[imc-ontario-stories] They Try and Block Your Every Move: Secret
Trials Update, Toronto
tasc at web.ca
Sun Aug 21 12:17:51 PDT 2005
TORONTO SECRET TRIALS UPDATE
They Try and Block Your Every Move
Mahmoud Jaballah Searches For a Court to Hear His Plea for Bail After Four
Years of Detention Without Charge
Punishing Hunger Strikes Continue for Hassan Almrei (day 60) and Mohammad
Mahjoub (day 45)
AUGUST 21, 2005 -- It's a telling moment on the second day of a complicated
legal hearing to determine whether Mahmoud Jaballah, a secret trial
detainee held four years without charge or bail, will be granted an
opportunity in the Superior Court of Ontario to hear his case.
It's nearing the end of the lunch break, and the government lawyers
who do their best to make life hell for people like Mr. Jaballah and his
family -- including their spirited, unashamed efforts to deport him to
torture -- are sitting in a row of seats, chatting, laughing, waiting for
court to begin. Three of Jaballah's six young children, aged 7 to 11, walk
down the hallway and sit across from the lawyers in another row of seats.
The lawyers, who represent CSIS, Immigration, and "Justice,"
suddenly stop speaking and look away, mostly at their feet. "Are those the
guys that are against us?" one of the young kids asks.
There is an embarrassed silence from the legal crew. These are
three of the six children of a man who, never charged, they are nonetheless
prepared to hand over to an Egyptian torturer or executioner, based
entirely on secret "evidence" neither he nor his lawyer will ever be
allowed to see. The kids look at them, as if expecting an answer, but the
government lawyers cannot look at the kids. To do so would be to recognize
their humanity, and that of their father. Perhaps moreso, it might force
them to search deep inside themselves and question their own immorality for
being part of such an abusive process.
The government lawyers eventually stand on their feet and beat a
retreat into the now open court. The kids follow, settling into the hard
wooden benches, from where they will write letters to their Dad expressing
their love for him. One repeats what he has told the national media: if
they do not let his dad out of jail, he wants to go in so they can play
As the lengthy proceedings drag on, the kids are subject to a
rather over-the-top form of harassment. Tired, as they often have trouble
sleeping at night, some drift off in their seats. A man in charge of
courtroom decorum, who himself spends most of the afternoon nodding off,
comes over to wake them, informing them that sleeping is not allowed. When
the kids try and take a discreet sip of water from a bottle, they are
chastised as well by a man who spends his day constantly sipping fro his
own bottle. And when the kids quietly try and find something to do, like
reading a book or doing a crossword, the decorum chief, who also reads a
book, tells them not to.
The kids say it's not fair, that it's a double standard. Their
experience of the court system is similar to their dad's, who also
experiences the double standard of the Canadian judicial system, where, as
with the cases of the other secret trial detainees -- indeed, as it is for
anyone without citizenship status-- there is a lesser form of justice
available, where indefinite detention without charge and deportation to
torture apply ONLY to non-citizens.
While these little dramas in the gallery play out, a
complicated-sounding legal debate is taking place before the judge.
In essence, Mr. Jaballah, who is not allowed to apply for bail
under the Orwellian Immigration and Refugee "Protection" Act (IRPA) until
120 days after the judge has ruled on the "reasonableness" of the secret
trial security certificate -- which could take years to complete -- has
brought an application in the Ontario court to challenge this draconian
provision of the act in an effort to seek release on bail pending the
conclusion of all the legal matters before him. (By contrast, a permanent
resident held on a security certificate is allowed a detention review 48
hours after arrest and every six months thereafter. While getting bail is
extremely difficult under those conditions, which are far more severe than
the standard 30 day review for most in immigration detention -- Adil
Charkaoui had to try four times before finally getting a very restrictive
release last February -- Jaballah, a refugee fleeing torture in Egypt, does
not have access even to that regime).
But the federal government has filed a motion to stay the
application, arguing the Federal Court of Canada is the best place to hear
such a challenge. However, as the lawyers for Jaballah will eventually
argue, this does not make sense. Under the IRPA, the Federal Court judge in
charge of hearing a secret trial case (called the "designated judge") has a
very limited mandate, which does not include hearing constitutional
challenges. The role of the designated judge is to rule on the
"reasonableness" of the certificate (a ruling that employs the lowest
standard of "proof" of any court in Canada), the lawfulness of the federal
government's decision on the detainee's application for protection, and the
availability of bail.
As the complicated business of the secret trial process is
partially explained to the Ontario Superior Court Justice Brian Trafford,
there is a real feeling of discomfort. It's as if the lawyers for the
government, who make a living from what is perhaps the most unsavoury
"legal" proceeding in Canada, are embarrassed that their little secret is
Questioning from Justice Trafford indicates his disbelief that this
is taking place, and that there appear to be no guidelines for making sure
the process is carried out expeditiously.
"Does the scheme (of IRPA) lay out timeless for this process?"
A lawyer for the government stumbles, claiming "there are no
guidelines, but there are tools."
This is most unhelpful.
Trafford's questions cut through the haze, and put the government
lawyers on a very shaky defensive.
What relief, if any, is allowed the detainee if the process is not
proceeding as expeditiously as it's supposed to, he asks. Is it reviewable?
"What if it is taking too long and the respondent [detainee] is in a place
that's oppressive?" he asks.
