Case of Secret Trial Detainee Mahmoud Jaballah Challenges the Legality of Governmental Decisions Leading to Deportation to Torture

August 16, 2004, Toronto -- An air of history hangs over Court 7-2 of the Superior Court building in downtown Toronto this summer morning as Mahmoud Jaballah, marking three years behind bars on secret evidence neither he nor his lawyer is allowed to see, enters the prisoner's box. Along with a packed room full of supporters, Jaballah's wife and children are sitting on the hard wooden benches behind him, separated from their loved one by thick glass, his kids eagerly anticipating only their second touch visit with their Dad since his arrest in August, 2001.

Jaballah's indefinite incarceration in many ways symbolizes the shame of Canada's secret trial system, under which a refugee or permanent resident can be arrested, held without charge or bail on secret "evidence" they're never allowed to see, and then deported to face torture or other cruel and inhuman treatment at the hands of states which regularly fill the Amnesty International roster of human rights violators.

Here is a man who, after all, came to Canada as a refugee. In Egypt he had been severely tortured many times, held indefinitely without charge or trial, then kicked back onto the street. In Canada, he was arrested on a secret trial security certificate in 1999, but in a rare move, a Federal Court judge quashed the certificate and had him released after the better part of a year behind bars.

Jaballah thought he could get back to his life as an Islamic school principal with his wife and six children, but Canada's scandal-ridden spy agency, CSIS, would not have it that way. They had him re-arrested on a second certificate in August, 2001, and he's been in prison ever since, despite a CSIS agent admitting in open court (at the severely limited "public" portion of the secret trial) that the agency had "no new evidence" on Jaballah, only a "new interpretation" of the facts already dismissed by the Federal Court in 1999.

As Jaballah has languished behind bars, and his children have been forced to speak to him during short visits through malfunctioning phones and thick glass, the federal immigration bureaucracy has engaged in a process known as a pre-removal risk assessment, attempting to determine what would happen if Jaballah were deported to Egypt. Their conclusion was clear: Jaballah would face torture, perhaps death, at the hands of Egyptian authorities.

But does this mean Mr. Jaballah can stay in Canada? Apparently not, for the same immigration bureaucracy has now concluded that despite the substantial likelihood of torture awaiting Mr. Jaballah in Egypt, he must be deported anyway for the alleged benefit of Canada and Canadians.

It is a scene out of Orwell or Kafka, that this man and his family may be irrevocably torn apart on the basis of secret "evidence" which has already been dismissed.

Jaballah won new attention recently when, due to a number of technical difficulties with his second certificate proceeding, a third certificate is to be issued against him this fall, and the process will start again. While it is hopeful that Jaballah will have yet another chance to prove his innocence on the vaguest of vague allegations, he continues to lose precious months and years behind bars. According to current Canadian law, as someone who is not a citizen, he is not eligible for bail while a security certificate is being heard, and he continues to face the prospect of indefinite incarceration.

This morning in court, there is a sense that the historic events of the past few years are coming to a head. Over the weekend, it was revealed that despite the substantial likelihood of torture, Adil Charkaoui, a secret trial detainee held in Montreal since May, 2003, is also slated for deportation to Morocco. Earlier this year, a similar decision was made against Egyptian refugee Mohammad Mahjoub, held since June, 2000. As these things go, a rubber-stamp immigration department will likely come to similar conclusions with respect to Algerian refugee Mohamed Harkat in Ottawa (held since December, 2002) and Syrian refugee Hassan Almrei (in solitary confinement three full years this October).

How is it that this modern, "evolved" country called Canada is now, in the 21st century, prepared to open a potentially explosive spigot by starting up the assembly line of deportation to torture?

As each of the secret trial detainees comes to court to challenge these deportations to torture, they will likely be looking towards Court 7-2 and the much-anticipated decision of Justice Andrew Mackay, who is considering the motion put forward by Jaballah's lawyers, Barb Jackman and John Norris, that the decision to deport Jaballah, knowing he faces torture, is patently illegal and breaches the principles of fundamental justice.


As Jackman approaches the podium to make her case, one can sense that here is yet another major culmination in a legal career of over a quarter century, standing up for the rights of refugees and taking the hardest to handle cases, the "security" files of people who, for whatever reason -- or for no reason at all, as it often turns out -- have run afoul of the government.

A few years back, Jackman took the case of secret trial detainee Manickavasagam Suresh to the Supreme Court and established that return to torture should not occur.

