Update on 1 May 2007

Challenge to Security Certificate Process

Charkaoui's constitutional challenge to the process, initiated in June 2003, was heard by the Supreme Court in June 2006. In February 2007, the Supreme Court ruled that the certificate process violated sections 7, 9 and 10 of the Canadian Charter of Rights and Freedoms, and struck down the law (sections 33 and 77 to 85 of the Immigration and Refugee Protection Act).

Challenge to Destruction of Evidence in Charkaoui’s File

In January 2005, government lawyers revealed that CSIS had destroyed evidence in the case; all notes of interviews conducted with Charkaoui in 2002. All that remains of the interviews is a summary. They were destroyed as part of a policy of systematic destruction of interview notes; a policy which has already been criticized by SIRC, the oversight body for CSIS. The situation raises serious concerns about the accuracy of the secret evidence before the court; because the notes are destroyed, no independent verification of the summary is possible by the Judge. The destruction of evidence opens the door to bias, distortion, errors of interpretation or decontextualization. In March 2007, the Supreme Court agreed to hear an appeal relating to the destruction of evidence in Charkaoui’s case. The Supreme Court will hear the appeal in January 2008, at the same time considering whether the government can introduce new information to justify the security certificate after the certificate has been issued.
 

Challenge to Deportation to Torture

The Canadian government’s position is that normal legal safeguards against being sent to torture do not apply to people who are subject to a security certificate, basing this policy on their interpretation of the 2002 Supreme Court Suresh decision. In April 2007, Charkaoui submitted a leave to appeal to the Supreme Court in order to challenge the law allowing deportation of non-citizens to torture, the lack of due process, the fact that he has been living under the threat of deportation to torture for years and excessive delays in the process of deciding on the application for protection.

Court file on Security Certificate

The security certificate against Charkaoui was signed in May 2003 by the Minister of Public Safety and the Minister of Immigration on the advice of the Canadian Security Intelligence Service (CSIS). The certificate is then supposed to undergo a review in Federal Court, but can be suspended pending a decision from the Minister of Immigration on whether to grant protection. The review was thus suspended in February 2004. A negative decision on protection was rendered in September 2004; it was quashed in March 2005 by the Federal Court, and the case was once again suspended.  No new decision on protection has been made since that time. The case has thus been suspended since March 2005 and Charkaoui’s certificate has not yet undergone any court review.
 

Court file on Release Conditions

After almost two years in prison, Charkaoui was released in February 2005 under conditions that Amnesty International qualified as "among the most restrictive ever imposed in Canada" (Amnesty, February 2006). The conditions affect the freedom of his entire family. A series of minor changes have been made since Charkaoui’s release, but the conditions remain essentially the same: curfew; court-appointed supervisor to accompany Charkaoui every time he leaves his home; no cell phone, no internet, no telephone except the one in Charkaoui’s home, no computer except the one in his home; cannot leave the island of Montreal; and GPS-tracking bracelet. No review of conditions has taken place since fall 2006. 

 
Court file on Protection

Under Immigration law, “protection” can be granted if a person threatened with deportation is at risk of torture or other ill-treatment. The Minister refused Charkaoui protection in September 2004. The refusal was based on guarantees from Morocco, written in April 2004, that there was no arrest warrant, search or proceedings of any kind against Charkaoui in Morocco and that Morocco fully respects the Convention against Torture in all cases. The negative decision, written by a delegate of the Minister of Immigration, also stated that, even if the risk of torture were serious, Charkaoui should not be granted protection because, based on secret suspicions, Charkaoui was considered to be a danger. The Federal Court quashed the decision on consent in March 2005, following an investigation by a Radio Canada journalist which revealed, contrary to the diplomatic assurances, the existence of an arrest warrant in Morocco (this latter was based on a confession obtained by Morocco in 2003, which was subsequently retracted). Since March 2005, the file has been pending (see challenge to deportation to torture, above).