The God That Fails: C-51, Review Committees, and the Dangers of Window Dressing

By Matthew Behrens

            Among the Harper era’s most destructive legacies is a toxic stew of repressive “anti-terror” laws that, in building on similarly repressive measures brought it under Jean Chrétien and Paul Martin, extended major new powers to Canadian state security agencies CSIS (Canadian Security and Intelligence Service), CSEC (Communications Security Establishment Canada), CBSA (Canadian Border Services Agency) and the RCMP, among numerous others. Last year, Justin Trudeau infamously voted in support of C-51 (The Anti-Terrorism Act, 2015), claiming his support of the law was necessary to ensure his electability.

            During the federal election, the Liberals promised to revisit C-51 with amendments they felt would make it more palatable. More recently, Public Safety Minister Ralph Goodale has hinted at a consultation process, committee hearings, and even a broader dialogue on state security issues. While it sounds like a typical Liberal plan (a good listen before they go ahead with their preordained agenda), it nonetheless provides us some space to raise serious questions about the current and traditional role of CSIS, the RCMP, and CBSA, among other agencies, in violating the rights of targeted, vulnerable communities.

Given that the 1984 creation of CSIS from the ashes of the scandal-plagued RCMP Security Service did not change the dynamics of repression in Canada (most former Mounties simply moved their desks to the new CSIS), now would be a propitious moment to discuss dismantling CSIS as an ultimately lawless, dangerous outfit. As this column has repeatedly documented, CSIS has undertaken a sweeping series of illegal and unethical activies over 30+ years: complicity in torture; defiance of court orders; lying under oath to judges; illegally recording lawyer-client calls; terrorizing targeted communities; acting as ISIS recruiters; targeting labour unions, peace activists, Indigenous people, and environmentalists; and a lengthy list of other practices which have endangered the lives of many Canadians. Despite this, CSIS gets an annual free pass and an occasional love tap on the wrist from its watchdog, the Security Intelligence Review Committee (SIRC).

            Indeed, the work of those who struggle to end the real threats to our collective security – climate change, war and Canada’s booming armaments business, a grossly disproportionate income inequality, a deeply-rooted colonial racism, and an epidemic of violence against women – would be a lot easier if we weren’t constantly the focus of investigation by the likes of CSIS and the RCMP. Think of how the heroic Cindy Blackstock was viewed as a security threat for exposing the wretched living conditions of Indigenous children. Members of Canada’s Arab Muslim communities could certainly sleep better at night too, not having to worry that their children were being coerced into spying on the community as a sign of their loyalty to Canada. And without an active CSIS, the number of terror threats coming to trial would decrease significantly, given how many of those cases are either initiated by or facilitated by agents of the Canadian state, perhaps no more clearly than in the Nuttall entrapment case currently being heard in BC.

Beware the Window Dressing

            But instead of questioning the mandates and core practices of these secretive, unaccountable outfits, efforts are already underway to save the system by putting up some nice-looking window dressing and further entrenching a parallel system of secret government. While there is no evidence that repeal of C-51 and the whole slew of post 9/11 “anti-terror” legislation would harm the security of Canadians one whit, some members of the academic-security complex are exercising a preferential option for the powerful in trying to design face-saving measures to keep C-51 intact. 

            Out front in narrowly framing the issue as one of technical and legalistic details are professors Kent Roach and Craig Forcese, who, despite providing much good research on state security measures over the years, nonetheless write in their 2015 book False Security that “we have rarely opposed such laws, although often urged refinements and improvements. And even with C-51 and the earlier 2015 law, Bill C-44, we did not dispute their purported objectives, merely their means and omissions. Our focus has always been on repairing 2015’s security laws, not burying them, something that has put some distance between us and some rights groups that we work with and admire.”

            Herein lies the danger in whatever national discussion about C-51 and the broader state security environment will ensue: our goal should not be making a fundamentally oppressive network of invasive, privacy-busting, human rights-violating agencies work more efficiently.

            While polls indicate most Canadians opposed C-51, Roach and Forcese appear to have taken it upon themselves to save the law with a discussion paper and proposed legislation that is currently making the rounds in Ottawa. “Bridging the National Security Accountability Gap” calls for increased levels of state security review via a “Super SIRC” that would have an expanded review mandate for more government agencies, a secret committee of Parliamentarians, and an “Independent Monitor” who would, in the words of the proposed law, hold office part-time “during good behavior.” In theory, it's an interesting idea, and one much needed, especially for agencies like CBSA, which has no review process whatsoever. But a siloed focus on after-the-fact review fails to question the state security narrative that continues to do so much up-front damage to so many individuals, families, and communities.

            Worse still is the fact that expanded review does nothing to ultimately hold agencies accountable: there is no discussion of creating the capacity to lay charges against agency officials for the wrongdoing that ruins lives. Nor is there any infrastructure proposed that allows independent officials to step in and stop an operation that is acting illegally and at great risk to individuals whose lives are in peril because of shoddy “intelligence” work, exaggerated threat assessments, false labeling, and other systemic problems that have marked CSIS since its birth.

            Perhaps most problematic is the fact that Canadian citizens who have been targeted for torture and continue to live with the horrific aftermath are not front and centre in this proposal. Indeed, any honest attempt to bring accountability to the system would insist on having individuals like Abdullah Almalki, Maher Arar, Ahmad El maati, Muayyed Nureddin, Abousfian Abdelrazik – all tortured with Canadian complicity – playing a key role in all meetings and discussions about how to control what is a shockingly corrupt system operating with complete impunity. But none of them are even mentioned in Bridging the National Security Accountability Gap.

            Instead, the tone of the document is almost a consoling sop to CSIS and their spy brethren. Forcese and Roach soft-pedal their approach with anodyne language, noting state security agencies “may stray into patterns, policies or groupthink impairing their effectiveness.” By using the qualifier “may,” they ignore the substantive public record that such dynamics constitute standard operating procedure. “Such practices,” they continue, “may result in either overreactions causing human rights abuses or underreactions causing security failures.” Again, the qualifier “may” ignores the well-documented record of such human rights abuses over the past two decades. They state such agencies have “sometimes misused” their powers, as if it were an aberration rather than a daily practice. They don't call for repeal of these powers; they simply want to see more documentation of them. In all such instances of problematic state behaviour, they conclude, “Review can counter this tendency.”

Review Cannot Help Today’s Targets

            But review does not help the pour soul trapped in an overseas Syrian or Egyptian dungeon, being tortured based on questions coming from a Canadian agency, as happened in at least half a dozen cases since 9/11. Review is retrospective. It does not rein in, much less stop, abusive practices, especially when findings are not used to prosecute and, where appropriate, punish the acts of secretive officials whose decisions imperil people’s lives.

While we must start somewhere when it comes to reining in and disarming these agencies, these academics’ approach seems more concerned with CSIS’ feelings than those of the victims of state security policies. Indeed, their approach to dealing with agencies marked by a lengthy history of incompetence, dishonesty, and reckless disregard for human life, is a pitifully low standard: “trust, but verify.” What has CSIS, the RCMP, CBSA, and their assorted security agencies done in the past that allows them such a long leash? In a democratic, transparent society, shouldn’t any position short of abolition be based on the much higher standard for secretive, unaccountable agencies: mistrust, question, assume illegality based on patterned behavior over several decades, seek opportunities to hold officials legally accountable, and ensure they do no further damage? But Roach and Forcese’s bias is clear: in stating “review can contribute to an agency’s legitimacy,” they fall into the same trap as SIRC, which time and again sees itself as a liaison between CSIS and the public, trying to explain away CSIS behavior. As SIRC wrote, for example, in 1995, “Our aim is to provide a steadily broadening and deepening public base of information about what CSIS does, why those activities are necessary, and how well the Service carries them out.”

            SIRC’s understanding of its mandate makes them sound more like a PR agency for CSIS than a watchdog tasked with rooting out problematic behavior.

