Court File: IN THE SUPREME COURT OF CANADA (On appeal from the Federal Court of Appeal)
B E T W E E N :
MOHAMED HARKAT Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION THE SOLICITOR GENERAL OF CANADA THE ATTORNEY GENERAL FOR CANADA Respondents
MEMORANDUM OF ARGUMENT
PART I – STATEMENT OF FACTS 1. Mr. Harkat, an Algerian national and a Convention refugee, is the subject of a security certificate. Mr. Harkat has been held in the Ottawa Detention Centre since December 10th, 2002. Mr. Harkat seeks leave of this Court to appeal from the judgement of the Federal Court of Appeal which dismissed his appeal against the decision of Justice Dawson, which upheld the constitutional validity of the procedures under Section 76-80 of the Immigration and Refugee Protection Act (IRPA). 2. Aside from preliminary matters, the hearings in relation to the reasonableness of the certificate in this case and in relation to the constitutional validity of the procedure followed in relation to the security certificate under the provisions of Section 76-80 of IRPA were held before Justice Dawson in Ottawa during four days in October 2004 and four days from December 5th to December 9th, 2004. 3. On December 9th, 2004 Justice Dawson reserved her decisions on the constitutional validity of the security certificate provisions under the Charter and on the reasonableness of the security certificate. 4. On December 10th, 2004 the Federal Court of Appeal released its decision in the Charkaoui case and held, in part, that the secret evidence, the lack of disclosure of evidence, and the use of ex-parte in-camera hearings did not violate the fundamental justice requirements of Section 7 of the Canadian Charter of Rights and Freedoms. 5. On March 22nd, 2005 Justice Dawson released her decision on the reasonableness of the security certificate and on the constitutional issue. She found that the security certificate was reasonable and followed, as she was obliged to do, the decision of the Federal Court of Appeal in Charkaoui. She ruled that the provisions of Section 76-80 of IRPA were not contrary to the fundamental justice provisions of Section 7 of the Canadian Charter or Rights and Freedoms. 6. An appeal was filed in regard to the constitutional issue. In relation to that appeal a conference call was held with Chief Justice Richard and counsel for the parties. Counsel for the Applicant suggested in that conference call that the Federal Court of Appeal dismiss the appeal without argument and allow the Applicant to attempt to catch up with the Charkaoui application for leave to appeal in the Supreme Court of Canada. 7. Chief Justice Richard indicated in the conference call that the appeal would need to be argued. September 6, 2005 in Ottawa was the earliest date available for the appeal to be argued. 8. On August 25th, 2005 the Supreme Court of Canada granted leave to appeal in the Charkaoui case. 9. The Harkat appeal was argued in the Federal Court of Appeal in Ottawa on September 6th, 2005. The Court did not call on the Respondent and in an oral judgement dismissed the appeal. 10. The remainder of the facts in the case and the nature of the hearings before Justice Dawson are set out in the decision of Justice Dawson, dated March 22nd, 2005. PART II – QUESTIONS IN ISSUE 11. Are the provisions of Section 76-80 of the Immigration and Refugee Protection Act unconstitutional on the ground that the procedures set out in those sections, do not meet the standard of fundamental justice within the meaning of Section 7 of the Canadian Charter of Rights and Freedoms? 12. It is the position of the Applicant that the provisions of Section 76-80 of IRPA infringe on the right of the Appellant to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. PART III – STATEMENT OF ARGUMENT 13. The issue in this appeal is the appropriate balance to be made between the Stateâ€™s need for secrecy in matters of so called â€œnational securityâ€ and the rights of Mr. Harkat to know and meet the case against him. 14. The following comments from the Suresh decision, while they do not relate to the constitutional validity of Section 76-80 of IRPA, reflect the issue at hand in this application for leave to appeal. 3 The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge. 4 On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments. Suresh v. Canada (2001) 208 D.L. R. (4th) 1 15. The Applicant respectfully submits that the decisions in Ahani and Charkaoui were in error and that Section 76 to 80 of IRPA deny the Appellantâ€™s rights under Section 7 of the Charter. In doing so, they fail to comply with the principles of fundamental justice and the interest of Mr. Harkat in being able to respond in a meaningful way to the allegations made against him in the context of an immigration removal procedure. Ahani v. Canada  F.C.J. No. 937 Re Charkaoui  F.C. J. No. 2060 16. If leave is granted in the case, argument will be introduced concerning the historical background of national security confidentiality and references will be made to the following cases: R. v. Secretary of State for the Home Department; Ex p. Hosenball ; All ER 452 (CA); R. v. Atwal (1987) 36 C.C.C. (3rd) 161, at 187 (FCA); Canada (Minister of Employment and Immigration) v. Chiarelli  1 SCR 711. 17. This Court in the Chiarelli case held that the removal of the right of appeal on humanitarian grounds from a deportation order did not violate fundamental justice and that the procedures followed before the Security Intelligence Review Committee in that case did not violate fundamental justice. It is respectfully submitted that the Chiarelli reasoning about the process in hearings before the SIRC is not applicable to security certificate proceedings before a single judge of the Federal Court of Appeal. 18. It is respectfully submitted that Madam Justice McGillis and the Federal Court of Appeal erred in applying the Supreme Court of Canada decision in the Chiarelli case to the procedure followed in the Ahani case. (Note: Application for Leave to Appeal to the Supreme Court of Canada was refused in the Ahani case.) Ahani v. Canada  FCJ No. 1190,  3FC 669 Ahani v. Canada  FCJ No. 937 19. In both Ahani and Charkaoui the Federal Court of Appeal reached its decision without factoring in Section 1 of the Canadian Charter of Rights and Freedoms. In effect that Court held that in national security matters fundamental justice does not require that the person concerned or his counsel, or anyone representing his interest, have an opportunity to know the case against the person, to test the case and the evidence through cross examination, or to be aware of issues in the case about which the person concerned might or should call evidence. 20. It is respectfully submitted that the Federal Court of Appeal erred in the Charkaoui case in ruling that the procedures under Section 76-80 of IRPA did not violate the right of the Applicant to life, liberty, and security of the person and the right not to be deprived thereof in accordance with the principles of fundamental justice. 