âeoeIn a constitutional democracy, governments must act accountably and inconformity with the Constitution and the rights and liberties itguarantees. ... Security concerns cannot be used to excuse procedures thatdo not conform to fundamental justice.âe - Supreme Court of Canada Chief Justice McLachlin, Charkaoui v. Canada,February 23, 2007
On February 23, 2007, the Supreme Court of Canada unanimously ruledunconstitutional the notorious secret-hearing security-certificateprocedure. A process so invested in secrecy, lack of proceduralsafeguards, and the complete inability of a person named in the certificateto know the case against him condemns the process as fundamentally flawedand unfair.
There are numerous problems with the highest court's decision. Forexample, the court's failure to recognize that the certificate regime results inindefinite detention, and its inability to recognize that it violates theequality rights of refugees and permanent residents. However, the courtunequivocally found that the process for determining a certificate'sâeoereasonableness,âe the heart of the procedure, was completely incompatiblewith the Canadian Charter of Rights and Freedoms.
So far, the minority Harper government has treated the SupremeCourt's decision as a minor annoyance âe" much as the Bush administrationbrushes off pro-Guantanamo-Bay detainee court decisions in the UnitedStates âe" and âeoePublic Safetyâe Minister Stockwell Day has promised newsecret trial legislation for this fall. This was not unexpected. Indeed, ina July 2007 response to the standing committee on public safety, thegovernment completely dismissed the Supreme Court finding that securitycertificates violate Charter rights, stating only that, from its point ofview, the Supreme Court âeoeheld that the government could do more to protectthe rights of the individual during the process.âe
Perhaps of more concern is the fact that rather than joining thewide-ranging grassroots campaign to abolish secret hearings, indefinitedetention, draconian control orders, and deportation to torture, someindividuals and groups, including the Federal Court of Canada, are buyinginto the tired old âeoenational securityâe myths and distortions and seeing ifthey can manufacture a âeoebalanced solutionâe in a situation where no solutionshort of abolition is suitable to meet the best interests of justice.
CSIS and McCarthy: Equally paranoid and malicious
This accommodation with injustice is a most unfortunate move thatfails to get at the root of the security certificates and other repressivemeasures in the government's arsenal, for it does not question thefoundation of the unsubstantiated CSIS/RCMP claims about alleged threatswhich, for reasons of âeoenational security,âe cannot be revealed to thepublic.
Indeed, consider the ominous-sounding CSIS director's completelyunfounded statement that there are between 99 and 999 security risks inCanada. Sounds a lot like the exact tactic used by Joe McCarthy during thered-baiting 1950s, who often had in his hand a list (the numbers on whichwere constantly changing) of undisclosed âeoesubversives.âe Meanwhile, CSISpublicly declares that significant portions of the Canadian population posea real threat to the security of Canada: animal rights activists, FirstNations âeoeextremists,âe âeoeelementsâe of the so-called anti-globalizationmovement, and of course the enemy-du-jour, Sunni Muslims.
Those who have worked so long and hard to eliminate securitycertificates âe" and especially those most directly affected, the detaineesand their families âe" refuse to accept secret trials with fancy windowdressing simply because, as those who are working to broker a âeoesolutionâe argue, that is the direction in which the government appears to be headed.
Indeed, what if the government had a plan to introduce mass internment forthe above-mentioned groups: should we be expecting civil liberties groupsto âeoestrike a balanceâe by suggesting internment could be problematic butthat âeoeshackle-free Sundaysâe would be their price of acceptance?
Perhaps those who are all too willing to âeoestrike a balanceâe mightwish to spend a day or two getting face to face with the tremendous humantoll that indefinite detention, solitary confinement, lengthy hungerstrikes, public and ongoing defamation of character, the ongoing threat ofdeportation to torture, living under draconian house arrest and dailygovernment harassment has exacted on the detainees, their families, andtheir communities.
Needless to say, this suffering has been wrought by a vengefulCSIS, based on secret âeoeinformationâe that has not and never will be seen bythe detainees or their lawyers. CSIS is determined to keep it that way.That is why there are no doubt shivers going down the backs of some in theOttawa CSIS bunker who have Feb. 23, 2008 marked on their calendarswith a skull and crossbones, for it is on that day that those certificatesthat have been deemed âeoereasonableâe will lose their âeoereasonableâe status, andthe men can apply to have their certificates quashed in the hopes that theycan simply get on with their lives.
