Judicial Review Finds Decision to Deport Almrei "Patently Unreasonable" and "Perverse"
Decision another blow to the "credibility" of the secret trial process
MARCH 12, 2005, TORONTO -- For Syrian refugee Hassan Almrei, detained without charge or bail in solitary confinement since October, 2001, some good news finally filtered into his 9 by 12 concrete cell late yesterday.
Federal Court Justice Edmond Blanchard concluded that the Canadian government's decision to deport Almrei to Syria, even if he does face torture or worse there, is "patently unreasonable," adding that the immigration minister's delegate "rendered a decision based on erroneous findings of fact that she made in a perverse manner."
It was yet another blow to the secret trial security certificate process, which last month was the focus of a critical decision that found a decision to deport to torture Egyptian refugee Mohammad Mahjoub, held since June, 2000, was also "patently unreasonable."
Both Almrei's and Mahjoub's cases are being remitted to a new Minister's Delegate for reconsideration.
With two such decisions in a row, (and another expected soon in the case of Egyptian refugee Mahmoud Jaballah), serious questions arise, foremost among them: just what is the true nature of the security certificate process when such sloppy, "patently unreasonable" decisions on life and death issues can be so callously and easily made? Are these Canadian government "rushes to judgment" with respect to deporting people to torture based largely on political considerations being driven by a paranoid Canadian Security Intelligence Service (CSIS), which needs to hide the evidence of their own malfeasance by disappearing these men out of the country?
And perhaps most perverse of all, how can this whole process of determining whether Canada can offer someone up to electric shock torture, genital mutilation and likely death be based on secret "evidence" which neither the named individual nor his lawyer is ever allowed to see or cross examine?
Amnesty International has criticized the secret trial security certificate process as "fundamentally flawed" and "unfair," and yesterday's court decision will add fuel to the growing opposition to secret trials in Canada, which last week added three Liberal MPs and one Tory MP to a list of Canadians calling for an end to the process (including the federal NDP, June Callwood, Denys Arcand, David Suzuki, Monia Mazigh, Flora McDonald, Warren Allmand, Bruce Cockburn, numerous legal associations, the KAIROS church network, and many more).
ALMREI'S JUDICIAL REVIEW
Hassan Almrei, who arrived in Canada January 2, 1999 and whose refugee claim was accepted June 2, 2000, was picked up in the post 9/11/2001 hysteria when CSIS, wanting to appear as a major player in the so-called "war against terror," nabbed Almrei under a secret trial security certificate. He has been in solitary confinement since October, 2001, undergoing a 40-day hunger strike to get heat and a pair of shoes in his freezing cell in the wintertime, a struggle he ultimately won.
Almrei, who was not allowed at his security certificate hearing to go behind closed doors to safely present personal evidence which could place both himself and his family in danger (while the government had free reign to do so with its own "evidence,") had his certificate upheld, and he has been facing efforts to deport him to torture in Syria ever since.
The fact that the certificate was upheld in no way meant that Hassan was a danger; rather, it only meant that the judge found reasonable grounds to believe that the two cabinet ministers who signed the certificate had reasonable grounds to believe Hassan was a member of an inadmissable class of persons.
But under the secret trial process, that gets blown out of proportion, and he gets named a security risk based on secret "evidence" which neither he nor his lawyer is ever allowed to see. That evidence may, for example, be based on information provided by a Syrian security service which regularly engages in torture or the CIA, whose own "evidence" on such issues as Iraqi weapons of mass destruction or the background of Maher Arar showed how dangerous reliance on politically-biased "security agencies" can be.
Once the certificate was upheld, a process began during which a delegate of the immigration minister was tasked with balancing the risk faced by Hassan if returned to Syria versus the alleged risk posed to the security of Canada should he be allowed to stay.
On October 23, 2003, the minister's delegate (MD) determined, somehow, that Almrei was NOT at risk of torture if returned to Syria and that, in the alternative, even if he DID face torture, the deportation is justified based on an alleged risk he might pose to Canada. This conclusion would come as a surprise both to Amnesty International, which wrote a letter noting the severe risk Almrei faced, as well as to Maher Arar, who was tortured in Syria and wrote: "Given my experience, and what I lived through, and what I heard happening to other people in prison in Syria, I believe Mr. Almrei would face the same ordeal, if not worse. I still cannot believe that human beings treat human beings that way in Syrian prison. There is nothing that justifies sending people to countries where torture is commonplace."
SECRET HEARINGS CONTINUE
In the Almrei judicial review decision, Justice Edmond Blanchard reviews the chronology of the case, noting, without any trace of outrage or irony, that an application by the government to hold a secret hearing was made in October, 2004, "for the non-disclosure of secret information considered by the Delegate in her decision," and that "a hearing was held in camera [behind closed doors] in the absence of the Applicant [Almrei] and his counsel...During the in camera hearing, I received a secret affidavit and heard the submissions from and questioned counsel for the Respondents [Government] on the secret affidavit and the submissions made. The secret affidavit was present at the hearing....Upon being satisfied that the disclosure of the secret information would be injurious to national security or to the safety of any person,...I granted the application."
