Supreme Court’s Secret Hearing and Judge Nadon’s Charter Dismissal

By Matthew Behrens

            Just before Thanksgiving, the Supreme Court of Canada held two days of hearings regarding the fate of Mohamed Harkat, detained in prison and under house arrest for over a decade by a secret trial security certificate, the reasons for which he has never been allowed to know and challenge. October 10 was a public hearing that he could attend, while October 11 was one he was not invited to, nor were his lawyers, the media, or the public. In fact, the eight judges of the Supreme Court disappeared to hold a secret hearing somewhere in Canada.

            The ninth judge, the recently sworn Marc Nadon, was at neither hearing, having stepped aside pending the completion of a legal challenge launched by Toronto lawyer Rocco Galati.  While commentators have focused on the constitutional mechanisms underlying Galati’s challenge, there are plenty of other reasons to have concerns about Nadon sitting as one of the nation’s top judges.  Exhibit 1 could be, perhaps, an exchange between Galati and Nadon that occurred some 13 years ago during the security certificate proceeding against Mohammad Mahjoub (arrested in June, 2000, and still awaiting the outcome of his case, which could include deportation to torture in Egypt).

            During that long-ago hearing, Galati asked a high-level CSIS staffer, Ted Flanagan, whether lawyers for CSIS ever advise their agents about Canada’s Charter of Rights and Freedoms, especially in the context of interrogating individuals like Mr. Mahjoub.  At that point, Mr. Nadon, then a Federal Court judge, chimed in with a response that reeked of a failed German defence at Nuremberg: “I would be very surprised if Mr. Flanagan and his colleagues ever spend any time reflecting on this," said Nadon. "They carry out the policy and the operations. I don’t see why Mr. Flanagan should worry about the Charter. I don’t think it is his job.” Considering that CSIS, at that time, had made secret allegations about Mr. Mahjoub that would lead to his ongoing detention and house arrest for 13 years (continuing to the present moment), Nadon’s feeling that Charter rights were not something CSIS should be messing with perhaps escaped the notice of the Supreme Court’s interviewing committee.

Charter is Not Their Business

            That it should not be their business to know Charter rights would also appear to be the position of the RCMP officers who, on the morning of the secret Supreme Court hearing, October 11,  attempted to remove a small group of  demonstrators posing as “crime scene investigators.” They had appeared at the court building looking for clues about the missing judges. As the small crew set about their work in the style of a CSI drama, complete with evidence tags, magnifying glasses, binoculars, and other tools of the trade, Mounties demanded answers about the lack of a permit for the group to gather. When it was explained that the “permit” in question was called the Charter of Rights and Freedoms, they failed to understand, preferring to call for backup. As a 5-year-old was joined by two seniors with magnifying glasses scouring the Supreme Court steps for clues, the Mounties further objected to the presence of Crime Scene tape laid out in front of the Court building.

            “We are concerned that the public might think this is a crime scene,” one Mountie said. 

            “Well, it IS a crime scene,” came the reply, noting that members of the public, invariably tourists, were shocked to discover the judges were holding such a hearing. 

            The crime scene investigators took their search through downtown Ottawa, stopping in at the Dept. of Justice, the Federal Court (where savvy investigators were able to wrangle out of the head of security that there are multiple secret locations in Ottawa where Federal Court judges hold their secret hearings), and the Canadian Border Services Agency, where they raised the issue of the ongoing migrant detainee hunger strike in Lindsay. This CSI tour concluded two days of activities that included a public staged reading of Kafka’s The Trial (an eerily prescient look at secret trials from almost a century ago) with such high-profile Ottawa-area writers as Elizabeth Hay, Alan Cumyn, and Monia Mazigh, as well as the public hearing the previous day, which attracted such an overflow crowd that additional rooms with video screens had to be opened up.

A Surreal Scene

            It was surreal to sit in the Supreme Court once again for the third such challenge to security certificates since 2006. Among those who attended were former secret trial detainees (since cleared) who had watched the original hearing seven years ago from a facility dubbed Gitmo North, a returnee from torture whose life had been ruined by false allegations made up by CSIS and the RCMP, and some of Canada’s top civil rights litigators.

            For this writer, a taxi ride into downtown Ottawa to ensure a seat at the Court was a disappointing but unsurprising reminder that regardless of court decisions attempting to rein in Canada’s secretive spy agency, the CSIS machine of harassment, infiltration of communities, and incessant efforts to turn communities and families against one another continues unabated. In this instance, the taxi driver explained how CSIS was constantly calling her to meet, to acknowledge whether she knew any of the hundreds of people whose photos she was shown, asking her to “friend” certain individuals on facebook and ask questions of them, make visits overseas and await further instructions upon arrival, and visit other cities to investigate the individual’s relatives. When she asked why I thought meeting with CSIS in such a manner was not safe, I mentioned a number of recent cases of horrific human rights abuses flowing from CSIS misbehavior, but the individual confessed to not knowing the names of Maher Arar or Abdullah Almalki, both Ottawa residents whose lives were ruined by CSIS and RCMP allegations that federal inquiries found to be dangerously inflammatory and false.