But will CSIS allow this to happen? Of course not. They have muchinvested in their allegations that these men pose some kind of threat, notleast of which is their, ahem, âeoecredibility.âe This is why they need newsecurity-certificate legislation, so that new certificates can be issuedonce the old law expires in February, 2008. To allow the men to go free andget on with their lives would eventually put the lie to everything that hasbeen said about them, and serve another severe blow to an agency which,along with the RCMP, increasingly paints itself as a victim of the raredemocratic impulse that arises in Ottawa.
Indeed, the simple requirement that questions be answered and somesmall measure of accountability be shown at the Arar Inquiry, for example,has been translated into what former CSIS agent Jack Hooper says hiscolleagues call âeoejudicial jihad,âe while a recently retired RCMP chiefsuperintendent, Ben Soaves, calls it âeoejudicial terrorism.âe When you live ina national security state, the âeoenational security agencies,âe and not thecourts or commissions of inquiry, are supposed to be the final word.
The CSIS-agent-as-victim-because-he-takes-part-in-rendition-to-torture-and-then-has-to-answer-questions-about-it syndrome is not just internal tothe agency. The inspector general of the Canadian Security IntelligenceService puts a caring arm around the shoulders of the beleaguered CSIS withits spring, 2007, comment that âeoeOver the past two years I am sure that, attimes, CSIS has felt 'overburdened' by review in their efforts to respondto various mandated reviews in addition to the statutory review mechanismsestablished under the CSIS Act. ... I wish to assure you that I am workingvery hard with the Service to minimize any disruptions my statutoryresponsibilities may pose to their important obligations and duties forcountering threats to the security of Canada.âe
Similarly, the former head of the so-called oversight committee ofCSIS, the Security Intelligence Review Committee, Paule Gauthier, invitesus all to just get over it and swallow hard. âeoeWhen it comes right down toit, Canadians must decide if we have the stomach âe" and the money âe" forthis kind of work,âe she told a national security forum in 2005. âeoeAll I cansay is, if we don't have the nerve for it now, we'd better develop itquickly.âe She later adds, âeoeIf we want to keep playing the national securitygame, we're going to have to play in the big leagues. It won't always benice, it won't always be easy, and it won't always be pretty, but that'sthe world we live in. The sooner we get used to it, the better.âe
Federal court pushing the agenda to keep secret trials
Who, then, seems to be coming to the rescue of Canada's paranoidspy wannabes? Even before legislation with respect to new securitycertificates has been introduced, discussed, and possibly voted on, theFederal Court of Canada seems to have already determined that thecertificates will be back, and it seems the court has chosen what itbelieves will be the appropriate colour of the window dressing: theso-called special advocate or âeoesecurity-clearedâe lawyer who will supposedlybe allowed into the inner sanctum where secret evidence is discussed in theabsence of the affected party and their lawyers. Can we imagine that anyonewho has ever been even slightly critical of CSIS and the RCMP will beâeoeclearedâe by said agencies to be special advocates? And isn't such anapparent move a violation of the Court's supposed neutrality?
Worse still, the court, along with CSIS cheerleader Canadian Centreof Intelligence and Security Studies (Carleton University), has asked twoindividuals who have been critics of security certificates âe" ahigh-profile immigration lawyer and a university professor âe" to produce astudy on the UK special advocates system.
With an Aug. 31 deadline to turn in a report to the FederalCourts Administration Service, serious questions arise about the timing andnature of this study.
Why is this study being undertaken, and why has the Federal Courtembarked on such a study before legislation has even been introduced (andthereby appearing to presuppose the outcome of a debate which the SupremeCourt itself has acknowledged is a question to be determined by Parliament,and not by the courts)?
Why does the study serve to unnecessarily narrow the focus of anissue that requires a much larger framework that asks whether such measuresare necessary in the first place? In practice, the study limits us to adiscussion of mere technicalities when the real issues of discrimination,an untrustworthy security establishment, and protection of human rights, getmoved to the edge of the table, if not knocked off completely. It is indeeda special advocate âe" special to CSIS and its allies.
It is clear that CSIS and its allies have an interest in keepingthis discussion limited to a narrowly focused inquiry into the best way tocontinue a fundamentally flawed and unfair procedure that discriminatesagainst people based on lack of citizenship status. It is not in theirinterest to be asking broader questions, such as: Why can't we affordpermanent residents and refugees the same standards of justice that wouldbe applicable to Canadian citizens, who under similar circumstances wouldenjoy the much stronger (though hardly perfect) safeguards and rigorousstandards of the criminal law process?
