December 2008

What is currently happening in court

The hearings which began on 9 December and continued on 19 January represent the public face of an essentially secret process to review the conditions placed on Mr. Charkaoui and to determine the "reasonability" of the security certificate against Mr. Charkaoui.

In the reasonability hearings, the judge is asked to decide whether there are reasonable grounds to believe that the government had reasonable grounds to sign the certificate, declaring that the individual is now or could in the future be a “danger”. The judge is not asked to find out whether specific allegations against an individual are true, as in a trial. This is not a trial.

The reasonability hearings can be carried out in secret or in public. Secret hearings between the judge, the government lawyers and the government-appointed special advocates took place in Mr. Charkaoui’s case in October and November. The special advocates are charged with defending the interests of the detainees in the secret hearings, but they are not the detainees’ lawyers and are not allowed to communicate with them after they have seen the secret material.

So the public hearings taking place this week are the public face of a process that remains essentially secret. Mr Charkaoui has not been given the secret material that is presented to the judge, so he is being put in a position where he is told to defend himself in public without knowing the case against him.

This is the first time in five and a half years of detention that Mr. Charkaoui’s security certificate will be reviewed publicly by any court.

Reasonability hearings – both secret and public – could possibly resume in the coming months, after CSIS provides evidence to the judge (see below in timeline – 27 October 2008).

What is a security certificate and how does it work

A security certificate is part of immigration law. It is a special deportation proceedings and as such it applies only to non-citizens: non-status, refugees and permanent residents, like Mr. Charkaoui.

A security certificate is initiated by the Canadian Security Intelligence Service (CSIS). It is signed by the Minister of Public Safety and the Minister of Immigration. It is then reviewed by the Federal Court in a series of ‘reasonability hearings’, which can be carried out in secret (without Mr. Charkaoui or his lawyers).

From the point at which the certificate is signed (before any court hearings), the targetted person can be subject to detention (prison, house arrest or extremely harsh bail conditions). This can last years. If the judge upholds the certificate - determines that it is “reasonable” - the person can be deported.

Who is Adil Charkaoui

Adil Charkaoui came to Canada as a Permanent Resident in 1995. He lives with his wife, and three young children. He is a French teacher and is pursuing a PhD part-time at the University of Montreal. Since his arrest under a certificate in 2003, all he has been asking for is a fair and open trial in which he can clear his name.

Who opposes security certificates

The security certificate has been the object of a strong public campaign. For example, a march on February 17, 2007 in Montreal, calling for the abolition of security certificates and release of the five detainees, was endorsed by over seventy organizations from Quebec, Canada and the United States including national unions, student organizations, faith-based groups, anti-oppression groups, indigenous solidarity organizations, major human rights organizations, feminist organizations, development organizations, anti-war networks, community associations, anti-poverty groups, migrant justice groups, prisoners’ rights organizations, legal associations and more.

Well-known names such as Warren Allmand, Denys Arcand, Bruce Cockburn and Alexandre Trudeau have chimed in against security certificates over the years.

More recently, such organizations as Amnesty International, Human Rights Watch, the International Civil Liberties Monitoring Group, the Canadian Bar Association, the Quebec Bar Association, the Federation of Law Societies of Canada, the Canadian Council for Refugees, the Ligue des droits et libertés and the BC Civil Liberties Monitoring Group have taken positions opposing Bill C-3, the new security certificate legislation.

In November 2008, the Quebec Bar Association – the professional association representing all lawyers in Quebec - was granted the right to intervene in the Charkaoui case against the new security certificate law and in favour of Mr. Charkaoui.

Security certificate constitutional challenges

Adil Charkaoui put forth a constitutional challenge regarding security certificates, and in February 2007 the Supreme Court ruled that the security certificate process was unconstitutional. In February of 2008, Parliament passed Bill C-3, a new law which did not resolve the unconstitutionality of the security certificate process.

Adil Charkaoui`s lawyers submitted a motion in April 2007 which argues, inter alia, that Bill C-3 is unconstitutional. These arguments have not yet been heard in court.

Timeline – Charkaoui case

1995 – The Charkaoui family – Adil, his mother, father and sister - emigrates to Canada, as Permanent Residents.

21 May 2003 – Charkaoui is arrested under a security certificate. He is imprisonned at Rivière des prairies Detention Centre in Montreal.

18 February 2005 – Charkaoui is released from detention and placed under extremely strict conditions.

23 February 2007 – Supreme Court declares the security certificate process to be unconstitutional.

February 2008 – A new security certificate legislation, Bill C-3 enters into force. In the view of the Quebec Bar Association, "is not sufficiently different from its predecessor to be considered constitutionally valid." New certificates, under the new law, are issued against Charkaoui and the other detainees.

June 2008 – Supreme Court declares that CSIS acted illegally when it destroyed evidence in Charkaoui’s case. It rules that intelligence reports – opinions and summaries prepared by CSIS - are not sufficient basis for security certificate process; CSIS must provide the judges with actual evidence.

27 October 2008 – CSIS asks for an additional six months to assemble proof in Charkaoui’s case to give to the judge. Judge Tremblay Lamer subsequently decides to continue with the public hearings, even though she doesn’t yet have the proof.