            The public hearing at the Supreme Court revealed a scattered government case that clearly did not impress the eight judges hearing it. Judges were frustrated that they could not get straight answers out of the government (perhaps giving them a tiny inkling of what Mr. Harkat must experience), especially when they wanted to know whether it was seen as constitutional to base a judicial decision on information that was secret and not even summarized for an individual.

Secret Cases NOT Built by Choir Boys

            In addition, the question of whether or not secret informants could be cross-examined by security-cleared special advocates – something that was denied in the Harkat case – resulted in an ironic response.    Justice Dept. lawyer Robert Frater appeared shocked at the query, and declared, “You’re talking about bringing an informant into a closed national security hearing. Informants are not choirboys, they’re not Good Samaritans.” Perhaps a reasonable individual would at this point ask: if that is the case, how can you base a secret case against an individual who faces dire consequences on the unchallenged word of such individuals, especially when one of them failed a lie-detector test and one of them was apparently having an affair with the investigating officer from CSIS?

            Indeed, as Judge Lebel reminder Frater, “To assess the reliability of information you have got to know where it comes from. We have an example in this case of a situation where a person was not reliable and (yet) was presented to the court as being reliable.”

            In addressing the problems of secrecy and the flimsy bits of summarized allegations that are made public in these cases, Harkat lawyer Matthew Webber referenced what he called a “quite startling” finding that points to how “dangerous” this process can be. A recent security certificate decision noted that there were overlapping summaries of an alleged phone conversation produced by CSIS monitors in  different geographic regions. “So Monitor A and Monitor B are both listening to the same conversation and they engaged in their respective summarization processes and [it was] discovered these two summaries purported to be summaries of the same conversation [but] didn’t even resemble one another. You wouldn’t have known that the summaries were talking about the same conversation” except for the discovery by special advocates that the summaries both referenced the exact time and date. On such a basis are secret hearing cases built, another reason why transparency in any case is so crucial.

Wrongful Convictions

            “In Canada we have far too many examples of individuals who have been wrongly convicted on the basis of mistakes made at the investigative stage by the police,” said Breese Davies for the Criminal Lawyers’ Association. “There is no reason to assume that security intelligence investigations will be less fallible or more reliable. In fact, we have recent examples of where dire consequences have been occasioned to Canadian citizens” because of practices that are less than accurate or truthful. Indeed, she called on the Court to be especially vigilant given the fact that CSIS is well known to have make mistakes in terms of voice identification, translations, in the selection of and omission of information from summaries, in their analysis, and their refusal to include exculpatory information.  

            While some judges pressed the lawyers for solutions to the ongoing conundrum of security certificates – with the chief judge worrying about an ongoing “cascade” of such challenges coming before the court – there was, unfortunately, barely a word about secret trials abolition. This was not good news for those subject to the process, nor the hundreds of asylum seekers who have had secret allegations used against them at refugee hearings since 2008.

            At day’s end, the chief judge McLachlin accidentally let slip that the court would resume the next day at 9:30 am, and had to be reminded that they would not be sitting in the court, since it was a “closed” hearing. 

             Meanwhile, that ninth seat on the bench was being warmed for Mr. Nadon, the man who upheld Mr. Mahjoub’s security certificate in 2000 based on secret allegations (and, as CSIS later revealed, information gleaned from torture.) But Mr. Nadon does not appear to worry himself about such niceties as Charter rights when it comes to individuals being tortured (as Mahjoub will likely be if deported), nor was he too concerned when it came to the torture of Omar Khadr at Guantanamo Bay. In a decision on the repatriation of Khadr, Nadon was clear: “I am far from convinced that Canada had a duty to protect Mr. Khadr,” he said of the Canadian teenager tortured in Afghanistan and Gitmo, adding “Canada has taken all necessary means at its disposal to protect Mr. Khadr during the whole period of his detention at Guantanamo Bay…. It is clear that Canada has decided not to seek Mr. Khadr’s repatriation at the present time. Why Canada has taken that position is, in my respectful view, not for us to criticize or inquire into.” 

            Referring to the interrogation of Mr. Khadr by Canadian officials, which occurred following torture that included sleep deprivation (in violation of Charter and international rights), Nadon’s position was similar to the one he took in the Mahjoub case when it came to CSIS not having to worry itself with such annoyances. “The fact that Canadian officials interviewed (sic) Mr. Khadr cannot amount to cruel and unusual treatment, even if these officials were aware that Mr. Khadr had been deprived of sleep. Mere knowledge of Mr. Khadr’s mistreatment cannot be equated with participation in such mistreatment.”

             Such an argument might have raised a few eyebrows at Nuremberg.  

            Mr. Harkat, meanwhile, like Jozef K in The Trial, awaits the outcome of a process in which someone was saying something about him, but he is not allowed to know why.