21. As to the standard of fundamental justice in the Immigration context the Applicant relies on the reasoning of Madam Justice Wilson and two other judges of the Supreme Court of Canada in Singh v. Canada (Minister of Employment and Immigration). Justice Wilson dealt with the fundamental justice issue in relation with the procedures for determination of Convention Refugee Status set out in the Immigration Act in paragraph 59-64 of the judgment The following extracts are taken from that portion of the judgment of Justice Wilson: 59â€¦ I am of the view that where a [page214] serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearingâ€¦ I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions. 60 â€¦ My greatest concern is (â€¦) with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet. 61 It seems to me that the basic flaw in Mr. Bowie’s characterization of the procedure under ss. 70 and 71 is his description of the procedure as non-adversarial. It is in fact highly adversarial but the adversary, the Minister, is waiting in the wings. What the Board has before it is a determination by the Minister based in part on information and policies to which the Appellant has no means of access that the Appellant for redetermination is not a Convention refugee. The Appellant is entitled to submit whatever relevant material he wishes to the Board but he still faces the hurdle of having to establish to the Board that on the balance of probabilities the Minister was wrong. Moreover, he must do this without any knowledge of the Minister’s case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim. It is this aspect of the procedures set out in the Act which I find impossible to reconcile with the requirements of “fundamental justice” as set out in s. 7 of the Charter. 62 â€¦ It seems to me that, as a matter of fundamental justice, a refugee claimant would be entitled to discovery of the Minister’s case prior to such a hearing. â€¦ 63 Under the Act as it presently stands, however, a refugee claimant may never have the opportunity to make an effective challenge to the information or policies which underlie the Minister’s decision to reject his claim. Singh v. Canada (Minister of Employment and Immigration)  1 S.C.R. 177 22. Three other judges of the Supreme Court of Canada in reasons written by Justice Beetz allowed the appeal on the basis of a violation of Section 2(e) of the Canadian Bill of Rights. 23. The relevant provision of the Canadian Bill of Rights are as follows: 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; (b) the right of the individual to equality before the law and the protection of the law; (c) freedom of religion; [page226] (d) freedom of speech; (e) freedom of assembly and association, and (f) freedom of the press. 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to * * * (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. 24. Justice Beetz found at paragraph 89 that the appellants were not afforded a fair hearing in accordance with the principles of fundamental justice. Justice Beetz held that an oral hearing was required in refugee cases. 25. In the Singh case this Court considered whether the infringement on fundamental justice in the refugee process was saved by Section 1 of the Charter. The Court found it was not saved by Section 1. Singh (supra) paragraphs 65-74 26. In the Suresh case this Court considered whether the procedures under Section 53(1)(b) of the Immigration Act violated the Section 7 guarantees of fundamental justice and went on to consider whether the violation of Sureshâ€™s Section 7 rights were justified as a reasonable limit under Section 1 of the Charter. The Court ruled against a Section 1 justification. Suresh (supra) paragraph 128 27. On the 25th and 26th day of March 2002 a conference was held at the Canadian Institute for the Administration of Justice entitled â€œTerrorism, Law and Democracyâ€. At that conference the Honourable James K. Hugessen spoke about the security certificate process in the Federal Court: â€œAll the national security functions which are laid on the Federal Court have this in common: â€¦ a judge of the Court sitting alone in what are called hearings, but they are held in the absence of one of the partiesâ€¦ That is to say ex parte so that the judge may, if he or she sees fit, take communication of the evidence, the information which is said to be too sensitive to be allowed to be revealed to the person concerned and not only evidence, but also argument which may rely on the evidence or may deal with matters which may be too sensitive to be revealed to the public. â€œThis is not a happy posture for a judge, and you are in fact looking at an unhappy camper when I tell you about this function. Often, when I speak in public I make the customary disavowal that I am not speaking for the Court and I am not speaking for my colleagues but I am speaking only for myself. I make no such disavowal this afternoon. I can tell you because we talked about it, we hate itâ€¦ We do not like this process of having to sit alone hearing only one party, and looking at the materials produced by only one partyâ€¦ If there is one thing that I learned in my practice at the Bar, and I have managed to retain it through all these years, it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition, judges do not do thatâ€¦ we do not have any knowledge except what is given to us and when it is only given to us by one party we are not well suited to test the materials that are put before us. â€œWe greatly miss, in short, our security blanket which is the adversary system that we were all brought up with and that, as I said at the outset, is for most of us, the real warranty that the outcome of what we do is going to be fair and justâ€¦ it might be helpful if we created some sort of system somewhat like the public defender system where some lawyers were mandated to have full access to the CSIS files, the underlying files, and to present whatever case they could against the granting of the relief soughtâ€¦ I am not sure what the judges of the Federal Court are doing in this picture and if I may be forgiven for using the expression, I sometimes feel a little bit like a fig leaf.â€ 28. It is respectfully submitted that the comments of Justice Hugessen are indicative of the fact that the procedure mandated by the IRPA legislation does not meet the requirements of fundamental justice. 29. In the case of Chahal, Mr. Chahal had no success in the English Courts but when his case reached the European Court of Human Rights, that Court ruled that the procedure followed in England was inadequate pursuant to the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on November 1950. Chahal v. United Kingdom (1996) 23 EHRR 413 30. The European Court of Human Rights misconstrued the Canadian process and in its decision recommended the Canadian model. The Court mixed the process before the Security Intelligence Review Committee (used for permanent residents under the Immigration Act where SIRC counsel performed a role similar to the role of an amicus curiae or special counsel) and the process before the Federal Court (used for non-residents under the Immigration Act where no amicus curiae or special counsel was available). 31. The Court said at paragraph 144: â€¦ Under the Canadian Immigration Act 1976, a Federal Court judge holds an in camera hearing of all the evidence, at which the Appellant is provided with a statement summarizing, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the Appellant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the Stateâ€™s case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the Appellant. 32. As a result of the decision in Chahal, the government of the United Kingdom created the Special Immigration Appeals Commission (SIAC). Under the SIAC procedure a security cleared Special Advocate is appointed and that Special Advocate argues the case before SIAC. PART IV â€“ SUBMISSIONS REGARDING COSTS 33. The Applicant is prepared to recognize and acknowledge the right of the state to advance national security interests in the removal of a non-citizen from Canada. But it is the respectful submission of the Applicant that that process must be done in a manner that does respect the Applicantâ€™s right to life, liberty and security of the person and the right not to be deprived thereof of except in accordance with the principles of fundamental justice. 