By Matthew Behrens
For rabble.ca
In a major setback to a Liberal government still refusing to
repeal the repressive Bill C-51, the Federal Court has found unreasonable the
secret trial security certificate against the long-suffering Mahmoud Jaballah,
almost 20 years to the day that the Egyptian refugee and his family arrived in
Canada seeking asylum from the Mubarak dictatorship. While the written decision
for this finding has yet to be released, this hopefully brings to a close an
18-year legal fight that helped spur an international campaign of condemnation against
Canada’s use of secret trials, indefinite detention, deportation to torture, and
the patently illegal practices conducted by Canada’s spy agency, CSIS.
Jaballah,
who was jailed without charge and tortured on many occasions in Egypt (as was
his wife, Husnah, who was twice detained and tortured in front of him), was
originally arrested in 1999 under the much criticized security certificate,
alleging he was a threat to national security. The problem he faced? He was not
allowed to see the secret case against him in a process that allowed as
evidence anything not normally admissible in a court of law. CSIS had
originally approached him to spy on his community, and he refused. The response
of CSIS was clear: cooperate or you will be jailed and deported to torture.
CSIS
CAUGHT LYING
Jaballah’s
then 11-year-old son, Ahmad, was forced to translate through his own tears one
very late night for the CSIS interrogators, whose own translator had fallen
asleep and was snoring on the couch well after midnight. Young Ahmad could not
sleep anyhow: their family of 8 lived in a small two bedroom Scarborough
apartment where the noise of the interrogation kept everyone up. While CSIS
agents confidently terrorized Jaballah, they were unaware that Ahmad and his
mother had placed a tape recorder in the hallway, figuring it might come in
useful. Sure enough, when CSIS was examined in open court much later on about
whether they were in the business of extortion and threats, they of course
denied that they could ever engage in such an odious practice. When the tape
was produced, it went a long way towards obliterating any “credibility” CSIS
may have had in the case, and in an almost unprecedented historical moment, the
certificate was thrown out after Jaballah spent some 7 months in detention.
Jaballah's three youngest children at the Metro West Jail Sleepout, Summer, 2002
But
the nightmare did not end there. As is standard CSIS practice, the spy agency
continued asking about Jaballah in the community, putting out the word that
they would get him. In August 2001, while leaving the school where he was a
principal and his wife a teacher, Jaballah was surrounded by heavily armed RCMP
agents whose high-risk takedown was as unnecessary as it was baseless. Once
again back in jail, Jaballah was behind bars during the 9/11 attacks, and would
not be able to hug his kids for another 8 years. At the first public portion of
the secret trial in the fall of 2001, a CSIS agent admitted there was no new
evidence against Jaballah, only a new interpretation of the old information
that had already been thrown out by the Federal Court as unreliable.
Jaballah faced horrific times behind bars, with long years in
solitary confinement, hunger strikes, untreated medical conditions, and the
pain of a family growing up without him while fending off terror allegations
that could never be disproven because they were secret.
DEPRIVATIONS OF JUSTICE
Along
the way, the severe deprivations of justice that were the core of the process –
originally solidified under the Trudeau government in the 1970s – produced some
remarkable zingers that were accepted at face value by a series of Federal
Court of Canada judges (all of whom would later learn that they were lied to
behind closed doors). In one instance, a CSIS lawyer argued that Jaballah was a
terrorist communications relay expert because when he came to Canada, he not
only wasted no time in setting up a Bell phone account, but also carried a cell
phone with him while his wife was pregnant, “procured” a fax machine (because
Arab Muslims don't simply purchase, they “procure,” usually with eerie music
playing in the background), and started learning to surf the internet. Readers
with such skills: beware, you may be next.
In
another instance, CSIS alleged without foundation that Jaballah was in touch
with an overseas terrorist leader because some calls were allegedly made to a
suspicious satellite phone from payphones within a 4 km radius of Jaballah’s
home, which at the time was situated in the densely populated Toronto suburb of
Scarborough.
BIRTHING A CAMPAIGN
I
got to know the Jaballah family shortly after his second arrest, and it was
here that the Campaign to Stop Secret Trials in Canada was born, still fighting
15 years later for an end to the barbaric secret trial process and deportation
to torture. It has been a long journey for the men, their families, and
communities that live in fear that one of their loved ones could be next.
Things really began to turn around in 2003 when the secret trial families
started speaking with each other and to the media about their ordeal, and the
narrative changed from “terrorist threat” to “secret trial detainees who
deserved due process.”
Jaballah's two youngest sons, marching from CSIS in Toronto, 2007
Supporters spent years in court on hard
benches as heinous allegations were hurled at their loved ones in the docket, while
some of Canada’s top lawyers, including Barbara Jackman, John Norris, Paul
Copeland, Rocco Galati (who won the first case) and Marlys Edwardh waded through mountains of litigation trying to
declare the process unconstitutional (a battle that was won with a unanimous
Supreme Court decision in 2007. Celebrations were short-lived, though, as the
Harper Conservatives teamed up with the Liberals to support continued use of
secret trials, with some window dressing amendments). There were scores of street
demonstrations, sympathy hunger strikes, long-distance walks, lobbying missions
to Ottawa, jail sleepouts, and civil disobedience, all of which put a human
face on one of this country’s most regressive and repressive policies. A fund
started by the sons of Julius and Ethel
Rosenberg (murdered by the U.S. government as Red Scare sacrifices) to aid the
children of detainees contributed to the costs of Ahmad Jaballah’s tuition. With
people from coast to coast writing letters to and visiting with Jaballah and
other detainees known as The Secret Trial Five, it got to the point where CSIS
Director Jim Judd threw up his hands in disgust, complaining these alleged
threats were being treated as folk heroes.