The study no doubt sits well with those who have argued we need aâeoefall backâe position to abolition of security certificates. But on an issueof such basic and fundamental justice, how can we have a fallback fromfairness and equality?
While we may not begrudge the hard-working study organizers theirsummer trip to London, U.K., we do question funding such a study when thehigh-profile, distinguished barrister Ian Macdonald, QC, who had been a U.K.special advocate, resigned from the system and has already provided anobjective, insider's condemnation of the process, both on the CBC andbefore a standing committee of Parliament in Ottawa earlier this year.
âeoeI think it was a very unfair system,âe he said of the special advocate modelduring an interview with The House on Feb. 25 of this year. âeoeI resignedin the end because I was giving legitimacy to a system which in conscienceI thought was completely contrary to all the kinds of traditions of, a)fairness, and b) the fact that ever since Magna Carta, we don't imprisonpeople unless they've had a proper trial.âe
Asked what advice he had for Canadian legislators, Macdonaldreplied, âeoeIt does seem to me that the adoption in a case where people aregoing to lose their liberty, in some cases for a very very long time, youought to stick to the well-tried methods of using the criminal courts. Ithink anything else is a short cut and it may in fact not have anyparticular effect upon our general safety which I obviously am as concernedabout as anyone else.âe
Suspicious timing of study
This study needs to be completed on an urgent basis so that thegovernment of the day can then point to the fact that the Federal Court'sown study of special advocates points the way forward for securitycertificates and related issues when it sits again this fall.
It seems, given the Federal Court's sponsorship of the study, thatfrom the court's point of view, the use of security certificates willcontinue unimpeded with the addition of a special advocate âe" why elsewould they be funding such a study? This is the same court that has wrungits hands occasionally, but nevertheless been brutal in its unapologeticapplication of security certificates since 1991, never batting an eye whenit comes to issues of constitutionality and upholding 25 of 28 certificates.
It is a reflection of the court's long-standing deference to CSISand the âeoenational security establishmentâe that it would show such aninterest in a procedure which will in reality only be special to CSIS, anddo little if anything to protect the rights of an individual named in thecertificate.
Interestingly, concerns about the court's ability to handlesecurity-related cases were the subject of a July 9 Globe and Mail reportthat found the Federal Court is seeking even greater jurisdiction to hearâeoesecurityâe cases at the expense of superior courts. The article askswhether âeoejudges whose dockets are dominated by tax, shipping andimmigration cases [can] be expected to handle the exacting criminal lawaspects of a terrorism case.âe An unnamed lawyer notes the Federal Court hasa âeoelong-standing reputation for rendering decisions that are 'extremelydeferential' to the federal government that appointed them.âe The lawyer isthen quoted as stating, âeoeTheir members are seen as government-friendly. Idon't have any sense that the criminal-law bar has any confidence in theFederal Court's ability to try terrorism cases.âe
University of Ottawa law professor David Paciocco notes thatcurrently, terrorism cases are tried before superior courts until asensitive issue arises, at which point it goes up to the Federal Court,with some cases bouncing back and forth between the two levels.
âeoeIn my view it is a profound violation of the independence of thebench that we are not prepared to trust superior court judges to a pointwhere we have to farm out highly sensitive issues to the Federal Court,âe hesays, noting the irony that the superior court always sees the samesensitive information anyhow.
Paciocco notes that Federal Court judges lack experience with bothjury trials and the nuances of criminal law. âeoeIt takes significantimmersion in criminal cases to really have a strong sense of how thepresumption of innocence works and how liberty-regarding principlesoperate,âe he says, noting that while he doesn't mean to suggest thatFederal Court judges couldn't acquire that experience over time, âeoeit'squite clear that they are not as accustomed to operating in this kind ofmilieu as superior court is.âe
This would not come as a surprise to anyone who has sat in on thepublic portion of the secret hearing, where the presumption of innocencesimply does not exist for the individual named in the certificate.