34. The Supreme Court of Canada granted costs to the Applicant on the Charkaoui application for leave to appeal. 35. In this case counsel for the Respondents was asked whether the Respondents would consent to an application for leave to appeal. The Respondents to date have not taken a position as to whether they would consent to such an application. 36. In the circumstances of this case it is respectfully submitted that the costs of this application for leave to appeal should be allowed on a solicitor/client basis in any event of the cause. PART V â€“ THE ORDER SOUGHT 37. The Applicant seeks an order granting leave to appeal to the Supreme Court of Canada from the decision of the Federal Court of Appeal dated September 6th, 2005 in which that Court dismissed the appeal from a decision of Justice Dawson upholding the constitutional validity of Section 76-80 of IRPA DATED at Toronto, Ontario, this 17th day of October, 2005. ______________________________ Paul D. Copeland Copeland, Duncan Barristers & Solicitors 31 Prince Arthur Avenue Toronto, Ontario M5R 1B2 Tel. (416) 964-8126 Ext. 142 Fax: (416) 960-5456 Solicitor for the Applicant PART VI – TABLE OF AUTHORITIES A. Statutes: 1. Immigration & Refugee Protection Act, s. 76-81 2. Criminal Code s. 83.01-83.33 B. Case Authorities: Cited at Paragraph(s) 3. Suresh v. Canada (2001) 208 D.L. R. (4th) 1 14, 26 4. Ahani v. Canada  F.C.J. No. 937 15, 18, 19 5. Re Charkaoui  F.C. J. No. 2060 4-6, 8, 15, 19, 20, 34 6. R. v. Secretary of State for the Home Department Ex p. Hosenball ; All ER 452 (CA) 16 7. R. v. Atwal (1987) 36 C.C.C. (3rd) 161, at 187 (FCA) 16 8. Canada (Minister of Employment and Immigration) v. Chiarelli  1 SCR 711 16-17 9. Ahani v. Canada  FCJ No. 1190,  3FC 669 18, 19 10. Singh v. Canada (Minister of Employment and Immigration)  1 S.C.R. 177 21, 25 11. Chahal v. United Kingdom (1996) 23 EHRR 413 29 C: Judgements: 12. Order and Reasons of Justice Dawson, dated March 22nd, 2005. 1-3, 5, 10, 37 13. Judgement of Chief Justice Richard, Federal Court of Appeal, dated September 6th, 2005, Docket A-144-05 6, 7 PART VII – STATUTORY AUTHORITIES Immigration & Refugee Protection Act, S.C. 2001, Ch. 27 SS. 34, 77, 78, 80, 81, 82, 83, 84 34(1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. S.C. 2001, c. 27, s. 34, in force June 28, 2002 (SI/2002-97) 77(1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court, which shall make a determination under section 80. (2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination. 78 The following provisions govern the determination: (a) the judge shall hear the matter; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; (e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed; (i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. S.C. 2001, c. 27, s. 78, in force June 28, 2002 (SI/2002-97) 80(1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made. (2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection. (3) The determination of the judge is final and may not be appealed or judicially reviewed. S.C. 2001, c. 27, s. 80, in force June 28, 2002 (SI/2002-97). 81. If a certificate is determined to be reasonable under subsection 80(1), (a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible; (b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and (c) the person named in it may not apply for protection under subsection 112(1). S.C. 2001, c. 27, s. 81, in force June 28, 2002 (SI/2002-97). 82(1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal. (2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant. 83(1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require. (2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six- month period following each preceding review and at any other times that the judge may authorize. (3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal. S.C. 2001, c. 27, s. 83, in force June 28, 2002 (SI/2002-97). 84(1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada. (2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person. S.C. 2001, c. 27, s. 84, in force June 28, 2002 (SI/2002-97). Loi sur l’immigration et la protection des rÃ©fugiÃ©s L.C. 2001, Ch. 27 SS. 34, 77, 78, 80, 81, 82, 83, 84 34(1) Emportent interdiction de territoire pour raison de sÃ©curitÃ© les faits suivants: (a) ïŒtre l’auteur d’actes d’espionnage ou se livrer ï‚ la subversion contre toute institution dÃ©mocratique, au sens oïª cette expression s’entend au Canada; (b) ïŒtre l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) se livrer au terrorisme; (d) constituer un danger pour la sÃ©curitÃ© du Canada; (e) ïŒtre l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sÃ©curitÃ© d’autrui au Canada; (f) ïŒtre membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a Ã©tÃ© ou sera l’auteur d’un acte visÃ© aux alinÃ©as a), b) ou c). (2) Ces faits n’emportent pas interdiction de territoire pour le rÃ©sident permanent ou l’Ã©tranger qui convainc le ministre que sa prÃ©sence au Canada ne serait nullement prÃ©judiciable ï‚ l’intÃ©rïŒt national. 77(1) Le ministre et le solliciteur gÃ©nÃ©ral du Canada dÃ©posent ï‚ la Section de premiïre instance de la Cour fÃ©dÃ©rale le certificat attestant qu’un rÃ©sident permanent ou qu’un Ã©tranger est interdit de territoire pour raison de sÃ©curitÃ© ou pour atteinte aux droits humains ou internationaux, grande criminalitÃ© ou criminalitÃ© organisÃ©e pour qu’il en soit disposÃ© au titre de l’article 80. (2) Il ne peut ïŒtre procÃ©dÃ© ï‚ aucune instance visant le rÃ©sident permanent ou l’Ã©tranger au titre de la prÃ©sente loi tant qu’il n’a pas Ã©tÃ© statuÃ© sur le certificat; n’est pas visÃ©e la demande de protection prÃ©vue au paragraphe 112(1) 78 Les rïgles suivantes s’appliquent ï‚ l’affaire: (a) le juge entend l’affaire; (b) le juge est tenu de garantir la confidentialitÃ© des renseignements justifiant le certificat et des autres Ã©lÃ©ments de preuve qui pourraient lui ïŒtre communiquÃ©s et dont la divulgation porterait atteinte, selon lui, ï‚ la sÃ©curitÃ© nationale ou ï‚ la sÃ©curitÃ© d’autrui; (c) il procïde, dans la mesure oïª les circonstances et les considÃ©rations d’Ã©quitÃ© et de justice naturelle le permettent, sans formalisme et selon la procÃ©dure expÃ©ditive; (d) il examine, dans les sept jours suivant le dÃ©pÃ´t du certificat et ï‚ huis clos, les renseignements et autres Ã©lÃ©ments de preuve; (e) ï‚ chaque demande d’un ministre, il examine, en l’absence du rÃ©sident permanent ou de l’Ã©tranger et de son conseil, tout ou partie des renseignements ou autres Ã©lÃ©ments de preuve dont la divulgation porterait atteinte, selon lui, ï‚ la sÃ©curitÃ© nationale ou ï‚ la sÃ©curitÃ© d’autrui; (f) ces renseignements ou Ã©lÃ©ments de preuve doivent ïŒtre remis aux ministres et ne peuvent servir de fondement ï‚ l’affaire soit si le juge dÃ©cide qu’ils ne sont pas pertinents ou, l’Ã©tant, devraient faire partie du rÃ©sumÃ©, soit en cas de retrait de la demande; (g) si le juge dÃ©cide qu’ils sont pertinents, mais que leur divulgation porterait atteinte ï‚ la sÃ©curitÃ© nationale ou ï‚ celle d’autrui, ils ne peuvent faire partie du rÃ©sumÃ©, mais peuvent servir de fondement ï‚ l’affaire; (h) le juge fournit au rÃ©sident permanent ou ï‚ l’Ã©tranger, afin de lui permettre d’ïŒtre suffisamment informÃ© des circonstances ayant donnÃ© lieu au certificat, un rÃ©sumÃ© de la preuve ne comportant aucun Ã©lÃ©ment dont la divulgation porterait atteinte, selon lui, ï‚ la sÃ©curitÃ© nationale ou ï‚ la sÃ©curitÃ© d’autrui; (i) il donne au rÃ©sident permanent ou ï‚ l’Ã©tranger la possibilitÃ© d’ïŒtre entendu sur l’interdiction de territoire le visant; (j) il peut recevoir et admettre en preuve tout Ã©lÃ©ment qu’il estime utile – mïŒme inadmissible en justice – et peut fonder sa dÃ©cision sur celui-ci. 80(1) Le juge dÃ©cide du caractïre raisonnable du certificat et, le cas Ã©chÃ©ant, de la lÃ©galitÃ© de la dÃ©cision du ministre, compte tenu des renseignements et autres Ã©lÃ©ments de preuve dont il dispose. (2) Il annule le certificat dont il ne peut conclure qu’il est raisonnable; si l’annulation ne vise que la dÃ©cision du ministre il suspend l’affaire pour permettre au ministre de statuer sur celle-ci. (3) La dÃ©cision du juge est dÃ©finitive et n’est pas susceptible d’appel ou de contrÃ´le judiciaire. 