National Day of Action to Stop Secret Trials in Canada taking place October 31
By MATTHEW BEHRENS*
TORONTO (October 2003) -- The use of secret evidence, a hallmark of dictatorial regimes, is growing in Canada. The recent arrest of 19 Pakistani men in Toronto (Project Thread) is only the latest example under which the veil of national security is imposed to allow for secret immigration and refugee proceedings.
On August 25, members of the families of five men detained under the draconian security certificate gathered in Ottawa to seek a meeting with the Prime Minister's Office (PMO). They presented petitions demanding fair treatment for their husbands and fathers -- five Muslim men who have been collectively held 99 months without charge or bail, on secret evidence neither they nor their lawyers are allowed to see -- but representatives of the PMO refused to meet with them.
The Campaign to Stop Secret Trials is a collection of individuals and groups who have been working for a number of years to support the families of those detained under the CSIS security certificate (some may know of our work under the name of Homes not Bombs). We also work on cases of those refugees and permanent residents who are subject to ongoing harassment at the hands of CSIS and the RCMP.
We seek through public education and public, nonviolent action, to educate Canadians about this thin edge of the wedge when it comes to civil liberties. Indeed, the proposed citizenship act, due for consideration this fall in Parliament, would give the Immigration minister the power to rescind the citizenship of permanent residents, using secret evidence, with no route of appeal.
On Friday, October 31, we hope to highlight this ongoing threat to the civil liberties not just of Muslims and Canadians of Arab and Middle Eastern heritage, but to all people in this country. As part of a national day of action to stop secret trials in Canada, we hope to highlight the CSIS security certificate, the proposed citizenship bill, and other proceedings in which refugees and immigrants are increasingly subject to harsh and repressive measures.
While we plan to bring busloads of people from southern and eastern Ontario and Quebec to Ottawa to gather at CSIS for a large, theatrical demonstration, we are writing to ask that folks from coast to coast consider holding a vigil at an MPs office, at an RCMP or CSIS outpost, or at an immigration facility to call for an end to these violations: the repeal of the use of secret evidence.
We are largely a decentralized network, so there is no requirement to "join" the campaign if you are interested in helping out but do not wish to make a longer term commitment beyond October 31. All we would ask of folks willing to undertake such action is that it be done in a nonviolent fashion and, if possible, could focus on the following demands:
1. An End to the Use of the CSIS Secret Trial Security Certificate, and an End to the Use of Secret Evidence in All Immigration and Refugee Proceedings
2. The Immediate Release of Five Muslim Men Currently Held a Collective 99 Months in Canadian Prisons, Without Charge or Bail, on Secret "Evidence" Neither They nor Their Lawyers are Allowed to See, and Compensation for the Families
3. Immediate Release and Due Process for the 19 Pakistani Students Held in "Preventive Detention" in Toronto
4. An end to CSIS and RCMP harassment of Muslims and People of Arab and Middle Eastern Heritage
5. An end to CSIS viewing political protests in Canada as "terrorist" acts
If you would like to help but need more info, contact us at email@example.com More background information can be found at www.homesnotbombs.ca
All five Muslim men held under security certificate are back in court this fall for a variety of hearings. Their families, including 10 children, with another on the way this September, are hoping Canadians will join their call for justice and fair proceedings.
Campaign to Stop Secret Trials in Canada P.O. Box 73620, 509 St. Clair Ave. West Toronto, ON M6C 1C0 (416) 651-5800 firstname.lastname@example.org www.homesnotbombs.ca
The Charkaoui case
On October 7, close to 50 people gathered outside of federal government offices outside of Complexe Guy Favreau in Montreal to demand justice for Adil Charkaoui who has been detained since May 2003 under a security certificate. No accusation has been formally laid against him.
At the gathering, the Coalition for Justice for Adil Charkaoui informed participants and the press that Charkaoui was to appear in Federal Court in Montreal on October 8 and 9 to contest the constitutionality of security certificates, as part of a case launched by the Muslim Council of Montreal.
