Federal Court Rules Immigration Minister Abusive, That Mahmoud Jaballah In Need of Protection from Deportation, and Upholds Certificate on Undisclosed Old Evidence, May 2003

TORONTO, MAY 26 -- The painfully long persecution against Mahmoud Jaballah, an Egyptian refugee claimant who has spent almost 7 years in Egyptian and Canadian jails despite never having been charged nor convicted of any offence, continued this week as the Federal Court of Canada upheld the secret trial CSIS security certificate against him.

In a mixed decision, Justice Andrew MacKay says "new" public evidence was presented to help him determine that the certificate was reasonable, yet Jaballah's attorney, Rocco Galati, points out that this "new" evidence was never put before Mr. Jaballah in open court.

MacKay also noted that Minister of Immigration Denis Coderre was guilty of abuse of process for extensive delays in making a determination about Jaballah's future, even though the Immigration Department did conclude in August, 2002, that Jaballah was at risk of torture and execution if returned to Egypt. MacKay determined that the decision of the department would have to be the decision of the minister: that Mr. Jaballah is in need of protection.

Jaballah has the distinction of being the only person, among the 30 or so security certificates which have been issued since 1992, to actually win against the stacked odds of a secret evidence case, a victory which occurred in 1999 following seven months of detention and a hearing in which CSIS perjured itself. But in August 2001, Jaballah was arrested on a second certificate.

"CSIS perjured itself in 1999, no question," Galati says. "This (Jaballah's victory in 1999) was an embarrassment to CSIS, it caused an internal review within CSIS which they refused to disclose to me expect for a lot of black lines, as to why and how they could have lost the case. Many witnesses have indicated that after the decision CSIS indicated to them they didn't care what the Federal Court has to say, they were going to get Jaballah, and sure enough, they got him."

That fall, CSIS officers admitted in open court that they had no new evidence against Jaballah, only a new interpretation of the facts which were already dealt with in the 1999 hearing.

MacKay notes in his decision that in January and February of 2002, he held in camera (behind closed doors) hearings with CSIS on five occasions, and "I considered again those documents not previously released on national security grounds and confirmed for myself that these should continue to be held without disclosure to Mr. Jaballah." Neither Jaballah nor his attorney was allowed to attend the secret hearing or to respond to allegations made against him at that time.

It's a process which is open to incredible abuses. As Galati points out, "You can't sit as a Federal Court judge unless CSIS allows you to sit on one of these cases. Secondly, in every other area of the law, informant privilege, therapeutic records, sexual assault cases, there is a balance where a judge sits in chambers and decides whether or not the documents released would endanger national security. In these cases, the Federal Court has never devised a common law process for vetting out what will or will not endanger national security. They simply accept the word of CSIS. Anytime CSIS says it's national security, the Federal Court accepts that. Well, that's abrogating your judicial function."

Indeed, it's a merry-go round in which Parliamentarians defer to the court, and the court defers to CSIS, and CSIS acts above the law. Judge Mackay says "I do acknowledge that under the IRPA a person who is the subject of the Ministers' certificate and his or her counsel may not see the information relied upon by the Ministers, an invidious position but one provided by Act of Parliament."

If it is so invidious, MacKay's silence is appalling, given that his role in upholding the secret process is no different than those judges who upheld slave laws, laws barring women suffrage, or the anti-Semitic laws of Nazi Germany. Simply because it has been made law does not make it right, or just.

Indeed, as Galati pointed out at today's press conference with respect to the decision, "I find the judgment disappointing, depressing, but not surprising. If you had asked me in 1942 and 1943 , do you find the government's treatment of Japanese Canadians and Italo-Canadians in the camps surprising, I would have said no, it's depressing, it's not surprising, because nobody's willing to do anything about it. Parliamentarians defer to the courts, the courts defer to CSIS, CSIS says it's above the Constitution, so you have the police running courts and Parliament."

