Three categories of terror

Nowadays, terrorism cases fall into three main categories. The first are security certificate cases involving alleged al-Qaida agents or sympathizers — Almrei, Mahmoud Jaballah, Adil Charkaoui, Mohamed Harkat, and Mohamed Mahjoub.

After years of detention, isolation from their families, and well-publicized hunger strikes to better their living conditions, the five men received an enormous boost in mid-February when the Supreme Court struck down provisions denying them access to the information against them.

The second category features individuals who were born abroad and later allegedly tortured in Egypt or Syria, arguably with the knowledge or complicity of Canadian spy or police agencies. These include: Maher Arar, Abdullah Almalki, Ahmad El Maati, and Umayyad Nurredin.

The third category involves those charged under Canadian anti-terrorism provisions — primarily the Toronto 17 — and their cases are likely to go to trial next year.

Security clearance certificates

However, it is the security certificates cases that rapidly acquired the highest profile — and will likely continue to do so as Parliament struggles to replace the aspects struck down by the Supreme Court. Under the certificate procedure, a Federal Court judge decides whether it was “reasonable” for the federal ministers who signed a certificate to believe that the named person genuinely constituted a danger to national security.

Since so many of the early cases involved deportations, national security cases became almost a sub-field within the immigration bar, drawing the early interests of stalwart immigration specialists such as Jackman, Lorne Waldman, Rocco Galati, John Norris, Raoul Boulakia, and Ron Poulton.

Another lawyer who is heavily involved in terrorism cases — Toronto’s Paul Copeland — scoffed at a commonly expressed belief that the “marquee” names are largely absent from national security cases. How many of these media-celebrated marquee players “would spend two years on legal aid, flying up to Ottawa regularly?” asks Copeland, a lawyer at Copeland Duncan. “These clients are not getting the lawyers who are paid the most, but they are getting the ones who know the most. Having a historical knowledge of how security works is important.”

Copeland and Jackman both pine for the days when SIRC judged the adequacy of evidence in security cases based on a balance of probabilities standard. In contrast, the “reasonableness” test used by the Federal Court presents an almost impassible hurdle. “We actually won cases before SIRC,” Jackman says. “Now, it’s so unfair. It’s like going back in time. They give you a little summary with a bunch of newspaper clippings that tells you nothing. The Federal Court uses the lowest possible threshold. The process has been totally gutted.”

Judges lack experience

Unlike criminal proceedings, which are presided over by provincial court judges with considerable experience in the rights of accused, Federal Court judges tend to have little such experience.

 “The judges have no real experience in security matters,” Jackman says. “I think they are nervous about doing anything that might threaten national security. Maybe, because the cases largely involve non-citizens, there is a sort of xenophobic fear in dealing with them.”

Barbara McIsaac, a lawyer at McCarthy Tétrault LLP’s Ottawa office with extensive experience in security cases, isn’t convinced that Federal Court judges are not up to the job of thoroughly questioning CSIS and RCMP witnesses in secret hearings.

 “I wonder how many people have really read those Federal Court decisions,” she says. “I think they tend to suggest that the judges really have been asking those questions.”

John Norris, a philosophy graduate who gravitated toward law, first ran headlong into the reality of the security certificate regime four years ago. Challenging them was more daunting than anything he had faced previously, yet Norris, a lawyer at Ruby & Edwardh in Toronto, was thrilled to be at the epicentre of a legal regime that carries enormous impact for individual liberties. Before long, his practice had been swamped by terrorism cases.

“There was no turning back,” Norris says. “This is certainly why I became a lawyer; it is exactly the kind of work I hoped to do. This is what law is all about. These cases are helping define our legal culture and who we are as a country.”

Norris is currently involved in three of the big five security certificate cases — Mahjoub, Jaballah, and Almrei. He also represents two defendants in the Toronto 17 case, while another client, Abdellah Ouzghar, is a Canadian charged in France with terrorism-related offences.

Compared to the Criminal Code offences, he says, the security certificate cases are unique.

“Evidence such as wiretaps is kept from you. If there is a confidential informant, you will never know his identity. You know that secret evidence will be used in deciding guilt or innocence in making a final decision in a case. As a lawyer, it is tremendously frustrating.”

The cases occupy a niche of their own when it comes to delay. With one exception — the Jaballah case — it is not the “reasonableness” hearing that has been lengthy. “The others have dragged on because of the removal-to-torture problem, which arises only after the certificates have been upheld,” Norris says. “At this stage, the cause of the delay has been the complete failure of the minister’s delegates to come up with decisions to remove that can withstand the scrutiny of the Federal Court.”

Like other lawyers, those on terrorism cases set aside any personal views they may hold about their clients’ guilt or innocence. Yet, a certain baseline reality has tended to stoke a belief in their clients’ causes.
At any time, an individual named in a security certificate can obtain their freedom if they are willing to return to their country of origin.

“These people could go back tomorrow if they wanted to,” Norris says.

“That they do not speaks volumes about what they fear would happen to them if they went back. These men are not fools. They know very well what fate awaits them if they are ever removed.”