Campaign to Stop Secret Trials in Canada Applauds Supreme Court Decision
Unanimous Supreme Court Decision Strikes out the Heart of Canada's Secret Trials and Indefinite Detention Legislation
Canada's Highest Court Gives Parliament One Year to Draft New Legislation
Secret Trial Opponents Renew Call for Complete Repeal of Security Certificates and Reject Window Dressing of "Special Advocates"
"In a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees.... Security concerns cannot be used to excuse procedures that do not conform to fundamental justice."
-- Chief Justice C.J. McLachlin, Charkaoui v. Canada
February 23, 2007 -- Today's Supreme Court of Canada ruling striking out the heart of Canada's secret trials regime is a suitable bookend to a week that began with former Supreme Court Justice John Major informing the government that he could not properly conduct a public Air India Inquiry if the government insisted on keeping so much of its evidence secret. When Canada's highest court concluded you cannot be ensured a fair hearing if you are not allowed to know the case against you, it completed an historic one-two counterpunch to government secrecy and abuse of power.
The significance of the unanimous ruling can be measured in many ways, not least of which is the Orwellian fact that government supporters of secret trials, already on the defensive, somehow spun it as a "victory" for the much-criticized security certificate process.
But there is no doubting that the two key portions of the scheme, as set out in the Immigration and Refugee Protection Act (IRPA) -- the process for determining the "reasonableness" of a security certificate, and the section dealing with automatic, mandatory detention and the obstacles to release on bail -- were both found to violate the basic principles of fundamental justice and the Charter of Rights and Freedoms (notably the Section 7 guarantee of life, liberty, and security of the person).
Writing the unanimous decision, Chief Justice C.J. McLachlin declared: "I conclude that the IRPA unjustifiably violates s.7 of the Charter by allowing the issuance of a certificate of inadmissability based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person's interests. I also conclude that some of the time limits in the provisions for continuing detention of a foreign national violate [various Charter rights] because they are arbitrary."
WHAT HAPPENS NEXT
The Court gave Parliament one year to draft something new, thus leaving those subject to the process in a legal limbo. Currently, three men are out on bail (two under virtual house arrest), another is expecting transfer from Guantanamo North to house arrest, and two more remain detained at Guantanamo North.
After one year, those whose certificates have been upheld can apply to have them quashed. In the meantime, anyone subject to certificates will have the right to a review of detention both before and after a certificate reasonableness hearing.
The challenge for opponents of secret trials will be to remain vigilant, because we still have a long way to go, though the road has certainly been made easier with the positive court decision. We need to continue the struggle to fully free those subject to the process and to clear their names, and to end the process of deportation to torture (an issue yet to be settled by the country's highest court).
Equally important is to not become complacent and feel that the Court has settled the issue. Security certificates must be abolished. A process now found to be fundamentally flawed and unfair by Canada's highest court cannot be fixed with a few fancy sounding additions like "security-cleared lawyers" and "special advocates." We need to stop Parliament from enacting a "new and improved" secret trial process which, to their minds, will comply with Charter Rights. (After all, it was Parliament that enacted secret trials in the first place which, to their mind, also complied with such rights. We don't want new targets of CSIS to go through this process all over again!)
Rather, it is time to fully repeal the legislation and demand that if the government has security concerns about an individual, charges should be brought, and disclosure provided, in an open, fair, transparent process. The men subject to secret trials have called for nothing less throughout their years of detention and house arrest.
That call was repeated in a press conference today by the man whose case started the Supreme Court challenge, Adil Charkaoui. Speaking in Montreal, Charkaoui told reporters: "I want justice, I'm not asking about anything else. I want to clear my name and to be respected like a human being, to be treated like any citizen. I am not a terrorist. Now, if they say I am, let them prove it before the courts. The harassment from CSIS, it's from 1999, the day I asked for Canadian citizenship. Eight years. They tried everything, but they didn't try the justice. We have the criminal courts in this country. If they have something against me, charge me."
