Toronto's Own Guantanamo Bay: An Abuse of Process Hearing to Release Mahmoud Jaballah, April 11, 2003

Jaballah Family Awaits Word on Potential Release from 22 Months in Solitary Confinement

Man Arrested Without Being Charged or Knowing the Alleged Case Against Him Being Held on CSIS "Security Certificate"


"Canadians would be greatly concerned if the facts of this case were widely known." Federal Court Justice Andrew MacKay, on the case of Mahmoud Jaballah

TORONTO, ONTARIO--Any day now, the family of Mahmoud Jaballah -- a mother and her six children -- will know whether they can embrace their father and husband for the first time in over 22 months. At least that's if Federal Court Justice Andrew MacKay returns his decision, promised within 10 days to two weeks of a hearing on April 11, on whether Jaballah can finally be released from the torture of solitary confinement at the Metro West Detention Centre in northwest Toronto.


It was on Friday, April 11 that the troubled MacKay shocked reporters, spectators and, perhaps, even himself when he stated that "in this great city of Toronto, we have our own Guantanamo Bay," a reference to the illegal detention camp run by the U.S. where untold numbers of Afghans and others are held in violation of a slew of international laws.

MacKay made the comment as he considered an abuse of process motion by attorney Rocco Galati to release from prison Mahmoud Jaballah, an unfairly targetted man who has spent almost two years in solitary confinement since his August, 2001 arrest on a CSIS security certificate. Under the certificate, you are not allowed to know the case against you, and your attorney is left with little or no "evidence" to cross examine, because the core of the case is kept secret for reasons of "national security."

Jaballah has the rare distinction of someone who was able to beat the odds against this medieval practice, as seven months after he was arrested on a security certificate in March, 1999, Federal Court Justice Bud Cullen quashed the certificate, freeing Jaballah. Attorneys for Jaballah claim that CSIS officers perjured themselves on the stand during that hearing and "otherwise stretched the realm of credulity into an Alice in Wonderland sphere where judicial reality was suspended."

Indeed, CSIS officer "David," who cannot have his full name used, apparently threatened to have Jaballah arrested by the RCMP if he refused to cooperate with CSIS. "David" denied this happened while on the stand, but what he didn't know was that Jaballah's then 12-year-old son, Ahmad, had been able to quietly tape-record these threats, including the one in which Jaballah was told by the CSIS agent, "If you think that going to jail is not going to hurt you, you're wrong."

As an example of the sheer incompetence of the men from CSIS whose word can rip families apart and cause such suffering as that experienced by the Jaballah family, among others, is reflected in the following exchange, originally printed in Saturday Night.


"David,", a self-described expert on Middle East terrorism, was asked by Jaballah's lawyer, Rocco Galati, what constituted an Arabic country, to which "David" replied, "More often than not, countries in the Middle East."

Galati then asked whether Iran were an Arabic country.

"I would say it is Arabic, but I'm not an expert in Iranian affairs," David said.

"You are completely wrong, Iran is as far from being Arabic as Germany is," Galati replied.

Galati continued, "If I suggested to you that your experience is anemic and that you need some re-education, what would you say to me?"

David said, "I would say that the Service goes to great effort to make sure that their people are properly trained and culturally sensitized. We do have training in that area."

Galati followed up by asking, "Can you name me the Arabic countries along the North African coast?"

David could not.

"Could you tell me the population of Egypt?" Galati asked the "expert" "David."

David could not.

The Cullen decision was based largely on the credibility of Jaballah's witnesses, not the in-credibility of CSIS.

But that was the first security certificate.

In August 2001, Jaballah was arrested again in a take-down bust (unnecessary because CSIS and RCMP knew Jaballah's home address, but this form of arrest helps to intimate the community at large). CSIS admitted that fall that it had no new case against Jaballah, only a new interpretation of the same case which was already found by Cullen to be not credible. The second certificate came on the heels of what attorney Rodger Rodrigues describes as an "internal, disgruntled CSIS report disapproving and contemptuous of Cullen, J's decision."

Following an in camera (behind closed doors) hearing in which neither Jaballah nor his attorney, Rocco Galati, was permitted to attend, Justice MacKay stated in terms of "information obtained in confidence from governments or institutions of foreign is determined that the information is relevant but should not be disclosed to Mahmoud Jaballah, his counsel or to any other person on the grounds that disclosure would be injurious to national security or to the safety of persons," adding that "The Security intelligence report and any other evidence or information presented in camera, ex parte shall be sealed and be kept separate from the public records of the court."

In other words, the basis of a secret trial.

MacKay has been sitting on the second security certificate since de declared in February 2002, that he would have a decision within four to six weeks. Months passed, and in August, a pre-removal risk assessment (PRAA) undertaken by the Canadian immigration dept. concluded that Jaballah would be "tortured or killed" if returned to Egypt, the logical outcome of a certificate being upheld.

The federal government has bee scrambling to get "assurances" from Egyptian authorities that Jaballah would be safe if returned to Egypt, despite the fact that the Supreme Court of Canada has ruled that such assurances from non-democratic regimes without due process are meaningless (Suresh decision).

Indeed, on April 11, Galati addressed the fact that the feds, since August of 2002, had been able to get only 2 "assurances" from Egyptian authorities, both of which were essentially worthless. All the while, Jaballah had been sitting in solitary.

