Andrew Duffy. Canwest News Service. Thursday, February 28, 2008

OTTAWA – Five men publicly accused by the federal government of being terrorists want the right to contest allegations posted on the Federal Court of Canada’s website. In an open letter to Chief Justice Allan Lufty, two groups representing the terror suspects argue it is “unprecedented for a court to post ‘evidence’ for public review until it has been tested in court.” They’ve asked Lufty to grant them the right post links on the court’s website that would take readers to pages that offer a defence to the government’s unproven allegations. The issue promises to help define the meaning of an open justice system in an age when information can be accessed instantly, and by virtually anyone, on the Internet.

“Our desire would be to see the court put balanced information up there,” said Matthew Behrens, co-author of the letter and an organizer with the Campaign to Stop Secret Trials in Canada.

The Federal Court website normally posts decisions issued by its judges after cases have been argued.

“People might be under the understanding that these are actually final conclusions against these guys instead of just vague allegations,” Behrens said. “It’s incredibly dangerous.”

Earlier this week, the lawyer for one of the so-called “secret trial five” raised the same issue during a case-management conference convened by Lufty.

Johanne Doyon, lawyer for Montreal terror suspect Adil Charkaoui, said the court’s decision to post the material, prepared by the Canadian Security Intelligence Service (CSIS), has had a “cruel effect” on her client and his reputation.

She asked the judge for the right to respond on the court’s website to the allegations put forward by CSIS.

Lufty said he would consider the request to post a reply.

The judge also took responsibility for the way in which the information was released, saying his intention was to promote openness and transparency in the proceedings.

The cases, he said, are of vital interest to the public and the court’s website offered the most accessible platform for delivering the information that forms the basis for the security certificates.

In the past, anyone interested in a security certificate file would have to view it in person at the Federal Court’s registry office. Barbara Jackman, a lawyer for two of the men, said she was “appalled” by the decision to post the government’s case against her clients.

It is the equivalent, she said, of posting an untested statement of claim.

“I find it difficult to understand: the court is not transparent when it counts. Our clients are subject to these certificates for five years and they’ve never had anyone let them see any of the evidence,” she said. “The court has not become transparent on that level. But they’re transparent in presenting the government’s case. It’s not even.”

Lawyers for the five men have repeatedly appealed for public, criminal trials in the cases.

Last Friday, the Federal Court published on its website security-intelligence-report summaries in the cases of Charkaoui, Mohamed Harkat, Hassan Almrei, Mahmoud Jaballah and Mohamed Mahjoub.

The full reports were presented by CSIS to two federal cabinet ministers, who subsequently signed security certificates that alleged the five men were members of al-Qaida’s terrorist network.

In Harkat’s case, the intelligence summary alleges that the former Ottawa pizza delivery man is an al-Qaida sleeper who maintained links to Osama Bin Laden’s financial network. Harkat’s wife, Sophie, has told Canwest News Service that the CSIS summary is filled with mistakes and is based largely on interviews conducted when Harkat didn’t understand English.

Behrens said by posting the material on its website, the Federal Court has put the five men in the “invidious position” of having to litigate their cases in public before doing so in court.

“They’ve faced banner headlines for almost a week now which are completely unfounded and unsubstantiated,” he said.

He wants the documents moved to the CSIS website.

Otherwise, Behrens said, the five men should be allowed to post links to those sites that raise questions about the practices and conclusions of CSIS agents.