Original author: Michelle Shephard Source: The Toronto Star onlnie URL: [link] (subscribers only) Date: November 6, 2004 Government reveals little of case against terror suspect Lawyers challenging secret process used for detainees

It's often referred to as a quasi-judicial procedure, but even that definition might be generous when describing Mohamed Harkat's day in court last month in Ottawa. There was little that resembled a traditional legal hearing when the Algerian refugee, one of five men currently accused by the federal government of belonging to a terrorist organization, took the stand to profess his innocence. Harkat's defence consisted only of simple denials of the chilling accusations levelled by the Canadian Security Intelligence Service. "No sir" or "never, ever" were his answers when asked if he was an Al Qaeda sleeper agent or a supporter of violent Islamic fundamentalism. The government did not call any witnesses to bolster the case it laid out in a 40-page summary at the time of Harkat's arrest.The only fact that did become clear during the four days of Harkat's hearing was the realization that this wasn't where the real trial was occurring.

Before this hearing took place, the judge had heard secret evidence from the government that neither Harkat nor his lawyer are able to access.

"It's Wonderland in there," Harkat's lawyer Paul Copeland said outside court last month.

"We're defending ourselves against something we don't know anything about."

Harkat is one of 27 non-Canadian citizens who have been detained in the past decade under a security provision in the immigration act. Based on intelligence gathered by CSIS, two federal ministers signed what's known as a national security certificate, seeking to deport Harkat as a threat to the country's security.

Five men are currently detained on certificates in Ottawa, Montreal and Toronto, accused of belonging to Al Qaeda or organizations associated with the terrorist group.

Holocaust denier Ernst Zundel is also in detention on a security certificate, facing deportation on the grounds that he is a threat to the country by influencing white supremacist groups to commit violence.

In all certificate cases, a Federal Court of Canada judge reviews the evidence to determine if the certificate is "reasonable." Upholding the certificate clears the way for deportation. That decision cannot be appealed.

The Federal Court has only overturned two of the 27 certificates issued. One of those cases involved Scarborough resident Mahmoud Jaballah, who is now again detained after being arrested on a second security certificate shortly after the first one was quashed.

According to the legislation, the judge has a responsibility to protect CSIS's information, "if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person."

And since sources, and information gleaned from foreign countries, must be protected, that's the only way these cases can be handled, say some intelligence experts.

But opposition to what have been dubbed "secret trials" is starting to build, both at a grassroots level and through the legal and academic communities. Court challenges are also beginning to mount.

"It's such a travesty of justice," says Queen's University law professor and former immigration lawyer Sharryn Aiken.

"It is, to me, the most pressing problem in the entire immigration scheme."

Aiken co-authored a letter to Public Safety Minister Anne McLellan last month arguing that the security certificate process should be reviewed.

The appeal was signed by more than 50 of Canada's most prominent civil rights lawyers and academics.

Critics of the process highlight three main objections: the secrecy of the hearings, the low threshold of proof required for a judge to uphold the certificate, and the lack of a right to appeal the court's decision.

"Canadian citizens have more rights to appeal a parking ticket, and I don't mean to sound trite, but I think that's a really critical problem.

"It's not to say all the judges do a terrible job, but mistakes can be made and it's very troubling there's no appeal or further review of such an important decision that carries with it such profound consequences for an individual," Aiken says.

A Federal Court judge reviewing a certificate does not have to be satisfied "beyond a reasonable doubt," as is the standard of proof in criminal matters, or held to the civil law standard of a "balance of probabilities."

That means the threshold of proof is set too low, critics argue.

"The judge need not be convinced or persuaded that the government's case is actually correct or even more likely than not correct," Aiken says.

"He, or she, merely needs to be convinced that it's a reasonable conclusion based on the evidence that he or she has."

Amnesty International recently joined the discussion concerning the constitutionality of the legislation, noting in its 2004 annual report that Canada's security certificate process "denies detainees full access to evidence against them, and may result in an individual being returned to a country where they face serious human rights violations."

Although security certificates date back to 1967, the process was amended most recently with the implementation of the Immigration and Refugee Protection Act two years ago.

One of the most significant changes shifted the power to review the certificates from the Security Intelligence Review Committee (SIRC), the civilian oversight body for CSIS, to rest exclusively with the courts.

Prior to 2002, landed immigrants accused of terrorism connections could have their cases heard before SIRC where an independent lawyer, the committee's council, could challenge the government's evidence.

On Monday, a constitutional challenge of the new legislation will be heard for the first time in Ottawa's Federal Court of Appeal.

Lawyers defending Montreal detainee Adil Charkaoui, a landed immigrant from Morocco, will argue that the process breaches international laws and protections guaranteed under the Charter of Rights and Freedoms.

"It doesn't respect the right to a fair trial," says Charkaoui's lawyer, Johanne Doyon.

"A fair trial means having a real possibility to defend yourself in front of the court. If you have a mere summary of the allegations and no access to witnesses, you cannot defend yourself."

Before the immigration act was amended, the Supreme Court delivered a seminal decision on the security certificate process in January 2002.

The decision granted the government the power to deport suspected terrorists to countries where they may face torture in "exceptional" cases of national security.

Both sides claimed the ruling as a victory.

Then-immigration minister Elinor Caplan said it showed "Canada is not a safe haven for terrorists," while others noted the court's strong language that deportations should be rare and only in "exceptional cases."

The ruling led to the expulsion of Mansour Ahani, who CSIS claimed was an Iranian secret service assassin and a threat to Iranian dissidents here and abroad. The high court deferred to Ottawa's view that Ahani didn't face a substantial risk of torture and had a fair opportunity to make his case to the minister.

But Jaballah's case and the case of another Toronto detainee, Mohamed Mahjoub, will test the Supreme Court ruling one step further.

In both cases, the federal government has determined that the men are at "substantial risk" of being tortured if removed to Egypt, but that the national security concerns outweigh that consideration.

If the government proceeds with the deportation, Canada is sanctioning the torture of terrorism suspects and is in violation of international laws, argues their lawyer John Norris.

"These are going to be the first cases to really test what (the Supreme Court) meant by the `exceptional' case, " Norris says.

It's an issue the United Kingdom recently considered while drafting immigration legislation and concluded that the country would never deport suspects if they were likely to be tortured upon their return.

Legislators also implemented what's known as an "appeals commission" with the power to review deportation orders concerning security suspects.

Critics of Canada's national security legislation are recommending adopting the United Kingdom system or returning to the process that existed before the 2002 immigration act was amended and allowing independent interveners to participate during the private hearings to challenge the government's evidence and cross-examine witnesses.

"They were there to ensure that (SIRC) had the correct tools to actually get at the truth. In my view that was a process with some safeguards," Aiken says.

While protests on Parliament Hill have been met with little response, "security certificates" were listed on a work plan for the Standing Committee on Citizenship and Immigration released last week.

Aiken says she hopes politicians and the public soon become engaged in the issue.

"The reason I say that is not just because I'm a knee-jerk human rights defender, but security issues have very high stakes both for individuals who may be wrongly accused of being a security risk, but equally for the state," Aiken says.

"We're all interested in ensuring our security is protected. We all have a stake in ensuring the government gets the right people and not let the wrong people go."

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