Arguments against the new security certificate legislation using the case of Adil Charkaoui.

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Updated: 20 February 2008

Adil Charkaoui moved to Canada from Morocco as a permanent resident with his mother, father and sister in 1995. Married in 1998, Mr. Charkaoui now has three children, the youngest aged two and a half. Mr. Charkaoui is working as a French teacher at the elementary level, and is pursuing a PhD part-time.

A security certificate against Mr. Charkaoui was signed in May 2003 by then Immigration Minister Denis Coderre and Solicitor-General Wayne Easter. The certificate against Mr. Charkaoui was never upheld in any court. Mr. Charkaoui's case was suspended by the Federal Court in March 2005, when the government was forced to withdraw a key decision on the risk of torture after an embarassing revelation by Radio Canada.

In February 2007, the Supreme Court of Canada ruled in the Charkaoui case that the security certificate legislation under which Charkaoui was arrested, imprisonned, and subsequently held under “preventive conditions”, was unconstitutional. However, the Supreme Court suspended its decision, leaving Charkaoui, his family and the other detainees under the force of an illegal law for an additional year. The Supreme Court decision is due to go into effect on 23 February 2008, at which time the old law will cease to have force. However, in October 2007, the Conservative government introduced new security certificate legislation, in all essential aspects the same as the old law. With the support of the Liberal party, and despite very widespread opposition, this law passed both the House of Commons and the Senate by mid-February 2008.

1. New and old legislation: same flawed basis of profiling and suspicion

Just like the old legislation, the new legislation does not provide for precise charges to be laid, and key terms such as "terrorism", "national security", and "membership" are not defined in the law.  The standard of evidence is low (hearsay, for example, is admissable), as is the standard of proof (“reasonable grounds to believe” rather than the criminal law standard of “beyond all reasonable doubt”).

Thus, under the new law, Mr. Charkaoui could once again find himself in the impossible position of having to prove that it is not reasonable to believe that, for example, he "was, is or will be engaged in terrorism [undefined]; and posed, poses or will pose a danger to the security of Canada [undefined]" - all without having access to the case made against him, and in a context where being a practising Muslim is viewed as suspect from the outset.

The lack of precise charges in the security certificate proceedings – in the new law just as much as the old – means that the government relies on racial profiling – who the person is rather than what they have done. For example, the original summary provided to Mr. Charkaoui and the public at the time of his arrest in May 2003 relied on profiling of the crudest sort: Charkaoui had visited Pakistan; he practices Karate; he integrated into Quebec society by getting married, opening a pizzeria, and going to university; and he is acquainted with many people in Montreal's Muslim community, some of whom are also of interest to CSIS. This is apparently the basis on which CSIS formed the theory that Charkaoui “had the profile of a sleeper agent who could be activated at any time”.

2. Legal carte blanche

The role that the Canadian Security Intelligence Service (CSIS), the agency responsible for assembling information used in security certificate files, and other government agencies have played in Charkaoui's case is troubling.

The new security certificate legislation will unfortunately continue to provide the context for such actions to occur. The following violations took place in Mr. Charkaoui’s case under cover of the old legislation. In our opinion, the new legal framework will leave the door wide open for a repeat of these and similar abuses. 

2.1 ·    Information produced by torture

Abu Zubaydah was named as having provided information against Charkaoui in a public summary released by the Federal Court in August 2003.  Testimony and reports indicate that Zubaydah had been tortured while in US custody in Afghanistan and later held in a secret site with no oversight or accountability (for example, Human Rights Watch, "The United States' 'Disappeared': The CIA's Long-Term 'Ghost Detainees", October 2004). A book, published in summer 2006, cited former FBI and CIA agents as saying that Abu Zubaydah was not only tortured, but also mentally unstable (Ron Suskind, The One Per Cent Doctrine). Significantly, official doubts about the reliability of Zubaydah's information pre-dated the arrests of both Harkat and Charkaoui. On 6 September 2006, US President George Bush, in an extraordinary admission about CIA-operated secret prisons, advanced Abu Zubaydah as the poster boy of what Bush described as "an alternative set of procedures" to encourage suspects not to "resist interrogation". Bush stated, "Zubaydah was questioned using these procedures, and soon he began to provide information ... ". Abu Zubaydah later surfaced in Guantanamo Bay (Globe and Mail, 17 April 2007). Finally, the CIA admitted publicly in February 2008 that Abu Zubaydah had been subjected to a form of torture known as “waterboarding”. However, the Ministers have continued to cite Abu Zubaydah in Charkoui’s file.