Assuming for a moment that review is one answer to the problems we face, Forcese and Roach correctly argue that review should be independent of government and the agencies they review, but herewith lies another conundrum: the only people who will be appointed to conduct review processes will need to be security cleared by that very government. Will someone with the most intimate knowledge possible of the workings of these intelligence agencies, and hence the ability to properly question the workings of these outfits – say one of the returnees from torture in Syria and Egypt – be allowed onto the review committee? In case you are unsure of the answer, keep in mind that the Liberal government is continuing to fight the legal claims of three Canadians tortured abroad with Canadian complicity – Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin. All suffered intense harassment in Canada and torture overseas during previous Liberal governments.

            But the concerns of the victims of CSIS and the RCMP are not what makes this proposed legislation tick. Rather, it is making sure the spies are comfortable. That is why, in proposing a secret committee of state security Parliamentarians, Forcese and Roach suggest that it be a small group, since that may make it easier to earn “the trust of intelligence agencies in relation to dealing in sensitive information.” But isn’t it CSIS and the RCMP who need to earn our trust, not the other way around?

Shutting Down Whistleblowing

            In addition, Forcese and Roach seek with their proposed legislation to tie the hands of this secret group of MPs, denying them the Parliamentary Privilege they might otherwise enjoy to act as whistleblowers if they see something untowards taking place behind closed doors. As even these academics have acknowledged, much of what is secret is kept under wraps not for security reasons, but to avoid embarrassing the government and the spy agencies. But such a prohibition on Parliamentary privilege makes sense if, as the authors point out, the point of review is to enhance the legitimacy and image of these organizations. Thus, to save the hide of CSIS, Forcese and Roach propose that MPs on the committee who feel something needs public disclosure will face a difficult challenge: breaking an oath of permanent secrecy and being subject to charges which could land them in jail for 14 years.

            The academics also state that government should not have a unilateral veto over what is disclosed. Agreed, but then their proposed legislation does exactly that. In a section on the secret committee’s annual report, they give the Attorney General the power to keep certain information from public disclosure. Imagine this scenario: the MPs learn that CSIS is complicit in the ongoing torture of a Canadian citizen in an Egyptian dungeon. They wish this to be made public. CSIS objects and then goes to the Attorney General. The Attorney General then goes to Federal Court to argue that under the Canada Evidence Act, the information should not be disclosed and, further, that a hearing into the reasons why must be held in secret as well. Such Canada Evidence Act proceedings can take years. The transparency, accountability, and democratic oversight that is the purported point of review is thus stuffed into the ever-expanding secret bureaucracy of state security. The poor soul in an Egyptian prison does not benefit, and any MP who speaks publicly risks jail, thanks to the legislation proposed by Mssrs. Roach and Forcese.

            The problem in calling for expanded review with a “Super SIRC” under these circumstances has long been identified even by those with a preferential option for the powerful. Even Wesley Wark (who is far from a radical critic of CSIS) notes a good working relationship with a spy agency “can distort the critical faculties and independence of a review body. It can also lead to the over-valuing of the relationship between reviewer and reviewed at the expense of the review body’s public function.”

             That has certainly been the case with SIRC, which started out fairly critical of CSIS in the early years, but has since turned into the author of an annual gold-star, happy face report card. While SIRC has occasionally done some very good work –  its staff have written some excellent reports identifying serious problems with CSIS – it operates under the dynamic identified by Wark: they will point out individual problems, but fail to condemn structural abuses and question the broader agenda. In their 1991 annual report, SIRC wrote “our criticisms are no longer based upon strong and fundamental disagreements with the CSIS view of the world [emphasis added]. They are far more the results of differences of opinion regarding the  day-to-day implementation of CSIS policies than, as in the past, our opposition to those policies themselves.”

            SIRC recommendations are not binding on CSIS, which can disregard them with impunity. But let’s assume, though, that the notion of review is a viable approach to the state security conundrum. Can it prevent abuses? The answer would appear to be a very strong “No!” Simply look at the lack of action following the new SIRC report which identified CSIS improperly accessing without a warrant personal taxpayers’ Canada Revenue Agency files. No one has been arrested and charged, much less demoted or dismissed. For all we know, the practice continues, because SIRC does not have the power to put a stop to it, much less the resources to stay on top of the issue.

A Case Study of Review’s Limitations

As another case in point based on real-life  circumstances, let’s examine the lengthy CSIS record of trading information with torturers that led to the rendition and torture of Abdullah Almalki, Maher Arar, Ahmad El Maati and Muayyed Nureddin. All of this was documented by two judicial inquiries where government witnesses shrugged their shoulders, claimed that the post-9/11 terrain was new to them, and that such unfortunate incidents were unavoidable.

Such claims were patently untrue, as this case example shows. Concerns about CSIS relationships with human rights abusers go back over several decades. In its early years, CSIS clearly wished to trade information with torturers unimpeded by what George W. Bush et al. would later condemn as antiquated notions of international law and the Geneva Convention. In 1989, SIRC raised concerns about the CSIS disbanding of a Foreign Liaison Branch which, SIRC said, acted as "an intermediary... [that could] ‘blow the whistle’ on the inappropriate dissemination of information abroad."

            What followed is a decade’s worth of unheeded warnings and concerns. In 1991, SIRC declared quite clearly:  “We continue to be concerned about relations with states having an undesirable human rights record.” But in classic SIRC-style, the deference shown to CSIS is frustratingly supine, since “we recognize the desirability of maintaining limited agreements to ensure that CSIS receives information about emerging threats to Canada’s security.” Apart from the fact that the definition of threats to the security of Canada is so over-broad as to include just about anything – and there are countless examples throughout SIRC reports of over-exaggeration and wrongful labeling of alleged threats – there is no further comment about the problem of receiving torture-tainted allegations. What, exactly, was the desirability of maintaining relations with Assad’s butchers or Mubarak’s brutes?

            Did the concern cited in SIRC’s 1991 report change CSIS behavior? No. The review for 1992-93 noted an example where CSIS “appeared to act without full and prudent regard for a ministerial directive…to ensure that particular caution was exercised when providing information to countries that do not share Canada’s respect for democratic or human values, especially where the information concerned Canadian citizens or permanent residents. In this case, the Service communicated to a foreign agency the details of an individual’s plans to travel to another country and, possibly, to meet with members of a group associated with terrorist activity. The latter belief was based solely on the uncorroborated beliefs of an informant, and was disclosed even though the Service was aware of reports of human rights abuses by security forces in that country. The individual’s full identity was not known to the Service, neither was his citizenship status or any information on his previous involvement with terrorist activity, beyond his believed fund-raising on behalf of the extremist group engaged in the conflict. We consider that the consequences for the individual and his family, had they been identified when they arrived in the foreign country, could have been extremely serious and that a potential tragedy was avoided more by good luck than good judgment. Fortunately, in this case, they were not identified and returned to Canada safely.”

            It should not provide much comfort to anyone that CSIS got away with it and that a potential tragedy was avoided because of good luck.

Did CSIS practices change when they escaped by the hair of their chinny chin chin? No. In the review for 1993-94 – in language that would form a cornerstone of the two judicial inquiries into Canadian complicity in torture led by judges O’Connor and Iacobucci over a decade later – SIRC again reiterated its concern about “the possible consequences to individuals whom the Service draws to the attention of authorities in the region we audited. Adverse information about someone deemed to be an extremist can have absolutely devastating consequences to that person and his or her family. The accuracy of the information provided by CSIS must be a paramount consideration, as well as the importance of the investigation itself….We were interested to note that the Service saw fit to provide information to agencies about persons who the Service did not see as engaged in terrorist activities.”