It's been a long time since June 26, 2000, when Mohammad Mahjoub was arrested by heavily armed RCMP agents as he stepped off a streetcar in downtown Toronto. With all the police and cop equipment surrounding him, Mahjoub thought he was walking onto the outdoor set of a Hollywood action flick as he was hustled off to jail. It was only that night that he heard from his wife, Mona Elfouli, that he had been arrested on national security grounds, but no further information was available. Apart from reams of unproven allegations and unsubstantiated theories, Mr. Mahjoub and his family are still in the dark, since the heart of the case against him is secret.
While Mr. Mahjoub awaits his imminent transfer home from Canada's Guantanamo North, though, some of the sting of the past seven years of hell was softened with the Supreme Court of Canada decision that found the process that upheld his security certificate and allowed for his indefinite detention violated his section 7 rights to life, liberty, and security of the person. Also affected by the decision are secret trial detainees Mahmoud Jaballah and Hassan Almrei, as well as Mohamed Harkat, now under house arrest.
The high court challenge had argued the security certificate regime violates five provisions of the Charter: the s. 7 guarantee of life, liberty and security of the person; the s. 9 guarantee against arbitrary detention; the s. 10(c) guarantee of a prompt review of detention; the s. 12 guarantee against cruel and unusual treatment; and the s. 15 guarantee of equal protection and equal benefit of the law."
C.J. McLachlin wrote that "Here, s. 7 is clearly engaged because the person named in the certificate faces detention pending the outcome of the proceedings and because the process may lead to the person's removal to a place where his or her life or freedom would be threatened. Further, the IRPA's impairment of the named person's right to life, liberty and security is not in accordance with the principles of fundamental justice. The procedure for determining whether a certificate is reasonable and the detention review procedure fail to assure the fair hearing that s. 7 requires before the state deprives a person of this right."
SECRECY PREVENTS FAIR HEARING
McLachlin pointed out that "the secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him or her, and hence to challenge the government's case. This, in turn, undermines the judge's ability to come to a decision based on all of the relevant facts and law." Indeed, she points out, "without knowledge of the information put against him or her, the person named in a certificate may not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. The IRPA provides neither."
McLachlin gives detailed analysis in answering questions such as whether such cases are based on all the facts and evidence that could be put before a judge. "As a practical matter, most if not all of the material that the judge considers is produced by the government and can be vetted for reliability and sufficiency only by the judge. The normal standards used to ensure the reliability of evidence in court do not apply: s. 78(j). [This refers to the section of the act under which "the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence."] The named person may be shown little or none of the material relied on by the ministers and the judge, and may thus not be in a position to know or challenge the case against him or her. It follows that the judge's decision, while based on the evidence before him or her, may not be based on all of the evidence available."
In an echo of what secret trial opponents have argued for years, she continues: "There are two types of judicial systems, and they ensure that the full case is placed before the judge in two different ways. In inquisitorial systems, as in Continental Europe, the judge takes charge of the gathering of evidence in an independent and impartial way. By contrast, an adversarial system, which is the norm in Canada, relies on the parties &emdash; who are entitled to disclosure of the case to meet, and to full participation in open proceedings &emdash; to produce the relevant evidence. The designated judge under the IRPA does not possess the full and independent powers to gather evidence that exist in the inquisitorial process.
"At the same time, the named person is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process. The result is a concern that the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged &emdash; perhaps unknowingly &emdash; to make the required decision based on only part of the relevant evidence.... The result is that, at the end of the day, one cannot be sure that the judge has been exposed to the whole factual picture....The named person is, to be sure, permitted to make legal representations. But without disclosure and full participation throughout the process, he or she may not be in a position to put forward a full legal argument....a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case."
These paragraphs are extremely important, because it is unclear how having a security-cleared lawyer will change the unjust nature of this situation. Suppose the case against you remains secret but you have a security cleared lawyer; if you do not know the case, how do you instruct your counsel? In cases where the security-cleared lawyer normally sees the secret evidence, that lawyer is not able to subsequently consult with the detainee. Thus, while we are left with the perception that the detainee has an advocate, it remains the fact that, despite the advocate's best efforts and intentions, the detainee is still at a huge disadvantage in what remains a star chamber process. (See brief statement at bottom of email from a former UK Special Advocate who resigned because he could not in good conscience legitimize an unfair process.)
