by Tonda MacCharles
Source: The Toronto Star
Date: October 10, 2013
OTTAWA —As the Supreme Court of Canada prepared to take the rare step of going behind closed doors Friday to hear secret government evidence in an anti-terror case, it was warned secrecy is becoming the alarming trend in federal courts.
The Canadian public is unaware that secret evidence is being invoked in lot more than anti-terror cases, said lawyer Barbara Jackman of the Canadian Council for Refugees.
Jackman said while there have been some 30 security certificate proceedings in the past 22 years, there is a huge upswing in the use of secret evidence and closed-door proceedings in a range of other civil proceedings, notably immigration matters.
Jackman told the Supreme Court that since 2008 the Federal Court has conducted secret proceedings in more than 100 cases of judicial review of decisions such as sponsorship applications where the Ottawa cites national security as a reason to bar a public hearing. The number could not be confirmed immediately with federal court officials
“Secrecy is becoming the norm,” Jackman said, intervening in a crucial test case of the federal government’s power to deport non-citizens who are suspected of terrorist ties or spying.
The federal Conservative government is urging the Supreme Court of Canada to uphold the country’s second attempt at crafting special immigration warrants — known as security certificates — to deport terror suspects, and to go further: to grant a “class privilege” or blanket protection to the identity of secret informants.
Mohamed Harkat, an Algerian-born man suspected of running guest houses for training Chechen terrorists in Pakistan on behalf of Al Qaeda-affiliated groups, came to Canada in 1995, claiming refugee status.
Arrested in 2002 on suspicions he was a “sleeper agent,” Harkat has long denied the allegations against him and challenged the latest version of security certificates as unconstitutional.
The high court already struck down in 2007 the first security certificate regime as drafted under Liberal governments. The Conservative government re-tooled the law and modelled it on the British regime, which drew inspiration from Canada’s watchdog agency’s powers over CSIS.
It named “special advocates” — lawyers cleared by the Justice Department — to hear the secret government evidence in a closed courtroom along with the judge. But it does not allow those advocates to disclose the evidence or even talk to the defence without clearing it with the judge.
Intervening for the Canadian Bar Association, lawyer Lorne Waldman, who often acts as a top-secret-cleared special advocate, told the high court it’s a far from ideal system that does not adequately protect a suspect’s rights.
The appeal took a bizarre turn Thursday when federal lawyers argued most of the evidence justifying the deportation of Harkat is already public and known to Harkat.
Ottawa nevertheless wants the high court to affirm the rules that allow the person named in the security certificate to receive only a summary of the case against them without access to original material or supporting details to protect sensitive intelligence information. It says the special advocates provide enough protection to Harkat’s rights.
In fact, Ottawa wants the high court to back the regime and go further — to grant government informants a “class privilege” or blanket protection against revelation of their identity.
former gas station attendant and pizza delivery man, argues the regime remains a violation of Charter guarantees of due process and fundamental justice.
Federal lawyer Urszula Kaczmarczyk urged the judges not to decide whether the whole regime is unconstitutional based on Harkat’s challenge, because most of the evidence against him is already known.
Kaczmarczyk said Harkat, who came to Canada on a false passport claiming refugee status, has received summaries of 14 allegations against him, which amounted to enough information to allow him to defend himself.
Original CSIS tapes and notes about the wiretaps used against Harkat have been destroyed, but Federal Court trial Judge Simon Noel concluded the evidence supported the security certificate issued against him, and declared it “reasonable,” she said.
Noel dismissed Harkat’s story that denied any knowledge or involvement with terrorists training in Peshawar as “meticulously fabricated” but not at all credible.
Chief Justice Beverley McLachlin told Kaczmarczyk the constitutionality of the whole regime has been challenged and “you have to answer that or face the consequences.”
Harkat’s lawyer Norm Boxall said the new system “is better than nothing,” but it does not allow the defence to make any substantive challenge of the Crown’s case in the portion that is held in open courtrooms.
Justice department lawyer Robert Frater said the court should grant a blanket protection to informants, not decide on a case-by-case basis, because otherwise “the informants will close up like a clam.”
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