            CSIS responses as always included patting their SIRC reviewers on the head, assuring them of good intentions, and moving on to engage in the exact same dangerous practices. In 1994-95, CSIS entered into new arrangements with countries in Latin America and Africa with dismal human rights records. “The Committee had serious reservations about the new arrangements with these two agencies, based on recent, publicly available information. CSIS said that it relied on information from Canada’s Ministry of Foreign Affairs about the human rights issue in these countries. We believe that the Service should also consider information from other sources, in view of the potential for abuse of the information it sends overseas.”

CSIS Ignores Human Rights Violations

            In that same review, SIRC raised concerns about how CSIS assessed the risk of human rights abuses in particular countries, noting “two assessments did not appear to take into account the recent, publicly available information from human rights observers who noted an increase in the reports of arbitrary imprisonment and torture, the latter sometimes involving elements of the security intelligence establishment of the foreign country….We noted too that the CSIS assessments did not address allegations of corruption within the security intelligence establishment  and overlooked significant political incidents in the country which took place in 1994. Our concern was that by not considering these information sources, the Service did not present a balanced view of those agencies with which it exchanges information. CSIS responded that it has no mandate to investigate human rights abuses....SIRC’s position is one that we have expressed previously: the Service should avail itself of up-to-date, publicly available reports from reliable non-governmental agencies and the agencies of other states. CSIS would then be in a position to consider a wider range of views about the agencies with which it shares information.”

            Along the way, SIRC repeatedly raised concerns about the failure of CSIS to log exchanges with foreign agencies, which made it difficult for SIRC to conduct its audits (and easy for CSIS to hide unsavoury information about its practices). They raise the issue of “the absence of a paper trail to indicate what was or was not shared with the foreign agencies.”

In other cases, SIRC examined instances regarding foreign agency requests “based on the actual or suspected presence of some Canadians in a region in conflict. [Counter-terrorism] Branch stated that it was sensitive to the issue of providing information to a foreign agency and assured us that both HQ and the SLO were conscious of the possible consequences of responding to the foreign requests. But we were left uneasy about the cases, not the least because the Canadians posed no threat to Canada's national security and due to the foreign country's cloudy human rights record.”

So, SIRC once again raised the possibility that CSIS sharing of sensitive information about Canadians traveling abroad could have catastrophic consequences. Did this change CSIS behavior? No. In 1995-96, we see that CSIS shared information with a foreign agency “about the family members of a person who was of interest to the Service. Furthermore, the information that CSIS gave to the foreign agency appeared to violate a restriction on the types of data being provided to services in the foreign country.”

Did this change CSIS behavior? No. In 1996-97, SIRC found that CSIS “provided adverse information about a person to two Federal Government departments and to an allied intelligence agency” that described the individual as a "witting agent" of a foreign intelligence service, “a potentially damaging statement not substantiated by the documentary evidence we saw. In addition, the authority to investigate him was not properly approved; it did not take into account his immigration status, as required by policy. CSIS later rectified the error.” Again, the problem inherent in SIRC is clear: it can discover such problems, but it does not explain how, exactly, CSIS rectified the error, what damage had already been done, and how SIRC will not have to repeat such concerns in subsequent reports.

CSIS Refuses to Change Practices

That same year, SIRC, in auditing an overseas CSIS post, “found that despite poor human rights situations and political instability generally in many of the countries in the region covered by the post – in addition to high levels of corruption in some cooperating agencies – these organizations continued to receive [favourable CSIS ratings].”

Did THIS change CSIS practices? No. The train of defiance and willful blindness continued in 1997-98, with “an instance where the Service’s sharing of information with a foreign intelligence service was questionable,” while, in reviewing an overly broad request “from a Canadian law enforcement agency to ask several allied intelligence services to conduct records checks on more than 100 people suspected of being involved in transnational crime,” SIRC found “the grounds for some of the requests to be of doubtful validity. For example, one person about whom information was requested was said to have been ‘caught shoplifting.’”

            In the years immediately prior to 9/11, CSIS continued business as usual, with SIRC issuing its annual scold that CSIS “should take all possible care to ensure that the information it provides is not used to assist in the violation of human rights.” The fact that such cautions continued to be issued means that CSIS clearly acts as its own judge and under its own laws, and that these problems must be systemic given that SIRC annually finds them even in the minor spot checks it conducts (they are spot checks given how SIRC’s limited staff and budget prevent it from conducting comprehensive annual audits).

            In the years following 9/11, when Canadians were being tortured in Syria and Egypt and secret trial detainees here at home were being detained based on information coming from those same torture regimes, SIRC reviews of CSIS exchanges with overseas agencies sounded like a broken record. A typical reminder to CSIS emphasized the spies “will need to exercise vigilance to ensure that no information received from an agency is the product of human rights violations, and that no intelligence transferred to an agency results in such abuses.”

            Despite subsequent judicial inquiries and court decisions documenting CSIS and RCMP complicity in torture, those agencies continue to operate under Harper-era ministerial directives allowing them to trade with torturers. But even when such express permission was not provided, CSIS took it anyhow, as indicated by the SIRC review reports.

            Throughout SIRC reports is the language of the stern but kindly teacher, one who provides their ward with important disciplinary direction but has no authority to enforce decisions or to mete out legal consequences. In 2001, when CSIS was lying to an Ontario court judge in a warrant application based on information it knew had been obtained in the torture of Canadian Ahmad El Maati, SIRC was busy holding the hand of the then 17-year-old agency, reminding them that “CSIS should strive for the utmost rigour in its warrant acquisition process, ensuring that allegations in the affidavit are factually correct and adequately supported in the documentation.”  

What to do?

            Clearly, Canada’s state security agencies continue to act outside the limits of the law, engaging in legally questionable operations and bullying behavior that terrorizes communities at home while risking lives abroad. Tackling this issue requires a far more critical approach than that proposed by the academic pair who were made media heroes in the anti C-51 fight, even though they do not support its repeal.

            Perhaps a far better approach is to question the mandates of these agencies and their interpretation of the world. Professors Roach and Forcese, knowing what they do about the abuses committed in the name of security, are shamefully applying a bandaid to cover up the pus when what’s really needed is to lance the boil of state security in Canada.

           Instead, their proposed legislation creates additional layers of secret government while accepting the C51 definition of activities that “undermine the security of Canada.” For those with short memories, that definition is so overly broad that it likely includes every reader of this column. Its lowlights include those whose activity  “adversely affects the stability of the Canadian economy, the financial system or any financial market in Canada without reasonable economic or financial justification.” This section is aimed at Indigenous people resisting exploitation of their lands and pipeline expansion (as well as those brave souls who have shut down Line 9 over the past few months). It also focuses on anyone who “damages property outside Canada because a person or entity with an interest in the property or occupying the property has a relationship with Canada or a province or is doing business with or on behalf of the Government of Canada or of a province,” which likely is aimed at those resisting Canadian corporations engaged in toxic mining despoiling overseas Indigenous lands.

            The definition also applies to peaceniks and anyone who “impairs or threatens the military capability of the Canadian Forces, or any part of the Canadian Forces,”  and anyone who “interferes with the design, development or production of any weapon or defence equipment of, or intended for, the Canadian Forces, including any hardware, software or system that is part of or associated with any such weapon or defence equipment.” Clearly, this is aimed at anyone trying to stop the production and sale of armoured brigade vehicles for the beheading regime of Saudi Arabia.

            If we do have a real consultation on state security, perhaps we can start by tearing up this ridiculous definition of threats to security and naming the true threats that imperil our future. Step one is repealing C51 and much of what came before it. Another step is refusing to buy into the false narratives of national security expounded by state security agencies as well as all political parties in the House (all of whom thoughtlessly use the term “radicalization” without an appreciation for the damage it does to targeted communities). Anything less will only perpetuate the human rights violations that Roach and Forcese’s secret MPs and Super SIRC will cogitate over behind closed doors while everyone else, including the direct victims, will be left in the dark.

Remembering Bernice Katz/Deborah Cass, and the Theatre of Resistance

THE ESPERANZA FUND...