But as with the case of Paule Gauthier, who earlier tells us to getover our concerns about the messiness of the national security world, weare also provided with the reassuring words of the Federal Court ChiefJustice Alan Lutfy, who said at a June conference with respect to theAnti-terrorism Act, it has âeoewithstood concerted attack from many quartersbecause it is, in relative terms, moderate and restrained.âe
Recent court decisions on secret trials reflect Federal Court deference to government
Despite the Supreme Court finding that the security certificate isunconstitutional, the Federal Court constantly points to the one-yearwindow as an excuse to continue keeping the full weight of its effects inforce. Judge Simon Noel, in an Apr. 20 decision refusing to loosen theshackles that keep Ottawa's Mohamed Harkat under house arrest, commentsthat the Supreme Court has indeed found fundamental Charter breaches in thecertificate procedure, but that âeoethe pathway to legitimize such a procedureis to find a method by which the person subject to the security certificateis able to protect his rights in hearings held in public, in private, or incamera. The Chief Justice gave Parliament one year to legitimize thesecurity certificate procedure and to transpose it into legislation.âe
These are peculiar comments coming from someone who has presidedover such hearings: why can't this judge see that there can never be a wayfor the individual named in a certificate to mount a full answer anddefence if the heart of the case is kept secret, and following from that,how on earth can such a flawed procedure by âeoelegitimizedâe ?
One reason for denying most of Harkat's requested changes goes backto the fact that the certificate against him was upheld in 2005, eventhough the procedure by which that certificate was upheld has now beenfound to be unconstitutional.
Among the changes Harkat had requested was the opportunity toattend political rallies organized by his support committee. Yet the judgewarned, perhaps cueing ominous theme music, that âeoeevidence showing that[Canadian Border Services Agency] agents will be fully protected, at suchpotentially politically polarized events, has not been provided.âe Ofcourse, anyone even remotely familiar with Justice for Mohamed HarkatCommittee demonstrations would agree that the only thing âeoepolarizedâe abouta January vigil on Parliament Hill is the temperature, and the greatestrisk to anyone involved is catching a cold if not properly dressed.
Demonstration outside CSIS, Toronto, September 2005
Meanwhile, in the spring decision to transfer Mahmoud Jaballah fromGuantanamo North to house arrest, Judge Layden-Stevenson writes that âeoeI amsatisfied, on a balance of probabilities, that there is sufficient credibleand compelling information before me to found an objective basis thatprovides reasonable grounds to believe [that Jaballah is a danger],âe eventhough that finding was determined using a secretive, unconstitutionalprocess.
âeoeI do not believe that the Supreme Court intended the previousrulings are to be revisited or that current proceedings necessarily are tobe altered as a result of its determination,âe she writes, but why would sheconclude this if the court has advised the detainees they can apply to havetheir certificates quashed in 2008? Granted, the court does state thatsince the effect of its decision has been suspended for one full year,current security certificate cases can proceed. Perhaps there is confusionin the Supreme Court decision, but given the fact that one could read thiseither way, Layden-Stevenson, like her colleague Simon Noel, has made achoice, and that choice is extremely government-friendly.
The growing cult of secrecy
Following the revelations coming out of the Arar Inquiry, thefederal government seems to have said enough is enough, and so the publicinquiry into the actions of Canadian security agencies contributing to theoverseas torture of three Canadian citizens âe" Amhad El-Maati, MuayyadNureddin, and Abdullah Almalki âe" has become a secret inquiry with neitherthe men nor their lawyers present.
We are asked by the presiding Judge Iacobucci to trust him,literally, to investigate this matter behind closed doors, and also toplace our trust in the alleged good faith of agencies that view suchinquiries as jihads and terrorism.
In his decision to close the inquiry to the public, affectedparties, and their lawyers, Iacobucci writes that âeoeas a general matter, itis preferable that both adversarial and inquisitorial proceedings be openand public.âe All well and good, in that âeoeyou can feel bad if it makes youfeel betterâe kind of way.
He then states that the he has been directed bythe terms of reference âeoeto take all steps necessary to prevent thedisclosure of information to persons or bodies other than the Government ofCanada that, if it were disclosed to those persons or bodies, would beinjurious to international relations, national defence, national security,or the conduct of any investigation of proceeding.âe
Justice O'Connor's terms of reference for the Arar Inquiry had asimilar caveat, but that did not prevent it from being a much more publicforum (though not without its problems with respect to secret informationstill not revealed).