Government lawyer Donald MacIntosh responds that the deatinee "can
always go back" to the country to which Canada is trying to deport him.
Indeed, the secret trial five are repeatedly told that they are all "free"
to return themselves to torture or murder if that's what they want. It's a
sick way of saying they have no right to complain about their lengthy
detention, because they would be released from behind bars if only they
took that one-way plane ticket back to another country's dungeon.
"What if he doesn't want to go back and wants bail pending
[completion of the matter]?" Trafford asks.
MacIntosh behaves like a little boy in front of the school
principal, trying hard as he can to justify bullying behaviour that even he
knows is unacceptable. "These hearings are conducted expeditiously," he
claims, a surprise to someone like Mohammad Mahjoub, for example, whose
application for bail has been ongoing since May, 2003.
Macintosh says that the scheme under IRPA is "comprehensive" and
well laid out by Canadian Parliamentarians.
Trafford says that it does not seem to matter to those legislators
how long the process takes, all the while the detainee is "languishing
under oppressive conditions."
It takes hours as the government lawyers jump through hoops trying
to show how a broken process works, at least in their mind. But to no
"So it doesn't really work, does it?" a frustrated Trafford
complains at one point.
Tuesday morning begins with more pointed questions from the judge.
Why can't there be a place to hear such an application, and why is
everything so confrontational? It paralyzes the system, Trafford says.
"Do you have ANY instinct to get this to a hearing on the merits?"
Trafford pointedly asks Macintosh. "Here's a man who says, 'I want a
hearing.' So surely our system can accommodate a man who wants bail. My
concern is that the attorney general's spirit is to block a hearing on the
merits," Trafford says, noting that such an obstruction has been done
skillfully, but that "You, as counsel, should agree, 'yes, let's have a
Macintosh, in a corner, suddenly lets out that he is willing to
allow such an uncontested hearing -- if it is done in Federal Court before
the designated judge. But of course, this gets us back to the reason why we
are in Ontario court in the first place: the Federal Court will not hear
such a challenge.
Lawyers John Norris, Barb Jackman and Andrew Brouwer appear for
"The attorney general has attempted to stymie every effort to raise
constitutional issues," Norris begins, noting the attorney general has
attempted to restrict jurisdiction of the designated judge as much as
possible. Therefore, "this court has a perfect opportunity to take a
principled position" with respect to granting jurisdiction to hear
Jaballah's bail application.
Norris says that by having this sent back to the Federal Court, it
is simply another "opportunity for futility," as Justice Mackay of the
Federal Court will no doubt look at the application and reply, "too bad,"
because he won't hear it.
Norris picks apart the government case, noting it rests on a number
of very shaky foundations.
The government claim that the secret trial scheme is
"comprehensive" is hopelessly naive, as Norris points out. Indeed, the
statute provides a single offer: you apply for bail 120 days after [a
security certificate has been found "reasonable"], but, "until then, you
must be detained no matter how long it takes and no matter under what
conditions. This is not comprehensive" with respect to issues like liberty.
Norris points out that this detention begins with an "opinion"
based on a secret security intelligence report. Boom: arrest, detention
"Is there any mechanism for a hearing at that [initial] stage?"
"Absolutely not," Norris says, noting "detention is automatic
without the usual criteria courts apply in asking whether that detention is
"So there is no way this is a comprehensive scheme," Norris
concludes. "The Act expressly forecloses even raising the issue.... At its
core this is not a case about immigration, even though it arises under
IRPA. In substance, it is a case about liberty, and whatever the Federal
Court knows about immigration, it is NOT an expert on liberty. This court
[Ontario Court] certainly is."
Barb Jackman provides a timeline to the judge, noting that there
have been innumerable unnecessary delays from the government in proceedings
with respect to Jaballah, even to the point that the Federal Court found
the government to be guilty of an abuse of process.
Part of the problem, she points out, is the government needs to
make a final decision about a protection for application before an
individual can have his security certificate hearing. "You can't make [such
an application] afterwards," she notes. And so, as in the case of Jaballah
and other secret trial detainees, the government has been making such
decisions, after excessive delays, and the Federal Court, on judicial
review, has found all of these decisions to be unlawful, patently
unreasonable, and, in one case, perverse. And so the decision must be sent
back for a new determination, all the while the individual remains
detained, with no bail.
"And in all of these cases they are not protection decisions,
they're decisions to deport to torture," she reminds the court.
The hearing ends with the judge promising a written decision very
In the meantime, it is more waiting. For Jaballah, for his family,
and for the other detainees and their families.
In another part of Metro West Detention Centre, two lengthy hunger
strikes continue with no apparent end in sight. Today marks day 60 of a
hunger strike for Hassan Almrei, who is demanding the same rights as other
federal inmates. Mohammad Mahjoub has not eaten for 45 days, protesting his
general mistreatment at the facility. Both are in solitary confinement.
The Ontario government is refusing to budge on their demands,
insisting that the matters be taken to court.
No one from the government has met with either man. It makes it
easier to dismiss their humanity. Standard practice for the government and
those who do its bidding.
(report from Matthew Behrens of the Campaign to Stop Secret Trials in
Canada, PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0,
www.homesnotbombs.ca, tasc at web.ca)
(Donations are gratefully accepted for this work. Cheques can be made out
to Homes not Bombs)
More information about the imc-ontario-stories