One, from the Egyptian ambassador, referred to a "human rights charter" under which Jaballah would be respected, but there is no such charter, and there is no assurance given with respect to detainment, torture or the death penalty. "I could get a better assurance from Monty Python," Galati explained, as he pointed out the second "assurance" came from Egyptian army general Omar Suleiman, in line to succeed Mubarak at the head of the Egyptian regime, and member of an armed force repeatedly condemned for human rights violations.

Galati points out that while the immigration minister, Denis Coderre, says he needs more time to determine whether Jaballah is a threat (which Coderre seems to have determined by signing the security certificate in the first place!), a decision regarding Jaballah's fate should have been made within 7-10 days of the PRAA decision.

Rodrigues, in an affidavit, points out that while Reyat Singh, convicted as an accessory to the Air India bombing which killed 329 persons, received recently a 5-year sentence, with parole after 18 months (or the equivalent of 5.5 days per life taken, IF he finishes the five years behind bars), "Mr. Jaballah, who is NOT accused of ever having been engaged in ANY act or commission of any offence, but only of 'being associated', has spent, to date, over two years of 'dead time' which under Canadian sentencing law is the equivalent of a six-year sentence, which is MORE than the maximum he could have received under the Criminal Code of Canada had he been charged and convicted of being associated with a terrorist organization, under the new provisions pursuant to C-36, passed and proclaimed into law January 2002."

Jaballah,. currently held at Metro West Detention Centre, is not the only person undergoing such torture. Among others are Muhammad Mahjoub has been in prison since June 2000, Hassan Almrei almost 18 months in jail, and now Mohamed Harkat in Ottawa, who was arrested on December 10, International Human Rights Day, and who has been held without charge or bail since that time. All are held on security certificates, without being charged with anything, and facing potential deportation to countries where their lives would be in grave danger.

And anyone who tries to help these individuals receive a fair hearing or make bail is considered suspect, as members of the surrounding community fall under CSIS/RCMP surveillance, harassment and intimidation.

One such act of intimidation, among many, is directed against Dr. Al Hindy, the spiritual leader of the Salahaddin Mosque in Scarborough. While returning from an annual pilgrimage to Mecca in January of this year, Hindy was detained in Cairo's airport by the Egyptian secret service at the request of CSIS, whereupon he was blindfolded, handcuffed, and thrown into a van with blinds drawn and taken to an undisclosed location where he was held and interrogated for some 34 hours. In a sworn affidavit, Hindy said "during the interrogation it was made clear that I had been detained at the request of CSIS with a request from CSIS that I NOT be released.

"During the interrogation I was told and threatened as to why I was assisting those accused such as Mahjoub and Jaballah. I was specifically told NOT to act as surety for Mr. Mahjoub, nor extend any assistance to either Mahjoub nor Jaballah and that by virtue of my extending any assistance in their Court proceedings I came under suspicion from CSIS.

"During the interrogations reference was made to certain persons, Canadian citizens, who were made to disappear. Then they stated, 'right now, you are here. But if you were kidnapped and sent to Guantanamo Bay, then not even Rocco Galati could help you.'

"During the interrogations, they asked if we had given Mr. Galati any money for Mr. Jaballah and how much? They insisted I not make any speeches in the mosque critical of US foreign policy."

Hindy also noted that "it was made clear to me that it was CSIS who had forwarded a file to them requesting my detention and non-release alleging that I was a 'dangerous person.'

Fortunately for Hindy, his family is fairly well connected, with friends who have high-level contacts within the intelligence service in Egypt, and an uncle who is former Egyptian ambassador to China who used to golf with former President George Bush and an aunt who socialized with Barbara Bush. Once Hindy's wife hit the phones, things changed during the interrogation, but Hindy acknowledges if you are detained in Egypt, "you need to be innocent AND have connections. Being innocent is essential, but not sufficient" to avoid long-term detention and torture.

Hindy notes that the RCMP contacted him two days prior to the April 11 hearing because he wanted to discuss Hindy's affidavit (how they obtained it is not clear, nor legal).

But the intimidation and string of "coincidences" does not end there. Anyone coming to court to attend the Jaballah hearing is subject to airport-style security screening (whereas those attending multiple murder trials waltz in and out of the court, unchecked).

On April 11, the court chosen for the hearing is far too small to accommodate everyone who wants to attend, even though Jaballah's hearings normally bring in a fair-sized crowd of supporters.

In another "coincidence," the Toronto Star that morning has printed an excerpt from the refugee board which rejects Jaballah's refugee claim, alleging that Jaballah is a terrorist--not even Jaballah or his family knows of this until it is pointed out in the paper.

And in another "coincidence," as Toronto police talk about ratcheting up their own role in the repression of refugees and immigrants, for the first time the head of Metro's counterintelligence and anti-terrorism squad, Steve Irwin, happens to "drop by" and stand at the back of the courtroom with a cohort, checking out who is in the spectator section. A few weeks earlier, police association head Craig Bromell states the police need to form an immigration unit to track down those "illegally" in Toronto. "We need somebody to go after these people," Bromell told the Toronto Sun on March 13.

If you would like to be kept up to date on the Jaballah case, as well as upcoming hearings for Mahjoub and Harkat, please contact Homes not Bombs at

(this report prepared by Matthew Behrens of Homes not Bombs)

Back to Secret Trial Home Page