The following story is about my mother, whom many of you met at demonstrations and public events through the years across the U.S. and Canada. Many of you may have seen her perform on stage and TV, or heard her over the radio. A special memorial fund in her name was established by Homes not Bombs to aid the families of Canada's secret trial detainees and other political prisoners and, sadly, it is still needed 13 years later. (See bottom for more details).

(NOTE: 13 years later, we are still raising funds for those affected by the secret  trial process, as well as those behind bars because of Canada's ongoing history of racist colonialism)

In Honour of My Mother
Bernice Katz/Deborah Cass Behrens

May 31, 1930 -- July 20, 2004


By Matthew Behrens

On my mother's cause-of-death certificate, the doctor wrote "Failure to Thrive." This medical term took me aback, for anyone who met my mother would find the term inconsistent with the woman who, despite a lifetime of barriers, managed in her own way to flower, to shine, to thrive.

Indeed, anyone who sat in the light of my mother's all-embracing love would find it difficult to believe she combated a lifetime of physical, social and psychological obstacles which could easily have left her to wallow in bitterness and anger.

Those barriers included being run over by a car as a child, fighting bulimia all her life, suffering thousands of debilitating tiny mini-strokes and Parkinson's, encephalitis, coronary heart disease, dementia and a host of other ailments. She also faced the systemic barriers of sexism and anti-Semitism. Yet despite all this, my mother managed to find a way to express herself, her ideas, and her ideals in a manner which was passionate, loving, and kind.

She DID thrive, as a student, as an actor, as a partner, parent and grandparent, as an advocate for social justice, and as a special kind of mentor to young people in the arts and in grass roots politics.

If she knew I were saying this, she would stop me in my tracks and say, "Oh, stop your bullshitting," hoping to shift attention away from herself, preferring to redirect any spotlight to those around her.

Indeed, to her dying breath, my mother was a truly radical democrat. After the doctors and nurses explained the process of dying -- a cold would start from her feet and hands as the warmth and blood centred on essential organs -- my mother continued to defy them. All night long before she passed on, those areas which had once been cold were warm again.

Her heart, always about sharing, insisted that the "non-essential" parts continue to receive their share of her precious blood. This amazing ticker, condemned two years ago after a major coronary attack, was the organ which continued to work right until the last moment, pumping at an almost desperate pace, screaming out that there were still things to do, people to embrace, faces to caress, politicians to scream at, and a genuine kindness to be shared.

To her last conscious moments, she was apologizing to those who were caring for her -- her wonderful personal support workers, nurses, her family. It all seemed so silly to her, this attention, as she lay at home in her bed receiving palliative care, saying she could get her own water although she could not walk, much less hold a glass.



Antigone
The years leading to my mother's passing were not pretty ones. They were stressful for her, for my father, for our family. We were grateful as always for her laughter, her outrage, her hugs and kisses. But as time wore on, something was missing. Her quality of life had reached an all-time low, and the pain which she only rarely complained about clearly consumed her.

Going through such a process with a loved one cannot help but force us to examine the way in which we treat the elderly and those who have no quality of life. When I think of my mother's pain, and the fact that her life literally became one of lying on a couch or in bed all day, usually lost in a confused sleep and losing interest in food, I think of the practice of putting horses who break a leg out of their misery. That process is legal. Yet people like my mother, or terminal cancer patients, are not given that option of a quick, compassionate way out, even if they and their family have given informed consent.

Indeed, in a culture which rewards people for killing (look at those U.S. generals in Iraq), we prosecute those who, in an act of mercy and compassion, enter into an arrangement with someone who is terminally ill but in full command of their senses, to help ease them out of their suffering.

Euthanasia is a concept which my mother fully supported, and I look forward to the day that the terminally ill, their families, and friends will not be forced to endure weeks, months, and years of watching a loved one slowly, painfully waste away.

My wonderful Aunt Jean (known to her nephews as Auntie "Shtink") spoke to me a few moments after my mother passed away. "Now is a time to celebrate her life," she said. And while words are almost impossible to describe the magical person who was my mother, I hope what's written below can give a small sense of the passionate, loving soul who inhabited that frail, pixie-like body.

  
 Lil Abner
********

Deborah Cass Behrens (nee Bernice Katz) was born on the street. Literally. On May 31, 1930, her mother, Helena Katz, squeezed out her first daughter on the poverty-stricken streets of Transcona, Manitoba. The street remained a place for which my mother would have an affinity the rest of her life, whether engaging the homeless on the streets of Toronto, marching for someone else's rights, or travelling the length of North America to "bring theatre to the people."

Her parents were Russian immigrants from a generation which firmly believed, inspired by the events of 1917, that a revolution might sweep the world, eliminating poverty, hatred, discrimination, and the gross inequities which force so many to live in misery for the benefit of a smug few.

Her father, Abe Katz, was forced to go underground following the Winnipeg General Strike. Her mother, Helena Katz, joined Abe in supporting the Communist cause of the 1930s, about the only place you could go if you wanted to agitate for peace, civil rights, equality, and the social programs we take for granted today: unemployment insurance, health care, workplace safety, and so many others.

Though never party members, they did take a quirky assignment from a CP overwhelmed with people wanting to help and not sure what to do with all these newcomers. Hence, my grandparents took on the serious task of infiltrating the Shriners. A picture of these two proud Yiddish immigrants in Shriner outfits is a testament to their delicate work for the cause! The slight grins on both of their faces informs us that this was one of the more entertaining of their many tasks.

When my mother told us such stories while I was growing up, it seemed still possible to believe in the purity of social struggle, in the ideals of universal equality and solidarity, in the idea that you could fight for these things all the while there was laughter, joy, dancing, and singing, for if the revolution were to create paradise on earth, it had to be the kind fought with love in our hearts, not the kind that would replace one kind of hatred and oppression with another.

It was a passion my mother carried to her final breath, despite her disappointments at the silliness which often divides us on the left of the political spectrum. "Why can't we all just get together?" she would plead. She rejected labels, refusing to identify as a Jew or a communist, insisting that she was first and foremost a Human Being.

At the height of the Depression, her parents established an institution which stands to this day in downtown Windsor: the Canada Salvage store, a place where you can buy almost anything at a decent price, started originally as a place to reclaim the castoffs and remnants of an economic system which produces far too much "crap," as my mother would proclaim.

My mother grew up in a thriving, progressive community along with her older brother Buddy and younger sister Jean. These past few weeks, as Jean sat by her sister's bedside, she would ask my mother to recall the events of the 30s and 40s, when members of the community (Chaverim, or comrades) would join May Day Parades, raise funds for Spanish and later Russian War relief, and gather in a women's reading circle who would meet at their house, arguing politics and screaming in laughter.
 
Wedding Day, 1961, with Bunny and a drunken justice of the peace

It was a time where good and evil were pretty clearly defined, and it was clear to a Canada suffering through Depression that capitalism was an evil (recognized as such even by the CCF, the forerunner to an NDP that avoids using the C word these days). Songs like the "Internationale" and "Which Side Are You On?" weren't lefty nostalgia pieces, but raw, edgy evocations of the struggle necessary to birth a new world.

The raised fist which was one of my mother's personal trademarks was a real, heart-felt symbol of international class solidarity, not an empty display of machismo. It was to the 30s and 40s what the peace sign was to the 60s and 70s--a meaningful symbol not yet bought off to advertise sneakers or sports cars.

Terms like "the people," "the workers," and " the revolution" had not yet been debased by endless debates in the academy, and to the end words like these always brought a gasp of delight and an "Achhhh!" from my mother. Anyone doubting the extent to which such terms were a part of the atmosphere should view Charlie Chaplin's "Modern Times," one of my mom's favourite flicks.

And while some members of her generation no doubt looked back with ambivalence surrounding a lot of issues, rhetoric, and actions, no one could doubt their sincerity.

