by "C. Ailes"
Source: Harkat Email List (Riseup.net)
Date: May 20, 2008


[[Diana Younes article is important to read]]

Update on Security Certificate in TMLD, May 20

[link]

- Constitutional Challenge to Special Advocate Regime

- How Suresh Haunts Bill C-3 and Section 2 of the Charter - Diana Younes, The Court

- Extraordinary Renditions: Quebec Human Rights Organizations Join in Call to Bring Montreal Man Home - [link]

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Constitutional Challenge to Special Advocate Regime

Security certificate detainee Adil Charkaoui has filed a notice of motion before the Federal Court of Canada seeking a judgement declaring the new security certificate regime, Bill C-3, to be unconstitutional. Charkaoui is also seeking an interim order that will relax or lift the strict bail conditions he and his family are subject to.

At the time of Bill C-3's passage through the House of Commons this past February, it was widely opposed as unconstitutional, similar to the legislation it was replacing, and was expected to be the subject of a court challenge. Helen Burnett, in Lawtimesnews.com on March 10, wrote: "In their submission to the Senate committee, Lawyers Rights Watch notes that Bill C-3 does 'nothing in regard to the s. 7 issue' raised in the Supreme Court decision. 'In the words of the Supreme Court, the person concerned will still not know the case he has to meet. As such, the s. 7 fundamental justice requirement is violated,' says the submission."Johanne Doyon, a Montreal lawyer representing Charkaoui said, "We are seeking to free Mr. Charkaoui because as we claim in our notice of motion the law used to detain him anew is not any more constitutional than the one before."

"We contend in our notice of motion that Bill C-3 has not put in place a regime that conforms with the shortcomings pointed out by the [Supreme Court of Canada]" in the Charkaoui ruling, said Doyon. "The regime in place, as it is structured, has the same flaws as the previous one. It still allows, for instance, for secret information or evidence to remain completely secret, regardless of the procedural instances, and regardless of the presence or not of a special advocate."

According to a May 16 report in The Lawyers Weekly, "The notice of motion also calls for an interim order that will compel the federal government to disclose -- 'from party to party' or subsidiarily to a special advocate (SA) -- all evidence or pertinent information now kept under wraps, but used to buttress allegations made in the security certificate and the summary of the evidence filed before Federal Court." The report continues:

"In the notice of motion, the applicant alleges that Bill C-3, in particular s.77 to 87.2, is unconstitutional because it allows for ex parte proceedings in violation of the open court principle, infringes the right to choose counsel, denies the right to a fair hearing, and violates the principles of fundamental justice.

"Charkaoui also challenges the special advocate regime, asserting that the federal government created a system that 'is worse than one that exists in England and which has been decried as being inequitable by former special advocates.' The motion notes that according to s.85.3 of Bill C-3, special advocates are not a party to the proceeding and the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client."

"It is difficult to legitimately defend the interests of someone without representing them and defend their interests without being able to take instructions from that person, over non-disclosed material," and determine and defend their best interests, says the motion. The provisions outlined by Bill C-3, adds the motion, deprives in essence a person of his constitutional right to counsel of his choice capable of ensuring the right to make full answer and defence before an open court or in closed proceedings.

The motion also argues that the special advocate regime is incompatible with the Act respecting the Barreau du Québec and its Code of Ethics, and infringes on provincial jurisdiction. In Quebec, all members of the Barreau are governed by the Professional Code, and by virtue of s.87 of the Code Quebec lawyers are governed by the Barreau's Code of Ethics.

"We submit that when a member of the Barreau takes the responsibility of defending the interests of someone before a tribunal, this person is in fact or in reality a de facto client of the advocate within the meaning of the Quebec code of ethics and all ethical obligations are applicable, which the law (Bill C-3) expressly prevents," says the motion. As such, s 85.1 of Bill C-3, which explicitly states that the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client, the motion argues that it infringes upon provincial jurisdiction, given that the regulations governing legal practice is a provincial matter.

"Bill C-3 creates a constitutional problem because it redefines the legal profession, something that is a provincial jurisdiction," Doyon told The Lawyers Weekly.

No date has yet been set to hear the motion, states the The Lawyers Weekly.

In related news, a May 15 ruling by Federal Court Judge Eleanor Dawson is preventing security certificate detainee Mohamed Harkat, his family and his sureties from being able to sort out new living arrangments. Harkat and his wife Sophie asked the court to approve their move on an emergency basis and work out the security details later. Due to the unprecedented bail conditions Mohamed Harkat is subject to, a tense atmosphere has been created in their current home for the Harkats and the majority owner of the house, who is also one of Mohamed Harkat's sureties.

In her ruling, Judge Dawson stated that Harkat cannot move to a new condominium townhouse until he meets the security concerns raised by government officials. The Canada Border Services Agency (CBSA), which enforces Harkat's bail conditions, wants video cameras installed over the front and back doors of the new townhouse, similar to the house were Mohamed Harkat currently resides; it also wants a parking spot reserved in front of the home for its agents.

A move that fails to replicate the existing conditions would amount to a substantial change in Mr. Harkat's bail, said Judge Dawson, "The Court cannot approve a change in residence in circumstances where the CBSA's ability to monitor Mr. Harkat are so diminished," Judge Dawson wrote.

Harkat was released from jail in June 2006 because of delays in his deportation to his native Algeria. Under terms of his release, Mr. Harkat must wear an electronic monitoring device at all times. He cannot leave Ottawa and cannot use a cellphone or computer. He is allowed three four-hour excursions every week, in addition to daily walks, but he must be in the company of a court-approved surety at all times, inside and outside his house.

Harkat will return to Federal Court later this year for a new hearing to determine the "reasonableness" of his security certificate, where a special advocate will act for him during the presentation of the government's evidence, which will be closed to Harkat, his defence lawyer and the public.

(Sources: The Lawyers Weekly, Lawtimesnews.com, Ottawa Citizen)