Iacobucci notes that the CSIS and RCMP âeoehave pledged to fullycooperate with the Inquiry,âe as if the word of these scandal-plaguedorganizations could ever be trusted. Indeed, two weeks before Iacobucci'sruling, across town at a parliamentary committee, John Spice, the formerRCMP ethics chief, was testifying that the Mounties preached, but failed topractice, zero tolerance towards unethical behaviour within their ranks. Asthe Toronto Star reported, Spice said there are myriad problems across the agency,from sexual harassment to âeoebenign indifference to what means are used toachieve a desired end.âe Indeed, Spice noted, âeoeWe should have had zerotolerance for any sorts of unethical behaviour and, quite frankly, as muchas I would like to say that we tried, we failed miserably.âe
The Supreme Court ruled in the âeoeRubyâe case that in all cases whereindividuals appear in secret hearings, âeoethe party is under a duty of utmostgood faith in the representations that it makes to the court. The evidencepresented must be complete and thorough and no relevant information adverseto the interest of that party may be withheld.âe Yet anyone familiar withthe reports of CSIS's generally accommodating oversight committee, theSecurity Intelligence Review Committee, notes that, among CSIS's ongoingproblems, one which tends to crop up time and again is failing to providesignificant information of which it was aware which contradicts its ownposition on a particular person.
Indeed, as Andrew Mitrovica points out in his book, Covert Entry,CSIS agents have âeoeroutinely broken the law, treating the rights andliberties of Canadians as no more than a nuisance ... [it is] riddled bywaste, extravagance, laziness, nepotism, incompetence, corruption andlaw-breaking.âe There is a culture of impunity at CSIS, whose agents oftenrefer to a Ways and Means Act: âeoeif you have a way to get things done, themeans âe" legal or not âe" are justified.âe
Do you still trust their good faith when they go into the secrethearings?
Ahmad Jaballah, eldest of six Jaballah children, speaking outat CSIS demonstration.
Trust us, really!
Iacobucci, in declaring that his hearings will, unless otherwisespecified, be in camera and ex parte, states âeoeI would hope that ourvigilance and commitment to conducting the Inquiry to reflect an objectiveand independent view would permit our handling the matters with the propersensitivity and objectivity that are required.âe
He sounds like Federal Court judges who have assured detainees thatthey are very good at asking questions in secret proceedings, and that theyare more than capable of handling these cases, even without special counselthere to assist them. However, given that almost every security certificatecase has been upheld, it is difficult to take these assurances with a gooddegree of equanimity.
Of course, the justification for national security exemptionspreventing disclosure is always an overly broad one. We need look nofurther than the long-forgotten May, 2007, revelations of Canadiancomplicity in the torture of Afghan detainees, which clearly showed thatwhat the government had classified had nothing to do with national securityand everything to do with keeping the Canadian public from learningpotentially embarrassing details.
What Ottawa doesn't want you to see
To provide one example, which even the staid Globe and Mail feltmerited a front page headline, âeoeWhat Ottawa doesn't want you to see,âe thegovernment released under a freedom of information request aheavily-blacked out statement by Canadian diplomats in Kabul onAfghanistan's human-rights situation that only stated âeoeAfghanistan stillfaces immense political, economic, social, and security challenges. Thesecontinue to inhibit progress in the field of human rights, democraticdevelopment and good governance.âe
Wording of the sentence before these two sentences, blacked out inthe released version but leaked to the Globe, read: âeoeDespite some positivedevelopments the overall human rights situation in Afghanistan deterioratedin 2006.âe This was blacked out allegedly for national security purposes, toprotect Canadian troops, etc., even though it is not news to anyonefollowing the situation there.
A larger block of blacked out text states: âeoeExtra judicialexecutions, disappearances, torture and detention without trial are all toocommon. Freedom of expression still faces serious obstacles, there areserious deficiencies in adherence to the rule of law and due process bypolice and judicial officials. Impunity remains a problem in the aftermathof three decades of war and much needed reforms of the judiciary remain tobe implemented.âe
The report contradicts Canadian government statements that they didnot know of torture in Afghan jails âe" hence the need to keep it secret.
