On learning in February 2007 that the Supreme Court considered the security certificate process to be unconstitutional, the Canadian government adopted an "add and shake well" approach: add special advocate, shake thoroughly (especially the victims), and continue as though everything is fine. Disturbingly, this attitude seems to be shared by the Federal Court of Canada, an institution that has failed to wake up to the fact that it has been applying an illegal law for years.In June 2008, another bombshell: the basic method that the Canadian Security Intelligence Service (CSIS) has been using to assemble its files for these cases also failed to make the grade for the Supreme Court. CSIS had apparently been systematically destroying evidence (interview transcripts) on which their reports were based. CSIS argued that the practice was a matter of respecting the privacy of individuals they are keeping under surveillance. But the Supremes saw it differently, "Privacy should of course be respected, but not to the point of giving inaccurate or unverifiable information to the ministers and the judge." Thinking perhaps of the Federal Court judges, the Supremes spelled out their concerns, "If the original evidence was destroyed, the designated judge has access only to summaries prepared by the state, which means that it will be difficult, if not impossible, to verify the allegations." Accordingly, on 3 September, Charkaoui's lawyers asked Federal Court Judge Tremblay-Lamer to order CSIS to give them all the evidence they had not yet destroyed (and which could be publicly disclosed). Having at least some of the evidence would allow Adil a better chance of defending himself, despite all the other injustices of the process. After some debate, Tremblay-Lamer told CSIS that they should indeed give this information to Adil and his lawyers. She also agreed that Adil's lawyers would be able to cross-examine CSIS about whether they had disclosed everything that could be disclosed. However, just a few days later, the decision changed: Tremblay-Lamer informed Adil's lawyers that she would instead follow a more recent decision in the Harkat case. The information would be handed over, but not to Adil and his lawyers; it would be given to the secret lawyers, in the secret process. And there would be no public cross-examination of CSIS. Rare inside insight: What a (semi-)Closed Hearing Looks Like
Then, on 2 October, Tremblay-Lamer invited the two special advocates to a hearing with herself and the government lawyers. Adil's lawyers also asked to be present - but they were refused. Although there is nothing new in Adil and his lawyers being excluded from hearings in this process, in this case, even the pretext of secrecy for reasons of "national security" was dropped. It was a "public" hearing, and nothing that was supposed to be a danger to national security was discussed, but one of the two parties was just not welcome. Through the special advocates, Adil and his lawyers obtained the transcripts of this ex parte hearing. When the special advocates brought up the concerns of Adil's lawyers at the beginning of the hearing, rather than providing serious reasons justifying the exclusion of one of the parties (against all legal norms), Tremblay-Lamer simply said that similar 'ex parte' hearings to prepare the secret hearings had taken place in the Ontario cases. The transcripts also reveal that Tremblay-Lamer twice warned the special advocates against Adil's lawyers; claiming that they were trying to "control the court" and that, if listened to, they would keep things dragging on for months. Replying to one of the special advocates, who hestitantly ventured that the lawyers had not yet finished preparing them for their role in the secret hearings, the judge said that the secret hearings must and would start on 27 October. Ready or not. Of course, Adil's lawyers were not present to respond to these unjust and biased representations nor to argue why, in all fairness, they simply needed a few more weeks with the special advocates. In marked contrast, later in the hearing, the judge volunteered that she would be "extremely flexible" in setting dates for the secret hearings. For her, "The important thing is to start the exercise ..." It seems that the secret hearings are the heart of the matter; the role of Adil and his lawyers superfluous, an annoying encumbrance on the process of deciding Adil's fate. The transcripts additionally show, through a series of cloak and dagger exchanges between the judge and the CSIS lawyer, that CSIS had sent the judge a secret document: - Judge: "And be careful as well to talk in a general way, this is not huis clos, so just keep your comments to procedural issues, or cooking, if you like." - CSIS lawyer: "I think I know what you are referring to. I corresponded with the Court last week." Adil's lawyers had never been notified that this communication had taken place. By way of comparison, if Adil's lawyers were to send a secret document to the judge, failing to let the government know they had done so, it would be seen as a very clear breach, at the very least, of their ethical obligations. A complaint to the bar would be in order, as would a motion to the court to have the lawyers withdraw. And, if the judge engaged in the communication knowing the other party had not been informed of it, it would also be grounds to ask for her recusal from the case. Finally, the transcripts expose a disturbingly cosy relationship developing among all inducted into secrecy: the judge, the state lawyers, and the special advocates - referred to as "our special advocates" by the CSIS lawyer. In the hearing, CSIS offers "all the assistance that they deem necessary to try to help them review the documents, we even offered to go the Court and help them while they review the documents if necessary." Not only are the special advocates screened, selected, trained, paid and supervised by one party to the conflict; they may now also be briefed in the secret file by the very agency promoting the idea that, based on their profiles, the security certificate detainees should be sent to countries where they are at risk of torture or death, just like Maher Arar, Abdullah Almalki, Ahmed El Maati, Muayyed Nureddin. Based on the transcripts of this hearing, Adil's lawyers argued that there was a reasonable fear of bias on the part of the judge and asked her to withdraw from the case. The judge dismissed the motion. This decision is now in appeal. Secret Hearings and Special Advocats
