The fight for the soul of Canada's justice system (long)

posted on December 13, 2004 | in Category Security Certificates | PermaLink

Original author: Andrew Duffy Source: The Ottawa Citizen URL: [link] Date: December 12, 2004 TERROR V. TORTURE: Even the judges hate the security certificate process

Justice James Hugessen took the podium at a Montreal conference and dispensed with his usual disclaimer about speaking only for himself. He was, Judge Hugessen said, representing his colleagues on the bench of the Federal Court as he turned his remarks to special provisions of the Immigration and Refugee Protection Act -- provisions that require judges to hear government evidence against foreign nationals accused of terrorism in the absence of both detainees and their lawyers. The extraordinary measures are part of the security certificate process, and using it, the government deports people whom the Canadian Security Intelligence Service deems terrorists."I can tell you, because we talked about it, we hate it," Judge Hugessen declared in language blunt for a politician, never mind a judge.

"We hate hearing only one part. We hate having to decide what, if any, sensitive material can or should be conveyed to the other party....

"We greatly miss, in short, our security blanket which is the adversary system that we were all brought up with and that, as I said at the outset, is for most of us the real warranty that the outcome of what we do is going to be just and fair."

He suggested the system is unnecessarily secretive and would, unlike any other court proceeding, allow evidence to be permanently sealed from public scrutiny.

"I am not sure what the judges of the Federal Court are doing in the picture and, if I may be forgiven for using the expression," he concluded, "I sometimes feel a bit like a fig leaf."

Judge Hugessen made his remarks on March 26, 2002, by which time, 24 people had appeared in the Federal Court of Canada after security certificates alleged they were a threat to the nation. Since then, three more men have joined their ranks. Five of seven men now detained as security threats are Arabs. All of them entered Canada by claiming refugee status during the mid-to-late 1990s.

All of them claim they will be tortured if deported to the repressive regimes from which they fled.

It is this potential consequence that makes Judge Hugessen's public confession -- that he feels himself a bit of a fig leaf -- so significant.

Because at stake in security certificate hearings are two absolutes: The nation's collective right to be secure from terrorism and an individual's right to be free from torture. Indeed, these cases will demand that judges answer a searing question: When does the threat of a terrorist act on Canadian soil outweigh the repugnant possibility of sending a man to be tortured in his homeland?

The answer will cut to the heart, some say the very soul, of Canada's justice system.

Yet many in the legal system -- including Judge Hugessen, who presides in the court that must hear the cases -- are concerned that the security certificate process is itself so unfair that justice cannot be done to the weighty issue involved.

In October, an ad-hoc coalition of law professors and defence lawyers wrote to Public Safety Minister Anne McLellan, setting out the egregious flaws they say combine to deny due process to those held as security threats.

The procedure, they wrote, allows for the indefinite detention of foreign nationals based on secret evidence while holding the government to such a low standard of proof -- a judge must only find the certificate is "reasonable" to trigger a deportation -- that it denies detainees a meaningful chance to win their freedom.

"As undeniably serious as these violations are," the lawyers wrote, "they pale in comparison to what, for some, is the eventual outcome of the process: torture, which is perhaps the ultimate violation of human dignity and fundamental human rights."

The letter to Ms. McLellan was endorsed by more than 60 Canadian law professors and legal association representatives, including Sharryn Aiken, assistant professor of law at Queen's University, and past president of the Canadian Council for Refugees.

"I'm not saying nobody is a security risk," says Ms. Aiken. "But what I am saying is that we have an absolutely profound obligation to make sure we make the right decision. And if our procedures aren't set up to ensure that, then we have a real problem."

Defenders of the security certificate process, however, contend it is an immigration safeguard that ensures Canada will never become a haven for terrorists. Alex Swann, a spokesman for Ms. McLellan, says the secretive process is necessary to protect intelligence sources and national security. What's more, he says, that process has been endorsed by the Supreme Court of Canada, which has left the door open to deporting people who face a substantial risk of torture because of the vital national interest in fighting terrorism.

"Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge," the Supreme Court has said.


Ottawa's Mohamed Harkat is a short, powerfully built man whose face clouds with darkness as he talks about the prospect of being sent back to Algeria.

Interviewed in the Ottawa-Carleton Detention Centre where he's been held as a terrorist threat since his arrest on a security certificate in December 2002, Mr. Harkat said he can never go back to Algeria, a country from which he fled in March 1990, as a political activist wanted by the police.

Mr. Harkat was then a member of the Islamic Salvation Front (FIS), a fundamentalist party that promoted free markets, lower taxes, cuts to military spending and an end to government corruption. The party was outlawed in 1992 after a military coup pre-empted national elections that were expected to bring the FIS to power.

