Spies, bureaucracy and torture: Two days in court with CSIS and Charkaoui

OCTOBER 11, 2005 MONTREAL -- "I think they probably see me as the enemy," said Barbara Campion, media spokesperson for the Canadian Security Intelligence Service (CSIS). Campion was standing feet away from Latifa and Hind, mother and sister of Adil Charkaoui, and had been asked if she would like to come over to meet them. She didn't think that would be appropriate. When pressed, she admitted that there weren't any rules in place that prevented her from greeting the family, but well, it didn't feel appropriate.

Campion and the Charkaouis were in the hallway outside another hearing in the case of Adil Charkaoui, a father of two who has lived in Montreal since 1995. Arrested in May 2003 under a national security certificate, Charkaoui has been labelled "terrorist suspect" and faces deportation under secret evidence he is not allowed to fight in a fair trial. After two years in prison without charge, he was released in February 2005 under very strict conditions. His certificate has still never been reviewed by a judge, not even in the very limited sense provided by the security certificate process. In other words, his loss of liberty is essentially the result of a decision made by two cabinet ministers. It demonstrates a concentration of executive power that has concerned many.

Last week Charkaoui launched a motion to argue that keeping him under threat of deportation to torture is a violation of his Charter rights and of the UN Convention Against Torture. For the first time, Charkaoui was challenging the part of the Canadian Immigration and Refugee Protection Act (IRPA) which says that people who have been labelled security threats should be excluded from protections against torture. These sections act hand-in-hand with security certificates to open the door to rendition to torture for non-citizens. This is the threat under which the Charkaoui family is living. It has added to the stress of arbitrary detention, ceaseless media slander, the necessity of endless court hearings and campaigning, and release conditions which humiliate and choke the freedom of the entire family.

It was Campion's first appearance at one of the security certificate hearings. She had also put in a silent appearance at the Parliamentary sub-committee hearings on security certificates two weeks earlier, on 21 September. Campion's emergence perhaps signals a change in CSIS's media strategy. After Maher Arar, Al Maati, Elmalki and Liddar, not to mention the Air India investigation, CSIS hasn't been looking too pretty. But if you can't reform, you can at least pay a PR person to spin.

Campion confided that it wasn't easy being the media spokesperson for CSIS on security certificates. When asked, she clarified that, no, this wasn't because it (arbitrary and indefinite detention, presumption of guilt, secret trials, deportation to torture and racial profiling) is a difficult position to defend. It is because journalists are frustrated by the fact that she can't tell them much - CSIS has to remain tight-lipped about its secrets. Such as the secret that their secrets are too flimsy to actually charge Adil or the other security certificate detainees under criminal law? (This has already come out in the case of security certificate detainee Hassan Almrei, imprisonned without charge since October 2001 in Toronto. A confidential government memo obtained during the Arar inquiry states that "the evidence against [him] does not meet the threshold for criminal charges to be laid against him in Canada.") Like the secret that they don't actually have a case, but only secret suspicions gathered under intimidation, bribery, blackmail, torture and a secret policy of racial profiling? I didn't ask her.

The two days were long and technical. On one side, Adil and his lawyers (two women). On the other side, the lawyers for the Minister of Immigration and for the Minister of Public Security (three men). In front, Judge Noel. In the front row of the audience, directly opposite and facing the Judge, Latifa and Hind. Behind and beside them, journalists and observers, including Campion, miscellaneous members of the Coalition for Justice for Adil Charkaoui, students, academics and friends. What was at stake was whether Canadian authorities would or would not knowingly send people, specifically Latifa's son Adil, to torture. The genius of the legal system is that it was able to dissect that struggle over a man's body into a series of rational arguments which lost all signs of vitality. It was a very dull time, alleviated by two or three guffuffles.

