The Good, the Bad, and the Ugly:

Just Another Day in the Land of Secret Trials


Mahmoud Jaballah Wins Judicial Review on Deportation to Torture;

Security Certificate Upheld in case of Secret Trial Detainee Mohamed Harkat;

Bail Hearing Continues for Secret Trial Detainee Mohammad Mahjoub;

Security Certificate Hearing for Secret Trial Detainee (now under house arrest) Adil Charkaoui Suspended Pending new Protection Decision;

Hassan Almrei marks 41 Months, Six Days in Solitary Confinement in Toronto Detention Facility

March 23, 2005--It was just another busy day in the land of secret trials yesterday.

In a Toronto courtroom, eloquent arguments were heard in calling for the release on bail of secret trial detainee Mohammad Mahjoub, held without charge on secret "evidence" almost five years in a Toronto detention facility. Government lawyers pressed their case to deport him, knowing full well the torture or death which awaits him if returned to Egypt. The hearing is set to conclude April 22, with a decision hopefully within a month or two afterwards.

Meanwhile, the secret trial security certificate against Algerian refugee Mohamed Harkat, held since his arrest on International Human Rights Day, December 10, 2002, was upheld on the basis of secret evidence. This will mean further jail time, and more court time, arguing that he, like Mahjoub and the other detainees, should not be deported given the cruel and unusual treatment which would be their fate.

Harkat's case has had a number of "too coincidental to be coincidental" coincidences. His arrest was timed to appear in the papers the day that then-Solicitor General Wayne Easter went to Washington D.C. in 2002 to tell the Yankees how well Canada was doing in the "war on terror." And yesterday's decision is perfect timing for Prime Minister Paul Martin who, in meeting today with George W. Bush, is perhaps throwing the Harkat decision as a bone to the "Pissed-that-y'all-didn't-join-us-in-star-wars" President.

The Harkat decision came one day after the security certificate hearing for Montrealer Adil Charkaoui was suspended pending a new determination on his application for protection from deportation to torture. The original decision of the federal government -- to deport Charkaoui to torture in Morocco -- was suddenly withdrawn two weeks before a planned judicial review of the decision, perhaps based on the fear that a judge would find that this decision, like two others before it in related cases, would be deemed unlawful and unreasonable.

During the Monday Charkaoui hearing, further CSIS malfeasance came to light (in this case, CSIS claims that the so-called "millennium bomber," Ahmed Ressam, had fingered Charkaoui as being in an overseas "training camp." As was revealed Monday, Ressam could not have identified Charkaoui overseas because Ressam himself was not overseas; Ressam was in fact in Montreal at the alleged time, stealing computers and wanted by Montreal police. Ressam is currently detained in the U.S., trading "information" for a reduced sentence.) It's one more piece of the bulging CSIS portfolio of unacceptable negligence (as was found in the Air India case), untruths, and reliance on information gleaned from torture and jailhouse snitches.

As March 22 came to a close, some good news arrived at Metro West Detention Centre for Mahmoud Jaballah, held without charge or bail since August, 2001. In a stinging rebuke to the Canadian "secret trial and deportation to torture" bureaucracy, Federal Court Judge Andrew MacKay has called the decision to deport Mahmoud Jaballah to torture in Egypt "not lawfully made" and "was patently unreasonable based upon a finding of facts made without appropriate regard to all of the evidence and circumstances of the case."

It is the third such decision in which the immigration minister's decision to deport to torture has been labelled "unreasonable," "unlawful" and, in one instance, "perverse" by federal court judges. Similar decisions were reached in the cases of secret trial detainees Mohammad Mahjoub and Hassan Almrei, and the government, perhaps sensing a real embarrassment on its hands, has withdrawn its deportation decision in the case of Adil Charkaoui just two weeks before a judicial review would likely have resulted in a similar setback.

It is also good news for secret trial detainee Mohamed Harkat of Ottawa, whose security certificate was upheld yesterday as "reasonable" in a 75-page decision by Judge Eleanor Dawson. While the certificate being upheld kicks into motion the deportation process, Harkat must also undergo a risk assessment, and will likely benefit from these precedent cases which are ultimately testing the legality of deportation to torture, a fate which likely awaits him if returned to Algeria.

It is increasingly important to note that the upholding of the certificate does NOT provide proof that Harkat poses a risk to national security. All it means, in the end result, is that the Judge found "reasonable grounds" to believe that the signing ministers had "reasonable grounds" to sign the certificate. It's a very low threshold (nothing like the "beyond a reasonable doubt" threshold in the Air India case).

In the Jaballah decision, MacKay seems perturbed by the ease with which decisions are now being made by the Canadian government to deport to torture, despite our signatory status to the Convention Against Torture, which prohibits such a practice. He notes, with a fairly disapproving tone, that a decision by the immigration ministry's pre-removal risk assessment branch that Jaballah faces "a risk of death or torture if he were returned to Egypt" was "accepted, with some apparent reluctance, by the Minister's delegate who determined on December 30, 2003 that Mr. Jaballah's application for protection should be refused."

