CSIS had nothing but smoke and mirrors. With any luck, the fascist ‘security certificate’ provisions are next. The Kafkaesque notion of secret evidence should be no more welcome in this country than secret trials.
Flashback: Charkaoui asks court to toss security certificate case | Selective enforcement: Charkaoui barred from US airspace on flight from Fredericton to Montreal | CSIS reviews security certificate cases in wake of criticism | Tories aim to bring back anti-terrorism provisions | High court reprimands CSIS policy of destroying secret evidence in security case | More secrecy added to already secret process | Charkaoui set to fight new security certificate law | New security certificates issued | The New Security Certificate: Rushing injustice through the Senate | Court puts security certificates in limbo
Andrew Chung, Toronto Star
September 24, 2009
MONTREAL — Once branded a terrorist operative, jailed, and headed for deportation, Moroccan-born Montreal resident Adil Charkaoui will soon be a free man.
During a hearing in Federal Court, this morning, Justice DaniÃƒÆ’Ã‚Â¨le Tremblay-Lamer told the court she will issue an order later today to remove all the conditions limiting his freedom. Upon hearing the news Charkaoui’s parents seated in the audience broke down in tears. Charkaoui looked at them and breathed a deep sigh of relief.
Charkaoui, 36, was arrested and detained in 2003 under Canada’s embattled “security certificate” system, a provision of immigration law where non-citizens deemed a threat to national security can be deported while the evidence against them is kept hidden.
The judge has yet to pronounce on the cancellation of the certificate itself and certain questions the Crown wants heard in the Federal Court of Appeal, and yet this latest step toward exoneration of Charkaoui’s six-year ordeal came quite quickly.
In late July, to circumvent a judge’s order to disclose certain intelligence, government lawyers decided to withdraw the evidence, claiming that its disclosure would undermine national security. The intelligence apparently came from communications intercepts and human sources that the government doesn’t want exposed.
As a result, Crown lawyers submitted to the judge that the evidence that remains doesn’t “meet their burden of proof” to support the certificate’s use to deport Charkaoui.
Still, Tremblay-Lamer made it clear during the morning hearing that in light of the withdrawal, she has no choice but to quash the certificate.
“It’s evident the certificate will be cancelled,” she said.
The security certificate is a rarely used provision of Canadian immigration law that has been used against suspected foreign spies and more recently terrorism suspects. Federal ministers, acting on the advice of the national spy service, can deem a person a threat to national security, which allows for secret evidence to be used against them in deportation proceedings.
A French teacher and married father of three, Charkaoui was jailed in 2003 and remained behind bars for 21 months before he was released on strict bail conditions in February 2005.
For four years his moves were severely curtailed and closely monitored. He wore a GPS-tracking ankle bracelet and couldn’t leave his house without one of his elderly parents tagging along, including to his graduate courses in education at the University of Montreal and even the gym.
The conditions were eased last February when Tremblay-Lamer said he is now highly recognizable because of all the media coverage, and that if he had the profile of a sleeper agent years ago, he doesn’t today.
In withdrawing the sensitive evidence from its submissions, the government dropped certain charged allegations; for instance, that Charkaoui in 2001 called the war in Afghanistan a battle against Islam “led by the wicked and the Crusaders,” and that he had a conversation the previous year with two others about seizing control of a commercial plane.
CSIS says it stands by the evidence it has gathered. Charkaoui is one of five men the government says are threats to national security and is using the certificate process against.
“The government is reviewing the decision,” said Christopher McCluskey, a spokesman for Public Safety Minister Peter Van Loan. “Our objective is to ensure Canadians are safe from terrorist threats. We are examining the impact of the decision on that objective.”
Ottawa is trying to deport Mohamad Harkat – who just this week also had his bail conditions relaxed – Mahmoud Jaballah, Mohamed Zeki Mahjoub and Hasan Almrei – all of whom are fighting to remain here.
The security certificate system has failed a few crucial tests in court of late. Most recently it was revealed by a federal judge that in the case of Almrei, a Syrian refugee, the Canadian Security Intelligence Service failed to disclose that one informant was not subjected to a lie-detector test as the agency had claimed, and that another was “deceptive” in answering questions.
That revelation came to light just weeks after another federal judge criticized CSIS for omitting evidence in the Harkat case.
Charkaoui’s case has been perhaps the most high profile of all, not least because the Moroccan national has already won two Supreme Court battles. In 2008 the court agreed that CSIS erred in destroying evidence against him.
More significantly, in 2007, the court struck down the security certificate provision of Canada’s immigration law as unconstitutional because of the secret hearing process. In response, Parliament introduced “special advocates” who can challenge the government’s evidence in the hearings.
The many successful challenges to the security certificate has led some to speculate its days are numbered.
The government still contends that Charkaoui shouldn’t remain in Canada, and is asking to appeal to the Federal Court of Appeal on questions regarding the compulsion to reveal sensitive information in court.
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