Get out your broken pens, your dried up pens, and the pens from which you love removing the ink holder. They need to take a FREE trip via mail to Ottawa to help stop secret trials in Canada...

There is nothing more frustrating than going into your pen jar, grabbing your pen, and trying to write something, only to discover the pen is dried out. Imagine a government office in which all of the pens don't work! Apart from the comic implications, this is one instance where such a vision could save a life.

The most dangerous signature in Canada today belongs to Anne McLellan, who, with one stroke of the pen, has the power to condemn many immigrants and refugees in Canada to death by deportation.

Indeed, as "Minister of Public Safety and Emergency Preparedness," McLellan is now the only individual who signs the CSIS secret trial security certificate, under which a refugee or permanent resident may be arrested and thrown behind bars without charge or bail on secret "evidence" which neither the arrestees nor their lawyers are allowed to see.

Facing indefinite incarceration and, ultimately, deportation to a country where even the Canadian government acknowledges that person faces torture and execution, these individuals and their families face an unfair process which has been criticized by Amnesty International, the Inter-American Commission on Human Rights (of the Organization of American States) and even Federal Court judges.

SO, please consider writing a quick note to McLellan urging her not to make that signature (sample below, from which you are free to pick and choose the points you think most appropriate). If you feel so inclined, send her a pen without ink or one that no longer works, so that when the office is filled with these things, she won't be able to find a pen that works to apply her dangerous signature to the piece of paper which destroys individual lives, families and communities.

Best of all, when you write to an MP, it's postage-free!

McLellan has yet to sign a certificate. Under the previous regime, the certificate required the signatures of the Solicitor General and Immigration Minister. That irresponsibility has been transferred to her portfolio, and we would like to ensure that she not only does not join that collection of signatures but that she eliminates the process altogether.

Currently, five Muslim men have been collectively held 119 months (as of January 2004) behind Canadian prison walls, one in solitary confinement for 27 months, all without charge or bail. This is Canada's Guantanamo Bay.

For more info. go to www.homesnotbombs.ca and click on the Campaign to Stop Secret Trials in Canada

Please let us know you have sent a letter (or a pen) so we can keep track) by dropping us a line at tasc@web.ca, and let us know of any response you receive. Thanks!

(ADDRESS BELOW)

Anne McLellan

Deputy Prime Minister and Minister of Public Safety

and Emergency Preparedness

Ottawa Hill Office

306 Justice Building

House of Commons

Ottawa, ON K1A 0A6

(no postage required)

Tel: (613) 992-4524

Fax: (613) 943-0044

McLellan.A@parl.gc.ca

Dear Ms. McLellan,

I am sending you a pen which does not work so that the next time CSIS comes to you to sign a secret trial security certificate, you won't have the ink to do so.

Under the security certificate there are now five Muslim men who have collectively been detained, without charge or bail, 119 months (as of January 2004) in Canada. One man has been held in solitary confinement for 27 full months. Four of these men are married, and among them are 11 children who are separated by thick concrete and steel bars from their fathers. If deported, the men -- Mohammad Mahjoub, Mahmoud Jaballah, Hassan Almrei, Mohamed Harkat and Adil Charkaoui -- are certain to face prison, torture, and death.

All have been subject to the draconian security certificate, which until recently required the signatures of two ministers, and now requires only one -- yours. I am writing to ask that you not put your signature to any more of these certificates, and that instead you change the law (currently the Immigration and Refugee Protection Act, IRPA) which allows for secret trials to take place in Canada. I do not believe that secret trials are compatible with a democracy, and hope you would agree.

The security certificate flies in the face of the Canadian Charter of Rights and Freedoms and the Universal Declaration of Human Rights, and has been criticized by Amnesty International, the Inter-American Commission on Human Rights (of the Organization of American States), numerous Federal Court judges and recently by one of Canada's top criminal lawyers, Edward Greenspan who, writing in Maclean's, pointed out:

"It's astounding that we are living under a government that, in defence of freedom and liberty, can keep someone not charged with any crime in solitary confinement for years based on secret information. It's terrible to contemplate that people can lose their livelihood based on information they cannot question. It's unthinkable that such people have absolutely no right of appeal or review, a glaring violation of a basic tenet of the rule of law: the right to appeal the decisions of a lower court."

Greenspan further points out that "the judge does not determine whether the accused is actually a security threat or whether the secret evidence is reliable. The judge's only role is to assess whether the issuance of the certificate was 'reasonable.'"

Even Federal Court judges have expressed misgivings. One judge said Canada had its own version of the Guantanamo Bay detention camp, while judge James Hugessen says: "We hate it. We do not like this process…If you have a case that is only being presented on one side, you are not going to get a good case…I sometimes feel a little bit like a fig leaf."

