On a dull Saturday afternoon in February, Barbara Jackman’s mid-town Toronto office — a converted apartment with a long, creaky hallway — is dark and silent. The usual straggle of immigration activists, refugee families, and coffee-toting office staff are nowhere to be seen.

Three decades of passionate fighting for immigrants and refugees — groups whose rights are particularly vulnerable — has taken its toll on Jackman. Known for her perky dynamism, she looks positively weary. “These cases are very time-consuming,” she says. “In the last year or two, I just go from one case to another.”

As many good immigration lawyers as there are, Jackman says only a minority are prepared to expend the arduous hours terrorism cases demand. They must also contend with the prospect of less-than-handsome remuneration. Lawyers on security cases almost invariably work at legal aid rates or pro bono.

In one of Jackman’s cases, legal aid allotted her a mere three hours to prepare an application to have a client released from detention. The hearing took three weeks. She was able to wangle a discretionary increase, but it still left her with a substantial shortfall.

Some counsel, like Norris, also face a peculiar Catch-22. Since legal aid views security certificate cases as being a civil matter, a criminal law specialist like Norris nets only the “rock bottom” of the civil rate: $74 per hour.
“It’s a trade-off,” Jackman says. “I like being involved, but you can’t even hope to run an office and cover your practice at the same time.”

The sacrifices would be easier to bear were victories more easily attainable. Jackman refers to a famous statement authored by Federal Court Justice James Hugessen at a security conference in 2003, when he remarked that sitting on a security certificate case makes a judge feel like “a bit of a fig leaf” that covers over a dubious procedure.

Is it any different for lawyers? Not according to Jackman: “We are fig leaves, too. It does make you feel useless as a lawyer.”

Wall of secrecy

So can a system that is predicated on fair and proper representation expect lawyers to lend dignity to procedures involving unspecified allegations, delivered behind closed doors in the absence of both client and counsel?

The implacable wall of secrecy has forced defence counsel to think creatively — as Paul Copeland did a couple of years ago when he realized the government had no intention of providing him with information underlying its belief that his client, Harkat, had run a guesthouse in Pakistan catering to Mujahadeen guerillas.

By overlaying newspaper coverage with hints contained in the cryptic 17-page summary of CSIS allegations he was given, Copeland deduced that a main pillar of the case against Harkat had come from a former driver for Osama bin Laden — Abu Zubaydah — who had been captured by U.S. authorities and allegedly “co-operated” in responding to their questions.

Copeland sent queries out to a web of contacts he has made over years of doing security cases. A New Zealand lawyer who is active on the security front supplied him with experts who had knowledge about torture in Algeria, in case Harkat’s security certificate was ruled “reasonable,” and the fight moved to the question of whether he would be tortured if deported.

U.S. contacts steered Copeland toward an English lawyer who supplied him with torture-related information he could import straight into a factum.

“If I weren’t as paranoid as I am, I’m not sure I would have thought of the possibility that he had been tortured,” says Copeland, who has spent decades stalking the RCMP on behalf of left-leaning clients and organizations. And if Zubaydah had pointed a finger at Harkat while being tortured, it could be argued that his information was useless.

“If I can make a judge as paranoid and suspicious of CSIS as I am, then I’ve done my job,” Copeland says.
Going forward, action is likely to heat up in three areas: security certificates, Charter challenges to criminal provisions, and civil litigation.

The defendants charged with Criminal Code terrorism offences gravitated toward Copeland, Marlys Edwardh, Lawrence Greenspon, Michael Block, and Dennis Edney — criminal law experts with a rich experience in immigration, criminal, and security cases were also ideally situated. In addition, the long list of interveners in Supreme Court security certificate cases drew such top-drawer talent as Edward Greenspan, Neil Finkelstein, and Michael Code.

Most of these lawyers give the same explanation for their zeal: helping shape law and aiding people in trouble is what attracted them to law in the first place.

Jackman, for instance, started out in labour law and drifted into immigration — a field where clients in deep peril could fall back on only a small handful of practitioners for help. Norris was a graduate student in philosophy who wanted to put ethical considerations to practical use, while Copeland — a youthful rebel with a lifelong suspicion of the state — has made enough money through his thriving practice to take on some security cases virtually pro bono.

“If anybody is vulnerable, it is clients in immigration cases,” Jackman says. “And when it comes to security certificate cases, they are the most vulnerable of the vulnerable. It really doesn’t matter to me whether they are or are not terrorists. What matters is whether they are going to have their fundamental human rights violated.”

