Re-print from Toronto Star
Dec. 10, 2003. 07:14 PM
Secret
terror hearings violate rights, top court told
"This is an entirely different kind of hearing, an incursion into privacy rights of an innocent third party," said lawyer Howard Rubin, whose client has balked at answering questions related to the 1985 Air India bombing.
The RCMP and Crown attorneys in British Columbia have been trying to force the witness — whose name is under a publication ban — to submit to examination at a closed-door hearing.
The proceeding is separate from the trial currently under way in which two men, Ripudiman Singh Malik and Ajaib Singh Bagri, face criminal charges in the downing of the Air India plane that took more than 300 lives.
But Brian Crane, another member of the mystery witness's legal team, said there is no doubt one purpose of the investigative hearing is to find out what his client would say if called to testify later at the trial.
"This is obviously a major shift in criminal procedure," said Crane. "It gives the Crown an advantage. It is also, from the witness's point of view, an oppressive procedure."
Rubin told the high court the Crown has acknowledged his client is not a suspect in the Air India bombing.
But there is no guarantee, he said, that any information gathered at the secret hearing won't be shared with foreign police or intelligence agencies.
That could leave domestic courts powerless to guard against future abuses, said Rubin.
"Once the RCMP turns the information over to the FBI, for example, Canada can't protect the privacy rights of that person.""
The dispute centres on legislation passed by the Liberal government after the Sept. 11, 2001 attacks in the United States. It was billed as necessary to fight future terrorism, but the first use made of it by the RCMP was in its pursuit of the 18-year-old Air India case.
The law gave police broad new powers to investigate terrorist threats, including the ability to bring reluctant witnesses before a judge and compel them to testify.
That places judges in an impossible position and could compromise their independence, said a number of groups who intervened before the Supreme Court.
"There is a question whether a judge, in these circumstances, is an instrument of the police," said Robert Anderson, representing media organizations seeking access to the closed-door hearing.
"The courts of this country should be as open as they can be. Courts should not carry on interrogations of witnesses that can't be reported."
Lawyers for the B.C. and federal governments maintain that media access to such hearings could threaten police operations by tipping off suspects they are under investigation.
"Suspects can and will flee and evidence can and will be destroyed," said Dianne Wiedermann, representing the B.C. attorney general's office.
John Laskin, of the Canadian Civil Liberties Association, contended the federal anti-terror law is badly drafted, overly broad and violates the Charter of Rights.
Once a witness is brought before a judge, there is no limit on the questions that can be asked or the personal issues the Crown can pry into, said Laskin.
"What we're left with is the potential for a runaway train."
Marie Henein, representing the Federation of Law Societies of Canada, said the presence of a judge at the hearing — supposedly intended to safeguard the rights of the witness — could do the opposite.
That's because the judge's main role will be to force reluctant witnesses to speak up, said Henein. "The judge is acting as a coercive arm of the state."
Justice Heather Holmes of B.C. Supreme Court ruled in July that the order to force testimony in the Air India investigation was ``validly issued and constitutionally sound."
The hearing was adjourned before questioning could actually begin, so counsel for the witness could appeal.
The case continues Thursday.