But these judges say they are bound by Parliamentary direction. So it comes down to you as the Minister responsible for this certificate to introduce a fairer process, one similar to that which existed before these cases were placed before the Federal Court (they were previously dealt with by Security Intelligence Review Committee, or SIRC). Indeed, even the harshest critics of the current regime are not asking for anything new; rather, they say that if we went back to the way the process operated from 1984 through 1991, there would be enough transparency and accountability to deal with the current concerns about due process that are not being met under IRPA at the Federal Court level

(At the time, SIRC had independent counsel in the ex parte -- behind closed doors -- hearing to conduct cross examination. Counsel for the person concerned could provide questions to be asked in that part, an expurgated transcript was provided to counsel and counsel was permitted to cross examine CSIS officer witnesses on non-national security issues arising from the disclosure given and the expurgated transcript. History has shown that this more even-handed approach did not in any way threaten Canadian security).

As Canadians concerned about justice for all, how can we be sure that due process has been or will be granted to those named in security certificates when the defence lawyer is not allowed behind the closed door proceedings? How can we trust the word of CSIS when its own oversight committee has criticized the agency for witholding key information which might contradict CSIS' own case? Indeed, the Security Intelligence Review Committee has expressed concerns about "overdrawn" threat assessments, "overstatements" and "misleading or exaggerated" assertions. CSIS has used decade-old information derived from one source's "feelings" and another's "speculation." In one instance "[CSIS] failed to include in the affidavit significant information of which it was aware which contradicts its own position on the person."

There are those who would argue that these are not secret trials, since they have a public portion, but when the heart of the case is discussed behind closed doors without the allegedly inadmissable individual or their lawyer present, what are we then to call it?

Time and again, these men and their families have been very clear: if they have been involved in an illegal act, charge them under the appropriate laws, and disclose the case to them and their lawyers so they can respond. To expect someone to defend themselves when they don't know the allegations being made is not only unjust, it is unrealistic.

Further, given the logical result of a certificate being upheld, these men are all subject to deportation to countries where torture and disappearances are commonplace and where such a fate is likely to face them. To deport them would violate the direction of the Supreme Court of Canada in the Suresh case, which says Canada should not be deporting people when there is a danger to their well-being.

I would hope that Canadian democracy has not reached a point of being so weak that we are unable to provide a fair trial to people accused of illegal acts or associations.

In a time when many people are waking up to the fact that concerns about terror have created a civil liberties nightmare, I sincerely hope you are willing to take a serious, sober look at changing this unjust process.

I look forward to your response.

Thank you for your time.

Name and address

Maclean's

Essay

July 28, 2003

IN DEFENCE OF FREEDOM

A top lawyer says terrorists win when due process is subverted

EDWARD L. GREENSPAN

THERE IS A LAND where the government can arrest non-citizens, throw them in jail for an indefinite period of time, and then remove them from the country, all in virtual secrecy. This is a land where, for certain people, civil liberties and rights of due process don't exist. No, this is not China or Cuba. This is Canada -- a country I believed understood the transcendent importance of safeguarding civil liberties. But against those whom Ottawa secretly determines are a threat to national security, the government can act, and is now acting in alarming ways. Has Canada gone mad? Shades of Guantánamo Bay -- where the U.S. has imprisoned hundreds of suspected terrorists without trial -- colour the government and the judiciary.

The Immigration and Refugee Protection Act allows the immigration minister and solicitor general to sign a "security certificate" against a foreign visitor or an individual with permanent resident status, declaring that person "inadmissible" to Canada. The certificate, based on information provided by the Canadian Security Intelligence Service, has been used 27 times in the last 10 years, including five times since the Sept. 11 terrorist attacks.

The security concerns listed in the act are general and vague, and include "engaging in terrorism, or acts of violence that would or might endanger the lives or safety of persons in Canada," or simply being a "danger to the security of Canada." Under the certificate, a foreign visitor is immediately subject to arrest and can be held indefinitely without bail. For a person with permanent resident status, a Federal Court judge must start a review within 48 hours. If the judge finds the detention warranted, the permanent resident can be held without review for six months. Incredibly, neither the accused nor his lawyer is entitled to be present when the judge determines if further detention is warranted.

In both cases, by the seventh day of custody, a Federal Court judge must start to review the government's evidence. Again, neither the accused nor his lawyer is entitled to be present. The evidence can be hearsay, double hearsay, triple hearsay. It's the judge and government lawyers sitting together making fundamental decisions about someone's liberty, without them being there to listen, object, question, protest or even to agree.

