Coalition Justice for Adil Charkaoui, 8 November 2004

Summary of the Demonstration against Secret Trials, in Ottawa on November 8th 2004 and the court appearance at the Federal Court of Appeal in Ottawa on the constitutionality of security certificates.
 
Note, the following is a very rough translation from an original report prepared in French.

Last week on November 8th at the Federal Court of Appeal in Ottawa, there was an appeal hearing for Adil Charkaoui on the constitutionality of the security certificates. While the three judges heard the arguments from both sides, around 30 people demonstrated against what is increasingly referred to as a “kafkaesque” procedure, as well as showing their solidarity with the five victims of the secret trials. (Gazette, November 7th, 2004)

The moment that the demonstration got started, people saw five ghosts wandering through the crowd and the media who were attending the event. Each ghost represented one of the rights which had disappeared well before the introduction of the security certificates, and the events of September 11th: the presumption of innocence, a fair trial, access to the evidence used against the individual, the protection against torture, the right to appeal.

Michael Bossin, a law student at the University of Ottawa, denounced the security certificates due to its profound procedural bias, as the evidence remains secret, and there is no possibility for the defense to cross-examine the witnesses. His colleague speaking with him, Chantal Tie, believing it to be ‘more than unfair’, added how many judges have even publicly admitted that these trials put them in a very uncomfortable position. Hind Charkaoui, the sister of Adil Charkaoui, and Sophie Harkat, Mohamed Harkat’s wife, both spoke on how the families and those close to the victims of the secret trials, are suffering, and they both reiterated their on going dedication to continue the struggle, that will only end with the abolition of security certificates.

Monia Mazigh, the wife of Maher Arar, spoke next to express her solidarity with the families of the victims of the secret trials: “ We are asking that these men have the right to defend themselves”, adding that these trials are not appropriate for a country like Canada, with the international scene having an image of it being a open society that defends civil rights.

Riad Saloojee, Director of Council for American-Islamic Relations Canada (CAIR-CAN), who was the final speaker, put the use of security certificates in the context of systematic racism against Arab and Muslim communities and its manifestations through the harassment and profiling of these communities since September 11th 2001.

The demonstration ended on a musical note, with a performance by Dave Bleakney, a member of the Canadian Union Postal Workers, and two members of the Coalition for Justice for Adil Charkaoui.

During this time, inside the Federal Court of Appeal, Johanne Doyon, Adil Charkaoui’s lawyer, argued before three judges that the security certificate process (a law from the Immigration and Refugee Protection Act) is unconstitutional, as it violates many fundamental rights in the Canadian Charter of Rights and Freedoms. First of all, the right to a fair and equal trial is violated by having the ex-parte hearings where the judge meets in secret with the Crown attorneys. Judges are supposed to show an appearance of impartiality, but with the secret trials, they are seen more to be an opponent for the defense, and that gives an appearance of injustice.

Doyon also qualified the principal of the secret trials as `Kafkasque`. In effect, the security certificate process doesn’t allow cross examinations against the Crown witnesses nor offer any alternative methods to test the secret evidence. She stated that it is not necessary to use secret evidence to prove that someone is a danger to national security.

The principal of the Justice system being an independent entity was also put in question because the Minister of Public Security has the power to arrest by signing a certificate. This political power goes too far, and by delegating this judicial power to a minister, the separation between judicial and political power is violated.

Judge Simon Noel of the Federal Court in Montreal violated the right of Adil Charkaoui to be released under bail and to not be denied that right without having a just cause. Judge Noel considered that the criteria for arresting him (having a reasonable doubt to think that someone is a danger for national security) was the same criteria for refusing his release. But there requires a probability of risk to refuse the release. As well, he didn’t consider other alternatives to detention.

