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Anti-terror law will be attacked in Supreme Court
Reject secret hearings, Vancouver Sun to argue
Kim Bolan
Vancouver Sun

Should police be able to force someone to testify at a secret investigative hearing to get information about possible terrorist plots?

And should those hearings be open to the public and media if they are going to take place?

Those are two of the issues Canada's highest court will tackle Wednesday when it hears the first challenge of Canada's new anti-terrorism law.

Passed after the Sept. 11 terrorist attacks in the U.S., the Anti-Terrorism Act gives police an unprecedented tool -- the ability to force someone to answer questions to further a terrorism investigation long before a trial.

The person may be completely innocent, but has no choice if ordered to appear before a judge about some knowledge he or she is believed to have.

In the current case, a mystery witness suspected of having information about the 1985 Air India bombing has been ordered to appear at such an investigative hearing under threat of imprisonment. That individual, known in court papers as "the named person," argues that to be forced to testify at a hearing other than a trial violates the right to silence and against self-incrimination.

The witness also argues he or she should not be forced to testify about an incident that happened 16 years before the anti-terrorism law took effect.

The Vancouver Sun is leading the media challenge of the secrecy provision of the hearing.

Sun lawyer Rob Anderson said the case raise issues of "great public importance."

"The Vancouver Sun appeal and the media intervention in the named person appeal raise the question of whether or not these sorts of proceedings where judges are involved should be conducted in-camera and raises the question of the importance of the public scrutinizing of both this type of legislation and judicial responses to it," Anderson said.

Patricia Graham, The Sun's editor-in-chief, said the new law is "far-reaching and controversial."

"The public can only know that it is not being used arbitrarily if we can be satisfied, through a hearing in an open court, that there is good reason for its use," she said.

"One of the reasons we have open courts is to prevent abuses of power. I can't think of a better instance for an open court than when the state seeks to apply a law, like the anti-terrorism act, that strips Canadians of their usual rights and protections."

While the mystery witness wants his or her name protected, the person did successfully apply to the Supreme Court to have this week's hearing opened up so the constitutionality issues would be argued in public.

Two secret hearings in B.C. Supreme Court last June and July led to this week's challenge in Ottawa.

The first hearing took place over five days at the end of June and was to determine whether the mystery witness could be compelled to testify. Even though the case was clearly connected to Air India, the hearing was not held before the trial judge, nor was it in the special high-security Air India courtroom.

The mystery person's lawyer attended the hearing, as did legal counsel for the RCMP, Canada's spy agency, B.C.'s attorney-general and counsel for accused Air India bombers Ripudaman Singh Malik and Ajaib Singh Bagri.

A Sun reporter stumbled across the hearing at the Vancouver Law Courts on a Friday afternoon, but was denied access to the locked courtroom.

Anderson was then called to represent The Sun, but he, too, was denied the chance to address the judge even though it appeared the case was linked to the Air India investigation.

Anderson applied for access to transcripts and documents of the first hearing, but was denied that opportunity by Justice Heather Holmes. Because of The Sun's applications, however, Holmes publicly released a summary of her July 21 order that the mystery witness could be forced to testify at the investigative hearing.

That hearing was formally convened the next day -- again behind closed doors. But it was adjourned before the person could be asked the first question when the individual's lawyer, Howard Rubin, asked for leave to appeal to the Supreme Court of Canada.

The Sun also appealed to the highest court. Anderson said the appeal not only raises the issue of public access to judicial proceedings, but also tackles the question of imposing gag orders in anti-terrorism cases without giving the media a chance to fight the secrecy.

"The appeal of The Vancouver Sun squarely raises the question of when the media should be given notice, what abilities the media should have to be allowed to have full argument and indeed raises the issue of what strictures should be put on holding judicial proceedings in a closed courtroom," Anderson said.

The current proceeding is not the first instance of restrictions on the media in the Air India case. Even before the trial of Malik and Bagri began last April, the media was involved in a series of challenges to get access to court documents and exhibits, as well as to lift bans on publication involving evidence.

The Vancouver Sun, The Globe and Mail, the CBC and other media outlets have had to regularly race out of court and call lawyers to challenge bans and reporting restrictions as they have arisen.

The struggle for openness has led to the release of pre-trial evidence in the judge-alone case and public awareness of unprecedented bungles during the 18-year-long police investigation, including the erasure of tapes of suspects' calls by the Canadian Security Intelligence Service.

The lead prosecutor in the Air India case, Bob Wright, told the June secret hearing that the mystery witness has information that might lead to charges against additional suspects in the massive terrorism case.

Malik and Bagri are on trial for eights counts, including conspiracy and terrorism, in two June 23, 1985, bombings that killed 331 people. The Crown alleges the plot was hatched by B.C.-based Sikh separatists who targeted the national airline of India to retaliate for the Indian Army's 1984 assault on the Golden Temple. Also known as Harminder Sahib, the Amritsar landmark is the holiest shrine of Sikhism.

The first bomb exploded at Tokyo's Narita Airport in a suitcase from a Vancouver flight that was being transferred to an Air India flight. Two baggage handlers were killed. The second blast downed Air India Flight 182 less than an hour later, killing all 329 aboard. The plane was en route from Canada to India when it disappeared off the radar screen.

The Air India investigation and prosecution has cost taxpayers close to $100 million so far. Multi-million-dollar bills for dozens of lawyers on both the Crown and defence side are being picked up by the B.C. government with a contribution from the federal government. The case is likely to continue for several more months as will, no doubt, the fight for openness by the media.

But such an important case warrants the media's efforts to keep it as open as possible, according to The Sun's editor-in-chief.

Said Graham: "This case represents the convergence of a significant trial involving the death of hundreds of innocent people with a significant law involving sweeping police powers. Surely this is a time for transparency. That's why we at The Vancouver Sun have turned to Canada's highest court. I have faith they'll do the right thing."

 Copyright  2003 Vancouver Sun

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