On July 9, 2007, the Globe reported that Canadian warlord GeneralRick Hillier has muzzled the military with respect to any requestsregarding detainees in Afghanistan. The Globe was told that even revealingthe number of detainees captured by Canadian troops is âeoean operationalsecurity issue.âe
When asked why it had released information earlier this year butwas not releasing anything new, the Globe was informed that, on reflection,any such new information âeoecould help the enemy get a better picture ofCanadian operations.âe
Asked whether the release of previous information had endangeredCanadian troops, a war department spokesperson told the Globe that âeoethe informationcannot be provided for operational security reasons.âe
(This sounds a lot like the rationale of CSIS agents in securitycertificate hearings. CSIS could not, for example, reveal why it believedHarkat speaks French for reasons of national security. Asked why thatis a matter of national security, they responded that to answer the secondquestion would also fall under the mantle of national security.)
University of Ottawa professor Amir Attaran, who has played a majorrole in searching for information on Afghan detainees, notes that it isinconceivable that releasing basic information on Afghans detained byCanadian Forces could be prejudicial to the forces unless there is evidenceof wrongdoing, such as aiding and abetting war crimes.
Why access is denied
This example is typical of any government agency when it comes tosecrecy. In May, Federal Information Commission Robert Marleau issued areport on access to information in government, and found âeoetoo often, accessis denied to hide wrongdoing or to protect officials or governments fromembarrassment, rather than to serve a legitimate confidentiality agreement.âe
Indeed, it becomes so ridiculous that CSIS âe" even though it isinvolved in an investigation, and even though it's obvious that an agencylike CSIS would be involved in such an investigation âe" recently sought toblack out any reference to itself in a series of documents in the firstcase involving the Anti-Terrorism Act, that of Momin Khawaja, stilldetained in Ottawa.
Judge Richard Mosley seems bemused when he writes in a May 7,2007, decision that he has canvassed thousands of pages of confidentialinformation and found that âeoemuch of this information is innocuous, indeedbanal, but forms part of documents subject to caveats permitting furtherdisclosure solely on consent. I expect that the name of the U.S. LegalAttachÃ© in Ottawa at the relevant time is within the public domain. It isdifficult to understand how disclosure of his name would cause injury butwhere the name and office appears as part of a document, the entirecontents are subject to such caveats.âe
Later in the decision, Mosley notes that information is oftenclassified for fear it would violate the third party rule (about notdisclosing information from foreign agencies without their consent), butthat the third party rule is often applied in an overly broad manner.
CSIS has acknowledged an investigative interest in the respondent[Khawaja] up to his arrest on March 29, 2004, assistance and involvementwith surveillance of his movements and their presence on the date of theRCMP search of his home. But those holding the black pens seem to haveassumed that each reference to CSIS must be redacted from the documentseven when there is no apparent risk of disclosure of sensitive informationsuch as operational methods or investigative techniques or the identity oftheir employees. I acknowledge that there can be instances in which aninformed reader will connect the dots to obtain such information but thatdoes not apply in every case.
There are multiple appearances in the materials, for example, of atable listing indices which had been periodically checked for informationsuch as the Canadian Police Information Centre (CPIC). This table includesthe law enforcement and intelligence sources that one would expect to seechecked for information concerning a possible security threat to Canada.One would expect CSIS to be included and surprised if they were not.References to 'CSIS' are the only third party rule claims on these pages.The witnesses could not satisfactorily explain to me how disclosure of thatfact, obvious from the context, could cause injury to national security.
Thin edge of the wedge
For years, opponents of security certificates have argued theprocess is the thin edge of the wedge when it comes to opening up neweravenues of opportunity for government secrecy and abuse.
The no-fly list is one area where this is obvious. One June 28, ajoint statement issued by federal, provincial, and territorial privacyguardians called for a suspension of the no-fly list, which may contain asmany as 2,000 names.
B.C. Information and Privacy Commission DavidLoukidelis told the Globe and Mail, âeoeRight now, it's a secret list withpeople being put on it for secret reasons based on secret evidence. Itcould be innuendo, rumour, hearsay; we don't really know.âe Individuals whofind themselves too guilty to fly but too innocent to be charged can appealto the Orwellian Office of Reconsideration which âeoemay arrange for anindependent assessment of the case,âe or ask the Federal Court to review it.(In both cases, it relies completely on the discretion of those bodiesbeing asked to undertake a review âe" there is no guarantee of a review, norany sense of how that process works, how much of it will be in secret,etc.)