The only time that the law allows using secret evidence is when there is authorization to do electronic surveillance, or having a warrant –but in these cases there exists a right to appeal, which is not the case with security certificates. The questions the judge should have asked were: Are secret trials necessary? Is there a “rational link” between the measures taken and the threats that these measures are meant to fight? And are these measures acceptable in a “free and democratic” society? Or even, as is the position of the defence, aren’t the trials of security certificates a clear violation of the rules of fundamental justice? One must measure the opposing interest of the State in particular.

International law recognizes the fundamental rights of: the right to appeal, the right to cross examine witnesses, and the right to a fair trial. But, Judge Simon Noel disregarded the individual human rights of Adil and international law, and he gave an overwhelming importance to national security. Doyon asked the following questions: “Is it in the interest of Canadian society to treat landed immigrants so poorly?” The question to know is what kind of justice we want in this country. Doyon made a comparison between the immigration process and in the process of a security certificate. In the first case, there are certain judicial controls. In the second case, there are no judicial controls. The trials are to determine only if a certificate is “reasonsable”, if there are “reasonable” doubts and if there is a “serious possibility based on suspicions” that there is danger. This could lead to innocent people being deported, thus this law extends an excessive amount, and represents a “considerable blow” to the Constitution.

The fact that Adil is a permanent resident should give him the right to a fair trial, the same as any other Canadian citizen. Permanent residents are even more vulnerable because Canada collaborates with police states. One of the Judges summarized the argument of Doyon on the vulnerability of permanent residents with security certificates by saying “If you don’t smile well to CSIS you will have problems…”

Briefly, what Doyon is asking in the name of Adil Charkaoui is the right to a fair trial without secret evidence, just like criminal or civil trials. A judge seemed to wake up and understand the importance of the issue in front of him. He asked: “So, if I understand correctly, you want us to free the detainees and abolish security certificates?!” Doyon humbly answered that she was only asking for the liberation of Adil Charkaoui, but that this should logically lead to the liberation of the others as well…

The Crown prosecutors reacted to Doyon’s arguments. One of them first asked if Judge Noel was correct or not, to separate the issues of the certificate from the constitutional issues (“Did he have one or two hats or a big hat?”). He was so not convincing that one judge asked him if he had “an exit door”! Then, another prosecutor took the stand with jurisprudence, and said that it would mean “a 180 degree turn” in closed-door hearings matters if we abolished secret trials. He said that secret evidence was “the exception” because a judge can test the evidence himself during secret hearings and decide if he wants to divulge it. He also made a weird comment saying that since September 11th, the judicial power has to believe the executive branch because it is better informed (and what about the independence of the courts?!). On the permanent resident status of Adil Charkaoui, the prosecutor said that it was an option for legislators to anticipate situations where we can remove the right of residence for reasons of… national security. About the indefinite detention of Adil Charkaoui, the prosecutor underlined the fact that this detention was pre-emptive and that its goal is to “protect the public” and to ensure that the accused is present in court… To justify the fact that Adil’s conditional liberation was denied three times, he said that the danger can’t be evaluated because as long as Adil doesn’t testify, we are in an absence of facts! He repeated the three questions that the judge-crown-prosecutor Simon Noel asked Adil, of which Doyon said that they include “all of his life”, and said that if he testified to say that he is not a threat, “maybe” he would be released… The prosecutor also said that Adil could testify to contradict the evidence (that he doesn’t know) to compensate for the absence of a fair trial!

On the question of knowing if the security certificates have extending excessive power because of the vague definition of “motives for believing there is a danger against national security”, the prosecutor did not respond to the question of knowing if these trials were “appropriate”, he only simple responded that they were “acceptable”. The Crown prosecutor, concluded by stating that “it is an imperfect system” but that Doyon was exaggerating! He also spoke of the “creativity” of the defense lawyer. Doyon replied by saying that the jurisprudence used by the Crown, like those listed by Judge Noel, does not apply in the context of security certificates, and that they were being taken out of their context. Finally, Doyon reminded the court that security certificate trials also violate the law against expulsing people to torture.