81 Le certificat jugÃ© raisonnable fait foi de l’interdiction de territoire et constitue une mesure de renvoi en vigueur et sans appel, sans qu’il soit nÃ©cessaire de procÃ©der au contrÃ´le ou ï‚ l’enquïŒte; la personne visÃ©e ne peut dïs lors demander la protection au titre du paragraphe 112(1). 82(1) Le ministre et le solliciteur gÃ©nÃ©ral du Canada peuvent lancer un mandat pour l’arrestation et la mise en dÃ©tention du rÃ©sident permanent visÃ© au certificat dont ils ont des motifs raisonnables de croire qu’il constitue un danger pour la sÃ©curitÃ© nationale ou la sÃ©curitÃ© d’autrui ou qu’il se soustraira vraisemblablement ï‚ la procÃ©dure ou au renvoi. (2) L’Ã©tranger nommÃ© au certificat est mis en dÃ©tention sans nÃ©cessitÃ© de mandat. 83(1) Dans les quarante-huit heures suivant le dÃ©but de la dÃ©tention du rÃ©sident permanent, le juge entreprend le contrÃ´le des motifs justifiant le maintien en dÃ©tention, l’article 78 s’appliquant, avec les adaptations nÃ©cessaires, au contrÃ´le. (2) Tant qu’il n’est pas statuÃ© sur le certificat, l’intÃ©ressÃ© comparaÃ®t au moins une fois dans les six mois suivant chaque contrÃ´le, ou sur autorisation du juge. (3) L’intÃ©ressÃ© est maintenu en dÃ©tention sur preuve qu’il constitue toujours un danger pour la sÃ©curitÃ© nationale ou la sÃ©curitÃ© d’autrui ou qu’il se soustraira vraisemblablement ï‚ la procÃ©dure ou au renvoi. 84(1) Le ministre peut, sur demande, mettre le rÃ©sident permanent ou l’Ã©tranger en libertÃ© s’il veut quitter le Canada. (2) Sur demande de l’Ã©tranger dont la mesure de renvoi n’a pas Ã©tÃ© exÃ©cutÃ©e dans les cent vingt jours suivant la dÃ©cision sur le certificat, le juge peut, aux conditions qu’il estime indiquÃ©es, le mettre en libertÃ© sur preuve que la mesure ne sera pas exÃ©cutÃ©e dans un dÃ©lai raisonnable et que la mise en libertÃ© ne constituera pas un danger pour la sÃ©curitÃ© nationale ou la sÃ©curitÃ© d’autrui.
DOPE SHEET COLUMN May 18, 2005 CSIS-TURNING A BLIND EYE TO TORTURE In December 2002 Mohamed Harkat was arrested on a Security Certificate issued under Section 77 of the Immigration and Refugee Protection Act. Since that time Mr. Harkat has been detained at the Ottawa Detention Centre. Madam Justice Eleanor Dawson, of the Federal Court, under Section 80 of the Immigration and Refugee Protection Act conducted the proceedings to determine whether the certificate signed by the two Ministers was â€œreasonableâ€. On March 22nd, 2005 Justice Dawson found that the certificate was reasonable. The result of that decision is that Mr. Harkat is now subject to removal from Canada. He remains in jail while we await the decision of the Ministerâ€™s Delegate on whether Mr. Harkat should be returned to his home country, Algeria. Submissions have been made to Canada Border Services, based on two reports from experts on Algeria, that Mr. Harkat should not be returned to Algeria because he is likely to be tortured or killed in that country. In this article I do not propose to review any aspect of the case, other than the issue of how CSIS deals with evidence obtained by torture. In all security certificate cases, after the Judge has reviewed the matter, the person concerned receives a document entitled â€œStatement Summarizing the Information and Evidence Pursuant to Section 78(h) of the Immigration and Refugee Protection Act (IRPA)â€. In Mr. Harkatâ€™s case, leaving aside the supporting documents, the summary was made up of 42 paragraphs spread out over 17 pages. Under a heading entitled â€œHarkatâ€™s Links with the Bin Laden Networkâ€, at paragraph 39 the following appears: 39. The Service believes that HARKAT has associated with Abu Zubaida, one of Osama Bin Ladenâ€™s top lieutenants since the early 1990â€™s. Abu Zubaida was recently captured in Pakistan and has been reported to be cooperative with the United States authorities. When I took over this case from Rocco Galati and Bruce Engel in June of 2004 the first thing I did was argue two appeals that they have filed in the Federal Court of Appeal. After losing those appeals I then drafted a 25 page letter to James Mathieson, Counsel for the Canadian Security Intelligence Service (CSIS). The letter contained 231 questions and was sent pursuant to an order Justice Dawson had made on July 29th, 2003. Concerning Abu Zubaida, the letter contained the following: In paragraph 32, reference is made to Abu Zubaida. When I first read the sentence in that paragraph â€œAbu Zubaida was recently captured in Pakistan and has been reported to be cooperative with the United States authoritiesâ€, I thought it was likely that the term â€œreported to be cooperativeâ€ meant that Abu Zubaida was being tortured by US personal or by the persons assisting the U.S. government in extracting information from Mr. Zubaida. On June 28th, 2004 the attached article appeared in the Globe and Mail. That article makes reference to a memo that suggested that the White House condoned the use of torture. I would point out the portion at the bottom of the second column of the article: â€œThe White House has since disavowed the memo, which sprang specifically from an internal debate in Washington about how to extract information from Abu Zubaydah, one of Osama Bin Ladenâ€™s top deputies, after his capture in April, 2002â€. Also attached is an article â€œA Tortured Debateâ€ from the June 21 Newsweek magazine. That article makes reference to a legal memo prompted by CIA questions about what to do with Abu Zubaydah. The memo, prepared by the Justice Departmentâ€™s Office of Legal Counsel defends most interrogation methods short of severe, intentionally inflicted pain and permanent damage. I also posed the following questions concerning Abu Zubaydah (the American spelling of his name). The Memorandum referred to in those articles is what became known as the Alberto Gonzalezâ€™ Memorandum. There will be more on that Memorandum later in this article. In regard to paragraph 39, would you please provide me with details of any association between my client and Abu Zubaydah? (#51) Would you please advise Justice Dawson of all evidence in the possession of the Service that establishes that association? (#52) Please provide her with the transcripts of the interrogation of Abu Zubaydah. (#53) Those transcripts should allow her to ascertain if the interrogators put my clientâ€™s name to Abu Zubaydah or if he came up with the name. Did Canadian security authorities provide my clientâ€™s name to the Americans before Zubaydah was interrogated? (#54) In paragraph 39 you indicate the Service believes there is an association between my client and Abu Zubaydah. Would you please advise Justice Dawson of the training and expertise of those members of the Service who came to that conclusion. (#55) As with all other correspondence sent to James Mathieson, the Counsel for CSIS, a copy of the correspondence was sent to the Federal Court and Justice Dawson. All of the correspondence became part of the Record in the case. On July 16th, 2004 in relation to the issue of the torture of Abu Zubaida I sent to Mr. Mathieson (and to the Court) a copy of the document dated August 1st, 2002 entitled Memorandum for Alberto