Under the Immigration and Refugee Protection Act (IRPA), neither the detained nor his lawyer are given access to the full evidence that the Canadian Security Intelligence Service (CSIS) presents to the judge to supports its allegations. All that CSIS has to do to have someone deported is to show that it has "reasonable grounds" to believe that the person is a threat to national security.
At the beginning of July, documents filed in Federal Court by CSIS allege a photograph of Adil Charkaoui was recognized in June by Abou Zubaida, said to be a lieutenant in Osama bin Laden's al- Qaeda terrorist network. "Zubaida recognized the individual (Charkaoui) in a photograph that (CSIS) made available to the foreign intelligence service," CSIS spokesman Phil Gibson told journalists. "Zubaida ... confirmed that he recognized Charkaoui as an individual he saw in Afghanistan." The CSIS documents do not say whether Charkaoui knew Zubaida. U.S. officials say Zubaida recruited and controlled al-Qaeda operatives around the world.
Charkaoui has said that he visited Pakistan as a tourist during the period in question, but never visited neighbouring Afghanistan. Shortly after his arrest in May, in a telephone interview with the Quebec television station TVA, Charkaoui said: "It's a new form of McCarthyism. It's a witch hunt." "I don't have any links with al-Qaeda," he said.
Charkaoui is facing deportation to his country of origin Morocco. A recent news item reported that the justice system in Morocco continues to try the more than 1,000 suspects detained as part of the largest anti-terrorist investigation ever deployed in the country, following the May 16 attack in Casablanca where 45 people died. In total, 16 death sentences and over 50 life sentences have been handed down by Moroccan courts.
At the demonstration, Adil's sister Hind Charkaoui said: "Preventive arrests and deportations legitimized by the Anti-Terrorism Act (C-36) and by security certificates under the IRPA are being used as a threat to push Muslims and Arabs into spying on their communities. For many years, CSIS has carried out a program of interviews in the community and intimidates people who often do not dare to denounce the secret service for fear of reprisals."
Another member of the Coalition added: "This process and the way in which these men are treated is a shame for Canada, a country which touts its human rights record. We are not in Guantanamo Bay! This is absolutely unacceptable!"
The Justice for Adil Charkaoui Campaign was formed in Montreal in May in a matter of days after his abrupt arrest. The Campaign -- an alliance of progressive Muslim groups, refugee and immigrant rights organizations, anti-oppression groups and the Charkaoui family -- demands an end to scape-goating in response to U.S. pressure, and an end to the harassment of Muslims and Arabs.
The lead up to Justice Noel's July 15 decision
FOLLOWING the arrest and detention of Adil Charkaoui on May 21 as a result of the signing of a security certificate by Denis Coderre, Minister of Citizenship and Immigration, and Wayne Easter, the Solicitor General, Justice Simon Noel of the Federal Court - Trial Division was required within 48 hours of the detention to commence the review of the reasons for the respondent's arrest and continued detention.
In the words of Justice Simon Noel,
"The ministers concluded that the respondent should be declared inadmissible because in their opinion he was or is a member of the Osama bin Laden network, an organization that engages, has engaged or will engage in acts of terrorism and that as such, the respondent is engaging, has engaged or will engage in terrorism and that consequently the respondent constitutes, has constituted or will constitute a danger to the security of Canada."
"To gain a clear understanding of the ministers' position in regard to both the certificate and the continued detention, I reviewed the documents on which the certificate and the arrest warrant are based and I held a hearing in the absence of the respondent and his counsel" as provided by paragraphs 78 (d) and (e) of the Act, wrote Justice Noel.
"I identified the information the disclosure of which would not infringe national security or the safety of any person, bearing in mind the importance of sufficiently informing the respondent of the circumstances on which the certificate and the continued detention are based. I also asked that the information be conveyed at the earliest opportunity, which was done on May 26, 2003 (see paragraphs 78(g) and (h) of the Act)."
At the commencement of the bail hearing on May 30, lawyer Johanne Doyon, counsel for Adil Charkaoui, requested a postponement to July 2 for a duration of two days in order to prepare for the hearing, which was granted.
