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.