The Coalition Justice for Adil Charkaoui is calling on CSIS, Minister of Public Safety Stockwell Day and Minister of Immigration Diane Finley to review Charkaoui's file for other destroyed evidence and to confirm that they will implement Thursday's Supreme Court decision.

The Supreme Court of Canada handed Charkaoui a second victory Thursday in his lengthy struggle against the immigration "security certificate": "We have concluded that Mr. Charkaoui's appeal succeeds. In our view, the Canadian Security Intelligence Service (CSIS) is bound to disclose to the ministers responsible all information in its possession regarding the person named in a security certificate," (2) wrote the nine judges in a unanimous decision.

"Today we are calling on CSIS to actually apply the ruling," said Marie-Eve Lamy, a spokesperson for the Coalition. "They are nice principles, but meaningless if not applied. Will CSIS show us evidence that the policy has changed? Will they provide a timeline to implement the policy?"

The Coalition was not able to reach CSIS's media liaison, Manon Bérubé, yesterday to get a response to these questions.

The Coalition is also calling on Minister Stockwell Day and Minister Diane Finley, who signed the security certificate against Charkaoui in February 2008, to review the file and expunge all information based on destroyed evidence, in keeping with the Supreme Court decision.

Although CSIS only admitted destroying records of two interviews conducted with Charkaoui, the revelation that it has a blanket policy of destroying evidence seems to imply that much more has been destroyed.

"Notably, we question whether records of interviews with two of the key names which have been used against Adil - Noureddine Nafia'a and Ahmed Ressam - have also been destroyed," said Anna Purna Malla, also with the Coalition.

"As the Supreme Court court noted, since he was arrested in 2003, Adil has asked to see the witness statements which led the ministers to sign the security certificate against him. Adil has also asked repeatedly to cross-examime both Nafia'a and Ressam, but this has not been permitted either. If he cannot cross-examine them, and he cannot see records of their statements because they have been destroyed, how can Adil possibly defend himself against what CSIS claims that they said?" continued Malla.

"If evidence has been destroyed, it doesn't exist. All that remains is the word of CSIS," Lamy continued. "For this reason, we are now asking the Ministers to review Charakaoui's file, confirming whether records of statements by Nafia'a and Ressam have been destroyed, and expunging all information derived from destroyed evidence."

The Coalition has previously called on the Ministers to remove information sourced to Noureddine Nafia'a from the file because there are reasonable grounds to believe that it was obtained under torture. Nafia'a, who is in prison in Morocco on terrorism-related charges, provided a Radio Canada journalist with a letter stating that he does not know Charkaoui and that he had been forced to sign a pre-written confession under torture.
 
The Coalition also demanded that information in Charkaoui's file sourced to Ahmed Ressam be removed from the file after Journal de Montreal journalist Fabrice de Pierrebourg received a letter from Ressam retracting all the statements he had made under coercion in US custody. Ressam suffered a psychological breakdown while in US prison, naming hundreds of people as associates.
 
Thursday's ruling could have a significant impact on all other cases brought on the basis of CSIS investigations, including the security certificate cases of Mohamed Harkat, Mahmoud Jaballah, Hassan Almrei and Mohammad Mahjoub, as well as police investigations brought by the RCMP which often rely on intelligence provided by CSIS, according to the Supreme Court.

The judgement was a victory for the many people who have resisted and mobilized to oppose CSIS targetting, as well as the six organizations which intervened in Charkaoui's favour at the Supreme Court, including the Canadian Bar Association, the Quebec Bar Association and Amnesty International.

• To read the memo (legal arguments) on destruction of evidence by Dominique Larochelle, Mr. Charkaoui's lawyer, email us at justiceforadil@riseup.net.
• Read the legal memo asking the Supreme Court to accept the appeal (on destruction of evidence), click here.
• Overview of Charkaoui's legal file.
• Background on CSIS

HIGHLIGHTS OF THE DECISION

In a pointed response to CSIS's pretense of concern for privacy, the Supremes wrote, "Privacy should of course be respected, but not to the point of giving inaccurate or unverifiable information to the ministers and the judge." (44) They continue, "Retention of the notes will make it easier to verify the disclosed summaries and information based on those notes. ... (39) The retention and accessibility of this information is of particular importance where the person named in the certificate and his or her counsel will often have access only to summaries or truncated versions of the intelligence . (42)"