The Court points out less intrusive methods developed in Canada and abroad are available (referring no doubt to the use of a security-cleared lawyer in the Arar Inquiry, and to the pre-1991 "SIRC model," when security certificates were heard before the Security Intelligence Review Committee. While a certain claim can be made that the SIRC model is more fair (as indicated by the number of times individuals, despite the secrecy, were cleared because some procedural safeguards were in place), we are nonetheless faced with the major conundrum of a two-tiered justice system: one for citizens, and one for refugees and permanent residents who do not fully enjoy the rights of citizenship precisely because that path towards full rights has been blocked by the security certificate process.
(CSIS is not likely to embrace the criminal law standard of proof beyond a reasonable doubt because they are simply not up to it: they were chastised for their failure to live up to such standards in the Air India case. In a related developed, charges against one Canadian arrested last June in the so-called Toronto terror case, conveniently staged to intimidate the Supreme Court, were stayed today in Brampton, and in two other cases charges were significantly reduced. How much more of that case will unravel given the CSIS inability to produce real evidence?).
McLachlin found that "the lack of review of the detention of foreign nationals until 120 days after the reasonableness of the certificate has been judicially confirmed infringes the guarantee against arbitrary detention in s. 9 of the Charter, which encompasses the right to prompt review of detention under s. 10(c) of the Charter." McLachlin keenly points out as well that although "the IRPA in principle imposes detention only pending deportation...it may in fact permit lengthy and indeterminate detention, or lengthy periods of detention subject to onerous release conditions. The principles of fundamental justice and the guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. The person must be accorded meaningful opportunities to challenge his or her detention or the conditions or his or her release."
GOOD OLD HABEAS CORPUS
A key critique of the certificate is that it prevents the right to a fair and impartial hearing. "It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process," McLachlin writes, quoting the judgment in a case called Ferras. "This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John."
McLachlin continues: "Under the IRPA's certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. This problem is serious in itself. It also underlies the concerns, discussed above, about the independence and impartiality of the designated judge, and the ability of the judge to make a decision based on the facts and law.
"In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. Yet the imperative of the protection of society may preclude this. Information may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security. This is a reality of our modern world. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here."
TOO HEAVY A BURDEN
McLachlin says the secret trial process puts too much weight on the shoulders of the judge. "Those shoulders cannot by themselves bear the heavy burden of assuring, in fact and appearance, that the decision on the reasonableness of the certificate is impartial, is based on a full view of the facts and law, and reflects the named person's knowledge of the case to meet. The judge, working under the constraints imposed by the IRPA, simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hearing. The judge sees only what the ministers put before him or her. The judge, knowing nothing else about the case, is not in a position to identify errors, find omissions or assess the credibility and truthfulness of the information in the way the named person would be.
"Although the judge may ask questions of the named person when the hearing is reopened, the judge is prevented from asking questions that might disclose the protected information. Likewise, since the named person does not know what has been put against him or her, he or she does not know what the designated judge needs to hear. If the judge cannot provide the named person with a summary of the information that is sufficient to enable the person to know the case to meet, then the judge cannot be satisfied that the information before him or her is sufficient or reliable. Despite the judge's best efforts to question the government's witnesses and scrutinize the documentary evidence, he or she is placed in the situation of asking questions and ultimately deciding the issues on the basis of incomplete and potentially unreliable information."
In balancing national security and civil liberties, McLachlin writes "The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s. 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy s. 7, meaningful and substantial protection there must be."
She later continues: "The judge's activity on behalf of the named person is confined to what is presented by the ministers. The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?"
While the Court's decision is an overwhelming victory for opponents of secret trials, there remains much work to do, especially with respect to the ending of two-tiered justice in Canada. Unfortunately, the court did not conclude that the use of security certificates breached the equality rights guarantees of the Charter because they only apply to non-citizens.
