Judge questions CSIS's disclosure in security certificate case
A Federal Court judge says Canada's spy agency has undermined the integrity of the justice system by "filtering" evidence unhelpful to its terror case against Ottawa's Mohamed Harkat.
As a result, Judge Simon Noel said Tuesday, the Canadian Security Intelligence Service will have to open another top secret file to scrutiny by Harkat's special advocates.
...
"It is necessary to repair the damage done to the administration of justice," Noel wrote, "and re-establish the necessary climate of trust and confidence, which must be present in such an exceptional legal procedure."
In May of this year Justice Noel learned that despite his direct questions concerning the credibility of the key witness against Harkat, three different CSIS witnesses had failed to disclose that the key witness in question had failed a polygraph test in 2002. At the time Noel expressed his displeasure by calling it a "troubling situation" and wondering aloud if CSIS was dealing "in good faith." He has since reviewed the evidence and re-examined the three witnesses and the ruling reported here is the result.
Noel doesn't accuse the intelligence agency of intentionally misleading the court but he does suggest the evidence was "filtered" and also refers to "an institutional failure" in the preparation of the witnesses who failed to disclose the problem in their initial testimony. He also wonders if, even now, he has the full story. Since CSIS has a habit of destroying original notes and evidence and has done so in this case it seems a fair question.
This Globe and Mail story has a more complete account of the reaction from CSIS. Apparently they intend to comply with the court's order so the proceedings will continue with in camera hearings scheduled for mid-November and public hearings to begin in January.
But I'm not sure we should consider that to be written in stone. In the case of Adil Charkaoui, the government ultimately decided that it would rather withdraw evidence than comply with the court's instructions on disclosure. That security certificate has since been declared null and void and Charkaoui is a free man.
In the third paragraph of the quoted material above, Justice Noel refers to the security certificate process as an "exceptional legal procedure." CSIS certainly hasn't taken exceptional care in the preparation and presentation of its evidence and has called into question the credibility of the entire proceeding. Maybe this is what we get for making exceptions to due process.
pogge, at the end of the first CP report I read on this development, there appeared this interesting paragraph:
I'm not sure whether that's a reference to the Binyam Mohamed case; I don't think there are special advocates involved in that case, since Mohamed's counsel has seen (at least some?) of the suppressed evidence, which isn't the case when special advocates are involved. (He can't disclose it publicly, of course. Yet.)
There are broader investigations of MI5/6 complicity in torture going on, with the same High Court judges involved in some. Here is a handy summary from the Guardian of the ones we know about so far.
In any event, what is "trailblazing" to me about the British High Court judges is that they are ready to go for public disclosure, not just the first-level disclosure to judge and special advocate in camera, as is still happening in Harkat and the other security-certificate cases, as also mostly happened in Iacobucci's inquiry (which is why those three
men still have to suffer through years of litigation in order to get justice).
So it becomes even more interesting that Justice Noel would be asking counsel to make submissions about the British case(s). Do you think that indicates that he is thinking not only about full disclosure to him and the special advocate but also to accused and counsel, and maybe even further, to the public?
Anyway, I thought that was a promising sign of ... something, ah, promising. Also.
Too:
I looked up the British system for special advocates, in case anyone is interested.
I'm getting a little weedy, amn't I ...
If Justice Noel is the kind of man who likes to cover all the bases then he's probably considering disclosure to the accused and the public as a contingency. He's already accused CSIS of "bringing the administration of justice into disrepute" among other harsh words. I know he hasn't accused CSIS of intentionally misleading him but I think that's because that bar would be set awfully high. I wouldn't underestimate how pissed he is and if there's another screw-up on the prosecution's side, I'm thinking all bets are off and it will be either full disclosure or withdraw the evidence and set Harkat free.