(Note that the process of deciding what is injurious to national security is a secret, unaccountable one which does not benefit from cross examination or input from anyone outside of CSIS, which clearly has a vested interest in the matter! Indeed, its history of bias and incompetence is well known in some circles, but not necessarily in judicial ones!)
Blanchard notes that he ordered a second secret hearing in December to be held in the absence of Almrei and his lawyers. It was held in January, with the finding that the secret information before the minister's delegate contained only the narrative portion of the Security Intelligence Report [the allegations against Almrei that are shown to the Ministers before signing the certificate] "and not the appendices which contained information that supported or accompanied the security intelligence report."
In assessing the report of the Minister's Delegate, Blanchard notes that she "concluded that Mr. Almrei poses a substantial danger to the security of Canada."
However, the MD did not have access to the totality of the evidence, and based on the evidence she did have before her, made erroneous conclusions based not on her own opinions, but on those of CSIS.
PURPOSE OF THE JUDICIAL REVIEW
The purpose of the judicial review was to determine if the delegate erred in concluding Almrei would not be tortured or killed if returned to Syria; whether she erred in concluding he posed a danger to Canada; and whether she erred in concluding exceptional circumstances exist in the present case warranting his return to torture in Syria.
Blanchard notes his role as judge is to intervene and set aside the minister's delegate's decision "only if it is patently unreasonable. This means that, for the Court to intervene in a Minister's discretionary decision, it must be shown to be '...made arbitrarily or in bad faith, it cannot be supported on evidence, or the Minister failed to consider the appropriate factors.' [quoting from the Suresh decision]"
Blanchard then goes on to detail various parts of the decision, including the MD's alarming conclusion that the "totality of the evidence is inconclusive as to Syria's treatment of persons suspected of involvement in terrorism."
Yet Amnesty International wrote that "Mr. Almrei will be at grave risk of being detained, tortured and ill-treated should he be returned to Syria," both because of his seeking refugee status in Canada (which would automatically peg him as an opponent of the government in Syria's view) and because of the security allegations made against him by CSIS.
Blanchard notes that numerous opinions of professors knowledgeable about the political situation in Syria were before the delegate but were not addressed in her report. She also failed to consider the information contained in the Amnesty International letter, for which she "failed to deal with the opinion expressed or to comment on the risk assessment in any way."
Blanchard is left scratching his head because, on the one hand, the delegate refers to an Amnesty International report which concludes that the human rights situation in Syria is poor and that torture and detention are not uncommon, but then goes on to ignore the findings of the Amnesty letter which provides important evidence as to the grave risk posed to Almrei if sent to Syria.
"Having failed to mention this evidence or deal with it in any way in her reasons, I am left to conclude that the Delegate overlooked this important and contradictory evidence when making her findings of fact, and in consequence committed a reviewable error."
Indeed, he also says that she "rendered a decision based on erroneous findings of fact that she made in a perverse manner without regard to the material before her. In consequence, the Delegate erred in concluding that the Applicant would not be at risk of torture or cruel and unusual treatment or punishment if returned to Syria."
Having dealt with the issue of risk to Almrei, Blanchard then deals with the Delegate's remarkable belief that he allegedly poses a risk to Canada. It is an instructive part of the judicial review because the report of the delegate shows how little she actually understands the security certificate process and the meaning of specific decisions made along the way.
For example, Blanchard notes that the Delegate wrote, "upon reviewing the evidence before me, including the submissions of Mr. Almrei, I see no reason to differ from the conclusions of the Federal Court [in the original security certificate secret hearing] that Mr. Almrei poses a danger to the security of Canada."
But Blanchard declares, "significantly, the Federal Court did not conclude that Mr. Almrei poses a danger to the security of Canada. Justice Tremblay-Lamer concluded, rather, that the certificate signed by the Ministers is reasonable." As Blanchard notes, that decision is "evidence that there exist reasonable grounds to believe certain facts and not that those facts exist. The Delegate could not, then, rely on the SIR [Security Intelligence Report], the ensuing security certificate and Madam Justice Tremblay-Lamer's decision to conclude that Mr. Almrei poses a danger to Canada. [The aforementioned factors] may be considered in assessing danger, but do not constitute evidence that Mr. Almrei is a danger to Canada.
"It is clear that the Delegate relied on information which was based on evidence she did not independently assess, since that evidence was not before her....I am satisfied, from a comprehensive review of the Delegate's reasons, that her conclusion was, to a significant extent, based on opinions of others formed from information that was not before her."