It is on this key point that those of us who want to prevent a return of "new and improved" secret trials must insist: all people in this country must be treated equally before the law.
While the Court views the so-called special advocates as a potential solution, it also acknowledges in its analysis that "the U.K.'s special advocate system has also been criticized for not going far enough. In April 2005, the House of Commons Constitutional Affairs Committee published a report on the operation of SIAC and the use of special advocates (The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates). The Committee listed three important disadvantages faced by special advocates: (1) once they have seen the confidential material, they cannot, subject to narrow exceptions, take instructions from the appellant or the appellant's counsel; (2) they lack the resources of an ordinary legal team, for the purpose of conducting in secret a full defence; and (3) they have no power to call witnesses (para. 52)."
On CBC's The House, broadcast the morning of February 24, former special advocate Ian Macdonald discussed the process and called instead for Canadian legislators to use the criminal law in such matters. Below is a transcript of the brief interview:
Q. Ian Macdonald knows that system, well. He's a barrister and Queen's Counsel in the UK, and has represented several men who have been held under Britain's equivalent of security certificates. When you acted as a special advocate who were you representing?
A. Well, I wasn't actually representing anyone, I was representing the interests of the detainees who were all alleged, suspected international terrorists. In this particular case they were all foreign nationals and the special advocate's role was to represent their interests in the closed sessions of our special immigration appeals commission, which although it's called a commission, in fact it's a court that's headed by a High Court judge. And we used to get what we called the closed material, which was all the material that was secret for national security reasons. And we had two tasks: one was to go through that material and make suggestions as to what ought to be disclosed. The second thing was to cross-examine intelligence officers and make representations in the closed sessions of the court.
Q. Did you have access to all the evidence?
A. You'll never have access to all the evidence that security services have, but we had access to all the evidence that was being put before the commission.
Q. In your view did this system work given what it was trying to do which, presumably, was to make the process fairer for those being detained?
A. Well, the problem about it is that, for example, if you get a telephone intercept where the appellant is supposed to have been speaking to someone on the phone, you don't have any possibility of going back to the appellant -- you're not allowed to speak to them at that stage -- to say, well, what was this telephone call all about? So you couldn't take instructions from the appellant and the appellant of course hasn't got a clue what was going on in the closed sessions. It's a fundamental flaw, it's a lack of fairness, and I think it was a very unfair system. I resigned in the end because I was giving legitimacy to a system which in conscience I thought was completely contrary to all the kinds of traditions of, a) fairness, and b) the fact that ever since Magna Carta, we don't imprison people unless they've had a proper trial. The trouble with this kind of what I would call indefinite detention based on suspicion is that you don't actually involve the police. You're simply doing it on the basis of intelligence reports you've had which in turn will be based on assessments made about the risks that these people may pose but without ever attempting to turn the information and suspicions you have into the kind of evidence which you could then put before a court.
Q. The Canadian government it seems though is going to adopt or at least consider adopting a similar system based on the Supreme Court ruling. So what advice do you have for Canadian legislators?
A It does seem to me that the adoption in a case where people are going to lose their liberty, in some cases for a very very long time, you ought to stick to the well-tried methods of using the criminal courts. I think anything else is a short cut and it may in fact not have any particular effect upon our general safety which I obviously am as concerned about as anyone else.
SPECIAL THANKS: First and foremost, to the men detained and their families, for their courage and tenacity in struggling for democracy from solitary confinement and house arrest. Special thanks to all the lawyers who have worked so diligently and tirelessly on these cases, past and present. And special thanks to all the people across Canada who have volunteered many hours of their time over the past six years to stand vigil in freezing and hot temperatures, who have written letters, lobbied MPs, called government officials, done educational work, gotten sore bums sitting in endless court proceedings, offered bail, and so much more to help us build towards this historic day. We still have much to do, so stay in touch!
Campaign to Stop Secret Trials in Canada
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