R. Gonzales, Counsel to the President. I had obtained that document from the Arar inquiry. The Memorandum was written by Jay S. Bybee, Assistant Attorney General and runs on for a terrifying 46 pages. Mr. Bybee was in the Office of Legal Counsel of the U.S. Department of Justice. The Memorandum deals with the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. The complete Memorandum can be obtained from the Arar Commission. Their website is: http://www.ararcommission.ca/eng/. In the Summary portion of the Definition of Torture at page 13 the following appears: Each component of the definition (of torture) emphasizes that torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. The Memorandum for Alberto Gonzales was written in relation to how the Americans or their proxies should deal with Abu Zubaida. New York Times Article June 27, 2004 On July 23rd, 2004 I received from Mr. Mathieson the Summary in relation to Abu Zubaida which was issued by the Court in April 2003. The three-line Summary, which is all we ever received concerning whatever Abu Zubaida had said about my client, reads as follows: A foreign agency advised the Service in March 2003 that Abu ZUBAIDA was able to identify the respondent (HARKAT) by his physical description and his activities, including that he operated a guesthouse in Peshawar, Pakistan in the mid 1990s for mujahedeen travelling to Chechnya. In regard to the issue of torture of Abu Zubaida, in his letter of July 23rd, 2004 Mr. Mathieson said as follows: As you can see, we are therefore relying upon information which originates with Mr. ZUBAIDA. However, you appear to making certain assumptions in your correspondence with respect to Mr. ZUBAIDA. Your assumptions do not appear to be supported by reliable evidence. I would not necessarily categorize a media report from the Internet, or the European or North American media as constituting reliable evidence of torture. On July 24th, 2004 I sent an e-mail to Mr. Mathieson. The relevant portion of the e-mail was as follows: I acknowledge receipt of your fax dated July 23 and the three line summary re a â€œforeign agencyâ€ advising the Service of information obtain from Abu Zubaida. Given the media coverage about the capture of Abu Zubaida I am amazed that the Service does not state they got the information from the Americans. I want to see specifically what the American extracted from Abu Zubaida. If you wonâ€™t show it to me show it to Justice Dawson. I presume from the summary that Abu Zubaida did not identify Mr. Harkat by name. How do the Americans link whatever they extracted from Abu Zubaida to my client. It appears that the information from Abu Zubaida does not place whomever he identified as having been in Afghanistan. What evidence does the Service have that places my client in Afghanistan. What disturbs me the most about what you sent me is that you say my â€œassumptions (about the torture of Abu Zubaida) do not appear to be supported by reliable evidenceâ€. Does the Service and do you take the position that the Americans and their proxies did not and do not torture prisoners. Did you read the Memo for Alberto Gonzales that I sent you? I would be prepared to match Mark Hosenball for reliability on American human rights and Geneva Convention violations and intelligence information against any CSIS operative you care to put up. Whether Justice Dawson will choose Hosenball over your person remains to be seen. Are you prepared to go to the U.S. and take Commission Evidence as to whether Abu Zubaida was tortured? On August 3rd, 2004 I sent a letter to Mr. Mathieson (with a copy to the Court). The portion of the letter relating to Abu Zubaida reads as follows: Abu Zubaida Based on what you said in your letter of July 23rd, 2004 it appears to me that it will be necessary for me to try and prove to the court that Abu Zubaida was tortured by, to use your words, â€œa foreign agencyâ€. The three-line summary that was issued by the court in April 2003 is, to say the least, extremely brief. Please provide to me or to Justice Dawson the following information: 1. The full and complete report received by â€œa foreign agencyâ€ that in any way relates to my client. 2. Please provide to me or to the court the physical description given of the person that your Service identifies as Harkat. 3. Please advise me or the court of the exact date that Abu Zubaida specified when reference is made to the mid 1990â€™s. You of course are aware that my client came to Canada in 1995. Please advise me or the court the manner by which the physical description given by Abu Zubaida is connected with my clientâ€™s name. Did the Service specifically request the Americans or the Pakistanis to question Abu Zubaida about my client? Did the Service provide a physical description of my client? Comments relating to Abu Zubaida appeared in Chapter 6 of the 9/11 Commission Report. That Chapter was sent to Mr. Mathieson and the Court. That Chapter makes links between Abu Zubaida and Ahmed Ressam, the Millennium bomber. A memorandum was prepared for an August 3rd, 2004 conference call with the Court. Among the issues that I said needed discussion in the conference call were the following: 4. Whether the information obtained from Abu Zubaida was obtained under torture. Because of the nature of these proceedings, it is unlikely that counsel for Mr. Harkat will be allowed to cross-examine any witnesses or to learn the details of what information was provided by Abu Zubaida. It is our position that the information obtained from Abu Zubaida, if it actually identifies Mr. Harkat, should be given little or no weight if the information was obtained under torture. 5. If we are going to have to litigate the circumstances in which the information was obtained from Abu Zubaida, counsel will need to contact Mark Hosenball, and to gather information from the Centre for Constitutional Rights in New York City. The Centre has been the lead legal organization in regard to the treatment of prisoners post September 11th. The Centre was involved in recent cases in the Supreme Court of the United States involving prisoners detained at Guantanamo, Cuba and detained as enemy combatants in the United States. On August 10th, 2004 Mr. Mathieson, in response to the matter raised in the telephone conference said the following: If the Court is of the view that your allegations with respect to the treatment of Abu Zubaida are relevant to that issue, then you have the discretion to call whatever evidence you have to support your allegations. In October 2004 we provided to CSIS and to the Court extracts from a Human Rights Watch Report Briefing paper entitled â€œThe United Statesâ€™ Disappeared: The CIAâ€™s Long Term â€˜Ghost Detaineesâ€™â€. That paper is available on the Human Rights Watch website: http://www.hrw.org/. As well we filed a declaration from Steven Watt, who was then working for the Centre for Constitutional Rights in New York (CCR). The CCR has been involved at the forefront of all of the work in the United States concerning human rights abuses post September 11, including cases in the Supreme Court of the United States regarding the treatment of prisoners at Guantanamo and the treatment of enemy combatants, the lawsuit on behalf of Maher Arar and lawsuits filed on behalf immigrants rounded up, arbitrarily detained and mistreated by the FBI and U.S. Immigration and Naturalization Services post September 11th, 2001. Mr. Watt concluded his declaration by saying that: It is clear that detainees in U.S. custody and control in Afghanistan, Guantanamo and other undisclosed locations, including Abu Zubaydah have been subject to a regime of treatment including interrogations, which constitutes cruel, inhuman, or