It is quite disturbing to read that such a hearing would even be taking place, as MacKay notes "both parties [i.e., government and Jaballah] accepted that there is no longer any question that there is substantial risk of death or torture faced by Mr. Jaballah if he were returned to Egypt."

As in the Almrei and Mahjoub cases, MacKay found that the the immigration decisionmaker in Jaballah's case did NOT have all the relevant information necessary to make an assessment of Jaballah's alleged risk to the security of Canada. In a subtle jab at the political bias in the decision making, Mackay also notes that the minister's delegate quotes only a part of the Supreme Court of Canada "Suresh" decision (which talks of "exceptional circumstances" that would justify deportation to torture).

In an interesting analysis, Mackay finds that the oft-abused quotation allowing such exceptions has perhaps been overblown because of what he calls a simple clerical error in mistakenly assigning a paragraph number to the citation. "The effect may be to give undue emphasis to the Supreme Court's acknowledgement that the possibility is not excluded, in exceptional circumstances, of deportation to face torture." He also finds that the Minister's delegate, in quoting the Suresh decision, "omitted words which, in my view, provide context for the passages quoted. The words omitted are these:

"The Canadian rejection of torture is reflected in the international conventions to which Canada is a party. The Canadian and international perspectives in turn inform our constitutional norms. The rejection of state action leading to torture generally, and deportation to torture specifically, is virtually categoric. Indeed, both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests."

A fairly important omission, but nonetheless one which is regularly made in the rush to deportation to torture.

MacKay also deals with Jaballah's argument that consideration should be given to the best interests of his six children, two born in Canada, one in Pakistan, three in Egypt, "There was no consideration that one of those children, born in Pakistan, may have no status in Egypt," MacKay writes, adding, "Whatever their status in Canada, simply to conclude, as the decision does, that Mr. Jaballah's 'proposed deportation from Canada would not deprive his children of his emotional and financial support any more than his current detention has,' implicitly ignores the substantial risk of death or torture facing Mr. Jaballah if he be deported to Egypt, and the effect that may be expected to have upon his family members, including children born in Canada or in Pakistan....Simply put the decision, in my opinion, does not adequately take into account the best interests of any of Mr. Jaballah's children, who would be directly affected by a decision that he is, or is not, a person in need of protection at this time."

MacKay also finds that in the determination of alleged risk to Canada, "there is no reference to circumstances facing Canada or its security, other than the [unsupported] conclusion that it is endangered by Mr. Jaballah's presence in Canada." Again, it appears to be a political decision based on fear, racism and the unjustified labelling of Mr. Jaballah, not on any factual basis.

MacKay closes his reasons by reminding us that for a decision to be lawful, it must be made within the law. With that obvious-sounding caveat (which nevertheless appears to elude the immigration ministry), Mackay concludes with a cautionary note about the need to canvass the issue of "the full implications of Parliament's inclusion of paragraph 3(3)(f) of the IRPA [Immigration and Refugee Protection Act] that 'this Act is to be construed and applied in a manner that...(f) complies with international human rights instruments to which Canada is a signatory."

As the Jaballah protection decision is remitted for a new determination, it is hoped that years of litigation will not be required to further battle the question of deportation to torture, and that finally, someone within the ministry will make a decision based not on Islamophobia, CSIS pressure, or plain old-fashioned racism, but on the law, which, as MacKay states, is clear: Canada's immigration decisions MUST comply with international human rights instruments to which this country is a party. We are a party to the Convention Against Torture, which prohibits return to torture. The Secret Trial Five are facing a substantial likelihood of torture if returned. So put an end to these horrible proceedings to deport to torture, provide protection, and release the remaining four on bail.

For Hassan Almrei, yesterday was a relatively quiet day in his 9 X 12 solitary confinement concrete cell, his home since October, 2001. No court decisions, no media frenzy, just another day in the land of secret trials, awaiting word on whether Canada will come up with a new decision to deport him to a fate even worse than that which awaited Maher Arar in Syria. Hassan is also appealing his denial of bail to the Supreme Court; the Federal Court of Appeal recently declared it "premature" to label his three and a half years of detention without charge indefinite detention.

Demonstrations are scheduled in Toronto and Ottawa today at 5 pm to protest the Harkat decision; a major march against secret trials takes place this Saturday in Montreal.

Also on the drawing board is "24 Hours Against Torture," a round-the-clock vigil at Immigration Minister Joe Volpe's office to secure his commitment to end deportation to torture. On Monday, April 4, Toronto's Lula Lounge hosts a major benefit for the campaign to stop secret trials, with readings from Kafka's The Trial by Ann-Marie Macdonald, Nino Ricci, Avi Lewis, Gordon Pinsent, Charmion King, Heather Mallick, Linda McQuaig, Bernard Behrens and Stuart McLean. (Tickets available at 416-651-5800). And on April 22, Monia Mazigh comes to Toronto to join Mona Elfouli and Ahmad Jaballah for an evening against secret trials at Bloor Street United Church, 7:15 pm.

To support our ongoing efforts to end secret trials, donations are gratefully accepted at Homes not Bombs, PO Box 73620, 509 St Clair Ave., West, Toronto, ON M6C 1C0.

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