgency may require CSIS to "share the most complete information available at the time with relevant authorities, including information based on intelligence provided by foreign agencies that may have been derived from the use of torture or mistreatment." In such rare circumstances, it may not always be possible to determine how a foreign agency obtained the information, and that ignoring such information solely because of its source would represent "an unacceptable risk to public safety." "Therefore, in situations where a serious risk to public safety exists, and where lives may be at stake, I expect and thus direct CSIS to make the protection of life and property its overriding priority, and share the necessary information -- properly described and qualified -- with appropriate authorities." The directive says the final decision to investigate and analyze information that may have been obtained by methods condemned by the Canadian government falls to the CSIS director or his deputy director for operations -- a decision to be made "in accordance with Canada's legal obligations." Finally, it says the minister is to be notified "as appropriate" of a decision to use such information. In spring 2009, a senior CSIS official ignited controversy when he told a Commons committee the spy service would overlook the origin of information if it could prevent another Air India jetliner bombing or a terrorist attack along the lines of the Sept. 11, 2001, hijackings in the United States. The government quickly moved to extinguish the public flareup. Peter Van Loan, then public safety minister, said CSIS had been clear about rejecting information extracted through coercion. "As a practical matter, they get intelligence from all kinds of sources, a myriad of sources. An important part of their process is to try and identify how credible that is," Van Loan said at the time. "If there's any indication, any evidence that torture may have been used, that information is discounted." Neither the Public Safety Department nor the minister would agree to an interview Monday. In an emailed statement, the department said the 2010 directive "provides greater clarity to CSIS" and that "all CSIS activities, including sharing information with foreign agencies, comply with Canada's laws and legal obligations." Added Mike Patton, a spokesman for Toews: "Our government will always take action that protects the lives of Canadians." Canadian law enforcement and security agencies should focus on getting rid of information that bears the taint of torture, not on carving out exceptions for when it can be used, said Alex Neve, secretary general of Amnesty International Canada. "The bottom line is that as long as torturers continue to find a market for the fruit of their crimes, torture will continue," he said. "Firmly rebuffing torturers when they offer up information extracted through pain and suffering is a critical plank in the wider campaign to eradicate torture once and for all." CSIS spokeswoman Tahera Mufti had no comment. However, the spy agency has said previously -- including before the 2010 directive was issued -- that it would use torture-tainted material. Canadians would not forgive the intelligence service if it completely ignored information that could have been used to investigate and prevent a terrorist attack because that tip came from a country with a suspect human rights reputation, CSIS said in 2010 briefing notes. In addition to sharing such information with Canadian police, CSIS would pass it to relevant foreign agencies after taking steps to ensure it would be used appropriately, the notes said. A federal inquiry by Justice Dennis O'Connor into the Maher Arar torture affair recommended in 2006 that policies include specific directions "aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability." Arar, a Syrian-born Canadian, was jailed in Damascus in 2002-03 and tortured into giving false confessions about terrorist links. CSIS maintains it has implemented all of O'Connor's recommendations to prevent a recurrence. Recently it became public that former CSIS director Jim Judd balked in 2008 at a proposed legislative change that would have prevented the spy agency from using information suspected of emerging through torture. Judd said the change could spell the end of the security certificate -- an immigration tool for deporting alleged foreign-born terrorists. "It is very difficult, if not impossible, for the service to confirm whether information is derived from mistreatment or torture," he wrote. © 2012 CTV All rights reserved.

Here is a 2009 documentary by filmmakers Lillian Boctor and Ryan Mulligan. It is about the injustice of the security certificate process.

by Andrew Duffy
Source: The Ottawa Citizen
URL: [link]
Date: January 20, 2012

OTTAWA — Lawyers for Ottawa’s Mohamed Harkat have asked the Federal Court of Appeal to strike down the country’s security certificate law for a second time.

The Harkat case will be the first to test whether the government’s revised security certificate law can withstand a challenge under the Canadian Charter of Rights and Freedoms.

The previous version of the law, used to deport foreign-born terror suspects, was ruled unconstitutional by the Supreme Court in February 2007.

In that ruling, Canada’s high court said the security certificate process was so secretive that it denied defendants the fundamental right to meet the case against them.

The government subsequently introduced a new law, which gave terror suspects the right to be represented in secret hearings by “special advocates” — defence lawyers with security clearance. Special advocates are allowed only limited contact with the accused.

Harkat’s legal team contends the new law still leaves defendants too much in the dark.

“The only evidence that truly matters is unknown to him (Harkat),” wrote lawyers Matthew Webber and Norm Boxall in a court brief.

“It is apparent that public proceedings are little more than a façade, with little to no direct evidence shown to Harkat.”

For example, they said, the federal government publicly alleged that Harkat spent time in Afghanistan. But the Algerian-born Harkat was told nothing about the timing, duration, purpose or destination of the alleged sojourn, which made it next to impossible to refute.

It is not enough, the lawyers argued, for the government to offer the “veneer of public disclosure” when it is only through detail that Harkat can attack the validity of such allegations.

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