By Matthew
Behrens
On October
11, as many Canadians focus on the best place to purchase a Thanksgiving
turkey, the Supreme Court of Canada will be in session, but anyone wishing to
attend that day’s hearing will find the Court building empty, and the nine
judges missing. Outside of a small handful of individuals, no one will know
where the country’s highest court will be sitting or what will be discussed. In
a shameful concession to the “national security” agenda, Canada’s Supreme Court
will be holding a secret hearing in the same manner as judges in dictatorships
from Pinochet’s Chile and South African Apartheid to the burning chambers of the
French inquisition (so named because all daylight was blocked out, and only
torches were used both to light the rooms and, eventually, to set afire those
condemned as heretics).
The
man whose case is not being heard in public that day is beyond tired of secret
trials. Mohamed Harkat, arrested on International Human Rights Day in December,
2002, has faced over a decade of secret hearings held by the Federal Court of
Canada, from which he and his lawyers have been excluded. Despite the fact that
the GPS tracking device that has been strapped to his body for seven years was
removed this summer, Mr. Harkat remains subject to a “security certificate”
process which applies only to refugees and permanent residents and, like the
days of the burning chambers, presumes named individuals guilty, has a lower
standard of proof than that afforded Canadian citizens, and dispenses with the
standard rules of evidence, allowing judges to base their decisions on information
“even if it is inadmissible in a court of law.” Just as the evidence of tortured “witches”
at Salem was used to condemn other suspected “witches,” so it is in Canada,
wherein the Canadian Security Intelligence Service (CSIS) admitted in a
recently released document that having to exclude information gleaned from
torture would result in the collapse of its whole security certificate process.
The
secret trials regimen was declared unconstitutional by the Supreme Court of
Canada in 2007 in the seminal Charkaoui
decision, in which the court asked, plainly, how one meets a case one does not
know. On October 11, Mr. Harkat will be no closer to knowing the case he has to
meet. His partially public hearing will be held on October 10.
It
says something about the degraded system of Canadian justice that the nine
individuals who have the ultimate legal say when it comes to fundamental issues
such as due process and rule of law will be sitting in secret session, adding
go the growth of a parallel secret judicial system that is bound to grow and
flourish along with other trends toward secrecy in Canadian government.
TRENDING
TOWARD SECRECY
Indeed,
the use of secrecy, especially under immigration legislation, has grown in
leaps and bounds. During this fall’s public portion of the secret hearing, the
Canadian Council for Refugees (CCR) and the International Civil Liberties
Monitoring Group (ICLMG) will point out that immigration tribunals are
increasingly accepting secret information that cannot be contested by refugee claimants.
Under Section 86 of the Orwellian Immigration and Refugee Protection Act, the
Immigration Minister may, using the exact same procedures of the security
certificate, apply to introduce secret allegations. There there have been over
100 such cases since 2008. As the CCR and ICLMG note out in their Supreme Court
submission, “Canada and other states appear to be normalizing what was intended
to be an exceptional procedure, expanding [secrecy’s] use in other areas,
including in criminal trials.” As a result of this increasing acceptance,
officials worried about embarrassment or criticism of their decisions are
over-claiming national security. In addition, there is the “development of a
[secret] body of jurisprudence available only to the court and the
Minister…[but] not to public counsel; [and] the appearance of an inordinately
close relationship between the Court and the state which serves to undermine
confidence in the judiciary.”
While
it is no secret that judges are members of the elite and are usually deferential
to power, the secret hearing process elevates their coziness with state
agencies to obscene levels. Annual findings by relatively toothless “oversight”
agencies like the Security Intelligence Review Committee and the (now
abolished) office of the CSIS Inspector General conclude that CSIS is woefully
inept when it comes to identifying real security threats, engages in racial
profiling, trades in torture, exaggerates to make a case, withholds evidence
that may prove someone’s innocence, and commits huge errors of fact and
judgment. Despite thesefindings, the courts (and the media) continue to defer
to CSIS requests for secrecy and non-disclosure. Swept aside are appeals for
openness by individuals whose lives are plagued by the constant itch of not
knowing what is being used to deport them to torture or keep them under a
permanent state of house arrest and intrusive state surveillance.
Apart
from the odd grumbling of judges who “wrestle” with conducting secret hearings
without the detainee or his lawyer present (former Federal Court Judge James Hugessen
famously remarked that he and others involved in such proceedings feel like “a
fig leaf”), almost all of them slog on anyhow in a morass of bureaucratic
inertia whose banal nature would be a subject of great interest to Hannah
Arendt.
BOOTING
THE MAGNA CARTA
That
Canadian judges are rejecting 800 years of legal tradition dating back to the
Magna Carta is certainly not new. Two Supreme Court judges (Taschereau and
Kellock) served state interests in the post-war Red Scare, presiding over a
mid-1940s inquisition in Ottawa that was marked by a presumption of guilt; the
indefinite, incommunicado detention without charge of individuals who were
denied access to counsel; detainees threatened with being shot; and compelled
testimony under threat of contempt. Notably, nine people declared guilty by the
judges at the inquiry were later acquitted in court and two never went to
trial. (Judges who engaged in similar practices in Germany during the Third
Reich would eventually find themselves in the dock at Nuremberg.)
