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©Gregory James, June 2006 On 13 June 2006 the Supreme Court of Canada will hear appeals in three national security certificate cases. These are all cases where men of Arab background were detained on suspicion of being associated with terrorism. I represented the first man to be jailed under such a certificate. We won my client’s case and he was released. Since then only one other detainee has successful challenged such a case. Fighting against the government on one of these cases is bizarre. It is like a bad dream where you know something important is happening but you are blindfolded the whole time and can’t see it. The proceedings are alien to anyone concerned with basic notions of fairness. Three men will have their appeals heard on June 13. Adil Charkaoui was first jailed in May 2003. Hassan Almrei was jailed in October 2001. Mohamed Harkat was jailed in December 2002. They were all subjected to a secretive process in which a judge heard evidence against them but was not obliged to let them see what the evidence was. This is contrary to everything that lawyers and judges are taught, but it is excused on the grounds that to disclose everything would create problems for Canada’s national security. The kinds of problems that might be created for Canada’s security are so broad that this concept might include almost anything. The government argues that anything that might reveal how the security agencies work is itself a secret, because hostile groups would be able to study how the agencies work and exploit any weaknesses. This concept alone suggests that anything a security agency does, regardless how minor it is, cannot be disclosed, even to someone who is fighting for his freedom. Politically, our government and security agencies are under a lot of pressure from foreign governments not to allow access to secret information. Foreign governments threaten to deny information to Canada if Canada is too “liberal” in how it treats such information. The threat is that Canada might not be warned about a pending attack. The government argues that the person concerned is protected because the case has to be reviewed by an independent judge. Canada’s entire justice system is based on a few fundamentally important notions: everyone is entitled to know the case against them; witnesses and evidence is subject to cross-examination; the less direct the evidence (hearsay), the less reliable it is; and the case has to be decided by an independent judge. Only the last principle applies in national security cases. The detainee does not know the case against him; the evidence against him is not subject to cross-examination; and most of the evidence is almost certainly indirect evidence (hearsay). The Federal Court judge hears the evidence of the government in private. The judge does not have the benefit of a lawyer -- not even a lawyer working directly for the judge -- who can cross-examine the security agencies’ witnesses. You may remember that judges who conduct judicial inquiries, including the judge in the Maher Arar Inquiry, have their own lawyers who ask lots of questions. In the Arar case the tribunal’s lawyer has been able to see top secret information and to ask questions about it. It has been suggested that Federal Court judges could do this in national security cases too, but they have declined. On top of everything else the government does not need to prove that the person is a danger. It is only necessary to prove that there are “serious reasons to believe” that they may be a danger. This is a very low standard of proof amounting to only a little more than a suspicion. When a judge reviews one of these cases the judge does not need to agree that the government’s opinion is correct, only that it is “reasonable”. This wording tells a judge to be very relaxed in reviewing the government’s opinion. All of these factors make it virtually impossible to defend such a case. It is not surprising that so few cases have been challenged successfully. It is highly unlikely that the Supreme Court of Canada will turn this process upside down. The Court will probably agree that the process breaches important rights, but will conclude that in national security cases this is okay. If the Supreme Court criticizes the government and the Federal Court, it is my prediction it will only say that indefinite detentions are wrong, and that the Federal Court judges should hire lawyers to assist them by testing the security agencies’ evidence. Very little else will change.
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