And sincere they were in this wonderfully anarchistic, Yiddish milieu, where so many wore their hearts on their sleeves and their hopes on their brows. After all, they had nothing to lose and a world to win! So committed to the cause were my grandparents that Abe placed red dye, the colour representing communism, into the still-wet concrete when a sidewalk was poured in front of their Windsor house on Lewis Avenue. To this day, a red walkway leads to that house as if it were a welcome to all who shared those ideals of global solidarity.

In the progressive movement of Windsor, ideals were not simply the focus of Saturday evening debates, they were things which needed to be tested, challenged, and put into practice. Among the "Chaverim" in Windsor was a factory owner who, when his workers went on strike, was told by Abe Katz to settle the dispute with dignity and justice, else he would never talk to him again. Such was the power of that circle that those words had their effect, and the strike was won.

As part of the social movements of the 1930s, progressive summer camps were established throughout North America. Among them was one that my mother's parents had a hand in starting: Camp Naivelt (Camp New World), nestled on the banks of the Credit River just west of Brampton. There the children, getting a real break from the sweltering urban environment, spent the summer learning radical songs, swimming, performing dramatic skits, attending endless meetings about everything under the sun.

They carried the flags left over from May Day parades throughout the summer, and were indoctrinated into the CP dogma of the day. My mother thrived here (I have a picture of her dancing under a huge banner which reads in Yiddish, "Tribute to Heroes and Martyrs.") She eventually became drama director for the camp, also attended by her older brother Buddy and younger sister Jean, whom she lovingly called Shtink ("little stinker").

The land for the Camp was bought by a holding company that did not have a Jewish-sounding name, as this was an era in which signs which read "No Jews or Dogs Allowed" were commonplace. It was not the last time my mother would face the systemic anti-Semitism which was so finely woven into the Maple Leaf.

The songs of Paul Robeson and Pete Seeger and the Almanac Singers, among others, she heard at home and at Camp Naivelt. She sat on Robeson's knee when he stayed at their Windsor house. She sang along with Pete Seeger during his many trips to Naivelt.

Not everyone maintained this passion. Some would remain proud of their association with the camp while others, embittered, would likely prefer to hide their past in the red-baiting 50s and 60s. Following WWII, the RCMP often parked cars outside the entrance to Naivelt, photographing people and taking down license plate numbers of people who went in.

For my mother, politics was not the only the engine which ignited her passions; rather, it was something she had absorbed by osmosis, which informed her every breath, and opened her mind to the many wonders she would discover in theatre school. Indeed, much as the term "the workers" brought her to a reverent, sincere sigh, so too would names like Garcia Lorca, Bertolt Brecht, Jean Anouilh, and William Shakespeare, all of whom produced works which my mother would call "extremely relevant!"



My mother's interest in the theatre developed early. Run over by a car at an early age -- her rib cage was crushed when her distraught father picked her up following the accident -- my mom took dance lessons as part of her physical rehabilitation, through which she developed a passion for the theatre. It was a time of great flowering in the theatre, long before megamusical shlock dominated the stages. Serious drama that could inspire people to change the world was on many people's minds, and organizations such as the left-wing Group Theatre in New York were an inspiration to her.

It was in this milieu that my mother went to the Goodman Theatre in Chicago, where she was exposed to much of the then underground flowering cultural scene, discussions about sexuality, poetry, and radical critiques of the massive glob of conformity being imposed on 1950s America.

Ever the rebel, my mother posted on the Goodman call board a protest against the strait-laced approach of some of the older teachers to the development of stage characterization. Insisting that certain characters should be fully rounded, her message read: "Kings and Queens are People Too. They eat, sleep, and go to the toilet."


1980s head shot

My mother worked a lot after she graduated from Goodman, sparking controversy in early 1950s Toronto when she was picked to play the lead role in Eugene O'Neil's Anna Christie. It was unheard of for a Jew to play such a role. Eventually, my mother had to change her name from Bernice Katz to the more "acceptable" Deborah Cass.

She went on to do much early CBC television and radio drama, and played everywhere from the Crest and Jupiter Theatres in Toronto to the Stratford Festival and, for five years, toured North America with the Canadian Players, a group of classically trained actors who, during the off season at Stratford, took their shows to communities large and small across the continent.

When the tour bus lurched into the American South, members of the tour kept out a special watch for my mother, the tiniest of the crew yet the one most likely to raise a stink over the racist segregation then being fought by the early Civil Rights Movement.

Despite being cooped up on an old bus with baggage, props and costumes, she loved those years on the road, greeting people after the shows, and entertaining audiences with a variety of roles that almost 50 years on are still remembered by those who saw her, perhaps as Ariel, flying about the stage in "The Tempest," whose enchanting singing of the "Jewish Shepherd's Song" brought an exotic sound to some very WASP communities, or as Aase in "Peer Gynt," or the Nurse in "Romeo and Juliet."

To read the reviews in those days is to learn about someone who, no matter how insignificant the role, made a huge impression on the stage, not for the sake of her ego, but for the sake of the play, to bring to full fruition the humanity of a character. A petite woman, she was often described as pixie-like, with an infectious laugh and a commanding dramatic and comic presence. In many respects, she was both the loopy sister Martha Brewster in "Arsenic and Old Lace" and the Greek tragedian "Antigone," roles she truly cherished.

Like another petite figure who was a volcanic source of passion, Judy Garland, my mother was someone who became a character, an emotion, an idea, 150%. To watch her from behind was to read perfectly her emotional state. She was always in the moment. She knew how to embrace an audience or an individual, to listen to anyone's concerns, no matter how petty, and how to make someone feel like a worthwhile person.

Also like Garland, my mother was also forced by an image-conscious society and profession to take diet pills to stay razor-thin, and developed bulimia which would haunt her much of her adult life. In those days eating disorders were not openly discussed, unfortunately, and the toll it took on her frame and long-term health is no doubt incalculable.

On tour she met my father, Bunny Behrens, and spent almost 50 years with him, raising 3 children. My parents helped found the Neptune Theatre in Halifax, and my mother played a range of roles in plays such as "The Fantasticks," "Romanoff and Juliet" (where she played the show stopping role of Evdokia), and the title role in "Antigone," the Jean Anouilh adaptation which fed my mother's anti-fascist soul.

But ominous headlines appeared in Canadian newspapers in 1963: a star of Canadian theatre had been struck by a mystery illness which had paralyzed one side, given her double vision, and forced her off the stage for a time. Encephalitis took a bite out of her, from which she never fully recovered.

My mother made a huge sacrifice in giving up her career at that time to raise her three boys. While we were growing up, she wasted no time in ensuring we knew right from wrong, in making sure we knew what Vietnam, Birmingham, and American Indian Movement meant. And to this day, the concept of eating table grapes is still very new, given that we grew up with the decades-long grape boycott called by the United Farm Workers.

Like the late Harold Kendall of Toronto, after whom the Harolds are named, my mother remained a vocal audience member -- there with you when things went well, laughing her huge, body-consuming laugh, inhaling quite audibly without a touch of pretense during a moving moment, cursing at bad performances, walking out on execrable ones.

She eventually returned to acting in the 1980s, appearing on stage, and in numerous CBC TV shows. One of her first roles back on the stage was in "The Trojan Women" at the Will Geer Theatricum Botanicum, which had been founded in the 1950s by blacklisted actors including the theatre's namesake, who would win fame as Grandpa Walton.

 
You Can't Take it With You, 1984, National Arts Centre, with Bunny Behrens, Shirley Douglas

But the devastating effects of years of mini-strokes which she never felt had eaten away at her balance and her memory, forcing her to retire. It was a painful period for her, as one of her primary passions had been taken away from her by a cruel twist of fate.

Although no longer acting, she spent countless hours marching the streets in the U.S. and in Canada. The chant of "No Pasaran" (They Shall Not Pass!) which had been the slogan of the Spanish Civil War she chanted again as she worked to end the U.S. terrorist war against Nicaragua.