It's something Galati has noted time and again, and today he called upon the Canadian courts to stop shirking their responsibility.

"The [Jaballah] judgment further highlights the judicial cowardice in pretending that the "process" has been dictated by Parliament when in fact anyone who is sober and reads the Act can see that the process is not in the statute itself, but rather, has been invented by CSIS and accepted by the Federal Court judiciary without any question whatsoever, contrary to all the other guidance from the Supreme Court of Canada on how to balance privilege with the right to know the case against you.

"The judgment further re-enforces the complete abrogation of the responsibility by the Canadian judiciary to enforce the Constitution, the highest law of the land, by lamely deciding that a judge who hears one of these certificates has no constitutional jurisdiction and that after the decision is made there is no right of appeal from these decisions.

"Lastly, after 11 years and 30 such cases having come before the courts, the Supreme Court of Canada has yet to muster up the courage or the guts and actually exercise its responsibility to Canadian society for which those judges are paid, and actually grant leave to review this medieval, inquisitorial, star chamber proceeding and actually tell the Canadian public and the victims of this process that yes, it's okay, the Canadian constitution has no problem with it. It's high time that the Supreme Court of Canada stopped hiding behind the cowardice of denying leave on such cases and actually face Canadian society and these people subject to these certificates and deal with the constitutionality of these certificate processes on its merits."

Even if the court had quashed the second certificate, there would be nothing to stop a third or fourth or fifth one from being issued until CSIS got what it wanted. While this is clearly an abuse, MacKay in his decision defended this process, stating this "exceptional process is not subject to the principle that parties are limited to bring one proceeding, at least where new evidence or information is presented. If it were otherwise, the continuing security interests of the state, assessed and re-assessed on the basis of a mosaic of information gathered from various sources over time, might be compromised."

Apart from missing the fact that CSIS admitted in open court that it had no new evidence (and that MacKay has magically added what he considers "new" evidence in his decision) Mackay's judgment creates a potential revolving door: if you fit the bill of threat-du-jour, you might be in and out of prison on security certificates the rest of your life, regardless of court findings, if CSIS has it in for you.

In other instances, MacKay's "reasoning" completely loses any sense of "reason," as in what he states that "information not on the public record" partly "contradicts" evidence Jaballah gave in his first hearing, "and it could only be ignored if there were persuasive explanation on his part, explanation which only Mr. Jaballah could provide, but which he declined to do."

But how can one respond to information when one is not allowed access to it?

Questions remain as to what will now happen to Jaballah. While Galati is filing new motions before various courts, and Jaballah is eligible for bail 120 days from the release of this decision, Minister of Immigration Coderre has yet to indicate what his final position will be with respect to sending Jaballah back to Egypt.

"This minister of immigration and his predecessors, in my experience as a lawyer practicing for the last 13-odd years, has been that they have complete disdain and contempt for the Supreme Court and Federal Court and the ministers of immigration have been contemptuous and tried to slither and slide their way around constitutional pronouncements," Galati said.

"Mr. Jaballah and his family call on the minister to either charge Mr. Jaballah in a real court of law in front of a real judge and jury under Bill C-36, or release him to his family, or find him a safe third country alternative.

"Mr. Jaballah's case highlights the intolerable racial and religious gulag against Muslims and Arabs that has been created by this government and been lamely accepted by the courts without lifting a finger under their constitutional responsibility."

(report from Matthew Behrens of Homes not Bombs. Homes not Bombs is also campaigning to end the secret trial process in Canada and working to support the families of those affected by these draconian measures. Those in prison now that we know of on these certificates include Muhammad Mahjoub, Mohamed Harkat, Adil Charkaoui and Hassan Almrei and Mahmoud Jaballah. Homes not Bombs plans a mass act of nonviolent civil disobedience at CSIS, in Ottawa, on Friday, October 31. To get involved in the campaign, the action and more, contact us at tasc@web.ca or PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0.)

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