degrading treatment and, in many instances, torture. In December we argued the issue of the admissibility of the evidence of Abu Zubaida. For that hearing we filed with the Court all of the material noted above. I also filed with the Court the transcript of the evidence from the Arar inquiry of former CSIS Director Ward Elcock. Mr. Elcock testified on the 21st and 22nd of June 2004. The transcript of that testimony is available on the Arar inquiry website. On five occasions during the course of his cross-examination by Lorne Waldman, counsel for Mr. Arar, Mr. Elcock declined or avoided answering the question as to whether Syria is a country that engages in torture. At page 233 of the Transcript from June 21st, 2004 a sample of Mr. Elcokâ€™s testimony: MR. WALDMAN: I just looked at the Website of the Department of State and you said you are familiar with that, the Human Rights Reports. Very quickly and cursorily I saw that Saudi Arabia, Syria, Jordan, India, Sri Lanka, Tunisia, Libya, Pakstan, Kazakhstan and Afghanistan all are countries for which the Department of State has identified they use torture in order to interrogate people. Do we have information-sharing agreements with any of the countries? I am not asking you to specify which ones, but with some of them? MS. McISAAC (Counsel for the government of Canada): Again, Mr. Chairman, that is the question that elicits information over which the Attorney General claims national security confidentiality. MR. WALDMAN: Do we have information-sharing agreements with countries that engage in torture? Can you answer that question? MR. ELCOCK: The think the problem is that I donâ€™t know what countries necessarily engage in torture. There are certainly allegations that certain countries do, but I have no independent knowledge in most cases that any country has engaged in torture. Clearly that information, if we have information from reports such as Amnesty International, the State Department, or any information we may have independently that indicates that generally speaking or on occasion a service does use torture, then that will have clear implications for the way in which we assess the information. MR. WALDMAN: Are you telling me that if the Department of State of the United States and its Human Rights Reports says that these countries engage in torture, you are still going to say â€œIâ€™m not sure that they doâ€?. Is that your position? Is your position then that â€œI am going to close my eyes to torture until I see the person putting the electric cattle prods on the individualâ€? Is that your position sir? MR. ELCOCK: I didnâ€™t say that was my position at all. I just said that — MR. WALDMAN: You just said that. I thought you just said that. You said that â€œI donâ€™t know if these countries engage in torture. I read the reportsâ€. I asked you if you read the Department of State report and you said â€œI didâ€. Do you believe that Syria engages in torture, sir? MR. ELCOCK: The fact of those reports is simply that they allege that Syria or other countries use torture. That is not necessarily – – MR. WALDMAN: I am asking you if – – THE COMMISSIONER: Mr. Waldman, do let him finish. Let him finish the answer and then you can ask the next question. MR. WALDMAN: I am just asking you â€“ Iâ€™m not asking you whether — THE COMMISSIONER: He was – – MR. WALDMAN: I am asking you a personal question, sir, what your opinion is, which is highly relevant. As a Director of CSIS, do you believe that Syria engages in torture, having read the Department of State reports; a simple yes or no? MR. ELCOCK: I have seen the reports. I can suspect that Syrian may engage in torture. I have no confirmation of that one way or the other. MR. WALDMAN: I am not asking a confirmation. I am asking you your belief based upon the reports, the Amnesty International, the Special Rapporteur on Torture from the United Nations, the Department of State, they all say that Syria engages in torture in interrogation of people. Iâ€™m asking you whether you believe that Syria engages in torture. It is a simple yes or no question. Are you going to give it to me? MR. ELCOCK: It is not a simple yes or no question. MR. WALDMAN: Why not? Why isnâ€™t your belief – – MR. ELCOCK: Because all of those documents simply provide conclusions. I have no knowledge as to the background of those documents, the evidence that they rely on or anything else. MR. WALDMAN: This is really – – MR. ELCOCK: So I canâ€™t make any conclusion on the basis of those documents, except that they provide an indicator to us that some services may indeed use torture. MR. WALDMAN: Okay. This is really fascinating. You just have spent the whole day telling us about how intelligence operations work. You put together little pieces of a puzzle and you reach a conclusion. Isnâ€™t that correct? MR. ELCOCK: Yes. MR. WALDMAN: At a certain point you form an opinion that something is happening. Is that correct? MR. ELCOCK: Thatâ€™s true. MR. WALDMAN: So I am asking you a simple question: You have read these documents, you know how these services work, you know the societies, Iâ€™m asking you to put the pieces of the puzzle together and to give me an opinion. Does Syria engage in torture, yes or no? Why can you do it with respect to Sunni extremists, or whatever, as you identify them, or other people, but you are not willing to do it about a foreign State from whom you receive information? MR. ELCOCK: The reality of our investigations is – – MR. WALDMAN: Sorry. I donâ€™t want to interrupt you. MR. ELCOCK: We carry out investigations of individuals and/or of people who may be regarded as a threat to the security of Canada. At the end of the day, the issue of whether or not a service indulges in torture or not is something we can investigate, it is something simply on which we can collect enough information in order to be in a position to assess the quality of that service, the reliability of that service, whether or not they do use torture in their investigations, and whether or not we should be alive to those possibilities in receiving any information from any service like that if we had a relationship with such a service. MR. WALDMAN: But at the end of the day isnâ€™t it highly relevant that you form an opinion as to whether a particular service engages in torture so that you can determine the reliability of the information of that service? MR. ELCOCK: It is not necessary that I necessarily form that opinion. It may be that it will be crucial in terms of the exchange of information that those who make the decisions on a day-to-day basis to send information have that and that we have worked with the Department of Foreign Affairs to make sure we have a view of those issues. MR. WALDMAN: But arenâ€™t you the person who is responsible for determining whether or not we get into arrangements? Didnâ€™t you just testify earlier today that it was your responsibility to decide whether we get into arrangements and you are the one who made the ultimate decision? MR. ELCOCK: In terms of entering into an arrangement the Minister has ultimately to consent to those arrangements and I make that recommendation to the Minister. MR. WALDMAN: So you donâ€™t think it is relevant in the context of that that you form an opinion as to whether a State engages in torture when you advise the Minister? MR. ELCOCK: That would be an issue which we would put before the Minister if there were any concerns with respect to the human rights record of a country that we were proposing to enter into a relationship with. MR. WALDMAN: But are you telling me that when you make a recommendation to the Minister about an information-sharing with, letâ€™s say hypothetically, Syria – – MR. ELCOCK: At the end of the