The Supreme Court of Canada in the Suresh decision, written shortly after the events of 9/11/2001, states clearly: "Canadian law and international norms reject deportation to torture. Canadian law views torture as inconsistent with fundamental justice. The Charter affirms Canada's opposition to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. Torture has as its end the denial of a person's humanity; this lies outside the legitimate domain of a criminal justice system. The prohibition of torture is also an emerging peremptory norm of international law which cannot be easily derogated from.

"The Canadian rejection of torture is reflected in the international conventions which Canada has ratified... International law generally rejects deportation to torture, even where national security interests are at stake."

The Suresh decision notes that "the Supreme Court of Israel sitting as the High Court of Justice and the House of Lords have rejected torture as a legitimate tool to use in combatting terrorism and protecting national security...We conclude that the better view is that international law rejects deportation to torture, even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Charter."

However, government lawyers have taken one line out of Suresh and abused it well beyond its limited shelf-life. That line reads "barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter." It later states again, "We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified," noting such circumstances might include "cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like."

By claiming that "extraordinary" or "exceptional circumstances" exist in the cases of the Secret Trial Five -- Muslim men who have individually had security certificates issued against them and who have collectively been held 159 months in detention without charge or bail -- the federal government is hoping to get on board the torture train.

Nevertheless, the Supreme Court notes that "We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases."

And one of those future cases is before the courts today. Much has happened in the two-and-a-half years since the Suresh decision, both in the courts and politically. Courts have heard numerous cases involving human rights balanced against that vague term "national security," and most statements condemning terrorism have also been built on a strong foundation which states that fundamental human rights and civil liberties cannot be cast away in this period.

Jackman begins by pointing out that Canada is a signatory to a key international law document, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While the government often states that it is not bound by international law, she points out that section 3f of the Immigration and Refugee Protection Act (IRPA) states that the act is to be construed and applied in a manner that "complies with international human rights instruments to which Canada is signatory."

Whether the government was trying to sound nice and liberal or they really mean it does not matter; the term "complies with" means they are bound by such things as the Convention Against Torture. IRPA also states that decisions taken under its authority must be consistent with the Canadian Charter of Rights and Freedoms, "including its principles of equality and freedom from discrimination."

"Our position is that there is an absolute prohibition on return to torture," Jackman declares. "Mr. Jaballah shouldn't have to justify why he shouldn't be returned to torture," Jackman argues, saying that onus should rest in the hands of the government.

Jackman notes that traditionally in Canada, and through a wide variety of judicial case law, exceptional circumstances are meant to imply states of emergency, wars, disasters, famines, and epidemics, none of which currently afflict Canada.

"We are not in a state of emergency, we are not in a time of war. There is no catastrophe in Canada, evens SARS would not qualify." She notes that although terrorism is a dangerous phenomenon, the problem of terrorism in Canada has not reached even remotely the level of a crisis. Indeed, she says, some emergencies may fall short of war, but in such an instance, Canada could submit a notice of derogation (intention to withdraw from compliance with treaties to which Canada is a party) based on a state of emergency, but this has not happened either.

So where, she asks, are the "exceptional circumstances" that would justify Canada sending Jaballah back to the torture chambers in Egypt?

Jackman then explores a double standard with respect to non-citizens. What happens to Canadian citizens who are suspected of being members of or associated with terrorist groups? Jackman asks.

They are prosecuted and, if convicted, punished with prison, but they face no torture. They can also be released on a bond to control their behaviour, yet in Jaballah's case, there has been no bail and as a non-citizen, he will face torture if deported.

This is clearly a case of differential treatment based on citizenship status, a case of discrimination which is prohibited by the Charter and Supreme Court case law. Jaballah's deportation would violate his equality rights as "he would not face torture if he were a citizen." This conclusion builds on the already marginalized position Jaballah holds in Canadian society, where as the Supreme Court of Canada has pointed out, "it is settled law that non-citizens suffer from political marginalization, stereotyping and historical disadvantage."

"Human rights are human rights, whether you're a citizen or a foreign national. It should not matter what your status is" when determining such weighty issues, Jackman concludes.

Jackman reminds the court how important it is to remember that torture is one of those rare things around which there is an international consensus. Unlike the death penalty, states don't admit to torture, given the wholesale condemnation of it, but, like the death penalty, torture is irreversible in the damage it does.