Secret information about Noureddine Nafiaâ – another alleged informant whose name was publicized - was provided to the Federal Court by CSIS in a secret hearing in January 2005. The court released a public summary after the hearing, noting that the summary contained 95% of information that had been given to the court in the secret hearing. The public summary appears to be based entirely on two newspaper articles about Nafiaâ which appeared in April 2004 in a Moroccan paper called Aujourd'hui le Maroc. However, another Moroccan daily, At-Tajdid, was reporting in April 2004 that Nafiaâ was on hungerstrike in Moroccan prison, denying all links to terrorism and saying that he had been tortured. A February 2004 report on Morocco's counter-terrorism programme by the International Federation for Human Rights (FIDH) describes detainees being forced, under torture, to sign a pre-written confession. Human Rights Watch confirmed in a March 2004 letter, provided for Mr. Charkaoui’s file, that detainees in Morocco were not allowed to challenge confessions they said had been produced under torture. In February 2005, shortly after Mr. Charkaoui’s release from prison, Radio Canada made public a letter, signed by Noureddine Nafiaâ, who was still in prison in Morocco, stating that he had signed his 'confession' blind-folded and under torture, and had later recanted. This confession was cited in the original articles appearing in Aujourd'hui le Maroc as the basis of their report.

The new security certificate legislation explicitly prohibits the use of torture information (83(1.1)). However, it is difficult to see how the prohibition can be assured in practice as long as CSIS obtains information from US and other foreign intelligence sources who use torture. The Security Intelligence Review Committee (SIRC), the oversight body of CSIS, wrote in its 2006 annual report that the spy agency was in no position to make "an absolute assurance" that information it receives from allied spy agencies is not obtained as a result of torture. In a February 2008 response to a complaint by security certificate detainee Mohamed Harkat, SIRC went further and stated that CSIS "uses information obtained by torture".  The very necessity of including a prohibition on a practice that is clearly illegal under criminal law raises serious questions about controlling the behaviour of the agency. Moreover, while foreign intelligence agencies such as the CIA remain intent on covering their tracks to the point of destroying records – as they famously did in the case of Abu Zubaydah -, it will remain very difficult to prove that information is the result of torture.

2.2 ·    “Found evidence” and suspicious timing

Twice in Charkaoui’s case, the Minister has introduced new information based on interviews with Charkaoui that was apparently lost and suddenly recovered by CSIS. In both cases, the timing of the discoveries was highly questionnable.

In January 2003, the Ministers submitted new information to the court – summaries of two CSIS interviews with Charkaoui which took place in 2002 and which had apparently just been unearthed in CSIS’s files. A one-paragraph summary of the two interviews was released publicly; it depicted Charkaoui refusing to take a lie detector test and storming from the interview. The new information was introduced on the eve of a bail review hearing in which Charkaoui was to submit the (positive) results of a lie detector test. The Federal Court Judge pronounced himself troubled by the actions of the Minister at the time.

In January 2008, the Ministers asked for and obtained another secret hearing with the federal court. They provided the court with a summary of an interview that had taken place almost seven years earlier. The interview was not provided to the Ministers who signed Mr. Charkaoui's certificate, nor previously to the Federal Court. A fourteen paragraph public summary was issued, which the National Post made into sensational headlines on the eve of Charkaoui’s second Supreme Court hearing and as the new security certificate law was being debated in Parliament.

2.3 ·    Destroyed evidence and biased investigation

In January 2005, government lawyers revealed that CSIS had destroyed evidence used in the case, notes and recordings of interviews conducted with Charkaoui in 2002. The notes were destroyed under CSIS’s policy of systematically destroying records of interviews. The revelation raised serious concerns about the accuracy of the secret evidence before the court. The destruction of evidence raises questions about bias, distortion, errors of interpretation and decontextualization. It raises the serious question of whether the agency has provided the Court with information that tends to demonstrate the innocence of Charkaoui or only information that supports the thesis that he is dangerous.

In March 2007, the Supreme Court agreed to hear an appeal relating to the destruction of evidence in Charkaoui’s case. The Supreme Court heard the appeal in January 2008; a decision is pending.