day if I make the recommendation to the Minister, I am making the recommendation to the Minister that we enter into an arrangement with a country because it is essential to protecting Canadian security that we do so. MR. WALDMAN: But I think the Director requires you to take into account the Human Rights Record. MR. ELCOCK: We balance a lot of things including the Human Rights Record of the country in question to the best of our ability to know something about it. MR. WALDMAN: If you are going to balance that, how can you balance that if you donâ€™t form an opinion about Syria or any other country whether they engage in torture? I just find it rather shocking that you are going to enter into an agreement with a foreign State when you acknowledge that there is all this documentation out there that says they engage in torture and you donâ€™t form an opinion as to whether they engage in torture. Is that your evidence today? MR. ELCOCK: You asked me if I had an opinion about whether Syria engaged in torture. I canâ€™t offer you that opinion. But the reality is, when I make a recommendation to the Minister in respect of any country then obviously we have balanced all of the concerns, including the Human Rights Record of the country involved and ultimately if we recommended to the Minister, we have recommended to the Minister because it is important in our view, in terms of Canadaâ€™s security, to secure that relationship in order to share information if we can with that service. MR. WALDMAN: You are reluctant to talk about Syria because you donâ€™t want to acknowledge that Syria might have entered – – am I reading you right, that you donâ€™t want to acknowledge that you might have made a recommendation to the Minister and found that Syria engaged in torture? â€¦ â€¦ MR. WALDMAN: I donâ€™t know if I got an answer to this question: To your knowledge do we have foreign agreements with countries that, according to your assessments when you make the recommendation to the Minister, engage in torture? MR. ELCOCK: We may well have arrangements with countries that we suspect may engage in torture. I doubt very much whether we could ever know for sure whether they engage in torture. There is a difference. MR. WALDMAN: What steps do you do to find out whether a country engages in torture or not, beside reading the Department of State reports? MR. ELCOCK: We would look at those. We would look at any independent information we have received from other sources. â€¦. â€¦ MR. WALDMAN: Would you agree with me that the United States engages in torture in order to obtain information? MR. ELCOCK: I have no knowledge of that. Based on a review of the evidence of Mr. Elcock I concluded that Mr. Elcock seemed prepared to receive information from any country without regard to whether the country engages in torture. Memorandum re: Evidence Obtained by Torture In support of our argument to exclude the evidence obtained from Abu Zubaida we filed an 11 page memorandum relying on the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and Section 269 of the Criminal Code. We argued that anything obtained from Abu Zubaida should not be admitted. The CSIS response was expressed in oral submissions by Mr. Mathieson and at paragraph 2 of their Factum: It is the position of the Respondents that the Applicant has adduced no proof on the balance of probabilities that evidence obtained from Abu Zubaida was obtained as a result of torture, such that it should be excluded from the consideration of the reasonableness of the certificate. CSIS called no evidence and filed no material on the issue of the treatment of Abu Zubaida. I submitted to Justice Dawson that based on the material we had filed with the Court and what was in effect an â€œadmission by silenceâ€ by CSIS failing to file any material, that we had established on the balance of probabilities that Abu Zubaida had been tortured by the Americans or their proxies. Justice Dawsonâ€™s Decision The decision of Justice Dawson may be found at the Federal Court website: http://www.fct-cf.gc.ca/. The decision was released on March 22nd, 2005. The docket number is DES-4-02. The citation number is 2005 FC 393. In regard to the information obtained from Abu Zubaida, Justice Dawson dealt with that from paragraph 115 to 121. She concluded that issue as follows: I believe it to be an appropriate exercise of the discretion given to the Court by subsection 78(j) of the Act to conclude that this material (the material from Abu Zubaida), all of it hearsay and to some extent speculation, does raise significant concern about the methods used to interrogate Abu Zubaida. For the reasons set out below, Justice Dawson found that it was not necessary to reach to a conclusion as to whether Abu Zubaida was tortured by the Americans or their proxies.  In this case, there is an additional pressing concern surrounding the information obtained from Mr. Abu Zubaida. Setting aside the issue of torture or mistreatment, the Court has no evidence before it as to what it was that Mr. Abu Zubaida said, or in what circumstance. This information is required in order for the Court to assess the weight to be given to the information. The concern is aptly illustrated by the following portion of Mr. Harkat’s counsel’s final argument: I spent a fair bit of time talking to the Media in regard to this, but what I have mostly said is: If they said to Abu Zubaida, in whatever circumstances he is: “Did you know a short Algerian guy, a little bit heavy set, walks with a limp, was connected to the FIS, ran a guest house in Peshawar for mujahideen going to Chechnya?” and he said “yes”, in my submission, that is virtually worthless as evidence, particularly all the more so if he is being pressured or tortured while he is responding in that fashion. If, on the other hand, what happened was they said: “Okay, Mr. Zubaida. You have told us everything, you have answered all the questions. Is there anything else we should know?” and he said: “Yes. There is this short Algerian guy, walks with a limp, connected with the FIS, who ran this guest house in Peshawar for mujahideen going to Chechnya”, that actually might have some evidentiary value. Have they given you enough to understand how those answers came out? Does their description of the process by which they extracted or obtained the information from Abou Zubaida make sense? Can you put weight on his statements given the circumstances? – – And that is the issue of the reliability of evidence obtained under torture; or, in some circumstances, it gets pretty close to torture.  On all of the evidence before the Court, I am left in doubt as to how Mr. Abu Zubaida came to provide information about Mr. Harkat. I do not know what photograph he identified, whether what is provided to the Court is the text of what Mr. Abu Zubaida volunteered, or whether he answered “yes” in response to a leading question. In light of that, and the doubt raised about the treatment afforded to Mr. Abu Zubaida, I give no weight to the information provided to the Court through Abu Zubaida. Keeping out the evidence did not help Notwithstanding giving no weight to the information provided to the Court through Abu Zubaida, Justice Dawson, based on evidence never disclosed to Mr. Harkat or his counsel, at paragraph 143 set out a number of conclusions regarding Mr. Harkat. Paragraph 143(9) reads as follows:  A consideration of all of the evidence before me establishes, on an objective basis, grounded on evidence I find to be credible, that there are reasonable grounds to believe that: 9. Mr. Harkat has associated with Abu Zubaida since the early 1990’s12. Abu Zubaida was one of Osama Bin Laden’s top lieutenants from the 1990’s until his capture.