Guffuffle one was the fact that Adil arrived half an hour after the hearing was to have begun. His father having just begun work, his mother having an unavoidable offical appointment which ran over-time, and Adil's conditions forbidding him to leave home without his parents, one of his lawyers, Dominique Larochelle, had to fetch him at the last moment. Charkaoui's other lawyer, Johanne Doyon, then began to make what seemed, to non-lawyers at least, the fairly straight-forward case that holding Adil under prolonged and serious threat of torture violates his charter rights to life, liberty and security of person, to not be subjected to cruel and unusual treatment, and to equality (only non-citizens are subject to such treatment). Following a line of reasoning equally self-evident to the uninitiated, she argued that the part of the Immigration law that says that protection against torture does not apply to everyone, contradicts the part of international law that says that everyone must be protected against torture. Apparently the arguments are not as straightforward as they appear to the untrained mind. They required a good day and a half from Doyon, punctuated by questions from the Judge, before Mr. Latulippe, the lawyer for the Immigration Minister, had a chance to stand up for torture.

Guffuffle two was a sudden impatience on the part of the Judge during Doyon's description of the stress under which Charkaoui was living, and its negative impact on his psychological health. Why, the judge asked, if Charkaoui claims to be under so much stress, doesn't he just go through with the review of the certificate? We could simply throw out the certificate and the situation would be over! Where was the problem? Judge Noel was referring to the fact that the review of Charkaoui's certificate has been suspended since March 2005, when the Minister of Immigration was forced to withdraw an August 2004 decision to deny Charkaoui protection against deportation to torture. That decision had been largely based on diplomatic assurances from Morocco, which were rather spectacularly exposed on Radio Canada TV as worthless by the Moroccan Minister of Justice. Charkaoui requested that the review of the certificate be suspended until the government came out with a new decision on protection; Judge Noel agreed. Was Noel now asking Charkaoui to put his trust in judicial assurances?

Day two began with quite a heated guffuffle of its own. Charkaoui's lawyers wanted evidence that the Minister really had read the secret "evidence" against Charkaoui before signing the certificate against him. (In an aside, Dominique Larochelle clarified that, as a criminal lawyer, she couldn't really accept this material as evidence. She might have continued as K. in The Trial, "I recognize them as such, for the moment, out of compassion, so to speak.") The judge responded, basically, that he couldn't imagine a situation in which they would have signed without reading the secrets. Doyon agreed that it would be astonishing, but added that she had been astonished to learn that something of the kind had happened in the case of Mahjoub. (Mahjoub had been denied protection against deportation to torture basically on the grounds that the secret evidence indicated that he might be too dangerous to remain in Canada, but the Minister's delegate who wrote the decision had not in fact even read the secret evidence.) Astonishing things seem to happen in these cases.

In the end, neither the judge nor the government lawyers could provide evidence that the Ministers had read the secrets presented about Adil. But they believed it to be unimaginable that the Ministers hadn't done so, the Judge noting that it didn't make sense to read the summary without its secret annexes. This is a fact Adil and his lawyers know only too well, because they are only allowed to read the summary. But their experience allows them to very clearly imagine a scenario where the secret evidence was not read before the certificates were signed.

Finally, Mr. Latulippe, a large man with a deep voice, rose to the defense of torture. Such is the banality of evil in a bureaucracy and such the impressive resonance of his voice, that it wasn't immediately apparent that that was what he was doing. Latulippe defended refoulement to torture by selectively citing the Supreme Court's Suresh decision - Canadian policy that there are "exceptional circumstances" in which refoulement is permissible. The exceptional stress under which the Charkaouis are living and the abuses they have suffered didn't really impress Latulippe from a legal point of view. He said he believed this approach to be reasonable: threats, national security, Al Qaeda, sleeper cells, terrorism, terrorists. The logic was elliptic, and its applicability to the immediate situation unspecified, but his authoritative voice carried him through. He replied to Doyon's argument that Canadian policy violated international law's absolute prohibition to deportation on torture by making refined, academically interesting arguments about the applicability of international law to the domestic context. Although Latulippe was simply defending Canadian government policy and a section of Canadian law, it was deeply unsettling to hear the position argued in person, all the more so for the air of professional competence, witticisms and all, with which it was delivered.

The judge will take final submissions and begin deliberations in two weeks. The motion argued by Doyon is posted at www.adilinfo.org/themes/motion.htm.

(informal report by mary foster)