Before this ex parte hearing took place, Adil's lawyers began to brief the special advocates on over five years of complicated legal casework. But just as they got into it, before Adil had so much as met with them to tell his story, and despite a formal request asking for an additional three weeks to prepare, Tremblay-Lamer ordered the special advocates to begin reviewing the secret evidence in preparation for the Secret Hearings. This means that the special advocates can no longer communicate with Adil or his lawyers. Though their role is to defend Adil's interests, the special advocates have never even been briefed by him and are no longer allowed to speak to him; the judge has forbidden ALL communication. On 27 October, the first Secret Hearing apparently took place in an undisclosed location. It quickly adjourned. According to the judicial decision that was released following the hearing, CSIS was ordered to provide evidence (ie in order to comply with the June 2008 Supreme Court decision) to the judge. CSIS asked for six months to gather material together. The judge did not refuse the six months and said she would check their work in six weeks to see how they were progressing. What is shocking about the request by CSIS and the judge's decision is that it indicates that CSIS has never previously provided judges with evidence, just reports of its opinions! Same in the other cases. It seems that the secret trial five have been kept in prison or under house arrest, under threat of torture, for years and years on the basis of unverified and unverifiable intelligence reports. Exactly the same sort of material that led to the torture of Arar, Almalki, El Maati, Nureddin - and which turned out to be completely untrue. Moreover, it seems that the Federal Court has previously been satisfied with this kind of material! Perhaps equally disturbing, in the Harkat case, Federal Court Judge Simon Noel decided that the public hearings would continue even though the secret hearings are now delayed by CSIS having to pull together some evidence to support its reports. Because the public disclosure of any additional material in the Harkat case will be made as a result of the special advocates arguing for further disclosure in the secret hearings, this effectively means that the public hearings will go ahead before there is full disclosure. Which certainly raises questions about the function of the public hearings. Show Trial & Torture
Adil is scheduled to be in court the entire week of 24 November. These hearings will cover a number of procedural questions - dull but perhaps decisive in the case since they will determine basic questions of fairness. These hearings will also consider the possibility of modifying some of the conditions imposed on him. Depending on how the procedural questions are decided by the judge in November, Adil could be back in court from 8 to 19 December either to ask for Adil's complete liberation based on the unconstitutionality of the law (as Adil's lawyers are arguing) - or for the Show Trial. The Show Trial is the public portion of the security certificate review, also known as the "reasonability hearings". The basic question in these hearings - only part of which is held in public, of course - is whether it is reasonable to believe that the government had reasonable grounds to believe that Adil was, is or will in the future be a danger to public safety (where "danger" and "public safety" are undefined). This is what passes for a trial in security certificate cases. If it proceeds as it has in the past and in the other cases, the Show Trial will be accompanied by yet another media storm of contextless, sensationalist allegations; uncritical repetitions of the opinions of "JP" or "John" or "PG", the anonymous CSIS agent who testifies in court, even though he has not actually been involved in the file. Since CSIS's real case is presumably presented to the judge in the secret hearings with the special advocates, and since "JP" knows nothing of the case, the ONLY function of this agent's appearance in court is to create a public spectacle. Unfortunately, few journalists seem to have realized this yet; so prepare yourselves for a manipulated media show featuring terrorists, islamists, sleeper cells, masterminds, airplane plots, training camps and of course Bin Laden and Al Qaeda. In these hearings, the cards are solidly stacked against the victims of security certificates: fundamentally unjust process; vast difference in resources; bias of the courts; and a general atmosphere of racism and fear. Yet the outcome of the reasonability hearings (both public and secret) will determine their fate. As the Supreme Court put it in Charkaoui 2008, "possible repercussions of the process range from detention for an indeterminate period to removal from Canada, and sometimes to a risk of persecution, infringement of the right to integrity of the person, or even death ..." "Infringement of the right to integrity of the person" presumably means torture, but death is clear enough. Unfortunately, in September 2008, the Supreme Court refused to hear Adil's challenge to the government policy which allows the state to hold him under threat of being sent to torture, so the five men and their families live with this fear, stripped of any reasonable tools to defend themselves. What you can do
--> ORGANIZATIONS: Join FEDERAL COURT WATCH to help hold the Federal Court to a reasonable standard of fairness. More information: [link]
--> Take an hour or two to come out to the COURT HEARINGS IN SOLIDARITY with the Charkaoui family. Bring a friend or colleague. These hearings are of huge importance to all of us. And even an hour will mean a lot to the Charkaouis. Hearings scheduled from 24 to 28 November; and from 8 to 19 December; they start at 9:30am, and take place at 30 McGill St., near metro Square Victoria in Old Montreal. PLEASE check for updates: [link] or 514 222 0205.
--> Join the CROSS-CANADA DAY OF ACTION against these secret rendition hearings on 10 December, international human rights day. For more information or to get involved in Montreal: [email] or 514 222 0205. Outside Montreal, check with [email] to see if an action is happening near you or to organize your own.
--> With the Coalition Justice Adil Charkaoui soon entering into its 7th year we are encouraging individuals to GET INVOLVED and join the campaign. We are always looking for help with translation of our material, graphic design, organising events, postering, outreach and fundraising. Even a few hours of your help a month can make a big difference to the campaign! Please contact us at [email]
--> DONATE and keep the campaign strong: The funds raised for the Coalition Justice Adil Charkaoui continue to provide us the means to fight against the use of security certificates in Canada. Every dollar counts! Please consider donating to the Coalition Justice Adil Charkaoui. Cheques can be sent to "Coalition Justice for Adil" at 3729 Hutchison, Montréal, Québec. H2X 2H4.
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Coalition Justice for Adil Charkaoui
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