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The federal government accused Adil Charkaoui of being a terrorist and detained him without charge for two years. He was required to live under restrictions for more than six years. The government claimed to have evidence against him, but his lawyers could not see it.
Some of the alleged evidence was then leaked to a major newspaper.
Charkaoui has taken the government to court three times and won each time, with the Supreme Court of Canada ruling that the government violated his rights. He is now suing the Harper government for 24.5 million dollars.
Charkaoui’s ordeal began in 2003, when he was arrested in Montreal on a security certificate – a legal tool that allows Canada to detain and expel foreign nationals, including permanent residents, who are considered a risk to national security. Under the terms of the security certificate, there is no requirement that the person be charged with crime. To this day, Charkaoui and his lawyers do not know what he was arrested for and they have not been given the opportunity to see the evidence against him.
Charkaoui was imprisoned for almost two years without charge during which time he faced the possibility of removal from Canada. At the time, five other men were arrested under the same type of security certificate. Not one of them or their lawyers have seen any of the alleged evidence that the Canadian government claims to have against them.
Charkaoui was released in February 2005 but the security certificate against him was still in effect and severe conditions were placed on his personal life. Charkaoui was barred from using the internet and there were restrictions on his use of the telephone, cell phone or fax. He had to present himself to agents from the Canadian Border Services Agency every week. He was under a curfew and had to live in the same building as his mother or father. He was not permitted to leave the island of Montreal, and he could not leave his home unless he was accompanied by his mother or father. Finally, he was required to wear a GPS bracelet at all times so the government could track his movements.
Legal Battle #1: Security certificates violate the Charter
With the help of human rights activists and lawyers, Charkaoui and two other men challenged the legislation authorizing the security certificate under Canadian Charter of Rights and Freedoms. Fifteen Canadian and international human rights and civil society organizations intervened in the case.
In February 2007, the Supreme Court of Canada ruled in the three mens’ favour, holding that the legislation violated their right to a fair hearing and their right to life, liberty and security of the person and that the security certificate process was of no force or effect. However, the Court suspended the effect of its decision for a year in its judgment in order to give the government time to develop a new system.
In response, the government announced that it would amend the law that authorize security certificates and issue new certificates. The most significant difference in the new law is that it permits “special advocates” to see the evidence, in addition to the government lawyers and the judge.
Legal Battle #2: CSIS destroys secret evidence
In early 2005, Charkaoui discovered that CSIS had actually destroyed some of the evidence that it had used to obtain the security certificate. As a result, Charkoui launched a second legal action against the Minister of Citizenship and Immigration. In this action, Charkaoui alleged that by destroying this evidence, CSIS had violated his right to procedural fairness.
In 2008, the Supreme Court again ruled in Charkaoui’s favour, stating that CSIS had breached its duty to retain and disclose the evidence against him to the Ministers responsible for approving the security certificate, and to the designated judge required to decide whether the certificate was reasonable.
Legal Battle #3: Original certificate voided for lack of evidence
In 2009, the Federal Court of Canada voided the security certificate that CSIS had used to arrest and detain Charkoui six years earlier. The Court found that the government had failed to present sufficient evidence to support the certificate. The Court also denied the federal government the right to appeal its decision.
The victory removed all of the invasive conditions Charkaoui had been subjected to since his release from detention in 2005, including the obligation to wear a GPS tracking device.
After this third victory, Charkaoui asked the Canadian government for a letter of apology, Canadian citizenship, and compensation for lost income and legal fees incurred as a result of his years in court fighting the security certificate. The government refused.
Legal Battle #4: Seeking Reparations
After the government’s refusal to respond favorably to his request for an apology, in 2010 Charkaoui decided to file a lawsuit against the Canadian government for $24.5 million dollars as a result of his ordeal, including almost two years of arbitrary detention and four years of government surveillance, as well as six years of multiple legal battles where the courts ultimately found that a number of his basic rights had been violated. He is seeking to restore his reputation.
Charkaoui’s claim against the government for damages is currently before the courts.
In June 2007, several months after Charkaoui’s first victory at the Supreme Court, a secret CSIS document making sensational allegations against Charkaoui was leaked to the Montreal daily newspaper La Presse. The document allegedly contained transcripts of a telephone conversation in which Charkaoui conspired to blow up a plane. The RCMP opened an investigation into the criminal leak of this information, and CSIS itself opened an internal investigation. However, CSIS and the RCMP have never made the results of these investigations public. In 2008, the Federal Court of Canada found that the allegations in the leaked document were unsubstantiated.
In August 2011, after Charkaoui decided to sue the government for damages, a second secret CSIS document supposedly containing allegations against Charkaoui was leaked to La Presse. These allegations were essentially the same as those leaked in 2007 - the same allegations that the Federal Court of Canada had found to be unsubstantiated.
Then Minister of Immigration Jason Kenney commented publicly that, in his opinion, the allegations in the secret document constituted “robust evidence.” Kenney also stated that groups supporting Charkaoui should "think very carefully about this." He is also reported to have said that people are misguided if they support people whom the Canadian government has designated as "harmful" to Canada.
Charkaoui and his supporters were outraged by this comment and they have called for a public inquiry into the leaks. They suggested that the leak was an intentional act calculated to silence criticism of the government. They have stated that they have reason to believe that high ranking government officials may have been directly involved in the leak. The government has not publically responded to these allegations.
- 2003: Charkaoui is arrested on the basis of a security certificate for suspected links to al-Qaeda.
- 2005: Charkaoui is released from detention but is forced to live under severe restrictions and conditions.
- 2007 & 2008: Charkaoui wins two appeals to the Supreme Court of Canada on the basis that the Canadian government violated his Charter rights.
- 2009: A Federal Court Justice rejects the security certificate and rules that Ottawa has no right to appeal. The case against Charkaoui collapses and he is set free.
- 2010: Charkaoui sues the government for $24.5 million after Ottawa refuses to apologize.
- June 2007 & August 2011: CSIS documents containing information regarding the suspicions against Charkaoui are leaked to Montreal's French-language newspaper La Presse.
Role or Position
Adil Charkaoui is Moroccan-born Canadian permanent resident who moved here with several family members in 1995.
Implications and Consequences
- Legal Rights: The secretive security certificates and the destruction of key evidence prevented Charkaoui and his lawyers from seeing or testing key evidence, thus violating Charkaoui’s Charter rights and preventing him from exercising his right to self-defense and to a fair hearing.
- Free Speech: A smear campaign by unknown persons against Charkaoui was initiated on two occasions using discredited evidence after Charkaoui’s legal victories and his decision to sue the government. The timing points to an attempt to punish and intimidate Charkaoui for having decided to use the courts to defend his rights and seek justice.
- Transparency: The RCMP, CSIS and the federal government have failed to make public the results of their investigation into the criminal leak of information that resulted in the smear campaign against Charkaoui.
- Democracy: In a democracy, everyone is required to obey the law, including the government. When classified CSIS information about Charkaoui was leaked to the media, it is reasonable to assume that since only the government had possession of the information, that the government itself was the source of leaks or that the government’s own system of protecting classified information is faulty.
- Equality: Muslims of Arab origin have been disproportionately targeted by security and surveillance laws and processes in Canada leading to a series of egregious violations of rights, including arbitrary arrest and imprisonment.
Published on: 29 October 2011