The Supremes hammered home this point by citing the February 2007 Charkaoui decision, "Despite the judge's best efforts to question the government's witnesses and scrutinize the documentary evidence, he or she is placed in the situation of asking questions and ultimately deciding the issues on the basis of incomplete and potentially unreliable information. [63]" They continue in the new decision, "The destruction of the original documents exacerbates these difficulties. If the original evidence was destroyed, the designated judge has access only to summaries prepared by the state, which means that it will be difficult, if not impossible, to verify the allegations. (61)"

Responding to the government's "simplistic" argument that destruction of evidence is justified because security certificates are part of administrative rather than criminal law, the Supreme Court is clear that "whether or not the constitutional guarantees of s. 7 of the Charter apply does not turn on a formal distinction between the different areas of law. Rather, it depends on the severity of the consequences of the state's actions for the individual's fundamental interests of liberty and security and, in some cases, the right to life. By its very nature, the security certificate procedure can place these rights in serious jeopardy, as the Court recognized in Charkaoui. To protect them, it becomes necessary to recognize a duty to disclose evidence based on s. 7." (53)

They elaborate, "possible repercussions of the process range from detention for an indeterminate period to removal from Canada, and sometimes to a risk of persecution, infringement of the right to integrity of the person, or even death (54) ... the issuance of a certificate and the consequences thereof, such as detention, demand great respect for the named person's right to procedural fairness. (56) ... As things stand, the destruction by CSIS officers of their operational notes compromises the very function of judicial review. To uphold the right to procedural fairness of people in Mr. Charkaoui's position, CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. (62)"

To read the full decision, click here.

BACKGROUND

CSIS admitted in Federal court in January 2005 that they had destroyed records of interviews with Charkaoui which they were nevertheless using in the case against him.

They further admitted that they had a policy of systematically destroying interview notes and recordings. According to the Supreme Court, a CSIS policy document instructs CSIS agents, after they have made a report, to destroy all "operational notes" defined as "Any rough note, preliminary draft, drawing, diagram, photograph, calculation, audio or video recording, electronically stored information or other material made by an employee which is to be used in the preparation of a record of the Service." (32).

CSIS further clarified that it interprets its mandate to mean that it should only gather and retain information supporting its case against someone. However, the Supreme Court clarified that, "Nothing in this provision (section 12) requires CSIS to destroy the information it collects. Rather, in our view, s. 12 of the CSIS Act demands that it retain its operational notes." (38)

What this policy and interpretation of its mandate seems to mean in practice is that CSIS develops a suspicion and then sets out to gather information to support its hunch. Favourable information, tending to show that the targetted individual or community is not a danger, is set aside or destroyed. Combined with the security certificate process, which requires that the government only show "reasonable doubt" and which is based on very general allegations, the practice becomes very problematic. The net is cast very wide and can catch many people who have a certain profile.

Concretely, in Charkaoui's case, CSIS summaries of interviews that have been made public show neither questions posed nor answers given and fail to provide any information about the context of the alleged comments, the circumstances of the interview or interrogation methods. This leaves the door open to mistakes, errors of interpretation, bias and outright fabrication. In contrast, the Supreme Court noted that, in the criminal law context, the importance of precise details of the context is well understood, "viewing a videotape of a police interrogation can assist judges  in monitoring interrogation practices, ... interview notes cannot reflect the tone of what was said and any body language that may have been employed." (61)

When it came to public attention that records of interviews with Omar Khadr were destroyed according to Pentagon standard procedure, it provoked an international scandal.

However, here at home CSIS has been carrying out a similar policy for years. As the Supreme Court noted in its judgement, this policy has been of long-standing concern to SIRC, the toothless body set up to oversee CSIS. During the Air India investigation, CSIS was found to have erased hundreds of hours of taped conversations. In the case of Bhupinder Singh Liddar, SIRC reprimanded CSIS for destroying records, relying on unreliable evidence, lying and manipulating information.

The Supreme Court finally heard the case by Charkaoui's lawyer, Dominique Larochelle, on 31 January 2008. Amnesty International, the Canadian Bar Association, the Quebec Bar Association were among the organizations who intervened in favour of Charkaoui, while a lively protest against CSIS impunity took place outside (see photo-report).

Charkaoui came to Canada as a Permanent Resident with his mother, father and sister in 1995; he later married and had three children. He was arrested under a certificate in May 2003, released from prison in February 2005, and has lived under severe conditions ever since, which affect his entire family.

In February 2007, the Supreme Court agreed with Charkaoui that the security certificate process violated his Charter rights, striking down the legislation. However, the government introduced a new law, Bill C-3, virtually identical to the previous one. A new security certificate was issued against Charkaoui when Bill C-3 came into force in February 2008. Charkaoui has launched a new constitutional challenge to the process.