More recently, significant
portions of the inquiry into the torture of Canadian citizen Maher Arar (2004-06)
were conducted in secret by Ontario Associate Chief Justice Dennis O’Connor,
while former Supreme Court Judge Frank Iacobucci shamefully presided over a
completely secret inquiry into Canada’s role in the torture of Canadians
Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin. Not a single punctuation
mark of a single document was ever released to the men, their lawyers, or the
general public in what can only be described as one of Canadian history’s great
acts of judicial subservience to fear and the unsubstantiated claims of its paranoid
spy service. The men are now engaged in protracted legal proceedings to seek
accountability from the government, a process again cloaked in efforts to
retain or redact as much as possible any potential disclosure that would
document the government’s complicity in torture.
Stateside,
some judges have spoken out. One
Detroit judge showed the kind of courage rare among his breed when he stared
down orders from Washington to keep deportation hearings of individuals suspected
of terrorism bound in secrecy. With five simple words, Judge Damon A. Keith earned himself a spot on the bright
side of history when he began his ruling in the case of Detroit Free Press v. Ashcroft by reminding all parties concerned
that “democracies die behind closed
doors.”
Similarly, in 2005, U.S.
District Judge John Coughenour of Seattle, in sentencing Ahmad
Ressam to prison for his apparent role in a plot to bomb Los Angeles airport,
made a cogent point often lost on his fellow judges when he opined: “We
did not need to use a secret military tribunal, or detain the defendant
indefinitely as an enemy combatant, or deny him the right to counsel, or invoke
any proceedings beyond those guaranteed by or contrary to the United States
Constitution…We can deal with the threats to our national security without
denying the accused fundamental constitutional protections.”
However,
having the odd judge pipe up is not at all comforting when the systemic trend
is toward the burning chambers. Following
the eventual fall of the Pinochet dictatorship in Chile in 1990, a truth and
reconciliation commission asked how it was that judges who had previously
upheld the rule of law reverted to rubberstamping the dictatorship’s decisions
and refusing to hear individual and family habeas
corpus applications to determine where, exactly, their loved ones were
being held and if in fact they were still alive.
JUDGES AS
POLITICAL CREATURES
The commission found “legal oversight was glaringly insufficient with respect to the personal
rights that were being violated by government agents to an unprecedented
extent. The judiciary, which in view of the Constitution, the law, and the
nature of its functions, was the government institution called to protect those
rights, failed by not acting more forcefully. Moreover, they failed to do so
even though from the beginning churches, lawyers, the victims' relatives, and
international human rights agencies were furnishing the courts with information
on actions by government officials that violated human rights. The country was
surprised to see the courts take such a stance, for it was accustomed to regard
the judiciary as a staunch defender of the rule of law.”
In
defiance of the contemporary record and all norms of logic, the president of
Chile’s Supreme Court, on March 1, 1975, boldly declared: “With regard to
torture and other atrocities, I can state that here we have neither firing
squads nor iron curtains, and any statement to the contrary is the product of a
press that is trying to propagate ideas that could not and will not prosper in
our country.” He denied the existence of forced disappearances, and complained
that the large number of habeas corpus actions that had been introduced
prevented the courts from dealing with “urgent matters.”
“Urgent
matters” and “national security” remain the buzzwords around the growing secrecy
trend in many Canadian government circles, from Parliament (where committees
are spending at least 25% of their time in secret session) and the denial of
requests under the Access to Information Act to the erasure of documents from
government websites. At the same time, CSIS annual reports before 2000 are no
longer online (one can now call directly to get copies and, no doubt, have your
name placed in a database), and the Arar
Commission of Inquiry hyperlink now goes to a financial services website.
Suzanne Legault, Canada’s Information Commissioner, recently noted
that although the Access to Information Act is celebrating 30 years, it is “tired
and out-of-date. Worst of all, over that period our access to information
rights have been slowly eroded by a variety of constraints, practices and
amendments to the act.” Incredibly,
neither the House of Commons or the Senate is subject to access to information
requests. (http://www.thestar.com/opinion/commentary/2013/06/27/bring_canadas_parliament_under_access_to_information_act.html).
“When
we have access legislation that works properly, we have citizens who are better
informed and, as a result, more fully engaged as participants in their
democracy,” Legault said.
While
recommendations to update the Act will be brought before a less than welcoming
Parliament this fall, there remains the issue of Canada’s top judges meeting in
their burning chamber. While one of the judges who presided over the Salem
Witch Trials, Samuel Sewall, famously apologized for his role in condemning the
innocents, it was too late for his victims. Canada’s secret trial detainees, Canadian
returnees from torture seeking accountability and justice, and the growing
number of refugee claimants caught up in the Kafkaesque secret hearing process,
cannot wait years for an apology that may never come. They need judges of
character and conviction who will acknowledge the truism that democracies die
behind closed doors, and demand an immediate halt to the abusive practices of
bureaucracies that have become too easily seduced by the lure of secrecy and
the catch-all claim of national security.
The Campaign to Stop Secret Trials in Canada,
in conjunction with Justice for Mohamed Harkat, is inviting people to attend
the public hearing on October 10 in Ottawa, and to protest the secret hearing
on the 11th both in Ottawa and in front of court buildings across
the country.
