Kassim Mohamed's battle with secrecy
Oct. 1, 2006
Toronto Star Editorial
Kassim Mohamed is struggling to clear his name in court, after being
investigated as a possible terrorist. And his battle should concern
everyone who cares about civil rights.
He is a Canadian citizen and former Toronto bus driver. The Royal
Canadian Mounted Police and the Canadian Security Intelligence Service
investigated him in 2004 when he was noticed filming the Yonge-Bloor
subway. He says he was innocently compiling footage of popular city
sites, such as the CN Tower, for his family abroad.
Police questioned him, his family, friends and colleagues. They pored
through his films, computer, and garbage. At every turn, he
co-operated. They never charged him with a crime.
But when he went to Egypt to visit family he was detained for two
weeks, blindfolded, shackled and kept incommunicado, missing the birth
of his child.
He was also detained briefly in Greece, on a prior trip, while en
route to Egypt. At that time authorities in Athens pressured him to
return to Canada, where he was met by police and interrogated.
Now he is suing Ottawa for $1 million, saying officials negligently
gave information to Greece and Egypt that violated his rights. He also
wants a letter affirming he is not a suspect.
But Mohamed's bid to hold Ottawa to account in open court is being
frustrated by Attorney-General Vic Toews's office. Citing national
security, officials do not want to disclose relevant information to
Mohamed, or to anyone else.
Under Section 38 of the Canada Evidence Act, the government officials
have asked Federal Court to hold a secret hearing to consider their
The Toronto Star is challenging the veil of secrecy that applies in
Federal Court Chief Justice Allan Lutfy is hearing this challenge.
But regardless of how Justice Lutfy may rule, Parliament should do its
part to rectify draconian provisions in the law that make a mockery of
the principle that courts must be open, and accountable.
Section 38 lets the attorney-general ask Federal Court to ban the
disclosure of "potentially injurious" or "sensitive" information about
Canada's foreign relations, national security or national defence.
In these cases:
The public has no right even to know that a Section 38 application has
been made. In Mohamed's case, Ottawa authorized disclosure. It did not
have to. Nor is Ottawa obliged to say where or when the hearing will
take place. It hasn't.
The hearing is closed to the public, even though innocuous information
may be given to the court. Ottawa can provide what's known as ex parte
information to the judge alone, in secret, to protect national
security. It can also provide non-sensitive information to the judge,
Mohamed and his lawyer. But no party to the proceedings, including
Mohamed, can tell anyone else about them.
The media are not allowed to know anything about these hearings, let
alone attend them or publish anything that goes on during the hearings.
Five years after 9/11, Parliament must use its current review of the
Anti-Terrorism Act to correct this lopsided law, which improperly
favours secrecy over civil rights.
Whenever Section 38 is invoked, the public must be told.
Section 38 proceedings that do not endanger security should be open to
the public. There is no need for blanket secrecy.
And the media must be able to report on what is said during these
Anything less makes a mockery of Canada's open court system,
discourages accountability by the police and security services and
ultimately threatens our civil rights.
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