They’re like a death penalty case

Edney equates these cases to U.S. death penalty cases, where a horrific lack of funding often condemns the accused to fall back on help from law students and disbarred lawyers. Lawyers face a moral obligation to make sure they are properly litigated, he says. “I work night and day on this. We have spent so much time on Omar Khadr that it’s a pro bono case.”

Edney issued a warning to other counsel. “Lawyers doing these cases can expect a long, drawn-out battle. Don’t expect assistance from your government; it will fight you every step of the way.”

Inexperience has become an issue only in the Toronto 17 case, where Edney observed that personality clashes and differing levels of expertise can sometimes make it difficult to strategize in concert.

While some Muslim lawyers are beginning to filter into the field, they are learning on the job. However, some of them enjoy a helpful advantage. “One of the difficulties in these cases is not understanding the culture and background, and lacking the language skills,” Jackman says. “There is a knowledge curve.”

Take the government’s assurance that all those on security certificates have to do to win their freedom is find a third country willing to take them, for instance. “You come to know that it’s impossible,” Jackman says. “But someone coming in fresh wouldn’t know that.”

On the other side of this wall of secrecy, Department of Justice prosecutors and lawyers representing CSIS and the RCMP suffer from separate pressures. Attacked by defence lawyers, civil libertarians, and editorialists, they cannot respond by producing the chilling evidence that might squelch their critics.

Barbara McIsaac, who has extensive experience in SIRC reviews, security certificate cases, and as commission counsel in Justice Dennis O’Connor’s Arar inquiry, says it can be extremely difficult to foresee whether a particular snippet of information could potentially, when fit into a larger mosaic, reveal the identity of a source. A bad judgment call can mean shutting off an ally who has been sharing information with Canada about security threats, or bring bodily harm to a civilian informant or an undercover source.

“Several times during the Arar inquiry, we tried to make the point that it really is an art, not a science,” McIsaac observed. She says a tough tasks at the inquiry was to chart a course between those who said it was wrong to “pander” to the torture policies of a country like Syria, and those who say that focusing too much on its dubious policies could cause embarrassment and endanger Canadian citizens who may end up there in future.

“It is probably quite frustrating for some [government lawyers] because they are the bad guy,” she says. “They are often accused — frequently wrongly — of hiding things for the sake of hiding them. It’s all very well to accuse the government of using national security just to hide stuff, but I don’t think that really happens.”

To add to the pressure, she says, government lawyers often don’t know how reliable intelligence information really is. McIsaac says another burden involves coming into possession of information which, since it’s known by so few, would make counsel an automatic suspect should it ever be leaked.

Finally, she adds, government lawyers can become privy to information they are bound never to reveal, and which may chill them to the bone. “We all like to keep the thought in the back of our minds, to blindly believe or pretend that things aren’t as bad as some would suggest they are. Then, if you become privy to information that [informants] are not overreacting, and that there really is a problem, you might wish you didn’t know.”

The security certificate issue is far from settled. Parliament will ultimately cobble together a procedure that is effective from a security standpoint, yet which will satisfy the top court’s concerns about full answer and defence.
In the meantime, civil libertarians are taking dead aim at the Supreme Court’s 2002 Suresh decision, which left a loophole the government can use to deport suspected security risks to countries despite a genuine risk of torture, and the Toronto 17 cases will present appellate courts with opportunities to pronounce judgment on various aspects of the Anti-Terrorism Act.

Next up, civil suits

There is also activity on the civil side. Indeed, what may drive the government and RCMP most may be the threat of paying damages to those who have been wrongly imprisoned or tortured in other countries partly on our behalf. The recent resolution of Maher Arar’s civil suit was a strong sign that there can be a substantial price tag attached to human rights violations.

For those on the front lines, there is no squelching the hope that the worst excesses of post 9/11 apprehension are receding.

“There has been a pretty strong response from the legal establishment,” says Copeland. “Some of the work that is being done has changed the climate dramatically.”

McIsaac adds that it’s not just courts and people that are gradually moving toward a knowledgeable balance of rights versus security, the government also learns a lesson from each case about what sort of information can be disclosed.

Still, she says, the balance can’t veer too far back toward a libertarian stance. “On the other side of the coin, I think there is a growing recognition that many of these concerns about terrorism are not spurious, but are actually necessary.”