Blanchard concludes that the Delegate "could not substitute the beliefs of [CSIS], the recommendations of Mr. Dumas [Director of Security Review] or the opinions of the designated Judge for her own." Hence, her conclusion that Almrei poses a risk to Canada "is not supported on the evidence before the decisionmaker. As a result, the decision is patently unreasonable."
Hence, the decision will be remitted for redetermination before another delegate of the Minister.
Almrei's lawyers, Barbara Jackman and John Norris, had argued that deciding the judicial review on such technical grounds would only delay the resolution of the ultimate question, which is whether it is lawful to send Almrei to torture. Blanchard decides much as Justice Dawson concluded in the Mahjoub case, that such an examination of the constitutional issues can only be done with a "proper evidentiary record."
In other words, the delegate will have to properly assess everything once again and, if s/he still concludes that Almrei must be tortured for the undefined "security of Canada," that would be the appropriate time to deal with the constitutional issues (of course, this means months or years more time in solitary confinement for Almrei, as it does for Mahjoub.)
Blanchard quotes approvingly of Dawson's statements on torture, in which she wrote: "I acknowledge an issue of importance has been raised which I do not decide: whether circumstances would ever justify deportation to face torture."
Having said that, however, Dawson then makes the strong observation that there are "powerful indicia that deportation to face torture is conduct fundamentally unacceptable; conduct that shocks the Canadian conscience and therefore violates fundamental justice in a manner that can not be justified under section 1 of the Charter." Among the indicia to which she refers are the domestic prohibition against torture in Canadian law; section 12 of the Charter, which prohibits cruel or unusual punishment "(reflecting that, within Canada, torture is seen to be so repugnant that it can never be an appropriate punishment); extraditing a person to face torture has been found to be inconsistent with fundamental justice; and, a strong argument exists that international law prohibits deportation to torture, even when national security interests are at stake."
Blanchard attempts to build on this by returning to the Supreme Court's Suresh decision, writing: "The threshold that must be met before Canada can constitutionally deport a person to torture, if at all, includes consideration of the following factors as articulated by the Supreme Court and which should serve to inform the Minister responsible in balancing the danger posed to the security of Canada by an individual, against the possible injustice to the individual if deported:
"1. while the Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture;
2. while the ambit of exceptional discretion to deport to torture, if any, remains undefined, the Supreme Court predicts that the outcome of the balancing process will rarely be struck in favour of expulsion of torture;
3. in exceptional circumstances, deportation to torture might be justified...but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like."
Blanchard notes "the onus is on the Minister to establish that such special circumstances and conditions are present before deporting to torture. There is little doubt that the Supreme Court envisaged a high threshold before Canada can constitutionally deport an individual to torture."
Disturbing as it may be that such a consideration is still undecided in a democracy which prides itself (repeatedly, ad nauseam) on the upholding of Charter rights, it certainly places the immigration bureaucracy and Anne McLellan in an increasingly narrow space. Because it is likely that the process of "balancing" done by the Canadian government will remain as politically motivated as it was when it produced the original decisions of the minister's delegates, it seems inevitable that any new decisions for Mahjoub and Almrei will reach the same conclusions: that having looked at "all" of the evidence before them, they must be returned to torture. It is only then that the constitutionality of those decisions will be subject to court action.
In the meantime, the men languish behind bars, and their families languish behind another kind of prison wall, that of uncertainty, never knowing from day to day whether their loved ones will be deported to their deaths, much less released on bail.
March 14-15, Bail Hearing for Mohammad Mahjoub, Federal Court, 330 University Ave, 9:30 am
April 4: ON TRIAL: A Major Benefit for the Campaign to Stop Secret trial featuring readings from Kafka's The Trial, Lula Lounge, 7:30 pm, featuring Ann-Marie MacDonald, Nino Ricci, Linda McQuaig, Gordon Pinsent, Charmion King, Linda Griffiths, Bernard Behrens, Heather Mallick, Stuart McLean, Ken Whiteley and more. Call (416) 651-5800 to reserve tickets ($25 each)
April 22: Stopping Secret Trials in Canada and Ending Deportation to Torture, An Evening with Monia Mazigh, Mona Elfouli, Ahmad Jaballah and more, Bloor Street United Church, 300 Bloor Street West (near St. George subway), 7:15 pm, Free
March 21: Continuation of Adil Charkaoui's security certificate hearing
March 26: March to Free the Five in 2005 and Abolish Secret Trials
April 4-8: Judicial Review of Protection Decision for Adil Charkaoui, Montreal
Judicial Review of Deportation Order Against Mahmoud Jaballah (heard August, 2004)
Determination as to the "reasonableness" (or complete lack thereof) of the security certificate against Mohamed Harkat (case wrapped, December, 2004, an additional secret hearing held two weeks ago in Ottawa)
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