At the beginning of the hearing on July 2, Doyon stated in court that she considered her evidence incomplete since her client's immigration file had been delivered to her with several exclusions. She notified the Court that she had filed a complaint with the Privacy Commissioner concerning these exclusions and was awaiting the results. She also expressed her desire to call the investigators of the CSIS to testify concerning certain interviews with the respondent, but that she could not do so because she did not know their names. She asked Justice Noel to decide only upon her client's continued detention on the basis of the evidence that would be presented, which Justice Noel agreed to do.
Counsel representing the Minister of Immigration and the Solicitor General of Canada called one witness, a man employed by CSIS identified only as Jean-Paul. He testified primarily about the al-Qaeda terrorist network led by Osama bin Laden, explaining the origin of the network and the recruitment and training of its members. He stated that between 50,000 and 100,000 persons have passed through the training camps since 1980, also informing that Canada had specifically been targeted and directly threatened in a statement made by Osama bin Laden in November 2002.
Jean-Paul defined the notion of sleeper agent as follows: an individual who has been trained in a certain way. It's a term that applies both to terrorism and to espionage. ... an individual who has been trained to operate in a country in accordance with the needs of the organization that is directing him. That if he's a spy, he is a person who is capable of collecting intelligence, sending messages and engaging in acts of sabotage, for example. In the case of a terrorist, it would be an individual who has received ... a certain training enabling him to operate according to the needs of the group.
"... He is given the necessary courses and then sent back to his country of origin and told: 'All right. Go back to your usual life, act as if nothing is happening. You don't tell anyone that you have taken those courses. And then one of these days someone is going to come and see you, perhaps you will get a message, a letter, an email, a telephone call and that's the time to do what we want you to do simply.'"
On cross-examination, Jean-Paul acknowledged that he is not personally responsible for the respondent's case, and that he was unable to confirm that respondent is a member of the al-Qaeda terrorist network.
Doyon presented 14 affidavits. One of the affiants who had known Adil for three and a half years offered to post bail of up to $15,000. A witness who had taught the respondent at the University of Montreal stated that the Charkaoui had expressed hope and confidence in education and the schools as a means of promoting changes in the integration of immigrants. A second teacher maintained that he had never in any way displayed any violent conduct, nor had he advocated the use of violence or terrorism as a means of change. A friend, who had known Charkaoui since September 2002, related how on one occasion both of them had discussed the terrorist attacks occurring in Casablanca in May 2003, and how Adil viewed these attacks as a violation of the dignity of Muslims and Moroccans, how he had expressed his opposition to terrorism and denounced the attack. A long-time friend recalled how, on one occasion, Charkaoui had telephoned him from prison and how they had discussed the reason for his arrest, and how incredible it was that such allegations had been brought against him. The witness characterized the allegations as ridiculous, relating how Adil was someone who was always willing to help others.
Another, who had known the accused since the summer of 2001, testified that he himself had been interrogated by the CSIS on three occasions and that during the last interview, he said that CSIS agents had proposed that he work for them, which he refused to do. In his affidavit, he stated that he knew a certain Mr. Abousfiane Abdelrazik and Mr. Raoul Hannachi. He said that these two men left Canada in complete legality because they were being constantly harassed by CSIS agents and that Hannachi, upon his return to Tunisia, was allegedly tortured. He said that he had not seen Mr. Abdellah Ouzghar, a Hamilton resident facing extradition to France on "terrorism-related" charges, for five years. facing Finally, he stated that the respondent knew Abdelrazik and Hannachi enough to shake hands when they crossed paths.