She was always glued to the radio --growing up, you always knew when the news was on, because screams of "Fucker!" "Jesus!" and "Shit! would fill the air as the news of the war in Vietnam, Watergate, and other events were reported on by her beloved National Public Radio and Pacifica Radio.

One of her favourite days was the Gay Pride parade, and she was a fixture at Church/Wellesley, the heart of Toronto's lesbian and gay community, greeted by name by hundreds of people whose names she could never remember. But she was always there with a kiss on the cheek, a loving caress, and a big smile.

Her last demo on her feet was in December, 1998, at the American consulate in Toronto as the U.S. launched deadly cruise missile attacks on Iraq to distract attention from Bill Clinton's enormous libido. Shortly after that, a fall sent her to an extended hospital stay, where we kept her going by playing Pete Seeger songs, reading her the writings of Paul Robeson, and getting food into her otherwise reluctant mouth with each "Achhh!"

By the spring of 1999, about the same time as the U.S./Canadian bombing of the Balkans, my mother began to enter a serious decline. No longer able to stand on her own, we wheeled her to Toronto's St. Paul's Anglican Church, where three individuals were attempting to remove the sword from the cross on a local monument. Surrounded by riot police monitoring this Good Friday demonstration, my mother was in her element, greeting familiar faces and exalting in the presence of resisters to war and injustice.

My mother's final years were spent in Niagara, close to the Shaw Festival where my father continues to work. She kept abreast of current events as much as she could, though her focus was beginning to go. She raised her fist in support of the anti-war demos last year, and she remained concerned about the plight of Canada's secret trial detainees, whose plight has similar overtones to those of the Rosenbergs, for whom my mother marched in the early 1950s.

I told my mom that many Muslims were fervently praying for her from behind the prison walls of Canada's war on democracy. She delighted in this, and asked about the detainees and their children, whose pictures I showed her. While she could barely remember most things on a day-to-day basis, this was one issue which she never forgot.

Bunny and Debbie, June, 1988, at Toronto rally before march to place citizens' arrest on Reagan, Thatcher and other war criminals  

From his solitary confinement cell at Metro West Detention Centre, where he has spent almost three full years, Syrian refugee Hassan Almrei asked me to tell my mom to hold on so that she could see the day Hassan would be free.

But my mother simply could not stand it any longer. The last few weeks, her family gathered around her as she spent her final days here. She had been so desperately tired these past few years, often saying she had had enough, yet that part of her which was the hopeful, nurturing soul kept her going. She wanted to see how things were going to turn out, and hoped perhaps to go out on a high note.

I reported to her when the terrorist and former President Ronald Reagan had finally succumbed, and she raised her fist in the air and exclaimed, "That man was a SHIT!"

As she entered her final stage of palliative care, we lit candles in her room, and played a wide variety of music which she had loved throughout her life. Broadway shows like "The Fantasticks" and "Finian's Rainbow," the Sibelius Symphony #2, a wonderful piece that evokes a revolutionary journey and eventual triumph, and her beloved Pete Seeger and Paul Robeson.

We took calls from loved ones all over, placing the phone to her ear. She was often half-asleep for these calls, but she would smile or weakly say that she loved them.

On July 15, my mother had an incredibly painful day. I tried to console her with the news that my two brothers, Adam and Mark, would be there soon. "They'd better hurry up," she gasped, writhing in pain. We'd been informed by the doctor and nurses that such patients often hold on until the family arrives, and then let go.

As it was, she did hang on until all her sons had arrived, but then continued going on after that, defying each medical prediction about how much longer she had. It was an exhausting, round-the-clock vigil, hoping she would feel no more pain, hoping she would go to sleep peacefully, her family administering her half hour doses of morphine and swabbing her dry mouth.

It was a surreal time, and we spent much of it telling stories, some sad, others hysterically funny, in the presence of my mother, then in a coma. She occasionally made a slight movement in her facial muscles or raised an eyebrow, as if to acknowledge the silliness that was going on, or perhaps to say this whole scene was truly bizarre.

The last night my mother was fully conscious, her sister Jean and I played Pete Seeger's historic 1963 Carnegie Hall concert CD. My mom's eyes, closed for much of the past year, suddenly opened wide, as she stared at the ceiling and breathed in the sounds. She was there, enveloped in the music, celebrating as much as she could in that frail body. Her sister and I sang We Shall Overcome over her bed through a veil of hot tears.

Each day, we were told, should have been her last, given that she'd not eaten in over a month and that someone in her condition could not last more than a day or two without water. But still she kept going, confounding the doctors. Was there a significant date she may have been waiting for? I joked in her ear that she was probably just waiting for July 19, the 25th anniversary of the Sandinista revolution in NIcaragua that was so dear to her heart. And so she did wait, and I was able to wish her a happy anniversary that morning.

My mom was still with us, in a coma, on the 19th, passing away on the morning of July 20 at 10:45 am, just aftrer we placed an hysterical Mother Goose and Grimm cartoon on her pillow. We laughed that morning, and we cried too. And we joined hands around her bedside to say goodbye.

As I reflected back on her last days and nights, I recalled a Pete Seeger song that made my mother stir, even in a coma. It is the song of the 15th brigade, a tribute to those who fought against the fascists in Spain. I had spoken to her about the lyrics, and how it was like she was fighting a form of fascism in the ailments which afflicted her.

"Yes," she had said. "There's fascists in my body."

The final verse of the passionate song goes like this:

 "Spain, 1937
Long live the 15th brigade...
We fought against the mercenaries and the fascists;
it was our only desire to defeat fascism.
But on the Jarama Front
we had no tanks, no cannon, no airplanes.
Now we are leaving Spain
but we'll keep on fighting on other fronts."
 It made me think of the battles my mother had been waging and how, at age 74, she had had enough of the fascism ravaging her body. Like those who had to make a strategic retreat in Spain, my mother had to make a similar retreat from this mortal form.

 Niagara, 2004
Long live the loving spirit of my mother
She fought the fascists all her life
She shared her art and her passions and her unconditional love
But she could not conquer the fascist diseases which wracked her tiny frame
She is leaving this mortal world for now
But she'll keep on fighting on other fronts.


And so she will go on.

Although she passed away in Niagara, her body was taken to Milton for cremation. Milton is just a stone's throw from where the still-alive Camp Naivelt carries on. Perhaps a few of her ashes will drift over this place of happy memories and lifelong hopes and dreams.

Later in the afternoon, a sun shower gently passed over her house. Sensing that she was here as a kindly spirit, we three sons went out looking for a rainbow.

 *******************

 In honour of my mother, Homes not Bombs set up up a memorial fund named after one of her favourite readings, printed below. The aim of the The Bernice Katz/Deborah Cass Behrens "Esperanza Fund" is to meet the significant needs of the families of Canada's secret trial detainees, who, as a result of Canada's anti-democratic (some may say leaning toward fascist) refugee, immigration, and "security" policies, face poverty and lack access to the kinds of summer camps, educational and cultural programs my mother enjoyed as a result of another generation's struggle. My mother recognized that we are not placed on this earth merely to survive; that life should be a celebration of laughter, of theatre and dance and song, of play, of freedom from fear.

 To contribute, write a cheque to Homes not Bombs and mail it to PO Box 2121, 57 Foster Street, Perth, ON K7H 1R0. (Note on your cheque in the memo space this is for the Esperanza Fund.) You can also send an email money transfer to tasc@web.ca

 Esperanza
 "There will come a time, I know
When People will take delight in one another
When each will be a star to the other
And when each will listen to their neighbour as to music.
The free people will walk upon the earth
People great in their freedom.
They will walk with open hearts
And the heart of each will be pure of envy and greed
And therefore all of humanity will be without malice
And there will be nothing to divorce the heart from reason.
Then life will be one great service to humanity!
Our figure will be raised to lofty heights
For to free people all things are attainable.
Then we shall live in truth and freedom and beauty
And those will be accounted the best who will the more widely embrace the world with their hearts
And whose love of it will be the profoundest;
Those will be the best who will be the freest
For in them is the greatest beauty
Then life will be great
And the people will be great who live that life."
 From "Mother," by Maxim Gorky

Celebrating our parents' artistic and social justice legacy, Canadian theatre history exhibit, Perth, Ontario, 2013, with portraits of Debbie and Bunny as done by Gordon Pinsent overlooking us.