Meantime, the Standing Committee on Public Safety and NationalSecurity, produced a disturbing March, 2007, report, âeoeRights, Limits,Security: A Comprehensive Review of the Anti-Terrorism Act and relatedIssues.âe
With respect to security certificates the committee states on page71, âeoeThe Subcommittee believes that the security certificate process nowin place represented a serious attempt to balance the rights and freedomsof those subject to it and the obligation of democratic state institutionsto protect themselves from being undermined or attacked. However, afterreviewing the briefs and submission on the security certificate process,the Subcommittee believes that more needs to be done to further assure therights and freedoms of those subject to it.âe
Part of that âeoebalanceâe would be the introduction of a âeoespecialcounsel,âe âeoespecial advocateâe or amicus curiae. The Subcommittee notes thatin camera ex parte hearings (secret hearings where the party affected isabsent) occur with respect to not only security certificates, but also inrelation to the processes by which a group is listed as a terrorist entity,a charity is forcibly registered, and applications are made under theCanada Evidence Act to limit disclosure of information and evidence.
The recommendation is to create a Panel of Special Counsel who willbe security cleared. âeoeThe functions of the Special Counsel should be totest the need for confidentiality and closed hearings, and to test heevidence not disclosed to a party.âe
The suggestion for a special advocate comes from the CanadianCivil Liberties Association, the Federation of Law Societies of Canada, thePrivacy Commissioner, the Canadian Bar Association, B'Nai Brith Canada andthe B.C. Civil Liberties Association.
A new bureau of secrets?
But what all these legal associations and civil liberties groupsfail to recognize is the impossibility in theory and practice that such asystem can work without somehow violating the rights of the individual orgroup affected. As a Detroit judge said in dismissing terrorism charges anumber of years ago, democracies die behind closed doors.
Having an office of security-cleared lawyers is like creating abureau of secrets. It opens the door to blanket use of secrecy whenever thegovernment deems it convenient. Subject to an allegation or process thatyou are unable to access details about? No worries, the government can say,you can have access to a system in which a security-cleared lawyer willhave access to the secret information, thus striking a balance. And sosecrecy and non-disclosure will increasingly become the norm because ofwhat is advertised as a âeoesafety check.âe
Former âeoejusticeâe minister, Irwin Cotler, whose complicity in thesehorrific pieces of legislation is a matter of public record, nonethelessnails it on the head when, writing about another context in the JewishTribune on June 28, he states that as a law professor, âeoeI could not accepta mandate to hear only one side of a dispute ... The entrance to the McGillUniversity Faculty of Law, where I am a professor, is engraved with thewords audi artarem partem âe" 'hear both sides.' How could one participatein a mandate that violated this bedrock principle of the rule of law?âe
It's a question a lot of government lawyers and Federal Courtjudges need to start asking themselves.
Assuming that the âeoespecial advocateâe is part of the proposedpackage, there is nothing that that individual would be able to do to makeup for the systemic flaws in security certificates: the security-clearedlawyer's role remains window dressing because it completely fails toaddress the question of inequality and two-tired justice (one system forcitizens, another for refugees and permanent residents); the fact that thepresumption of innocence is thrown out and anyone named in a certificate isstuck with a presumption of guilt based on secret evidence; that thestandards of evidence and proof are the lowest of any court in Canada; thefact that anything not normally admissible in a court of law is admissibleunder a security certificate; the fact that the individual detained is nocloser to knowing the case against her because the special advocate cannotdivulge anything in the secret case, and any attempt to consult thedetainee would be fraught with a major ethical dilemma, since the lawyer'sprimary goal is not to protect the liberty interests of the individual, butto protect the interests of the government hiding behind the veil ofsecrecy.
Amnesty International has expressed major concerns about theprocess as well, given that their introduction would still mean thecertificate process falls far short of international standards for fairtrials and because the lawyer is appointed by the government that isdetaining the individual. âeoeSpecial Advocates would not be able to provide aproper defence because of his/her inability to take instruction from thepersons s/he is supposed to represent once s/he is privy to the secret'evidence' or to speak out, should s/he, for example, become aware thatsuch 'evidence' was unlawfully obtained,"âe Amnesty wrote in 2005.
