The following letter was sent this afternoon to Chief Justice Allan Lutfy of the Federal Court of Canada expressing concerns that unfounded allegations based on secret suspicions have been prominently placed on the Federal Court of Canada website, thereby harming the fair trial opportunities available to those named in security certificates and contributing to the character assassination that this process entails.

For further information: Matthew Behrens, for the Campaign to Stop Secret Trials in Canada, (416) 651-5800

Campaign to Stop Secret Trials in Canada
PO Box 73620
509 St. Clair Ave. West
Toronto, ON M6C 1C0
(416) 651-5800, tasc@web.ca

February 27, 2008
Open Letter Re Concerns About Federal Court of Canada Website and Security Certificates

Chief Justice Allan Lutfy,
Federal Court of Canada
Ottawa, ON

Dear Chief Justice Lutfy,

We are writing with the profoundest of concerns about the unprecedented placement on the front page of the Federal Court website of the public summaries of the security intelligence reports with respect to the five men subject to security certificate.

While we appreciate that the Federal Court, among many players connected to this issue, is no doubt concerned about the need for better disclosure in these cases, it seems neither in the public interest, nor in the interests of the fair hearing rights of these individuals, to have such incendiary allegations posted in the absence of context, without supporting documentation (or at least a reference to the fact that that documentation is likely to be secret), and without giving the named men an opportunity to respond. (It is also worth noting that, with respect to accuracy, for three days, the link to Mr. Jaballah’s incendiary allegations took one to Mr. Mahjoub’s incendiary allegations, creating further confusion). In addition, it is highly inappropriate that personal information about one of the detainees (his former address and driver’s licence number) are posted in one of the summaries.

We also have concerns about the late Friday delivery of the information
packages to the Toronto offices of counsel who represent four of the five detainees. An inquiry with the offices of counsel in advance of the planned release of the material would have alerted the court to the fact that counsel for four of the five men were not available on Friday and that the immediate release of the material would leave these counsel and their clients at a significant disadvantage. In addition, some of the detainees and their families only received the packages AFTER the media did.

Posting the summaries puts the men in the invidious position of either having to litigate their cases in the media before doing so in court or having to refuse any comment, which is always damaging in the “court” of public opinion.

Even though anyone with knowledge of the process knows that these are mere allegations, persons with no background on this issue could be forgiven for thinking that this is “evidence” or “proof” of the allegations. We believe it is unprecedented for a court to post “evidence” for public review until it has been tested in court.

We need not have to remind you that decisions of the Court are posted only after a court has heard both sides of the issue (with the obvious exception of security certificates, where as we all know only one side gets heard), and usually contain a canvassing of both sides of the story as well as the conclusions a judge has made based on having heard both sides.

We feel that the Canadian public should be given that same right, to hear both side (as much as possible given the obvious limitations on a fair trial posed by security certificates).

It would seem in the interests of fairness that the Court might direct those who go to your website to resources that would provide a balance to what, you must admit, is a completely biased presentation of allegations that have been drawn up by the same spy agency that took part in the wholly inaccurate branding of Maher Arar and Monia Mazigh as Islamic extremists. We are happy to provide you with such website addresses.

These allegations have NOT been tested in a fair and open process, nor, as we know, are they likely to be. In the interests of fairness and, in the broader interests of the public knowing what is going on, we would invite the court to consider posting links to all the transcripts of prior public proceedings (with the obvious caveat that these decisions are often based on secret information that the detainee and her lawyer cannot access). We would recommend as well posting of affidavits that have been filed with the court countering prior allegations, so that the public can receive a fuller picture. A link as well to reports of the Security Intelligence Review Committee that highlight on an annual basis the factual errors, exaggerated threat assessments, and withholding of exculpatory information on the part of CSIS would certainly help balance the damaging suspicions that have been placed so prominently on your website. Further consideration should also be given to removing personal details about individuals that are wholly inappropriate to be posting on any website, much less that of the Federal Court of Canada.

Hopefully, the damage already done to these men’s reputations has not been so great that it cannot be remedied.

We look forward to your response and to working together towards a just solution to this problem.

Thanking you.

Matthew Behrens, for the Campaign to Stop Secret Trials in Canada
Christian Legeais, for the Justice for Mohamed Harkat Committee