Lawyers for Montreal terror suspect say revamped law is still unconstitutional: ‘The lawmaker didn’t respect the Supreme Court decision’

TU THANH HA. The Globe and Mail. February 29, 2008

MONTREAL — Canada’s revamped security certificate regime, which was hurriedly enacted two weeks ago, will face a constitutional challenge, lawyers for Montreal terror suspect Adil Charkaoui announced yesterday. The previous system had been overturned last year by the Supreme Court of Canada, which rejected its use of secret evidence against suspects. This forced the federal government to introduce a new law – Bill C-3 – creating “special advocate” lawyers who will act for defendants in closed-door hearings. In C-3’s wake, Ottawa filed five new certificates last week, redesignating Mr. Charkaoui and four other Muslim men as threats to national security who should be expelled from Canada. “It was a shock for us,” said one of Mr. Charkaoui’s lawyers, Johanne Doyon. She said she will file a request in Federal Court in three weeks, arguing that the new mechanism still violates the Charter of Rights and Freedoms.

The new security-cleared advocates aren’t proper legal counsel, she said, since they cannot communicate all the evidence with the defendant. “The lawmaker didn’t respect the Supreme Court decision,” Ms. Doyon said. “This isn’t a lawyer-client relationship.” The new special advocates are “a cosmetic add” to the system, Mr. Charkaoui added. “I can’t see the end of this nightmare.”

Mr. Charkaoui’s lawyers will also ask the Federal Court to suspend its review of the new security certificate against him until the constitutional challenge is settled.

The Moroccan-born Mr. Charkaoui was arrested in 2003, but released under strict conditions two years later. The Canadian Security Intelligence Service alleges that he has ties to al-Qaeda and attended a terror-training camp in Afghanistan in 1998.

In a declassified summary of evidence filed against Mr. Charkaoui last week, CSIS portrayed him as a violent, short-tempered man who expressed radical Islamic views and mused about taking over a commercial plane. The summary suggests that he was under surveillance as early as 1999. Without revealing its sources, CSIS alleged, for example, that he once beat up an employee at his pizzeria and laughed as he recalled watching a show on the Al Jazeera network that spoke of bombing American and Jewish targets.

The additional declassified evidence might provide leads that would help identify witnesses who could eventually be cross-examined, said another of Mr. Charkaoui’s lawyers, Dominique Larochelle. Mr. Charkaoui and his legal team expressed satisfaction that the evidence no longer mentioned as a source of the allegations against him the suspected al-Qaeda trainer Abu Zubaydah. Mr. Zubaydah, a Guantanamo Bay detainee, had been subjected to harsh treatment such as “waterboarding,” where water is poured over the suspect’s plastic-film-wrapped head to induce a feeling of drowning.

The new security certificate law no longer allows evidence collected through “cruel, inhuman or degrading treatment.”