Mr. Harkat says being branded a radical Islamic terrorist by Canada, a country with an international reputation for fairness, is a death sentence in Algeria. "In Algeria, the army, if they get me from Canada, they are going to kill me," he told the Citizen.

Mr. Harkat, who held jobs pumping gasoline and delivering pizza in Ottawa, could be deported to Algeria if Federal Court Justice Eleanor Dawson finds that two federal ministers made a reasonable decision in issuing a security certificate against him.

To make that determination, Judge Dawson will be using the process established by the Immigration and Refugee Protection Act, which became law in June 2002. The law adopted the anti-terrorism measures of the 1989 Immigration Act, but extended their reach to anyone in Canada who does not hold official citizenship.

That means the law applies to everyone from a refugee claimant who just stepped off a plane to an immigrant who has been in Canada for decades, but has not acquired official citizenship. (Canadian citizens suspected of terrorist-related activities must be charged under the Criminal Code.)

After Mr. Harkat's arrest, Judge Dawson heard the evidence against him in secret, in the absence of both Mr. Harkat and his lawyer. The government argues the secret hearings are necessary to protect its sources and the security techniques used to acquire information.

It means Judge Dawson did not benefit from the cut-and-thrust of a normal courtroom, since only government lawyers were present when the case against Mr. Harkat was made. If witnesses did testify -- Mr. Harkat doesn't know if they did -- Judge Dawson would have to cross-examine them.

This is the situation that Judge Hugessen complained about so bitterly in his address to the legal conference. "Good cross-examination requires really careful preparation and a good knowledge of your case," Judge Hugessen said. "And by definition, judges do not do that. We do not get to prepare our cases because we do not have a case and we do not have any knowledge except what is given to us. And when it is only given to us by one party, we are not well-suited to test the materials that are put before us."

Aware of this problem, Mr. Harkat's lawyer, Paul Copeland, asked Judge Dawson to appoint a special advocate to help her examine witnesses and assist her in testing the strength of the government's evidence. Such an individual would be bound to secrecy, Mr. Copeland said, and would not be obliged to reveal sensitive information to Mr. Harkat because there would be no lawyer-client relationship.

Judge Dawson, however, rejected the suggestion and, after listening to the government's case in-camera, approved the public release of a 40-page brief based on the evidence supplied by CSIS.

This brief represents all of the "disclosure" in the case -- all of the evidence to which Mr. Harkat can respond in court. (Mr. Copeland submitted 231 questions to the government, asking for more detail about its case. The government, in turn, has refused to answer the vast majority of those queries, citing national security.)

The central claim of the CSIS brief is that Mr. Harkat has lied about his terrorist links since arriving in Canada in September 1995, after five years as a relief worker with the Muslim World League in Pakistan.

CSIS alleges Mr. Harkat travelled to Afghanistan in that time and developed an association with Abu Zubayda, one of Osama bin Laden's top lieutenants. Mr. Zubayda was arrested in March 2002, in Pakistan and later handed over to U.S. officials. Media reports said that Mr. Zubayda had been tortured.

CSIS claims Mr. Zubayda has identified Mr. Harkat "by description and activity" as operating a guest house in Peshawar, Pakistan, for mujahideen travelling to Chechnya.

On the witness stand, Mr. Harkat has denied travelling to Afghanistan, meeting Mr. Zubayda or working for al-Qaeda. He has produced documents, showing he was employed for four years by the Muslim World League as a warehouse supervisor.

Mr. Copeland maintains that without knowing the specific allegations against Mr. Harkat -- when he allegedly travelled to Afghanistan, for instance -- it is difficult to mount more of a defence.

The government has not called witnesses or introduced any evidence during the public portion of the hearing into the reasonableness of the security certificate. That has been possible because the normal rules of evidence do not apply in the security certificate hearings. Mr. Harkat's lawyer has not been able to cross-examine the CSIS agents who built the case against him, nor has he been able to cross-examine the witnesses upon whom CSIS relied.

The process, Mr. Copeland says, makes it impossible to assess the quality of the security agency's information. The judge has no way of knowing whether it has been obtained by offering special incentives to informants -- assistance on an immigration application, for instance -- or through the application of torture by foreign agencies, as is alleged in the case of Mr. Zubayda.

"The whole legal process as we normally constitute it is turned on its head in this stuff," says Mr. Copeland.

