Source: Canwest News Service
URL: [link]
Date: August 29, 2008
OTTAWA - The federal government is about to resume its epic legal campaign to deport five high-profile terror suspects.
All five of the country's security certificate cases have been scheduled to go before Federal Court judges in November and December - although there is one legal hurdle yet to clear.
The federal judges will be asked to determine the "reasonableness" of the security certificates based largely upon Canadian Security Intelligence Service evidence heard in secret. Reasonableness is a legal standard that is lower than those applied in criminal and civil court.
The five men targeted by the certificates include the Moroccan-born Adil Charkaoui, Hassan Almrei of Syria, Egyptians Mahmoud Jaballah and Mahamed Zeki Mahjoub and Algerian refugee Mohamed Harkat.For many of the men this will be the second time they've faced hearings to determine whether the government made a reasonable decision in declaring them threats to national security. This time, however, the men will have special advocates acting on their behalf during the secret proceedings. Special advocates were introduced in response to last year's Supreme Court decision that struck down the previous system as unfair: the high court said the process denied defendants the fundamental right to meet the case against them. Special advocates will be able to test the classified evidence presented by government witnesses and make submissions, but they will not be able to communicate details of what they learn to the defendant without permission of the judge. It means they will not be able to ask questions of the defendant based on the classified information, nor will they be able to discuss legal issues that might arise. Lawyer Lorne Waldman, who represents Almrei, contends the gag order placed on special advocates makes it impossible for them to fulfil their roles. He has launched a constitutional challenge to what he considers an overly restrictive law that will put the fairness of the hearings in doubt. "If you're going to muzzle the special advocate to the extent this legislation does, then it won't be fair," he said. Harkat will join the constitutional challenge.
One of special advocates who will act on behalf of Harkat, former Arar commission counsel Paul Cavaluzzo, has filed an affidavit in the constitutional case. Cavaluzzo said he believes the law that governs special advocates will make it "extremely difficult" for him to do his job. "The provisions can conceivably preclude me from communicating with my office staff and secretary," he said. Cavaluzzo said it's imperative for him to have ongoing communication with Harkat and his legal team after he reviews the secret evidence. During the Arar inquiry, Cavaluzzo noted, he was able to still hold discussions with with Arar and his lawyer after reviewing classified information. "Despite being under a strict legal duty not to disclose secret information," he said, "this ongoing access . . . was important in testing the reliability and accuracy of the government's evidence in the in-camera proceedings and was important in challenging the classified information." The government uses the secretive security certificate process to deport foreign-born terror suspects. Canadian citizens must be charged under the Criminal Code. © The Ottawa Citizen © 2005 - 2008 Canwest Digital Media, a division of Canwest Publishing Inc.. All rights reserved.
