Security Certificates: High court reprimands CSIS over policy of destroying evidence

Posted by admin on Jun 27th, 2008

Thursday, June 26, 2008. CBC News
Adil Charkaoui flashes a victory sign in Montreal after the Supreme Court of Canada ruled on his case Thursday. (Ryan Remiorz/Canadian Press)The Supreme Court of Canada has scolded Canada’s spy agency, the Canadian Security Intelligence Service, for destroying classified evidence related to the case against a Montreal man accused of having links to terrorism. However, the court in Ottawa unanimously decided Thursday that it will not halt the proceedings to have Adil Charkaoui deported to his native Morocco.

Charkaoui, a landed immigrant who came to Canada 13 years ago, was arrested in 2003 and imprisoned until 2005 under a controversial security certificate, used to hold foreign-born terrorism suspects without charge based on secret evidence.

“This is not a half victory, it’s a full victory, even though I wasn’t able to have the proceedings stopped,” Charkaoui, 34, told reporters in Montreal after the decision was handed down.

“In 20 years, this is the first time CSIS is told to be careful of what it’s done… For the first time, those people are told they cannot do this sort of thing. They cannot destroy evidence and put information in files that are nothing but summaries, with no context.”

In preparing its case against Charkaoui, CSIS provided summaries of its agents’ interviews with Charkaoui to a federal judge, but destroyed the original notes and taped conversations, in keeping with an internal CSIS policy designed to protect sensitive security information.

“The destruction of operational notes is a breach of CSIS duty to retain and disclose information,” the Supreme Court wrote in a summary of its decision.

Original notes provide better info, court says
CSIS’s duty to retain all intelligence is clearly outlined in Section 12 of the Canadian Security Intelligence Service Act, the Supreme Court said. The court said CSIS should be presenting all its evidence to judges in court cases, and those judges can determine what is safe to release to the public, and what is not.

“The meaning of the word ‘intelligence’ in Section 12 should not be limited to the summaries prepared by officers. The original operational notes are a better source of information and evidence,” the court wrote.

The destroyed evidence in question came to light during a fourth review in Charkaoui’s case at a Federal Court in January 2005. Government lawyers admitted CSIS had done two interviews with Charkaoui that they had inadvertently failed to disclose as evidence when Charkaoui’s case began in 2003.

The judge decided to postpone the hearing for a month, during which time Charkaoui’s legal team asked for copies of the interview notes and recordings. CSIS said these had been destroyed, and provided summaries instead.

Stay not an ‘appropriate remedy:’ court
In learning the original material had been destroyed, Charkaoui’s lawyers filed a motion for a stay of proceedings, arguing there was no way to verify the accuracy of the interview summaries. The lawyers asked that the security certificate be quashed because Charkaoui’s right to procedural fairness had been violated.

The Federal Court and Federal Court of Appeal denied the request, so Charkaoui’s lawyers appealed to the Supreme Court, which has ultimately agreed with the lower courts.

“A stay of proceedings is not an appropriate remedy in this case,” the court wrote in its decision. “It would be premature at this stage of the proceedings for the court to determine how the destruction of the notes affects the reliability of the evidence.”

The court said it will be up to the federal judge handling the review to determine whether the lack of original notes and recordings has ultimately affected the fairness of Charkaoui’s case.

The court also noted that the judge handling the new evidence did the right thing by postponing the review hearing by a month to give Charkaoui time to review the interview summaries and prepare his testimony and defence.

“The judge averted any prejudice that might have resulted from the delay in disclosing new evidence,” the court wrote. “Moreover, since it was [Charkaoui] himself who had been questioned in the interviews, he had knowledge of the subject and doubtless knew what he said on that occasion. As a result, he had sufficient time to prepare his testimony.”

Charkaoui hopes stay still possible
Charkaoui told reporters Thursday that he hopes the Canadian government or the judge reviewing his case will consider the effects of the destroyed evidence and end the proceedings against him, and the four other terrorism suspects who are being held on security certificates in Canada.

Federal Court proceedings in Charkaoui’s certificate case are expected to resume in the fall.

CSIS alleges that Charkaoui is a radical Islamist and an al-Qaeda sleeper agent ready to stage attacks against Western targets. He has denied those allegations.

Charkaoui wasn’t allowed to see much of the evidence submitted against him since CSIS cited national security interests for withholding the information.

Since Charkaoui’s release on a restrictive court order more than three years ago, he has lived under house arrest. The father of three, whose children were born in Canada, must wear an electronic tracking bracelet and is not allowed to use a cellphone or the internet.

Human rights activists have defended him, arguing that security certificates violate the legal principle that an accused has a right to know what evidence is being used against him.

Charkaoui and two other terrorism suspects challenged the legality of the security certificates in court and, in February 2007, the Supreme Court of Canada struck down the entire system, declaring it unconstitutional and requiring the federal government to write new legislation.

A year later, the government passed a new security certificate law that gives detainees access to a special advocate to represent them at a private hearing. That law is now in effect.

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