To uphold the security certificate, Judge Dawson must only find that the government's case against Mr. Harkat is reasonable. Mr. Harkat will have no right to appeal that decision. (A criminal case must be established beyond a reasonable doubt; a civil court case is weighed on a balance of probabilities. The standard of reasonableness is lower than both.)

The security certificate has clearly become the government's preferred method for dealing with terrorist suspects. Since Sept. 11, 2001, only one person has been charged criminally in Canada as a terrorist connected to Islamic extremism -- Ottawa's Momin Khawaja -- while four men have had security certificates issued against them.

Critics contend that is a reflection of the fact that the bar of proof is set so much lower for a security certificate than a criminal charge. "It's easier, faster and cheaper on the immigration side," says Ms. Aiken.

Advocates of the law suggest it is a necessary method for fast-tracking the expulsion of terrorists from Canada. Those who arrive in Canada and claim refugee status, the proponents argue, should not have the same array of legal rights as full-fledged citizens.

Without such an avenue, they say, terrorist suspects would be able to invoke one court appeal after another to frustrate their deportation.

What's more, says Louis Dumas, the government's director of security review, the certificate process must be understood as an "extreme measure" applied in a tiny fraction of cases, given that Canada accepts about 230,000 immigrants a year.

Mr. Copeland says the thing that frightens him is that at the end of a deeply flawed judicial process -- one stacked against Mr. Harkat -- his client could still be deported to face torture in Algeria. "I regard this case to be as serious as a capital punishment case," he says.


If the Federal Court upholds the security certificate against Mr. Harkat, how will it decide whether to send him back to Algeria where, he insists, he will be tortured or killed?

The Supreme Court of Canada has already set some guidelines. In January 2002, addressing the case of Manickavasagam Suresh, a refugee detained because of his involvement with a Tamil terrorist group, the Supreme Court ruled terrorist suspects can be deported only in exceptional circumstances to countries where they face a substantial risk of torture. (The ruling forced the federal government to reconsider its case for deporting Mr. Suresh.)

But the Supreme Court did not define those exceptional circumstances. Rather, the court said, the scope of the exception would be defined as individual cases moved through the court system: "The ambit of an exceptional discretion to deport to torture, if any, must await future cases," the judges wrote.

It means that the cases now before the Federal Court will likely determine if and when this country, which has signed international covenants against the use of torture, is willing to countenance torture to protect its national security. At least one will test what the Supreme Court meant by exceptional discretion.

"That will be a profoundly important moment for human rights protection in Canada," says Alex Neve, secretary general of Amnesty International Canada.

In two cases -- Egyptians Mahmoud Jaballah and Mohamed Mahjoub -- the federal government concedes the men face a substantial risk of torture if deported. But in each case, government lawyers have argued that they should be sent home anyway.

Earlier this year during a deportation hearing, federal lawyers argued the need to protect the security of Canadians trumps Mr. Jaballah's right to personal safety.

"Every Canadian citizen, every visitor, every permanent resident has the right to life, liberty and the security of their person and deserves protection from people like Mr. Jaballah," lawyer Donald McIntosh said. "They deserve protection from people who, if left to their own devices, would assist and facilitate the kinds of diabolical acts like those of Sept 11."

Mr. Jaballah's lawyer, Barbara Jackman, says the government's argument ignores the fact that there are alternatives to deportation, including court-imposed conditions that restrict a person's movements and contacts.

"I don't think there can be a balancing when it comes to torture," she said. "I think you have to look for other measures to protect security short of sending someone back to torture."

The Supreme Court has already approved the deportation of security threats who face a "minimum risk" of torture if returned to their homelands.

In June 2002, Mansour Ahani was sent back to Iran based on the Supreme Court's ruling that he failed to establish the case that he faced a substantial risk. CSIS alleged that Mr. Ahani, an Iranian who gained refugee status in Canada in 1991, was a trained assassin working with the Iran's intelligence service, the MOIS.

Mr. Ahani was deported and was last reported to be unharmed in Iran. The National Post in September 2003, published an interview with Mr. Ahani, in which his primary complaint was his inability to find work.

Although the Ahani case would seem to support the Supreme Court's view that deporting terrorists who face a minimal risk of torture is a reasonable practice, the United Nations has taken a different view.

The UN Human Rights Committee, in response to an appeal from Mr. Ahani, sought to forestall his deportation to Iran. When the deportation went ahead anyway, the committee denounced Canada for "flouting" the International Covenant on Civil and Political Rights, to which it is a signatory.

The committee criticized the process leading to Mr. Ahani's removal as "deficient" while reminding Canadian officials that the covenant includes an absolute ban on deporting people to face torture. It is a ban, the committee said, that "is not subject to countervailing considerations" such as Canada's determination to combat terrorism.

