Source: The Law Union of Ontario
Date: February, 2012
In 2007 the Supreme Court unanimously struck down the existing security certificate regime, holding that the section 7 guarantee of a fair hearing required either that the secret case be disclosed to the named person, or that a substantial, meaningful substitute be found. Parliament responded by introducing special advocates - security-cleared counsel charged with representing the interests of the named person in closed hearings. This appeal calls into serious question the adequacy of the special advocate regime as a substitute for full disclosure to and participation of the named person, especially given the limits placed on the special advocates' ability to communicate about the proceedings and to cross-examine human sources.
It also comes in the wake of incredibly troubling revelations about the extent of CSIS' reliance on information obtained as a result of torture, both in these proceedings and more generally. First to come to light was a 2008 letter from Jim Judd, then the Director of CSIS, to the Minister of Public Safety, warning that the current security certificate proceedings - including the Harkat case - could be rendered unsustainable if the opposition succeeded in passing an amendment to exclude information believed on reasonable grounds to have been obtained as a result of torture or cruel, inhuman or degrading treatment. This was followed more recently by the release of a 2010 directive from Public Safety Minister Vic Toews instructing that where there is a serious risk to public safety, CSIS can use and share torture-tainted information in order to protect lives and property.
Information derived from torture has no place in Canadian society, much less in Canadian courtrooms. The Law Union of Ontario calls on the Federal Court of Appeal to vindicate Mr. Harkat's constitutional right to natural justice and a fair hearing, and to affirm Canada's commitment to the abolition of torture throughout the world.