Interestingly, Canada has not followed the lead of individuals suchas U.S. District Judge John C. Coughenour, who oversaw the trial of AhmadRessam and concluded, upon conviction: âeoeWe did not need to use a secretmilitary tribunal, or detain the defendant indefinitely as an enemycombatant, or deny him the right to counsel. We can deal with the threatsto our national security without denying the accused fundamentalconstitutional protections. Despite the fact that Mr. Ressam is not anAmerican citizen and despite the fact that he entered this country intentupon killing American citizens, he received an effective, vigorous defense,and the opportunity to have his guilt or innocence determined by a jury of12 ordinary citizens. Most importantly, all of this occurred in thesunlight of a public trial. There were no secret proceedings, no indefinitedetention, no denial of counsel.âe
Despite all this, the parliamentary subcommittee recommends aprocess where âeoethe assigned counsel is to carry out the expected advocacyfunctions in the public interest, and not as counsel to the party affectedby the proceedings.âe Stop right there. CSIS gets its interests representedbehind closed doors, but not the individual affected? How on earth doesthis strike the âeoebalance,âe and how can the âeoepublic interestâe be served whenboth sides are not being heard?
A dissenting opinion from standing committee member and Windsor MPJoe Comartin states the case far more effectively: Canada does not needsecurity certificates nor the Anti-Terrorism Act. Indeed, the Canadian BarAssociation pointed out in its submission of May 2005 into the three-yearreview of the act that the âeoegovernment currently has many legal tools tocombat a terrorist threatâe and that âeoeexisting provisions of the CriminalCode provide an impressive arsenal to combat terrorist organizations.âe
Unfettered power to prohibit the disclosure of information
Comartin also points ominously to the fact that the Anti-TerrorismAct amended the Canada Evidence Act to give broad powers to governmentofficials to control proceedings and âeoegives the Attorney General virtuallyunfettered power to prohibit the disclosure of information in proceedings.These new powers apply in civil, criminal, and administrative lawproceedings, commission of inquiry proceedings and even parliamentary andprovincial assembly proceedings. They replace the common law doctrine ofpublic interest immunity codified in the Canada Evidence Act, doing awaywith the need for the government to show that there is any public interestin non-disclosure. They override the open court principle making courtproceedings, court records and even government representations secretwhenever the government argues for non-disclosure.. In the case of'Attorney General secrecy certificates,' they suspend the operation of theAccess to Information Act, the Privacy Act and the Personal InformationProtection and Electronic Documents Act âe" important regimes which protectthe citizen's right to know and her right to privacy and control overpersonal information.âe
Given this context, it is vital to see these issues in the bigpicture: Canada's role as part of a global national security system inwhich the rights of certain targetted populations are sacrificed in thenebulous name of security. The rights being violated, needless to day, arebasic human rights that apply to all people, regardless of citizenshipstatus.
Getting back to Nuremberg
As her words opened this essay, perhaps the closing words shouldalso go to Chief Justice McLachlin who, in a speech on unwrittenconstitutional principles delivered in Australia last year, remarked:
On the one hand, the legitimacy of the judiciary depends on thejustification of its decisions by reference to a society's fundamentalconstitutional values. This is what we mean when we say the task of judgesis to do justice. Judges who enforce unjust laws âe" laws that run counter tofundamental assumptions about the just society âe" lose their legitimacy.When judges allow themselves to be co-opted be evil regimes, they are nolonger fit to be judges. This is the lesson of the Nuremberg Trials. It isalso a lesson, however, that should embolden judges when faced withseemingly more mundane manifestations of injustice.
In the 1961 film Judgment at Nuremberg, Judge Dan Haywood âe" playedby Spencer Tracy âe" delivers a powerful set of justifications for punishingthose who not only had violated the law, but who had done so under thecover of their own allegiance to the state and its positive law. The judgerules as follows: âeoe'But the Tribunal does say that the men in the dock areresponsible for their actions, men who sat in black robes in judgment onother men; men who took part in the enactment of laws and decrees, thepurpose of which was the extermination of humans beings; men who inexecutive positions actively participated in the enforcement of these lawsâe" illegal even under German law.'
By this, I take the judge to mean that these laws and decrees wereunconstitutional under the higher principles as affirmed by Germany'shistory, culture and constitution. Moments later the judge notes that whatis shocking about the atrocities is the degree to which they werenormalized. Had the defendants been 'degraded perverts' or 'sadisticmonsters and maniacs, then these events would have no more moralsignificance than an earthquake, or any other natural catastrophe.' Judgesmust resist this normalization âe" this making 'law' out of what cannot bejust, and hence, in a profound sense, cannot be legal. To do otherwise isto allow injustice to hide itself under the cloak of false legality.
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