The Electric Pencil

Security certificates and habeas corpus: Charkaoui back in court

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Tomorrow marks the beginning of the next phase of Adil Charkaoui‘s campaign for justice: Charkaoui will be appearing in court to once again challenge the legality of Canada’s contentious security certificate laws.

A Canadian permanent resident, since 2003 Charkaoui has been held by the federal government under a security certificate for allegedly being a terrorist sleeper agent with ties to known terrorists, including Ahmed Ressam.

Charkaoui’s case, and that of four other men accused of terrorism-related charges, has thrown a bright light on security certificates – essentially hyper-arrest warrants based on national security, and issued directly by the federal government. Those charged under these security certificates have no access to the evidence against them. Until recently, even their lawyers – if they do not have proper security clearance, and most don’t – faced incredibly limited access to the evidence needed in order to defend their clients.

That changed in February 2007, when the Supreme Court of Canada ruled the certificates unconstitutional  after a lengthy and public campaign by Charkaoui’s supporters and various Canadian human rights and legal organisations.

By the end of the year, though, the government had adopted a new, slightly modified security certificate law, which even the bar association of Quebec said was essentially the same as the original law.The new law allows for specially government-appointed defense attorneys with enough clearance to see a summary of the evidence against their clients.

As of 9:30am tomorrow, June 20th, Charkaoui will be in Montreal court to begin a new challenge to the security certificate law, arguing the changes do not actually meet the requirements set out by the Supreme Court and should therefore be once again struck down. Charkaoui will also be arguing habeas corpus – essentially that the current proceedings, including the destruction of evidence by CSIS that could prove his innocence, deny his right to a fair trial and a legitimate defense. The Coalition Justice for Adil Charkaoui is calling on concerned citizens and backers to attend tomorrow’s court proceedings to show their support for the campaign.

Full call-out after the jump.


Campaign against security certificates: Legal update in Charkaoui file.


REMINDER: Please come to Federal Court in Montreal (30 McGill St., near
Square Victoria metro) TOMORROW, Friday, 20 June, at 9:30 am. Your presence
court is an important act of solidarity and will provide tangible moral
support for the Charkaouis’ five-year struggle for justice. More
details below or at

– Bias no obstacle: Court clears way for secret trial process to get
– Supreme Court to rule on CSIS destruction of evidence
– Charkaoui launches habeas corpus and new constitutional challenge

Inconvenience to government outweighs threat of torture and loss of liberty
for (Muslim) family

On 12 June, the Federal Court ruled that the review of Adil Charkaoui’s
security certificate should proceed even though the Supreme Court has not
yet ruled on the implications of the fact that CSIS destroyed evidence in
his file.

Charkaoui’s lawyer had argued that it does not make sense for the courts to
evaluate the case against him before the Supreme Court decides whether this
case is, in the first place, the result of a biased investigation.
However, there were several indications during the hearing that doubt about
the legality of the evidence was not going to stand in the way of rapid
‘progress’ on the case.

Judge Lemieux opened the hearings by repeating all the unproven, vague
allegations against Charkaoui, “just to put everyone in context”. He
repeated the allegations twice more during the hearing, ensuring that no one
would forget that Charkaoui has been labelled with the t-word.

Lemieux also reiterated the new mantra of the Federal Court:
the Court would like to “finish” all the security certificate cases before
the end of the year, 21 December 2008. However, what the Court means by
the cases is not clear. It became even less clear when Lemieux asserted
during the proceedings that no judge in Canada would send someone to
torture. This is a strange claim to
make, particularly in the context of a security certificate case: if the
courts would ultimately refuse to send Charkaoui to torture, why are they
entertaining deportation proceedings against him, given that Immigration
Canada has already evaluated
that he is at risk of “cruel and unusual punishment, torture or death” if

Judge Lemieux gave his opinion that if the case proceeded now, the worst
that could happen is that the Supreme Court
could rule that the investigation was biased and the government would be
forced to withdraw the case.
The worst for the government, that is. For Charkaoui, proceeding with a case
that the Supreme Court may ultimately find to be biased would mean another
“trial” in public opinion brought by the media and months more intense
pressure on the entire family, who are already living under draconian
conditions. All under a law that will, according to the Quebec lawyers’
association, once again prove to be illegal.

