Security certificate changes not 'sufficient' to safeguard rights

Richard Foot, The Ottawa Citizen, Friday, February 01, 2008

The Conservative government hasn't done enough with its revised security certificate legislation to bring the law in line with the Charter of Rights, says Paul Cavalluzzo, the Toronto lawyer and former lead counsel of the Maher Arar inquiry.

Mr. Cavalluzzo, one of the country's most prominent constitutional lawyers, says Bill C-3 -- legislation aimed at fixing flaws in the controversial anti-terror provision -- still won't adequately protect the rights of people arrested and facing deportation to a foreign country.

"I don't think C-3 is sufficient to meet the standards of the Constitution," he says.

One person arrested under a security certificate, Montreal immigrant Adil Charkaoui, took his case to the Supreme Court yesterday in a bid to quash the government's effort to deport him to his native Morocco.

It was Mr. Charkaoui's second visit to the country's highest court. Last February, he and two other accused terrorists convinced the court to strike down the law -- an extraordinary immigration measure that lets authorities arrest, detain and deport non-citizens considered threats to national security.

The court said the law violates accused persons' constitutional right to defend themselves, because they cannot know the government's secret evidence against them or participate in a judicial hearing that would determine their fate.

The court gave the federal government one year -- until Feb. 23, 2008 -- to bring the law in line with the Constitution.

Mr. Charkaoui, who since 2005 has been living under strict bail conditions, came back to the Supreme Court with his lawyers and a long list of organizations also opposed to the security certificate regime, including the Canadian Bar Association and Amnesty International.

He wants the court to overturn his certificate on the grounds that the Canadian Security Intelligence Service (CSIS) failed to fully disclose its evidence against him, either to his lawyers or even to the Federal Court judge presiding over his deportation case.

He also says CSIS has tried to smear his reputation by leaking harmful information to journalists, and has destroyed evidence in its files, erasing recordings and notes of prior interviews with Mr. Charkaoui and keeping only brief summaries instead.

He says that shows a bias on the part of CSIS, and further violates his right to a fair hearing.

"My lawyer showed to the Supreme Court that it's a biased investigation," he said outside the court yesterday. "I think it's now time to clear my name and to show (there has been) a lot of abuse in my case."

Government lawyers have argued that CSIS does not keep full records of its interviews and other evidence because, unlike a police force, it is not bound by the same rules and standards that govern criminal prosecutions.

They also said the intelligence agency destroys certain information in its files to protect the privacy of individuals.

That argument does not wash with many lawyers across the country. Mr. Cavalluzzo, who investigated Canada's role in the wrongful deportation and torture of Mr. Arar, says CSIS should not destroy information that is the basis of arrests and possible deportations.

"It's quite disturbing they would be destroying their notes, knowing that a Federal Court judge would later need to review those notes (in a security certificate proceeding)," he says.

Mr. Cavalluzzo also rejects the government's argument that, because someone arrested under the law is subject to an immigration process, the standards of fairness are not as high as for a criminal trial.

He says people arrested under security certificates deserve the same right -- possibly a greater right -- to see all the evidence against them as anyone charged with a crime.

"Someone who is subject to deportation and possibly torture in another country should have access to as much information as possible to defend their liberty," he says.

The government says Bill C-3 gives accused people all the rights they need by creating "special advocates" -- lawyers appointed to represent their interests in secret security certificate hearings.

However, Mr. Cavalluzzo says the bill does not give special advocates enough leeway to meet with the accused after having seen the government's secret evidence.

Still, Mr. Cavalluzzo is one of about 50 lawyers across Canada who have applied to be appointed as special advocates in anti-terror cases.

"Although I think there are real problems with the legislation, I felt it is my professional responsibility to offer my services to these persons subject to national security proceedings, in light of my experience," he says.