February 15, 2008
Adil Charkaoui has spent more time working his way through the Canadian court system than most Canadian lawyers. This past January 31, Canada’s most famous security certificate detainee was back at it in the Supreme Court of Canada ("SCC"), this time trying to establish that his right to procedural fairness had been violated [link].
At issue was the Canadian Security Intelligence Service’s admitted destruction of the notes and recordings of an interview with Mr. Charkaoui – materials that had served as the basis of his detention under a security certificate – before the evidence could be examined in court. Mr. Charkaoui had argued that CSIS ought to have disclosed the destruction policy when proceedings started against him, interpreted s. 12 of the Canadian Security Intelligence Service Act more broadly than simply requiring the retention of information supporting arguments that individuals posed a danger, met their duty to disclose evidence promptly, and ought not to have issued a security certificate based on their investigation. Mr. Charkaoui also argued that the Federal Court of Appeal had underestimated the impact of the above breaches on his rights, and that it should not have upheld a Federal Court judge’s approval of the use of supporting evidence obtained subsequent to the original decision to hold Mr. Charkaoui on a security certificate.
Meanwhile, as Mr. Charkaoui fought in the courts, outside the courthouse a variety of people and organizations gathered to protest on his behalf. One of the people who helped to organize that demonstration was Mary Foster from the aptly named Justice for Adil action group that is spearheading Mr. Charkaoui’s campaign. TheCourt.ca asked her a couple of questions via email.
TheCourt.ca: In protesting outside the court, what was the message for the public?
Mary Foster: We wanted to bounce off the public attention generated by the court hearing to draw attention to CSIS profiling and harassment of immigrant and other targetted groups.
The Court.ca: Traditionalists would argue that the Supreme Court does not play an explicitly political role. What role do you see the court playing and should they be playing a different one?
MF: Whether we have a "political" court, or a court which seeks to present its decisions as mere application of legal principles, the court's decisions are filtered through a narrow debate conducted among a legal elite which is influenced by the wider political climate. I think a more interesting question would be whether and how, at a popular level, we can hope to push the Supreme Court to make more progressive decisions, more reflective of the reality of those who are directly affected by their decisions, in a time of political conservatism such as the one we are currently living through.
TheCourt.ca: How does the Supreme Court litigation fit in with the lobbying and mobilization efforts taking place around security certificates?
MF: [It is] complementary. Our purpose is to build popular opposition to the injustices perpetrated by the security certificate system based on principles of solidarity and respect for the dignity and freedom of all. Our role is to help demystify the legal and political systems when they threaten to block the application of those principles by side-tracking people into narrow, legalistic debates which divert from the core issues.
TheCourt.ca: Now that Parliament has passed a new security certificates bill, will we see Mr. Charkaoui back in the courts?
MF: If the government decides to issue new security certificates on the basis of this law - which resembles the old law in all essential aspects - against those who are currently under the certificate, [those charged under security certificates] will have no choice but to contest its legality. The legal framework obviously does not offer them an opportunity to clear their name; it threatens them with endless more years of arbitrary detention, and deportation to torture, so there is really no other option but to contest. The question of when and how to launch a challenge is being discussed, not sure much more than that can be said at the moment.
4 Comments
CSIS' proclivity for destroying evidence, especially evidence that is use to detain someone and is likely to be the subject of a court hearing, definitely requires a remedy of some sort. I would recommend bail at least if not throwing out the certificate. Not only does destroying evidence preclude the detained person or their counsel from reviewing the evidence, it also precludes any in camera review by a judge. It prevents an independent tribunal from reviewing the rationale behind the detention.
I can see the need for a legal regime that allows detention of a person deemed to be dangerous to Canada or other countries, even without specific acts being commited in Canada, but not where the evidence necessary to make that determination is destroyed by the government prior to review by the courts. Allowing detention without review of the evidence before a fair and impartial tribunal leaves the system open to abuse.
With regard to the comments by MF, however, I have to say that they are not dispositive to resolution of this issue. Her reference to political conservatism seems to indicate her belief that this is the source of the problem. I think Conservatives as well as individuals from all political stripes can see the rationale behind protecting Canadians from dangerous individuals. Infusing the arguments about this case with political invective will not help. The question here is one of procedural fairness, not politics.
I would like to quote R. Douglas Elliot, in response to Binne, J.,
“You have them being 100 per cent of the detainees versus being 2 per cent of the total population.
At the very least, it is suggestive of racial profiling.”
Mr. Elliot will be speaking at the University of Western Ontario soon.
I would like to quote R. Douglas Elliot, in response to Binne, J.,
“You have them being 100 per cent of the detainees versus being 2 per cent of the total population.
At the very least, it is suggestive of racial profiling.”
May I ask: Who is 'them'?
Correlation is not causation. It makes no more sense to release people based upon statistical correlation than it does to lock them up based upon statistical correlation. This is why racial profiling is a bad idea. Racial profiling in releasing people is just as repugnant to justice as racial profiling in detaining them. Mr. Elliot's statement seems to tilt toward suggesting that because of the statistical correlation of a particular characteristic of the 'them' group that there must be racial profiling. I would suggest that proper logical reasoning precludes reaching that conclusion.
In Mr. Charkaoui's case it seems that CSIS destroyed evidence used to make the decision to issue the certificate. Therefore the government will not be able to present the evidence necessary to support the security certificate and, therefore, the detention. It seems to me that unless there is other compelling evidence supporting the certificate, Mr. Charkaoui should be released. If CSIS is not up-to-date regarding the evidentary requirements of due process then this should not be Mr. Charkaoui's problem.
Zeppo,
Agreed on all points.
Destroyed evidence may have also revealed more than simple correlation as well. But that is something upon which we can only speculate.