When the hearing wrapped up, Lemieux reminded the parties that, under the
new law, interlocutory decisions cannot be appealed. His decision would be
final. The next day, the judge released a short statement saying that the
proceedings would continue, that this would not cause irreparable harm to
Charkaoui, and that the balance of inconvenience favoured the government.


Behind this brief appearance in Federal Court stands a much larger question.
In January 2008, the Supreme Court was asked to decide whether the Canadian
Security Intelligence Service (CSIS) had carried out its investigation in
the Charkaoui case in a biased manner. This followed the spy agency’s
admission that they had not only destroyed records of interviews with
Charkaoui himself, but had systematically destroyed all interview records in
his file.

When it came to light last week that records of interviews with Omar Khadr,
the Canadian boy still held at Guantanamo Bay, were destroyed according to
Pentagon standard procedure, the news became an international scandal.
Alleged confessions by Khadr, used to justify his detention, could not be
challenged because they had been destroyed.

But much closer to home, CSIS quietly carries out the same policy,
systematically destroying evidence used to justify detention and
deportation. The practice was sharply criticized in connection with the Air
India case as well as the Bhupinder S. Liddar case – but nothing changed. In
Charkaoui’s case, CSIS
summaries of interviews which have been made public show neither questions
posed nor answers given and
fail to provide any information about the context or interrogation methods.
Obviously, in such a situation, the door is wide open to mistakes, errors of
interpretation, bias and outright fabrication.

Worse still, in lower court hearings on this question, CSIS stated that they
do not keep information more than strictly necessary to fulfil their
mandate of showing that there are reasonable grounds (rather
than proof beyond reasonable doubt) to believe that someone is a danger to
national security. This admission led Charkaoui and his lawyers
to fear that the entire case against him was biased: CSIS apparently does
not consider it necessary to keep information favourable to Charkaoui, but
only information which supports their theories about his profile. In brief,
they “build a case” against a “suspect”, setting aside or destroying
evidence that leads to different conclusions.

In February 2008, the Federal government, acting under the new security
certificate law, issued a new certificate against Charkaoui. According to
the public summary, the allegations were once again based at least in part
on evidence that CSIS has said that it destroyed.

If positive, the Supreme Court ruling could mean an end to the five-year
ordeal for the Charkaoui family. It would also have an impact on the other
security certificate cases and other inquiries carried out by CSIS. The
decision could come at any time.


Since February 2005, for forty months, Charkaoui has been subject to
court-ordered conditions that do not allow him to leave home without his
mother or father, that restrict him to the island of Montreal, prevent him
from using any telephone except the one in his home, subject him to a
curfew, force him to wear a GPS-tracking bracelet, deny him access to the
internet and more. These conditions apply to him alone but in practice they
have a broad and far-reaching impact on all members of his family. Moreover,
the conditions have created significant barriers to employment and education
for him.

Accordingly, in April 2008, in response to the new certificate issued
against him under the new security certificate law, Charkaoui submitted a
request for habeas corpus. The Coalition Justice for Adil Charkaoui
considers that, in enacting the new security certificate law, the government
failed to respect the Supreme Court’s ruling that detainees have the right
to know the case against them. Thus, Charkaoui is illegally deprived of his
liberty because the law itself is illegal.

Dating back to at least the 12th century, habeas corpus is a legal action to
defend individual liberty against such arbitrary imprisonment by the state.
It is
on the basis of this principle that the US Supreme Court last week upheld
the rights of the Guantanamo prisoners to have the legality of their
detention reviewed by US courts. However, the Federal government is opposing
Charkaoui’s right to habeas corpus.

Charkaoui will thus simultaneously be demanding his freedom from the unjust
conditions that have been arbitrarily imposed on him and challenging the new

In the same motion, he has asked for complete disclosure of all
information in his file and has asked to cross-examine the CSIS agents who
prepared his file, Minister of Immigration Diane Finley and Public Safety
Minister Stockwell Day. The motion also asks for a profound review of his
conditions pending a decision on the constitutionality of the law.

The first fully public step in the habeas corpus / new constitutional
will take place on Friday, 20 June. After Friday, it will become clearer
what the next months hold for
Charkaoui and his family.

* For an overview of all ongoing legal proceedings:

Coalition Justice for Adil Charkaoui
tel. 514 848 7583

Sign up to our newslist: send a blank email to

DONATE: Cheques to “Coalition Justice pour Adil” and sent to 3729 Hutchison,
Montreal H2X 2H4.

Written by Tim McSorley

June 19, 2008 at 4:37 pm

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