Section 38: "justice" in the dark

The Toronto Star is suing to gain access to court proceedings--for a man detained under Section 38 of the 2001 "anti-terrorism" bill. Under Section 38, even the man's lawyer is kept in the dark about the evidence against his client. No bail, no fair hearing, no justice.

"Secret court hearing raises alarm: Location or date can't be disclosed
Man suing Ottawa for jailing in Egypt" Feb. 13, 2006. 04:55 AM, MICHELLE SHEPHARD

Somewhere in a Canadian courtroom, sometime soon, a secret hearing will take place to discuss an Egyptian Canadian suspected of making surveillance videos of Toronto's subway system and the CN Tower.

Civil libertarians have labelled the hearing Canada's Star Chamber proceedings, since its location or date cannot be disclosed, and the public is barred from attending.

It's known as a "Section 38 application," under Canada's Evidence Act. The legislation has existed for more than two decades as a means for the government to safeguard sensitive evidence, but amendments resulting from the omnibus 2001 Anti-Terrorism Act now shroud the process in secrecy.

Even the fact the Toronto Star has learned that a Section 38 hearing is taking place is unusual, since the law forbids public acknowledgement of the proceedings themselves unless the attorney general consents. Amendments to the law also changed the definitions of what information can be protected and gave the attorney general the power to trump a federal court ruling.

The upcoming Section 38 application involves a civil lawsuit launched by Kassim Mohamed, a 39-year-old former Toronto school bus driver who was at the centre of an extensive 2004 terrorism investigation. Never charged, he is alleging Canadian security services shared his personal information with Egyptian authorities, and is thereby responsible for his two-week detainment and alleged harsh treatment in Cairo.

Toronto lawyer Lorne Waldman, who is representing Mohamed, has been given some of the government's disclosure in the civil case, but was recently notified of their intention for a Section 38 application to stop the public release of additional information. Waldman was forbidden by law from disclosing the fact the hearing was taking place until he received the consent of the government and a letter from the federal court allowing him to do so.

[...] It's not known how many times Section 38 applications have been filed.

Critics of the legislation say protections existed before the post-9/11 changes moved the Section 38 hearings behind closed doors. Even Canada's chief justice of the federal court questioned the changes in a 2004 ruling under the headline: "Too much secrecy???"

Justice Allan Lutfy wrote that the secretive nature of the hearings themselves could lead to "unintended, even absurd, consequences," and asked whether they "unnecessarily fetter the open court principle." Lutfy noted the importance of the public's access to court proceedings. "Section 38," he wrote, "is the antithesis to this fundamental principle."

The Star plans to challenge the Section 38 application in an attempt to attend the upcoming hearing involving Mohamed. While it's not known what evidence the government seeks to protect, the details of Mohamed's case could be significant. His allegations are similar to those contained in three other lawsuits concerning information-sharing between foreign governments. One of those suits was launched by Ottawa engineer Maher Arar, who was tortured while detained in Syria for a year without charges after being on the periphery of a Canadian terrorism investigation.

[...] According to court documents, the probe began after two women witnessed Mohamed covertly videotaping the subway tracks at Toronto's busy Yonge-Bloor subway station. It was just a month after the Madrid train bombings and police were on high alert for transit attacks.

As police continued their probe, which included surveillance, rooting through garbage, interviewing Mohamed and his friends and colleagues, Mohamed left Toronto to visit his wife and children in Egypt. Although not charged by Egyptian security forces, he was detained for two weeks and claims he was treated harshly and questioned concerning information he alleges came from Canada.

[...] The new law also lowers the threshold for what information can be protected. For instance, the old law allowed the government to argue against disclosing evidence that "would" be "injurious" to international relations, national defence or national security. Now the section sets the bar at "potentially injurious" evidence that "could" harm security or relations.

A Senate committee reviewing the anti-terrorism legislation is expected to include recommendations about Section 38 as part of their final review.