Productive Week for Canada’s Desk Torturers

Productive Week for Canada’s Desk Torturers

May 15, 2014

By Matthew Behrens

                  Two judicial decisions released last week remind us that the concept of national security is incompatible with democracy: the former almost always trumps the latter, and various enemies-du-jour are regularly created and then served up on the altar of “security.” In each instance, profoundly disturbing decisions were dealt to Mohamed Harkat, facing deportation to torture in Algeria based on secret hearsay, and Hassan Diab, facing extradition to France on clearly trumped up allegations likely gleaned from torture.

                  When doubts are raised about the fragility of democratic rights, the national security state relies on its courts to provide legal reassurance that torture, indefinite detention without charge, secret trials, overseas military occupation, the iron curtain of governmental secrecy, and other crimes of state can be rationalized as necessary byproducts of certain organizations’ duly-authorized mandates.

                  In Canada, both individual judges and courts have served this role most obediently. Their decisions almost unanimously start from the proposition that scandal-plagued bodies like CSIS, the RCMP, and the Department of Justice are composed of well-intentioned functionaries who may, in moments of excessive zeal, cross some boundaries. Although those crossed boundaries implicate Canadian officials in severe human rights violations, no one is ever held to account. Consider that despite two judicial inquiries finding Canadian complicity in the torture of four of its own citizens – a complicity usually overseen by Justice Department lawyers – no one has been charged, much less tried, for their involvement in torture. Rather, complicit individuals have received promotions (http://www.canada.com/story.html?id=20490e79-ee5b-4cc7-bdb9-46870e4cf3e0) or otherwise retired from public life and are now serving as commentators for the CBC (http://www.cbc.ca/player/Radio/As+It+Happens/Features/ID/2431990227/) or receiving puff profiles in the Toronto Star (http://www.thestar.com/news/canada/2007/05/26/extop_spy_breaks_silence.html)

                  In the Harkat and Diab cases, judges have again closed ranks behind the national security state, protecting the technocrats who, like the notorious Schreibtischtäter –  desk murderers of the Nazi era –  do not have to wipe the blood from their hands, as they simply shift paper about, blithely disconnected from the human wreckage they cause. Canada’s desk torturers work at such institutions as the Canadian Border Services Agency, the RCMP, CSIS, and Communications Security Establishment, all of whose employees operate under the rubric of internal memos that have directed them to exchange information with foreign intelligence agencies even when there is a “substantial risk” of torture. Canada’s War Department is the latest to join their ranks (http://www.cbc.ca/news/politics/tories-secretly-gave-canadian-military-ok-to-share-info-despite-torture-risk-1.2608713). Needless to say, such memos have been given the go-ahead by Justice Department lawyers. At the same time, CSIS itself acknowledged in a 2008 memo that if torture-tainted intelligence were dismissed, the secret trial regime would collapse. (http://www.huffingtonpost.ca/2011/12/03/csis-letter-torture-canada-public-safety_n_1127501.html)

Harkat: Still No Right to See the Case

                  In last week’s Harkat ruling, the Supreme Court clearly got it wrong. The decision appears to have been written on the run, without due consideration of last October’s full-day argument by intervening groups on issues from racial and religious profiling to complicity in torture and secrecy creep undermining immigration proceedings. It is at times shockingly illogical and contradicts its landmark 2007 Charkaoui ruling that found the security certificate regime unconstitutional because it denied the detainee the right to know and meet the case against him.

                  The secret system considered by the court in 2006 is largely the same one that exists now, with the exception of one significant change, the introduction of security-cleared lawyers called special advocates who can see some of the secret case but cannot speak with the detainee about what is revealed behind closed doors. Thus, the individual affected still cannot properly instruct counsel about what is being heard in his absence. Special advocates, which essentially saved the secret trial regime, were brought in courtesy of some high-profile, liberal immigration lawyers and the Federal Court itself, and passed Parliament with the full backing of the Liberals. Their current leader, Justin Trudeau, spoke last week both of his love of the Charter of Rights and Freedoms and also of how he thought the Charter-violating Supreme Court ruling was a good one. http://globalnews.ca/video/1331197/trudeau-welcomes-supreme-courts-clear-decision-on-mohamed-harkat/)

                  In Charkaoui, the Court remarked that “one cannot be sure that the judge has been exposed to the whole factual picture.” That has not changed: Harkat cannot comment on, much less instruct the special advocates, on something he is not allowed to know or see. As the court said then (and seems to ignore now), “without full disclosure and full participation throughout the process, he or she may not be in a position to put forward a full legal argument,” and that without disclosure (especially in this case), “the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations.” Indeed, since that named person does not know what has been put against him or her, “he or she does not know what the designated judge needs to hear.” Ultimately, nothing has changed: “How can one meet a case one does not know?” the Court asked in 2007, and should have asked again in 2014.

                  Harkat continues to face deportation to torture in Algeria because Federal Court judge Simon Noel unjustifiably believes that Harkat lied. Noel heard things about Harkat in secret that Harkat knows nothing about, and after Harkat answered certain questions in public, Noel decided that he preferred the uncontested hearsay heard in secrecy. We know that this hearsay is uncontested because a key plank of Harkat’s Supreme Court appeal was based on the fact that when his special advocates sought to cross-examine informants during a secret session – which would seem an obvious thing to do given that one of them had failed a lie detector test, a fact CSIS deliberately withheld from the court for over a decade – they were turned down. Noel said the informants deserved “informer privilege.” As the Supreme Court noted in its decision, the polygraph test on one source “revealed him or her to be untruthful.” So why wouldn’t the special advocates be allowed to cross-examine someone with this mark against them? The Court replies that there is nothing to worry about, because the hearsay evidence will be accepted only if a judge concludes it is “reliable and appropriate.”

Supreme Court Sides With CSIS

                  But how can a judge independently come to that conclusion when hearing only one side of the story, without the benefit of a fully briefed lawyer cross-examining the source of that hearsay? The deference shown to CSIS here is remarkable: the Supreme Court worries that if CSIS sources had to testify, even in secret session, this may have a chilling effect on the agency’s “ability to recruit new sources.” This despite ongoing reports from targetted communities indicate that most potential CSIS “sources” would hardly be reliable since they are coerced into spying in exchange for status in Canada. Indeed, one source in the Harkat case appears to have had special inspiration to continue producing “intelligence” because he carried on a torrid affair with the CSIS agent handling him.

                  While the Supreme Court found that CSIS sources did not enjoy informer privilege, they try to have it both ways by then declaring there is no “unlimited ability to interview and cross-examine human sources.” The ruling states that such examination should rarely if ever be allowed and, without any explanation whatsoever, concludes there is no reason to allow Harkat’s special advocates to cross-examine the secret informants whose allegations were used against him. The Court is satisfied that “the admission of hearsay evidence or the denial of the opportunity for special advocates to cross-examine sources do not render” the scheme unconstitutional. 

                  Further, the Supreme Court ruled in a remarkably illogical moment that while the destruction of all original notes and transcripts of recordings in the Harkat case violated his Charter rights, there was no problem, because Judge Noel “reasoned that the summaries of the conversations were prepared in a way that ensured their accuracy.” Yet how would he know this if he had not seen the original documents, examined the translator, and had cross-examination to test for reliability, accuracy, and the biases inherent to the process?

                  The court also criticized the government for wanting a secret hearing at the Supreme Court level, complaining “it only served to foster an appearance of opacity of these proceedings, which runs contrary to the fundamental principles of transparency and accountability.” Fine words, but why has the court not released a transcript of the closed proceedings for all to see?