2.4 ·    Use of hearsay

Charkaoui and his lawyers have sought to cross-examine Ahmed Ressam since his name was first published in connection with Charkaoui's security certificate file in August 2003. Government lawyers opposed the cross-examination, finally admitting that no affidavit (sworn testimony) from Ressam existed. It should be recalled that Ressam was held in the United States under an unusual arrangement whereby his prison sentence would be lessened in exchange for information during a period of four years. Convicted in 2001, Ressam was not sentenced until 2005. During that period, he fingered dozens and dozens of people as suspects. Finally, Ahmed Ressam stated in a letter published by the Journal de Montréal on 20 April 2007 that information he provided against Charkaoui was false: "What I said to the investigators ... was not true ... I was confonted with difficult psychological circumstances, I did not know what I was saying." As Charkaoui’s lawyer noted in court, the fact that Mr. Ressam suffered a mental breakdown and was in a poor psychological state was known to authorities. However, the information about Mr. Ressam’s poor condition did not appear to have been provided to the court, again indicating bias in the investigation.

2.5 ·    Hidden arrest warrents

In March 2005, Charkaoui submitted evidence in court that threw further doubt on the credibility of information sourced to Ahmed Ressam. A Montreal arrest warrant indicated that Ressam was in Montreal on 18 June 1998. However, in a US district court hearing in 2001 (US District Court, Southern District of New York, USA v. Mohktar Haouari), Ressam had testified that he was in Afghanistan in a training camp from end of April 1998 for five or six months. This not only raised questions about the credibility of the information CSIS was relying on, but about CSIS's failure to have produced this same, easily-obtained evidence.

In August 2004, Canada refused to grant Charkaoui protection (that is, against deportation to torture), relying chiefly on assurances from Moroccan authorities that Morocco does not practice torture and, in any case, they had no interest in Charkaoui. In February 2005, Radio Canada investigators revealed the existence of a hidden arrest warrant for Charkaoui – issued but not signed – in Morocco, based on the torture confession of Nafia’a. The sequence of events raised very troubling questions about the knowledge and role of Canadian officials in the affair. Canada withdrew its decision on protection, and the case has been suspended ever since.
 
2.6 ·    Leaked information

In June 2007, the Montreal newspaper La Presse published an article reporting on a secret, CSIS-sourced document that had been leaked to them. The article carried previously unpublished allegations against Charkaoui, who vehemently denied them. Serious questions were raised about the source and purpose of the leak. The RCMP and CSIS both opened investigations into the leak of information, but have apparently not yet reached any conclusions. The Federal Court issued an interim ruling on 18 January 2008, noting that the leak was an illegal act which violated Mr. Charkaoui’s rights and has asked the journalists to provide information on the circumstances of the leak.

3. Detention and control orders

Mr. Charkaoui spent nearly two years in Rivières-des-Prairies prison (from May 2003 to February 2005), without charge, even though his security certificate had not been (and never was) upheld. As the only Permanent Resident among the current detainees, this  long period of detention without charge or trial took place under the system of bail application which has now been extended to refugees and non-status. There is thus no reason to believe that the application of the new law will lessen the period of indefinite, arbitrary detention.

In February 2005, Charkaoui was released under conditions that Amnesty International qualified at the time as "among the most restrictive ever imposed in Canada" (Amnesty, February 2006). These conditions affect the freedom of Charkaoui’s entire family.

Among the “preventive conditions” that have been imposed on him: Charkaoui must wear a GPS-tracking bracelet at all times; he must be accompanied by a court-appointed supervisor  (his mother or his father) every time he leaves his home; he has a curfew; he cannot leave the island of Montreal; he is forbidden from using the internet, any computer but the one in his home, cell phones, and any telephone but the one in his home; he must go once a week to the offices of the Canadian Border Services Agency (CBSA) and sign; he must allow police officers 24 hour access to his home without warrant; and has a range of other conditions imposed on him. His father must write reports on his behaviour. The conditions are humiliating, stressful and restrictive on the entire Charkaoui family, seriously limiting their ability to work and enjoy leisure activity. Charkaoui and his family remain under the same conditions today.

The new security certificate law provides for the continuation of a regime of invasive, indefinite control orders.

4. Deportation to torture

Not only is Charkaoui threatened with deportation from the country where his life has been established since 1995, where his parents, sister, wife, and three children all live, this threat comes with the risk of torture or death. He and his family have been living under this threat since the certificate was first issued.

The risk of torture and other bad treatment was confirmed by Immigration Canada in a pre-removal risk assessment (PRRA) carried out in August 2003: "... there exists a probability of torture, of threat to life, and of being subject to cruel and unusual treatment or sentence if he returns to Morocco."

The risk of torture, death or cruel and unusual punishment was re-confirmed in a new PRRA released in fall 2007.

The government nevertheless continues to pursue deportation against Charkaoui.

This is an ever-present anxiety with which the entire family lives.

The new legislation does nothing to address the threat of deportation to torture, but will continue to threaten Charkaoui, his family and the other detainees with torture. This represents no less than Canadian complicity in torture.