National Post

Thursday, June 26, 2008

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CSIS wrong to destroy Charkoui evidence: top court

Janice Tibbetts and Jan Ravensbergen,  Canwest News Service  Published: Thursday, June 26, 2008

Pierre Obendrauf/Canwest News Service

MONTREAL -- The Supreme Court of Canada ruled Thursday that the Canadian Security Intelligence Service was wrong to destroy evidence against terror suspect Adil Charkaoui.

The court ruled that Canada's spy agency violated Mr. Charkaoui's charter rights by destroying the original records and recordings of interviews with him that formed the basis of the federal case against him.

CSIS alleges that Mr. Charkaoui is an al-Qaeda sleeper agent; Mr. Charkaoui has repeatedly denied that he is a terrorist.

"To uphold the right to procedural fairness of people in Mr. Charkaoui's position, CSIS should be required to retain all the information in its possession," wrote justices Louis LeBel and Morris Fish.

However, the unanimous decision does not quash the case against the Montreal father of three, who has been in and out of the courts for years fighting his deportation from Canada.

The court ruled that "a stay of proceedings is not an appropriate remedy in this case" and that it would be "premature at this stage" to determine how the destruction of the notes affects the reliability of the evidence. 

Regardless, Mr. Charkaoui, who continues to be prohibited from walking the streets of his adopted country an entirely free man, declared the judgment a "full victory."

"This is not a half-victory," the Montreal primary-school teacher told reporters in Montreal.

"I was subjected to torture and deprived of my rights. ... They cannot destroy evidence," he said.

This is the second Supreme Court judgment to bear Mr. Charkaoui's name. The first, issued in February 2007, instructed Ottawa to rewrite its security-certificate rules.

In its latest decision, the high court ruled that agents of the Canadian Security Intelligence Service violated Mr. Charkaoui's rights under the Charter of Rights and Freedoms when they destroyed a variety of evidence in his case, including interview notes.

"The destruction of operational notes is a breach of CSIS's duty to retain and disclose information," the justices ruled, in a 43-page decision.

Like the first Charkaoui ruling, this one was unanimous, 9-0.

"To uphold the right to procedural fairness of people in Mr. Charkaoui's position," the justices added Thursday, "CSIS should be required to retain all the information in its possession and to disclose it."

But the nine justices simultaneously declined to free Mr. Charkaoui from a broad form of house arrest that includes a continuing obligation to wear a Global Positioning System bracelet at all times, a device that ensures he can be tracked around the clock by CSIS.

"I'm very happy with the court's ruling," Mr. Charkaoui declared, flanked by his two lawyers and several high-profile supporters at a news conference convened by his supporters.

"It's the first time in 20 years, I think," he added, "that anyone has reined in CSIS and reprimanded the agency for its bad behaviour."

Mr. Charkaoui, a permanent resident of Canada who arrived from Morocco in 1995, had been seeking a stay of the proceedings against him. Such a stay would have quashed an ongoing security-certificate process that could ultimately result in Mr. Charkaoui's deportation to Morocco, where his supporters say he faces the prospect of torture.

Had the high court ruled entirely in Mr. Charkaoui's favour, it would have rendered him an entirely free man.

It chose not to do so.

"The only appropriate remedy is to confirm the duty to disclose Mr. Charkaoui's entire file to the designated judge and, after the judge has filtered it, to Mr. Charkaoui and his counsel," the ruling added.

Thus, unless Ottawa withdraws a security certificate against Mr. Charkaoui that it renewed last Februa ry, Mr. Charkaoui's ultimate fate will be determined by proceedings under way at the Federal Court of Canada.

Mr. Charkaoui said the past five years have been very difficult and he hopes now that the minister will accept his responsibility and reassess his case and those of other people facing security certificate reviews.

Last Friday, Judge Daniele Tremblay-Lamer of the Federal Court blocked out three weeks beginning Oct. 12 to hold closed-door hearings on the secret CSIS allegations against Mr. Charkaoui.

Neither Mr. Charkaoui nor his lawyers will be permitted to attend.

Denis Couture is a special advocate mandated by the judge to act on Mr. Charkaoui's behalf, under changes to the law triggered by the first Charkaoui Supreme Court ruling. Mr. Couture will participate.

Mr. Charkaoui, his lawyers and the public will be allowed access to any secret evidence against Mr. Charkaoui only should Ms. Tremblay-Lamer issue a special ruling.

Public hearings against Mr. Charkaoui are scheduled beginning Nov. 24. These are expected to continue into December.