Why Not Charge Him If a Case Exists?

                  Like other secret trial detainees, Harkat has always argued that if the government actually has a case, he should be charged in an open court with a fair trial. The government claimed Harkat’s lack of citizenship prevented them from charging him under the Criminal Code (with its higher standards of proof and procedural protections), yet the recent VIA Rail plot (alleged to have been planned by two non-citizens) is proceeding under the auspices not of the immigration act’s security certificate regime, but under the criminal code.

                  The Supreme Court is well aware of this glaring difference, even acknowledging in last week’s decision that the secret trial regime is “in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law.” The Court even acknowledges but does not act on the fact that a citizen facing such serious allegations is entitled to a balancing act that considers state secrecy and individual rights, but this does not exist for non-citizens. There is no further comment on this two-tiered justice, other than to adopt a Father Know Best approach that tells Harkat: you have to trust the judge, who has broad discretion to look after your rights and make sure you are “reasonably informed” of the case. Ironically, that is exactly what the Federal Court judges were saying before this process was found to be unconstitutional: trust us. Thus, the Supreme Court has taken a major step backwards, concluding Harkat knows the case because the judge says he does. End of story.  When so much rides on a discretion that can only be exercised on a case by case basis, the lack of solid legal precision means whether one wins or loses may come down to the pick of the judge.

                  Harkat has a long legal road ahead of him, and his ultimate fate will once again rest with the Supreme Court, which will have to decide whether Canada will respect the absolute prohibition on deportation to torture, a legal obligation that the Supreme Court refused to uphold in the infamous 2002 Suresh decision by claiming certain “exceptional circumstances” could justify sending someone to face electric shock on the genitals.

Diab Enters Kafka Land

                  Both the security certificate regimes of 2007 and of 2013 contain the exact same section that allows a judge to admit into evidence and base a ruling on anything not normally admissible in a court of law. This means, therefore, that Harkat and anyone else subject to the secret trial process never has been and never will be in a court of law. It’s a problematic netherworld that also seriously impacts Dr. Hassan Diab, whose battle to stop extradition to France for a crime he did not commit suffers from similarly low legal standards that are ultimately based on the political prerogatives of Canada’s national security state. How else to explain the fact that he continues to face an uphill legal battle even though finger and palm prints, handwriting, and physical descriptions of the alleged suspect in a 1980 bombing do not match those of Dr. Diab?

                  Last week’s dreadful Ontario Court of Appeal (OCA) decision dismissed the well-reasoned arguments of Diab’s legal team with remarkably similar reasons to those of the Supreme Court: judges must be allowed major discretion; the intelligence agencies of our extradition partners do not engage in nefarious activities because they have signed treaties; and even though Dr. Diab has yet to be charged with an offence, he is told to trust the French and sort things out from an overseas prison.

                  France has been trying to flex its anti-terrorism muscle with respect to the 1980 Rue Copernic bombing, pursuing a case against Diab that a Canadian judge  found “weak”, “suspect,” and “confusing,” and “the prospects of conviction in the context of a fair trial, seem unlikely.” Unfortunately, that same judge ordered the extradition of Dr. Diab because the standards are so low and inconsistently applied in different Canadian jurisdictions.   Indeed, the appeals court quotes the reality that “trial judges, properly applying the relevant principles in the exercise of their discretion, could in some situations come to different conclusions,” which is what appears to have occurred here.

Diab Sought Without Being Charged

                  Equally problematic is the fact that, as the OCA points out, “It is well settled that the [Extradition] Act does not allow the extradition of a person for mere investigative purposes. Extradition is not to be used as a tool by foreign states to question people as potential witnesses or suspects.” Yet that is precisely the position in which Diab finds himself. The OCA also notes the case against Diab is “circumstantial,” and that four of the five pieces of evidence offered to demand his extradition were “insufficient” to justify uprooting his life, with the fifth piece a highly discredited handwriting report almost dismissed by the trial judge because it was “highly susceptible to criticism and impeachment” and relied on “questionable methods and on an analysis that seems very problematic.”

                  So why has the case proceeded? Because under Canada’s extradition law, the duty of a Canadian court and the Minister of Justice is, first and foremost, to the government seeking an individual’s extradition, and as the Supreme Court of Canada has found, extradition is, in the end, not a legal issue, but a political decision: is the government of Canada willing to risk its relations with one of its extradition partners, or is it willing to sacrifice one of its citizens (or a refugee or permanent resident who is also sought) in the name of maintaining happy diplomacy?

                  In the same manner that Mr. Harkat has been told by the Supreme Court that he needs to trust in the judge hearing the case without him, Diab is similarly instructed to grin and bear it because Canada cannot be seen to mistrust the judicial system of a democratic country. Yet Human Rights Watch has criticized French counter-terrorism courts for relying on secret intelligence from countries known to routinely use torture. When the Canadian Minister of Justice was asked to seek assurances that the French did not in fact carry on in such a manner, he instead figured he needn’t ask because he concluded Diab had not made a “plausible connection” to the fact that torture-derived intelligence from the close working relationship between the French and Syria intelligence agencies in the 1980s (when Diab lived in Lebanon) was connected to his case. (Notably, the French officials clearly state they have no idea where the intelligence came from, in the same way Harkat had no access to original documents or individuals who could be cross-examined).
                  In the same show-trial way Harkat is given “an opportunity to be heard,” we are told Diab should trust the French since he will be provided a similar “opportunity.” But in addition to the secret allegations he faces, the French Courts, as Diab’s team argued,  “cannot properly determine the reliability of the intelligence allegations made against him because they are not allowed to know the sources of the allegations but, rather, presume that all information received from intelligence officers is reliable; the defence cannot effectively probe or question the underlying material in an intelligence report, and intelligence officers are not required to answer when cross-examined; and French courts use intelligence as evidence to prosecute [alleged] terrorists and have admitted torture-derived statements as evidence in the past.” The OCA says since France is a party to the Convention Against Torture, no such thing could occur (even though it does occur with regularity in Canada, also a party to the treaty).

                  While much of the Diab decision deals with the complexities of extradition law and interpretation of this seriously flawed regime, we also are reminded that this is not about law. In making submissions to the Minister of Justice following judicial committal for extradition, the OCA says this stage of the process is “viewed as being largely political in nature…the nature of this decision is clearly not of central importance to the legal system or outside the Minister’s area of expertise,” which is why the Minister must be granted deference by the court.

The Court’s Impermeable Bubble

                  The bubble in which the Ontario Court of Appeal judges live is impermeable. After quoting from a European Court of Human Rights decision deploring the use of torture evidence, the judges smugly state, “Canada shares these values,” adding the Minister should decline to extradite someone where the case they face will include torture-derived evidence. In the spirit of the Suresh exceptional circumstances case of deporting to torture, the OCA says if a “real risk” of torture-derived evidence will be used, the Minister should “generally [not always] refuse to order surrender.” The problem here is that the Department of Justice is the same agency approving the use of torture information here in Canada; why would the Minister think twice about France’s use of such information when it has been so firmly accepted as part of the Canadian discourse?

                   “There may be rare and exceptional circumstances where deportation or surrender to face a substantial risk of torture or a real risk of the use of torture-derived evidence could be justified; generally, however, as we have said, the Minister should refuse to surrender in such circumstances,” the OCA concludes.

                  The rulings in both the Harkat and Diab cases do not bode well for the men, their families, and their communities. The courts have clearly said they are prepared to violate international and domestic legal commitments with respect to torture, and to sacrifice both of these men’s lives for the national security state. The response that such violations demand from the rest of us is a challenge we must commit ourselves to meeting.

                  In the interim, get involved by contacting Justice for Mohamed Harkat (http://www.justiceforharkat.com/ ) and Justice for Hassan Diab (http://www.justiceforhassandiab.org/)