A summary of the evidence must eventually be presented to the accused, but even then the government can withhold any or all evidence if a judge rules that providing the information risks national security. In a subsequent hearing, the accused is given an opportunity to be heard, but this hearing is inherently unfair because the accused can only respond to the summary of the allegations. At this hearing, the judge does not determine whether the accused is actually a security threat or whether the secret evidence is reliable. The judge's only role is to assess whether the issuance of the certificate was "reasonable." Only three times has a certificate been overturned on review. In one case, a certificate against Mahmoud Jaballah, an Egyptian refugee claimant, was overturned in 2000. However, Jaballah was arrested the following summer under a second security certificate, and the father of six has been held in solitary confinement in Toronto's Metro West Detention Centre ever since.

The accused cannot appeal and can be quickly deported, even to a country where he may be tortured. Worse, the accused's lawyer is kept in the dark about the evidence. Bruce Engel is a thoughtful Ottawa lawyer doing his best to represent Mohamed Harkat, a 35-year-old Algerian refugee who has been held in protective custody since his arrest in the capital in December 2002 on suspicion of being an al-Qaeda operative. He says the summary of the evidence against his client is pitifully vague. What, he wonders, if the government has arrested the wrong person? How can the wrongfully accused defend themselves if they have no idea what the evidence is?

It's astounding that we are living under a government that, in defence of freedom and liberty, can keep someone not charged with any crime in solitary confinement for years based on secret information. It's terrible to contemplate that people can lose their livelihood based on information they cannot question. It's unthinkable that such people have absolutely no right of appeal or review, a glaring violation of a basic tenet of the rule of law: the right to appeal the decisions of a lower court.

We are living in a time when the defeat of terrorism is on everyone's mind. But that doesn't mean we are supposed to simply trust the government to act wisely on correct information. The rule of law is the bedrock of our nation, not blind faith in the unchecked judgment of government officials. Any country that lives by a rule of "trust us, there is no need for due process," is totalitarian. We should be ashamed that there is a process in security cases that can be compared to the ignominious Star Chamber, a medieval English court that was dismantled by Parliament in 1641, but whose name survives to describe arbitrary, secretive proceedings.

The challenge is to figure out a way to deal with the threat of terrorism without losing the freedoms that make Canada the great nation it is. Everyone must be able to respond to their accusers, whether in the realm of a criminal trial or a security hearing. We must demand that persons threatened with loss of liberty, livelihood and possibly life, be provided with someone in this process who can protect them from false and unsupported allegations. Let the lawyer for the accused participate in the meetings with judge and government. Let a lawyer have some opportunity to effectively question the accusations. I shudder at the thought of those who have suffered wrongful convictions. It's terrifying that in ordinary criminal cases, following a trial by judge and jury, after a full opportunity to cross-examine one's accusers and question all the government's evidence, mistakes are still made.

How many mistakes could the government be making in security cases? Agents working for CSIS respond to tips. False tips in criminal cases can be uncovered through independent investigation and cross-examination. But with security issues shrouded in secrecy, there is virtually no way of knowing whether the tipster has run amok in the desperate fight against terrorism. It's not beyond the realm of possibility that a security certificate is issued based on information from corrupt government agents.

History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. When our nation allows fundamental freedoms to be sacrificed, we invariably come to regret it. Earl Warren, former chief justice of the U.S. Supreme Court, wrote over 35 years ago: "It would indeed be ironic if, in the name of national defence, we would sanction the subversion of one of those liberties which make the defence of our nation worthwhile."

In the global struggle against terrorism, Canadians are in possession of the ultimate weapon. It's the weapon of an unassailable idea -- individual rights, liberty and the dignity of the individual. It would be a tragic paradox if we should surrender any part of this heritage, for we should then have done to ourselves from within what we fear most from without. We must remain forever vigilant about any encroachment on personal freedom and individual liberty, of citizens and non-citizens alike.

Terrorism is an acute danger and if al-Qaeda is operating inside Canada, it's a genuine danger -- a genuine fifth column. In fact, the U.S. continues to gather intelligence indicating that Canada may be a haven for certain terrorist cells. We should not forget people like Ahmed Ressam, who was arrested crossing the U. S. border from Canada in December 1999 with explosive material that he admitted was intended for the destruction of the Los Angeles airport. But, Ressam's conviction came without jeopardizing the rule of law. I wholeheartedly support the "lock-them-up and throw-away-the-key" reaction. But I say, first provide them with the kind of justice that makes Canada great. As Benjamin Franklin said: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." We defeat our own ends if we adopt the techniques of totalitarianism. If we really believe in democracy, we must have faith enough to fight for its preservation with the tools of freedom.

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