Attorney John Norris then moves to the podium to explain how international law very much applies in this instance. He reiterates the fact that IRPA's section 3f is designed to comply with international law, making these treaties and covenants binding on the government of Canada. "This is a new development," Norris states, as the former immigration act "approximated this interpretation," but IRPA "clearly incorporates it."

"There is no indication that in denying protection [to Jaballah] that the minister's delegate gave due consideration to 3f, and this could be the basis to conclude that this decision [to deport to torture] was not lawfully made."

Norris quotes a number of legal sources that show that, while return of refugees is justified in certain circumstances, where the level of potential persecution includes torture, the possibility of return is ended, and "at international law, there are no circumstances capable of justifying torture or return to torture."

The Prohibition against torture is unequivocal, not subject to any derogation, Norris says, noting that this absolute prohibition is enunciated in the Universal Declaration of Human Rights, the Convention Against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the African Charter on Human and People's Rights, the Banjul Charter.

He also notes that as was essentially recognized by the Suresh decision, this norm -- non-return to torture -- has now attained the lofty status of "jus cogens," a norm that supercedes everything else.

Norris quotes from a decision from the International Criminal Tribunal for the former Yugoslavia:

"Because of the importance of the values it protects, this principle [prohibition against torture or return to torture] has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even 'ordinary' customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.

"Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate.

"The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimize any legislative, administrative or judicial act authorizing torture.

Norris also quotes from a European Court of Human Rights decision which declares that EVEN in times of public emergency, REGARDLESS of an individual's conduct, there can be NO derogation and NO balancing of individual versus societal interests when torture is concerned. There are no legal loopholes, and, as the Chalal case in the UK reads, "the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration."

(Of course, one must keep in mind that there has never been an open court proceeding in which any of the allegations against Mr. Jaballah have actually been proven!)

Interestingly, a 1992 brief Canada sent to the UN Committee Against Torture stated in reference to a Supreme Court case that "extradition will offend section 7 if the imposition of the penalty by the foreign state would shock the Canadian conscience. The Court noted that torture is a penalty so outrageous to the Canadian community that surrender would always be unacceptable." (Section 7 states "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

Norris delves into a number of issues with respect to the decision to deport to torture: is the government's objective a rational one, does it minimally impair Jaballah's rights, and is the decision a proportional one considering all the elements? On all three counts the government fails.

"There is here an awkward tendency [on the part of the government] to go from the specific facts of the Jaballah case to the broader considerations of the fight against terrorism," he notes, and that awkward tendency will be acted out in almost embarrassing fashion later in the day when an attorney for the government rants and raves before the court.

What is the appropriate path here? Norris asks. At the end of the day, the decision at issue has the most direct and profound consequences for Mr. Jaballah.

Since 9/11, courts have struggled with how to combat terrorism, and what they have concluded, is, "We know this war may not be fought at any cost."

The most important form of security also accords due respect to the fundamental values enshrined in our charter. Every time a resolution condemns terror, Norris notes, it reaffirms the need to fight it in a way which respects fundamental human rights and liberties.

Jaballah's attorneys note throughout the day that the sole targets of Canada's "war on terror" appear to be those who are already vulnerable, refugees and other non-citizens, and not Canadian citizens or corporations. And while the anti-terrorism act in Canada allows for prosecution of those believed to be involved in terrorist activities, no such charge has been brought against Mr. Jaballah, "leaving open the question of whether this is because the state does not have sufficient evidence to launch a prosecution or effect control measures over him under the criminal regime. It clearly undermines the state assertion that there is a pressing and substantial objective in securing Mr. Jaballah's removal to torture.

"While clearly Canada's international and domestic obligations to fight terrorism are pressing and substantial, they pale in comparison to the right at stake -- the right to be free from torture and other forms of cruel, inhuman or degrading treatment or punishment. The right to be free from such treatment is pressing and substantial, particularly in the context of a post September 11 world. The fight against terrorism is not sufficiently pressing and substantial to override the right to be free from torture, particularly as there are other means of addressing valid state concerns. Further, there is no evidence that returning a person to torture actually advances the fight against terrorism -- admittedly an international fight. While it might result in Mr. Jaballah's death or serious injury and thus eliminate him as a potential threat to any state or person, this would not advance the fight against terrorism, as the use of repressive state means only furthers the grievances of those who promote or engage in terrorism."

Norris argues that the deportation decision needs to be quashed and returned to the minister for a new, legal decision.

