Secret evidence 'Kafkaesque':Lawyer challenges security certificate
Best way to protect security, Crown says
By TONDA MACCHARLES,
OTTAWA BUREAU - Toronto Star
OTTAWA (9 November 2004) -- THE JAILING of a Muslim man based on secret evidence and closed hearings is both surreal and unconstitutional, a court has been told.
But federal lawyers argued the closed hearings, while "imperfect," are the best way to protect sources and national security.
Even the United States and the United Kingdom allow suspects who have attained permanent resident status in those countries more rights of appeal and due process than Canada does, said Johanne Doyon, lawyer for Adil Charkaoui.
"It's Kafkaesque, this secret evidence," Doyon told a three-judge appeal court as she challenged the validity of the security certificate. Authorities want Charkaoui deported to his native Morocco, but his supporters say he faces torture there.
"It's not a fair trial," she said later. "You don't know the charge against you."
The certificate names Charkaoui, a permanent resident of Canada, as a danger to national security. It was signed in 2003 by former immigration minister Denis Coderre and former solicitor-general Wayne Easter.
Charkaoui, who was arrested in May, 2003 as a security risk under the new Immigration and Refugee Protection Act, has been in jail ever since.
"He's accused of essentially being a practising Muslim, doing karate, having contact with people who are free in Canada, and of having travelled to Pakistan," Doyon said, pointing to the little that is known publicly about the government's case.
The 31-year-old father of two remained in jail for the hearing because it would have taken too long to get a court order to produce him, said Doyon. But more than a dozen of his supporters attended the hearing and a small rally outside the court, including his parents, sister, and Sophie Harkat, the wife of another man similarly detained.
The three judges grilled Doyon, suggesting national security cases differ from ordinary civil or criminal trials, and may require evidence to be withheld from a terrorism suspect.
"What would you do with the evidence, if not speak to your client and he speaks to his friends and at this time, if we're talking about a national security case, what happens to national security? Is it eliminated?" asked Justice Gilles Ltourneau.
When Doyon insisted that even in a national security case the Crown is capable of presenting its case without revealing sources of information or jeopardizing public safety, the judges appeared skeptical.
"Speaking for me, that's not your best argument," said Justice Robert Decary.
Doyon said the immigration act, which was revised two years ago, does not meet the tests of constitutionality that courts have set out, saying the law goes too far and does not "minimally impair" individual rights.
She pointed to Britain where Parliament has created a "special advocate" who may attend hearings behind closed doors where secret government intelligence evidence is heard, and acts generally as "a devil's advocate" to test the evidence presented by the Crown.
Charkaoui was identified by millennium bomb-plotter Ahmed Ressam and al Qaeda operative Abou Zubaida as someone they met in Afghanistan in 1998 in an al Qaeda training camp.
But Doyon said Zubaida's evidence was obtained under torture, and inadmissible, and said Ressam's evidence is also suspect, since he was trying to cut a deal with US authorities on sentencing.
Four federal lawyers said it was up to Charkaoui to defend himself against the allegations and prove they are wrong.
"He hasn't yet testified," said lawyer Daniel Latulippe, pointing out that Charkaoui's refusal to testify leaves "a factual void."
"If Mr. Charkaoui chooses to indicate why he is not a risk to national security then perhaps he will eventually be released."
Federal Court trial Justice Simon Noel found the secret evidence is "very serious" and that so far, Charkaoui has failed to rebut specific concerns about his life since 1992, his travels to Pakistan, and his contacts with known terror suspects.
"How can he refute by his own testimony the factual elements you are basing your case on when he doesn't know them?" Ltourneau asked.
"It's an imperfect system, that's clear," admitted Latulippe. But he said the law allows an "activist judge" to test the evidence, and provides the best balance between the national security interests of the state in secrecy, and the individual's right to know the case to be met.
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