. Along
the way, any glimmer of hope was always dashed with an equal measure of
judicial reticence and compliant media, who continually repeated allegations
with no factual basis and refused to ever challenge the court when a judge
would say “we’re going into closed session.” Yet the media would fight to open
up the same court when one of the detainees asked for private details of their
lives to be kept out of the public realm when they felt their lives or those of
loved ones were at risk. Even when two
of the cases were dismissed – one case (Adil Charkaoui) withdrawn when the
government refused to comply with an order to produce some classified
information, the other (Hassan Almrei) a victory in which the CSIS case was
found unreasonable – the government continued its campaign of selective leaks
and community innuendo against the men. In the age of google, it doesn’t matter
if you win against CSIS: the taint of the allegation is forever available to
anyone who opens a computer screen.
Meantime,
Ottawa’s Mohamed Harkat and Toronto’s Mohammad Mahjoub, whose cases were found
“reasonable” by Federal Court judges who relied in secret information that
could not be challenged, are now fighting deportation to torture in Algeria and
Egypt, respectively.
Mahmoud Jaballah
While
the Campaign to Stop Secret Trials was ultimately successful in stopping the
use of secret trial security certificates – none have been issued in over a
decade – many of the court precedents in their cases have been used to insert
more secrecy into refugee proceedings and other aspects of government control
of targeted communities. Indeed, the process was lifted word for word into C-51
under a number of sections. But as Public Safety Minister Ralph Goodale
considers a review of state security, he would do well to look at the weakness
of these cases and the human damage they did to the detainees and their loved
ones, all of whom will suffer the ill-effects of the past two decades long into
the future.
JUDGE MAKES MISTAKE
In the spring
of 2003, the second certificate (the one issued in 2001) was upheld against
Jaballah on flimsy grounds as well as ON secret information neither he nor his
lawyer ever got a chance to see, much less cross-examine. That set in motion
the deportation process, in which the Liberal government of the day (with
Immigration Minister Denis Coderre playing an odious role) found that Jaballah
faced a substantial likelihood of torture or death if deported to Egypt, but
recommended he be sent anyhow for the “safety” of Canadians. Coderre approved
his department’s callous finding that "Mr. Jaballah has been detained
apart from his children for some time; I cannot therefore conclude that Mr.
Jaballah's removal from Canada would deprive his children of his emotional and
financial support any more than his current detention has."
One of
Jaballah’s legal challenges at the time focused on a section of the immigration
act that made him and fellow detainees the only people in Canada who were
prohibited from applying for bail. It made Federal Court Judge MacKay wonder
aloud one day at the end of a long hearing whether Toronto had its own version
of Guantanamo Bay.
The danger of
the secret trial process, in which one side sat in secret with a judge, was
revealed one day in 2006. We were shocked when, sitting in court, Judge MacKay
admitted: "It looks like I made a mistake," in
reference to his use of a piece of "evidence" that was one of the key
reasons he employed to conclude in May, 2003 that the government's second
security certificate against Jaballah was "reasonable." It turns out,
in fact, that this "evidence" did not exist. Three years of Jaballah’s
life were spent behind bars in part due to this “mistake.”
GITMO NORTH
After the
process was unanimously declared unconstitutional by the Supreme Court in 2007,
the Federal Court, working with an Ottawa professor, worked diligently not to
abolish the practice and raise the standards, but to introduce security-cleared
“special advocates” who have some access to some of the case. But the detainees
had no more more clues about the reasons for their detention. While held at the
notorious Guantanamo North facility in Kingston, Jaballah and his fellow detainees
remained on punishing hunger strikes of between 80 and 160 days, eventually
released under some of the most draconian bail conditions in Canadian history,
turning families into jailers. Children needed approval from the government to
have friends over to the house; a trip to the grocery store involved applying
for permission a week in advance. All of this was duly recorded by the CBSA,
and shared with CSIS, both agencies admitting this was necessary to continue
their investigations, including the logging of solicitor client calls.
Jaballah
is now a grandfather many times over. His remarkably resilient family has seen
the worst of Egypt and of Canada. Last week, they celebrated the good news,
which still felt like a dream. While it is a major stake in the heart of the
secret trial process, it is not the end of the line. Mohammad Mahjoub of Toronto
and Mohamed Harkat of Ottawa continue fighting deportation to torture after their
cases were upheld based on secret information that is not normally admissible
in a court of law that they were never allowed to see, much less contest.
We have much work still to do on
these and so many other cases, but for now, a brief pause, and a celebration.
At long last.
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