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Last updated: 26 November 2008

CONSTITUTIONAL CHALLENGE TO SECURITY CERTIFICATE LAW. In February 2007, the Supreme Court ruled in its Charkaoui decision that the security certificate process was unconstitutional. The government introduced a slightly modified law and, a year later, in February 2008, new security certificate legislation entered into force. In enacting the new security certificate law, the government failed to respect the Supreme Court’s ruling that detainees have a right to know the case against them. Accordingly, on 23 April 2008, Charkaoui submitted a request at the Federal Court asking for a declaratory judgement ruling that Section 9 (articles 77 to 87.2) of the Immigration and Refugee Protection Act (the sections enacting the security certificate process) is unconstitutional (read the notice of motion and the legal memo - french only) and that Charkaoui should be freed on the conditions imposed on him (because he is being illegally deprived of his liberty by an unconstitional law). The Quebec Bar Association has asked to intervene in favour of Charkaoui, against the security certificate law (to read their leave to intervene (June 2008), click here; to read their written arguments (August 2008), click here). The Federal Court has not yet heard the motion. Preliminary questions in this motion will be argued the week of 24 November 2008; Charkaoui's lawyers will be arguing that the motion itself should be heard during hearings scheduled from 8 to 19 December 2008.

DISCLOSURE & CHARKAOUI 2008. In the same motion, Charkaoui asked for all the information in his file that can be disclosed and asked to cross-examine the CSIS agents who prepared his file, the Minister of Immigration and the Public Safety Minister who signed the certificate. The request for disclosure was updated and resubmitted (click here to read the new motion) after the Supreme Court ruled for a second time on Charkaoui’s case in June 2008: the Supreme Court ruled that security certificate cases must be supported by more than a summary of the information used against them; CSIS must provide actual evidence. The Supreme Court said that, as a consequence, CSIS cannot destroy evidence (as it in fact did in Charkaoui's case). The Supremes emphasized that this basic duty of disclosure is particularly important in security certificate cases because the stakes are so high (possibly including death). On 3 September, Charkaoui's lawyers asked the Court to order the government to immediately give them all relevant information that could be disclosed. This would have helped him to prepare his defense before the special advocates could no longer freely communicate with him. After some debate, Judge Tremblay-Lamer told CSIS that they should indeed give this information to Charkaoui and his lawyers. She also agreed that his lawyers would be able to cross-examine CSIS about whether they had disclosed everything that could be disclosed. However, just a few days later, the decision changed: Tremblay-Lamer informed Charkaoui's lawyers that she would instead follow a more recent decision in the Harkat case. The information would be handed over, but not to Charkaoui and his lawyers; it would be given to the Judge, the Ministers and the special advocates in the secret process. In a secret hearing (without Charkaoui, his lawyers and the public) on 27 October, Tremblay Lamer ordered CSIS to provide evidence to her and the Ministers (not to Charkaoui or his lawyers). CSIS asked for six months to assemble some evidence and the judge has granted CSIS an initial six weeks. This indicates that CSIS has never previously provided judges with evidence, just summary reports. Moreover, it seems that the Federal Court has previously been satisfied with this kind of material.

CONDITIONS. Since February 2005, although he has never been charged with any crime - let alone tried, Charkaoui has been subject to conditions which prevent him from leaving home without his mother or father, do not allow him to leave Montreal, deny him access to any telephone except the one in his home, impose a curfew, force him to wear a GPS-tracking bracelet, prevent him from using internet, and more. These conditions create serious obstacles for Charkaoui in pursuing his career and studies; they are a heavy burden on his entire family. The April 2008 motion thus also seeks liberty for Charkaoui, based on the fact that he is being detained under an illegal law. This complete review of the conditions, which was provided for in the interim measures of the new law, may take place during hearings scheduled for 8 to 19 December 2008. Charkaoui has not had a conditions review since June 2007.

REVIEW OF CERTIFICATE (REASONABILITY HEARING). In February, the government issued new security certificates against Charkaoui, Harkat, Almrei, Mahjoub and Jaballah under the slightly modified but no less unjust legal process (see our break-down of C-3, the new security certificate law which entered into force in February 2008). Before the detainee is deported, the security certificate must be reviewed by the Federal Court in what are known as the "reasonability hearings". The basic question in the reasonability hearings - only part of which is held in public, of course - is whether it is reasonable to believe that the government had reasonable grounds to believe that Charkaoui was, is or will in the future be a danger to public safety (where "danger" and "public safety" are undefined). This is what passes for a trial in security certificate cases. The secret part of the hearings - which take place in an undisclosed location in the absence of Charkaoui, his lawyers and the public - began on 27 October 2008, but were quickly postponed to allow CSIS time to put some evidence together (see above, "Disclosure and Charkaoui 2008"). The public face of the secret hearings will begin on 9 December, before CSIS has given anyone (the judge, the Ministers, and Charkaoui himself) the evidence and under a law that Charkaoui's lawyers are contesting.

RECUSAL OF JUDGE. On 23 October, Charkaoui submitted a motion requesting that Federal Court Judge Danielle Tremblay Lamer remove herself from his file. The motion was submitted after Mr. Charkaoui’s lawyers received the transcript of a hearing between the Federal Court Judge, government lawyers and the two special advocates in Mr. Charkaoui’s file. Against the objections of Mr. Charkaoui’s lawyers, the hearing, which took place on 2 October 2008, was conducted ex parte (i.e. Mr. Charkaoui and his lawyers excluded). Although there is nothing new in Charkaoui and his lawyers being excluded from hearings in this process, in this case, even the pretext of secrecy for reasons of "national security" was dropped. It was a "public" hearing, and nothing that was supposed to be a danger to national security was discussed. The transcripts also reveal that Tremblay-Lamer twice warned the special advocates against Adil's lawyers; claiming that they were trying to "control the court" and that, if listened to, they would keep things dragging on for months. Replying to one of the special advocates, who ventured that Charkaoui's lawyers had not yet finished preparing them for their role in the secret hearings, the judge said that the secret hearings must and would start on 27 October. Charkaoui's lawyers were not present to respond to these unjust and biased representations nor to argue why, in all fairness, they needed three more weeks with the special advocates. Based on the transcripts of this hearing, Adil's lawyers argued that there was a reasonable fear of bias on the part of the judge and asked her to withdraw from the case. The judge dismissed the motion. This decision is now in appeal.

LEAK OF INFORMATION. In June 2007, in an incident reminiscent of the leak of information to Ottawa Citizen journalist Juliet O'Neill in Maher Arar's case, La Presse, a Montreal daily newspaper, published sensational allegations against Charkaoui based on a secret CSIS document obtained in some unknown manner. The RCMP opened an investigation into the criminal leak of information, and CSIS itself opened an internal investigation, but to date neither investigation seems to have yielded results. Charkaoui's lawyer argued that the criminal leak of information constitutes a violation of his charter rights and abuse of procedure, and asked the courts to stop proceedings against him on this basis. This court process is ongoing.