Security certificates 'against justice', appeal court toldposted on November 10, 2004 | in Category Security Certificates | PermaLink
Lawyer argues for terror suspect's release; government counters law isn't unconsititutional
Maher Arar's wife, Monia Mazigh and Adil Charkaoui's sister, Hind, were among protesters who say security certificates are unfair. The security certificate system used to detain suspected terrorists isn't perfect, but it shouldn't be declared unconstitutional, lawyers for the federal government argued yesterday. Presenting his arguments before the Federal Court of Appeal in the case of Montrealer Adil Charkaoui, Daniel Latulippe said a good judge, willing to play an active role, can go a long way to ensuring that someone detained under a security certificate gets a fair hearing."The system is not perfect," Mr. Latulippe later told reporters. "However, it's probably the best system to balance between the interests of the state to maintain security and the interest of Mr. Charkaoui or any other person to be aware of the information against them."
However, Johanne Doyon, lawyer for Mr. Charkaoui said the law, with its provision for secret evidence and closed meetings between the judge and the Crown, violates Canadian and international law.
"It's not a fair trial, it is against fundamental justice."
The case of Mr. Charkaoui, who was picked up in May 2003 on suspicion of belonging to a terrorist sleeper cell and who has been detained ever since, risks becoming a test case for the changes made to toughen Canadian laws in the wake of the Sept. 11, 2001, terrorist attacks in the United States.
While there are a number of men being held on security certificates and different challenges to the legality of the law, Mr. Charkaoui's case is the first constitutional challenge to the changes to the law to be heard by the Federal Court of Appeal.
The impact of a possible decision to invalidate the law appeared to preoccupy the three-member appeal court yesterday, with justices posing a number of questions to both sides concerning the ramifications should the law be declared unconstitutional.
Ms. Doyon told the panel the challenges she has faced trying to defend Mr. Charkaoui while not knowing exactly what the evidence is against him. In one case, testimony of one witness was only disclosed to them after a court ruling -- even though the testimony played a role in the judge's decision. Once they were finally able to confront the testimony, they were able to prove that the witness was not credible, she pointed out.
She said Canada should consider a system like the one put in place in Great Britain where a lawyer with security clearance, separate from the lawyer for the suspected terrorist, has access to the secret evidence and has a mandate to look out for the defendant's interests.
It is not known when the court will rule.
Authorities want the landed immigrant deported to his native Morocco. His supporters say he faces torture there.
Outside, Hind Charkaoui told about two dozen protesters her brother deserves a fair hearing.
"He is not a terrorist," she said. "Adil is a simple person, a student in university."
Matthew Behrens, one of the organizers of the protest, said the whole security certificate system must be abolished.
"We do not believe that you can amend the process to make it more fair. ... It is fundamentally unfair."
(c) The Ottawa Citizen 2004