Other affidavits included Charkaoui's father, his wife, a university professor, his martial arts teacher, a former employee and a friend. His father stated that he raised his son in accordance with the precepts of their religion, inculcating him with the values of respect, work, tolerance and faith. He said that he has "never... heard intolerant remarks from the mouth of [his] son Adil, still less hateful remarks or remarks tending to support violence or terrorism as ends to advance some cause..." and that he has "never noticed any strange conduct in [his] son, and his day-to-day activities consist of studying, training, working and taking care of his family." The professor, from the faculty of education of the University of Montreal said that she had known the respondent since September 2002 when he was registered in her course and that she had found him an active participant who seemed to be very intelligent and open to cultural differences. His martial arts teacher noted that he was not an aggressive student and that Charkaoui had told him that previously he had been arrested in a plane by FBI agents and that about a year ago CSIS agents had gone to see him, accused him of being a terrorist and told him that they wanted him to work for them, which he refused to do. The former employee also related how, back in January 2002, he had been questioned by a CSIS agent. The last witness to be heard has known Charkaoui since mid-1998 and considers him a friend. He recounted how he had been contacted several times by CSIS agents who wanted to obtain information about Charkaoui as well as other persons in Montreal whom he knew. He also refused to work as an informant but told CSIS agents that he was prepared to inform on anyone who would do harm in Canada.
During the hearing, Justice Noel informed Doyon of an upcoming ex parte hearing in Ottawa and the receipt of additional information. Doyon restated her objection to this procedure as most of the information remains inaccessible to the Charkaoui's defence.
Justice Noel was to determine whether the respondent should continue to be detained, under sections 7, 11 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982, c. 11 (the "Charter") and subsections 83 (1) and (3) of the Act, in view of the available evidence and information.
Judge orders that Charkaoui remain incarcerated
ON JULY 15, Noel rendered his decision and ordered that Charkaoui continue to be detained, pursuant to subsections 82 (1), 83(1) and 83(3) of the Immigration and Refugee Protection Act.
Noel said that
"To demonstrate the danger to national security and the safety of any person, the ministers describe the bin Laden network, its mission, some of its members and certain activities. At page 4, they explain that: 'bin Laden has advised his supporters to blend in with Western society and to prepare attacks.'"
Further, Justice Noel said that
"With the same objective of demonstrating a danger to national security and to the safety of any person, the ministers refer ... to the training in al-Qaeda camps, using as an example the experience of Ahmed Ressam, who they say, was given military training in such things as the handling of handguns, machine guns and rocket-propelled grenade-launchers. That he was instructed in the manufacture of bombs from TNT and plastic explosives as well as sabotage and urban combat operations and assassinations." And that "in the ministers' opinion, the respondent is a member of the bin Laden network and has received training similar to that of Ahmed Ressam."
Noel points out that the ministers then link the respondent with violence and explain that he is a karate and martial arts enthusiast and that: "In the past, it has been observed that some individuals involved with al-Qaeda are devoted to the practice of karate and/or the martial arts."
"The ministers expressly and unequivocally associate the respondent with a sleeper agent in the bin Laden network and use Ressam's story as a typical example," he states.
"When signing the arrest warrant, the ministers assessed the danger to national security or the safety of any person or the possibility that the respondent would avoid the procedure or removal according to the reasonableness standard," he writes. "This is the standard of proof designated by Parliament. Needless to say, the review of the ministerial action must be conducted according to the same standard."
"... where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use of the statute of the expression 'reasonable grounds for believing' implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc."
In Justice Noel's view,
"the designated judge is not to look for proof of the existence of the facts but rather to analyze the proof as a whole while asking himself whether it is sufficient for a person to have a reasonable belief that there is a danger to national security or the safety of any person or that the respondent will avoid the procedure or removal. Although it is not at the level of the preponderance of probabilities, this standard must tend toward a serious possibility of the existence of facts based on reliable and justifiable evidence."
Noel cites Justice Evans of the Court of Appeal, who wrote in Chiau v. Canada (M.C.I.),  2 F.C. 297, at paragraph 60:
"As for whether there were 'reasonable grounds' for the officer's belief, I agree with the Trial Judge's definition of 'reasonable grounds' (supra, at paragraph 27, page 658) as a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes 'a bona fide belief in a serious possibility based on credible evidence.'"
Noel then notes: "This perception of the standard of reasonable grounds to believe is essential to ensure national security."
Noel then identifies "three significant concerns" which, in his view, have not "been satisfactorily addressed":
- the respondent's life from 1992 to 1995 (in Morocco) and from 1995 to 2000 (in Canada), including the trips;
- the respondent's trip to Pakistan from February to July 1998;
- the respondent's contact with, inter alia, Abousfiane Abdelrazik, Samir Ait Mohamed, Karim Said Atmani, Raouf Hannachi and Abdellah Ouzghar.