Following a lunch break during which Mr. Jaballah's children are allowed to touch and hug their father for only the second time in three years, government attorney Donald Macintosh begins his reply. We listen intently, wondering how the government will now argue that, despite everything the court has heard that morning, the government of Canada STILL has a perceived right to deport Jaballah or anyone else to torture.

But the case law Macintosh relies upon pre-dates the Suresh decision, and much of his response is based in paranoid ramblings and name-calling.

Indeed, he sounds like a broken record, constantly falling back on a number of key terms he incessantly repeats: "everyone in Canada has a right to be protected from people like Mr. Jaballah...only a Canadian citizen has a right to leave or enter Canada, no one else!...the onus is on him to establish why he shouldn't be deported."

He disagrees that the Supreme Court sided against deportation to torture, declares that international law cannot be determinative in such a situation, and returns to a rant about people "are willing to kill innocent people," "people who will assassinate people for Osama bin Laden," "evil terrorist organizations," etc.

"Mr. Jaballah has no section 15 rights whatsoever!" Macintosh thunders, adding "If something happens to Mr. Jaballah if he's returned to Egypt then it'd be too remote for section 12 to apply." (Section 15 states " Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." Section 12 states "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.")

As the next few hours progress, they are filled in with never proven assertions that "This man is associated with the most senior members" of terrorist groups and that "There is no evidence that death or torture is a certainty."

On it goes, a collection of hyperbole worthy of Joe McCarthy: "Horrendous evil...evil fanatics...the government believes he's an ongoing threat, a serious threat, he could never be released."

In conclusion, Macintosh asserts "No one who has had access to the totality of the case could conclude his deportation would not meet the objectives" of the legislation.

There is much irony in the point. No one ever really gets to see the whole case in perspective. The evidence is heard behind closed doors without Jaballah or his lawyers present. In this case, the evidence behind closed doors has been dismissed, and CSIS has said it has no new evidence against Jaballah. What totality of the case could Macintosh be thinking about, other than the reams of National Post articles and other substance-less tomes he carts around in his briefcase?

Jackman closes with a brief reply, noting that everything Macintosh is arguing she heard when they were arguing the Suresh case years ago, and the world has moved on since then.

"This is a case of the individual against the state, not a case of competing interests, otherwise all criminal cases would be about competing interests." She points out Jaballah's claim is not based on the right to remain, it's based on the right NOT to be returned to cruel treatment.

"Just as the charter is a growing tree, respect for human rights is a growing tree, and if there's any time we need it, it's in the post-9/11 world. In times of crisis or perceived crisis states override human rights, and its up to the courts to ensure those rights are protected."

In terms of Jaballah's alleged "evil," she says Suresh was alleged to be an executive of the Tamil Tigers (responsible for killing 60,000 people), yet the Supreme Court of Canada did not find "exceptional circumstances" warranting his return to torture, and in fact Suresh is out on bail.

How are Canada's international relations promoted by returning someone to torture? she asks, especially when "Canada is having a difficult time holding its head up when all of Europe has prohibited absolutely a return to torture."

As we leave the courtroom, one cannot help but think of a similar scene in Inherit the Wind, the 1950s movie about the famous monkey trial in Tennessee in which the right to teach evolution was challenged by those professing Darwin was evil and that only a Biblical interpretation of human history was to be allowed. By the end of that film, the Biblical proponent is awash in his own bloated rhetoric, superstition, and intolerance, and suffers a breakdown in court following a major rant. In the end, common sense prevails.

In this court, Mr. MacIntosh undergoes a similar apoplectic meltdown, himself trying to hold back the positive evolution of Canadian law as he thunders about "this man," "this terrorist," this "evil fanatic" in language so hateful and harsh that it's a wonder he is not charged with emotional abuse of Jaballah's children. It is hyperbole upon hyperbole, with no legal basis.

Justice Mackay ends with a short nod to Jaballah. "It's an important case. It's been an important case since day one. I appreciate how difficult it is for you and your family, but you are helping us evolve Canadian law," he says, and hopes that a just result will be obtained.

As in Inherit the Wind, one hopes that beyond the blather, the judge and the Canadian people will find true justice here, put an end to such abhorrent notions as deportation to torture, and end the secret trials which continue to imprison not only five Muslim men and their families, but a whole community which continues under siege from the "gotta justify that big budget increase" spies at CSIS.

(report from Matthew Behrens of the Campaign to Stop Secret Trials in Canada)

For more information: Campaign to Stop Secret Trials, PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0, tasc@web.ca, www.homesnotbombs.ca

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