National (in)Security Law and Issues
by: Paul Copeland
Since the late spring of 2004 an ever increasing amount of my practice has been devoted to:
representing men being held in security certificate matters under the Immigration and Refugee Protection Act
representing Abdullah Almalki who was granted standing at the Arar Inquiry
representing Abdullah Almalki at the Iacobucci Inquiry
I took over the case involving Mohamed Harkat from Rocco Galati and Bruce Engel in the late spring of 2004. While on the Illegals Motorcycle Club annual ride in June I was talking about the case in a pub with my fellow riders. The Illegals Road Captain, Phil Campbell, put his hand on my shoulder and said “Paul, this case is perfect for you.” I asked “Why” and he said, “Because there are no rules”.
That in fact is how I have dealt with the case and the two other security certificate cases that I have now worked on.
In the Harkat case Justice Dawson in the fall of 2004 found that the security certificate issued against him was reasonable. At the same time she dismissed our Charter application. In May of 2006 Justice Dawson granted release to Mr. Harkat on perhaps the most stringent bail terms ever imposed in Canada. In June of 2006 we argued the Section 7 fundamental justice Charter issue in the Supreme Court of Canada. In July of 2007 the Federal Court of Appeal, without calling on us, dismissed the governmentâ€™s appeal of the bail ordered by Justice Dawson. In February of this year, the Supreme Court of Canada found that the procedure used on the security certificate reasonableness hearings violated section 7 of the Charter and was not saved by section 1 of the Charter. The Supreme Court gave the government one year to amend the legislation. Once a year is up we can apply to quash the decision that the security certificate was reasonable.
In the Harkat reasonableness case there was a great deal of argument relating to my clientâ€™s alleged association with a senior Al Qaeda man named Abu Zubaydah. I argued that a three line statement attributed to Abu Zubaydah should not be admitted into evidence because it was obtained by torture. At the time the case was heard Abu Zubaydah was somewhere in the world in a CIA black-site.
Last year Abu Zubaydah was moved to the American concentration camp at GuantÃ¡namo, Cuba. In order to be prepared for the next reasonableness hearing I have been writing to the American Ambassador, to John Sims, the Deputy Attorney General of Canada, to the American Secretary of Defence, Robert Gates and to the Attorney General of the United States, Alberto Gonzales, now described as Gonzo. I want to make sure that I have an opportunity of interviewing Abu Zubaydah and perhaps getting evidence from him before we complete round 2 on the security certificate.
No substantive replies have been received in regard to any of my correspondence.
Pursuant to the terms of reference for the Inquiry, Commissioner Iacobucci has ruled that everything done by the Inquiry is going to be done internally and in-camera. Needless to say this is frustrating and disappointing for me and for my client, Abdullah Almalki. Barb Jackman, counsel for another one of the men tortured in Syria, has filed a Judicial Review application in the Federal Court seeking to overturn that procedural ruling.
Justice Iacobucci, held hearings for participation rights and funding requests. All three men who were the subject of the Inquiry were granted participation rights and granted limited funding. Many of the groups that had been interveners in the Arar Inquiry were approved as interveners in this inquiry.
Participation rights were granted to a rather obscure organization called the Canadian Coalition for Democracies. That organization appears to be a front-group for David Harris, a now lawyer, and self-described former Chief of Strategic Planning for CSIS. I have known Mr. Harris, now a security intelligence consultant, for 14 years and have on occasion debated with him on television. Probably because of a lack of other alternatives, Mr. Harris and John Thompson of the MacKenzie Institute are used by the media as spokespeople for the right wing view of national security issues. David Harris recently testified before a U.S. Senate Committee and said the Canadian government and its security agencies were infiltrated by Islamic extremists. The comments were so off the wall that the Canadian Ambassador Michael Wilson appeared on television and refuted Harrisâ€™ comment and said Harris has been with CSIS for 8 months some 18 years ago.
The material filed with the Inquiry by Mr. Harris on behalf of the Coalition contains what is described in its heading as the Affidavit of Alastair Gordon in Support of Motion for Standing.
But when one looks at that document, it is not signed by Mr. Gordon, is not sworn, and has signatures on it by Naresh Raghubeer, Executive Director, for and on behalf of Alastair Gordon, President, Canadian Coalition for Democracies and by David B. Harris (Legal Counsel).
Leaving aside the politics of the Coalition, it is a mite depressing to me to find the Inquiry granting participation rights to that organization when no affidavit material was filed in support of their application.
Hassan Almrei is the last remaining person held in custody at the Kingston Immigration Holding Centre. Alexa McDonough, a NDP Member of Parliament, has estimated that it is costing $2 million a year to keep Mr. Almrei at that facility. Mr. Almrei has been in custody since October 2001. In late July, 2007 I completed a detention review for him in the Federal Court. The review was done on the new bail rules set by the Supreme Court of Canada in February 23, 2007 in Mr. Almreiâ€™s case. Justice Lemieux has reserved his decision on that detention review application.
Hassan was born on January 1, 1974 in Syria. He was raised in Saudi Arabia where his parents and most of his siblings still live. When he was 16, in 1990, he first attempted to go to Afghanistan, funded to the extent of three-quarters of the cost of the trip by the Saudi government, as part of the muhajadeen campaign supported by the CIA, first against the Russians and then against the Russian supported government,. He got malaria in Pakistan and went home after 27 days. He went to Afghanistan in 1991, 1992, 1994 and 1995. Eventually in January 1999 he came to Canada and made a successful refugee claim.
Here are some extracts concerning Hassan from material filed at the detention review:
Bill Siksay M.P.
In my meetings with Mr. Almrei I have always found him to be open and direct. He has clearly made his points and has always been respectable to me and others with me. In my experience he is an articulate and clear-thinking person. Despite the difficult circumstances he has faced over many years, I have not found him to be angry or vindictive. Instead I have been amazed at the grace with which he handles his situation. Mr. Almrei has regularly expressed to me his appreciation for my efforts to secure a just resolution of his concerns about the conditions of his detention, and change the law regarding the security certificate process. I have had some very personal conversations with the him, including the one we had when he asked me to help him draft instructions to CBSA of officials that he did not want to be resuscitated should he fall unconscious as a result of his hunger strike.
Alexandre (Sacha) Trudeau, film-maker
I consider Hassan a good friend. It is true that I first met him in a professional capacity as I was researching a documentary on Canadaâ€™s national security certificates. But beyond our journalistic relations, I quickly developed a real admiration for his intellect and strength of character. Over the past couple of years, I have enjoyed our frequent conversations and have always found him to be a very thoughtful, sensitive and kind person.
Over the time that I have known Hassan, I have not just found him to be a very intelligent and likeable individual. I have also found him to be a man of honour and integrity. The dignity with which he has faced his detention has amazed me. I witnessed some of his jailors come forward and say that Hassan was so trustworthy that they would have absolutely no problems in having Hassan be their neighbour. I had already every reason to understand how this behavior of the prison guards could make sense. Hassan treats people the way he himself would like to be treated and this without distinction of race or religion.
I truly believe that Hassan does not pose a threat to anyone in Canada. I believe that he has every intent to try regain something of a normal life. And he dreams of regaining this life here in Canada. I believe that he admires Canadian society and wants to honour Canadian society by living a model life. Despite all the difficulties that he has faced, I believe that Hassan is a man without anger in his heart whose only desire is to live peaceably and seek a worthwhile outlet for his curious and profound mind.
I look forward to many years of friendship with Hassan.
As of posting on September 12, 2007, Justice LemieuxÂ hadÂ notÂ released his decision on the detention review .