Ms. McLellan's spokesman Alex Swann says Canada has yet to deport anyone to a country in which they face a substantial risk of torture. But the government does not rule out the possibility that it will be necessary, he says, in a future security certificate case. "We have to look at everything on a case-by-case basis," he says.

Ms. Aiken believes Canada must honour the human rights treaties it has signed. She wants the Canadian government to ban any future deportations to torture while the security certificate process is overhauled.

The Liberal government of Prime Minister Paul Martin, however, has so far shown no inclination to revisit the security certificate process or to ban deportations to torture. There is no plan for a review of the law that underpins the certificate process.

Such a review is taking place in Britain, even though many observers believe it already offers more due process to its suspected terrorists than Canada. Ironically, Britain handles those suspects using a model that Canada used to employ -- and to which, some say, Canada should return.

In 1997, Britain, after being criticized by the European Court of Human Rights for its approach to deporting terrorist suspects, introduced a three-member panel to review cases in which the government has decided to expel foreign nationals for security reasons.

Known as the Special Immigration Appeals Committee, the panel consists of a High Court judge, a judge familiar with immigration matters and an intelligence expert with security clearance. A special advocate -- usually an immigration lawyer -- represents the interests of the detainee during any hearing closed to the public. (The advocate is not the detainee's lawyer so there's no obligation to divulge information heard in secret.)

The British system was based in part on a Canadian model. Created by the same 1985 legislation that established CSIS, Canada's Security Intelligence Review Committee (SIRC) used to review all decisions to deport individuals for reasons of national security. The committee, which continues to review the operations of CSIS, consists of five Privy Council members.

When it reviewed deportation decisions, SIRC used a special advocate during its in-camera hearings. Sworn to secrecy, the advocate had access to all of the evidence against an individual and could cross-examine government witnesses. The special advocate also negotiated with lawyers for CSIS to determine what evidence could be included in a summary issued to the alleged terrorist.

SIRC's role in reviewing deportations, however, began to be curtailed in light of what was then considered a national emergency. On Aug. 11, 1987, Parliament was recalled from its summer recess to deal with the crisis caused by the arrival in Nova Scotia of 174 Sikh refugees who waded ashore after being dropped off by a steamer.

The resulting legislation limited SIRC's role to the review of deportations involving permanent Canadian residents. All other cases that touched on national security would be handled by the Federal Court.

SIRC's role was completely eliminated in 2002 when the government again reworked its immigration and refugee laws, this time in the wake of national security concerns raised by the Sept. 11, 2001 attacks and by the case of Ahmed Ressam of Montreal, a failed refugee claimant who took part in an al-Qaeda plot to bomb the Los Angeles International Airport in December, 1999.

The government handed the Federal Court authority to review all deportations related to national security over the written objections of SIRC committee members, who then included former premiers Bob Rae and Frank McKenna.

Discussing the proposed changes in their 1999-2000 annual report, SIRC members said the committee had "unique expertise" in relation to national security and intelligence matters. "We believe," the committee wrote, "that this proposal would remove important existing safeguards on the activities of CSIS that could have a serious negative impact on national security, on individual rights, or on both."

Lawyers such as Barbara Jackman want the security certificate cases returned to SIRC.

"SIRC has a deeper expertise in these issues," Ms. Jackman says. "Federal Court judges don't have expertise in this area. I think their backgrounds don't lend themselves to any kind of real understanding of the issues. They're not people who dealt with these kind of issues in the past. I don't think half of them ever met immigrants before they got appointed to the bench.

"The Federal Court, if CSIS says black is white, the Federal Court will say, 'Fine, black is white in this case.' Whereas the SIRC appears to take a different stand."

- - -

The review of Bill C-36, the Anti-Terrorism Act, was launched Thursday and The Citizen is using the occasion to examine changes to the country's national security apparatus since 9/11 -- and their impact on Canadians. The act -- among the most sweeping and complex laws ever passed -- fundamentally altered the balance between the rights of the individual and the need to secure the state. In this week-long series, The Citizen will examine:

- The new mandate of the RCMP in national security;

- The pressure on the RCMP and CSIS to share information with each other -- and other countries;

- The secretive court process in place to deport suspected terrorists;

- The risk Canada faces from terror attacks;

- The 'culture of suspicion' Canada's Muslim community now faces.

Ran with sidebars "The cases of the seven men the governmentis holding on security certificates and wants to deport" and "Oftrust and torture" on page A8.

© The Ottawa Citizen 2004