"Having carefully reviewed the evidence of each party and having found that at the time the warrant of arrest was signed, the ministers had reasonable grounds to believe that the respondent was a danger to national security or the safety of any person or that he would attempt to avoid the proceedings and/or removal, I consider that he still remains a danger for the reasons given above and that the detention continues to be justified," Noel writes.
"Furthermore," Noel writes, "I need not decide at this point the applicability of paragraph 11(e) of the Charter to this type of case." "[T]his is a Charter provision that applies to the criminal law, while we are dealing here with immigration law," he commented.
He also decided not to rule on sections 7 and 15 of the Charter at this stage, adding that the approach taken in this case, as prescribed by the Act, appears to be consistent with the principles of natural justice enshrined in section 7 of the Charter. He noted "that the respondent has been given information that enables him to be sufficiently informed of the circumstances, he has presented 14 witnesses and his point of view was clearly communicated in the submission by his counsel...." As to the argument based on section 15 of the Charter, he said that there was very little discussion on this and that he believed that "it will have its raison d'Ítre during the hearing on the constitutional validity of the certificate and the verification procedure."
A battle for the conscience of Canada
ON OCTOBER 8-9, Justice Noel held a hearing on the constitutionality of the security certificates, the jurisdiction of the designated judge and a request for access to documents, brought before the court by Charkaoui's lawyers Johanne Doyon and Julius Grey.
Under a security certificate, neither the detained nor his lawyer are given access to the full evidence that CSIS presents to the judge to support its allegations. The judge is not mandated to assess whether the security certificate is in fact well-founded, but only if it is reasonable.
Grey began his arguments by stating "a cause is the battle for the conscience of Canada. The question is the point to which one can act against an individual." He argued that the security certificate procedure is unconstitutional because it allows certain key elements of the evidence to be kept secret. "Any law that is inconsistent with the Constitution is invalid from the moment it is enacted," he told Justice Noel. "I defy my colleagues (lawyers representing the government) to find any other section in Canadian law where such a dangerous provision exists."
According to Grey, if part of the proof is withheld for reasons of national security, the undisclosed proof must not be used in the proceedings. He also questioned the fact that the judge's decision on the reasonability of the certificate is without appeal. If the certificate is deemed reasonable, Charkaoui will be deported.
Grey also said that the certificate process violates several sections of the Charter of Rights and Freedoms, including the protection against arbitrary imprisonment. He called for a section of the federal immigration law to be struck down because it doesn't allow Noel's decision to be appealed.
One of the fundamental rights, explained Doyon, a specialist in immigration law, is the right to a just and fair trial before an independent, impartial and competent tribunal. Doyon also argued that the security certificate procedure violates a number of international agreements that Canada is signatory to, such as the Covenant on Civil and Political Rights and that such a certificate should be issued by a judge and not the federal government.
Charkaoui's lawyers also requested that Noel release interview transcripts with alleged terrorists as well as the time and place the interviews took place. They also want to know the identity of the agents who spoke with them. Doyon told Noel that she can't mount a proper defence without further evidence.
Lawyer Daniel Latulippe, representing Solicitor General Wayne Easter, said that the government's right to protect its sources overrides Charkaoui's right to know the full extent of the evidence against him. "The administration of justice demands that, wherever the situation demands it, the identity of certain human sources of information remain concealed," he told the judge.
Outside the courtroom, Salam Elmenyawi of the Muslim Council of Montreal told reporters the Charkaoui case sets a dangerous precedent by giving the government the right to jail anyone under secret evidence. "We understand the security concerns of Canada," he said. "But it is very important not to walk all over our Constitution." "It's up to each and every Canadian to understand that they could be here. Other Canadians may lose their Canadian citizenship through the same unfair process," he said.
A third day of hearings was set for October 21, before Justice Noel's ruling on the constitutionality of security certificates, which is not expected before December.
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