DOPE SHEET COLUMN FEDERAL ELECTION IMPLICATIONS
This Dope Sheet is being prepared on January 25, 2006, two days after the Federal election. Prime Minister Harper. Now there is scary thought. For those of us doing â€œnational securityâ€ work Anne McLellanâ€™s defeat is good news, probably no matter how bad the new Minister of Public Safety and Emergency Preparedness is. I had suggested in a recent column that Ms. McLellan should resign as a Minister because, by her non-response to the issues raised by Amnesty International of Canadian complicity in torture, she too was complicit in the torture in Syria and Egypt of Ahmed El Maati and in Syria of Abdullah Almalki. Ms McLellan did not respond to my call for her resignation. Given how few people seem to read the Dope Sheet, she likely never heard of the call for her resignation. The voters in Edmonton obviously heeded my call for her resignation. On second thought they could not have heard about my suggestion of her complicity of torture; that would have led to her re-election. Marijuana legislation The election of the Conservatives probably puts an end to the proposed changes to marihuana legislation. Contravention Act offences for possession of marijuana will not be created. To my mind it is doubtful if the Conservatives, in the face of the NDP and the Bloc views on marijuana, will be able to increase the maximum penalties for grow labs. Possession of hand guns Mr. Harper and Mr. Layton called for mandatory minimum sentences for possession of hand guns. Laytonâ€™s minimum was 4 years and I believe Harperâ€™s minimum was 10 years. While Justice Minister Cotler was opposed to more mandatory minimum sentences, I expect that in the Liberal Party the Conservatives will be able to find enough support to add to the support from the NDP, to create more mandatory minimum sentences. It is likely that 16 and 17-year-old young people will face mandatory prosecutions as adults when charged with hand gun offences. During the election campaign there was discussion of making possession of a hand gun an offence that had a reverse onus bail requirement. In a country where possession for the purposes of trafficking in marihuana is a reverse onus offence, it seems to me that it is likely that legislation changing the bail provisions for possession of hand guns will be passed soon. That to me sounds like a good idea. SECURITY CERTIFICATE CASES There are a number of Charter issues related to the security certificate provisions of the Immigration and Refugee Protection Act which will be argued in the Supreme Court of Canada on June 13th, 14th and 15th in the Charkaoui, Almrei, and Harkat cases. Leave to appeal in Harkat was granted on January 19, 2006. One issue to be argued is whether the security certificate provisions of IRPA, with secret evidence heard by the judge, in the absence of counsel for the detainee, meet the fundamental justice requirements of Section 7 of the Charter. In the Harkat case I had asked Justice Dawson to appoint an amicus curiae (or special advocate) to assist her in assessing the evidence in the case. In the United Kingdom such a special advocate procedure is used before the Special Immigration Appeals Commission which deals with cases very similar to our security certificate cases. Justice Dawson turned down my request for the special advocate/amicus curiae. Even before the Section 7 issue is argued in the Supreme Court of Canada I believe we may see a special advocate used in a security case in the Federal Court. There is also a possibility that the Senate and House of Commons Committees that were looking at the security certificate issue will recommend that the special advocate procedure be legislated into the security certificate provisions of IRPA. THE CONTINUING CSIS BLIND EYE TO TORTURE I recently had an article in the Dope Sheet column entitled CSIS: Turning a Blind Eye to Torture. Recently in the Harkat case, on his bail application pursuant to S. 84(2) of IRPA, the government produced before Justice Lemieux in the Federal Court a witness identified only as PG. PG was the Senior Middle East Analyst in a branch known as the Requirements Analysis and Production Branch. PG looked at issues pertaining to Islamic Extremism and the threat of Islamic Extremism to Canada. During the course of my cross-examination of PG I asked him a number of questions about whether CSIS makes any attempt to find out if information CSIS has received was obtained from torture. Torture under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as defined in the Gonzales Memorandum (prepared for then Counsel to President Bush, now Attorney General, Alberto Gonzales): “Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but it is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury, so severe that death, organ failure, or permanent damage resulting in the loss of a significant body function will likely result.” This memorandum was prepared on August 1, 2002 by Jay S. Bybee, then Assistant Attorney General (now a Federal judge), after the capture of a high level al Qaeda member, Abu Zubaydah, in Pakistan. Abu Zubaydah is one of what Humans Rights Watch calls the Ghost Detainees. He is somewhere in one of the CIA black sites. What follows is a portion of the cross-examination of P.G. on the issue of evidence obtained by torture (an electronic version of PGâ€™s evidence is available for those who want it): Q. Were any discussions had within CSIS, in regard to that definition of torture, and how the Americans might be treating their prisoners, or having their proxies treat their prisoners? A. I have not been privy to conversations concerning that subject, no. Q. As the Senior Analyst for CSIS, would you have thought that it would be appropriate that you be included in those discussions? MR. MacINTOSH: Objection. He cannot be asked to comment on the efficacy or the policy that is adopted by the Director of CSIS, or people that are his superiors, whether it is appropriate or not. JUSTICE LEMIEUX: I am going to overrule that objection. He is in crossï·“examination. He is entitled to probe the Witness. THE WITNESS: I am sorry, could you repeat the question? BY MR. COPELAND: Q. Probably not. What I want to know is whether or not the issue of how the Americans, or their proxies, were treating alï·“Qaeda prisoners, wherever they were in the world, whether or not that should have been something brought to your knowledge, as the Senior Analyst for CSIS, in matters relating to alï·“Qaeda? A. As I have stated, I am not aware of any discussions that took place within the Service, in that regard, and since I am not aware that there are, or are not, or rather, were or were not, discussions, then I cannot see how I could actually be included in those discussions. Q. Let me suggest to you that CSIS does not care, in the least, whether or not people are tortured, as long as they get the information. A. I believe I have already answered that. I believe that not to be true. Q. Can you tell me what steps you took, personally, to ascertain whether or not information that was coming to you, was obtained by torture, or may have been obtained by torture? A. As I have stated, as an analyst, whether senior analyst, or junior, does not matter, when we do our analyses and write our papers, we ensure to the best of our ability and knowledge, that the information has been corroborated, and is, in fact, accurate information. Q. And do you check to find out whether or not it came from torture? Do you make inquiries about that? A. Again, as an analyst, I seek to find out if the information is correct. Q. And you do not care whether or not the original source of it came from torture? MR. MATHIESON: This question has been asked now, My Lord, about three or four times. I think, it may be crossï·“examination, but it is time for my friend to move on. JUSTICE LEMIEUX: I will overrule that. I am not satisfied that the Witness has answered appropriately. I was going to ask him a question, and may still ask him a question. THE WITNESS: I can state that I have never, personally, asked any individual, whether or not specific information was obtained under torture, no. JUSTICE LEMIEUX: May I ask a question, Mr. Copeland. MR. COPELAND: Pardon? JUSTICE LEMIEUX: May I ask a question? MR. COPELAND: Sure. JUSTICE LEMIEUX: If you did not, as the Senior Analyst, if you did not ask under what conditions the information which you received was obtained, how can you be satisfied that the information is reliable, because you yourself have said it affects the reliability. If you do not even inquire, and the person has been tortured, then the information is unreliable, how can you rely on it. THE WITNESS: That is a very good question, My Lord. The key to analysis, the key to using information, and judging the reliability or veracity of the information, rests on corroboration. If you receive the same information from a variety of sources of variant degrees, and the information is consistent, then as an analyst, you make the judgment that that information is in fact true and, therefore, it can be used in your analysis. BY MR. COPELAND: Q. So, let me understand this. You get some information from Abu Zubaydah, who may or may not have been tortured. It is corroborated by somebody else, whether it is corroborated by one of the other 11 detainees listed in the Human Rights Watch Ghost Detainees paper. A. Yes. Q. And you do not inquire whether or not that person has been tortured,then it is corroborated? A. No. In fact, as I am trying to establish, we receive information, we corroborate it from a number of different sources and, in fact, if it was determined that all of the information, and all the corroboration, came from the same type of sources, under the same conditions, then we would have to seek other corroboration, that verified, or did not verify, that information. Q. But you just told me before, you did not ask anything, or so far as you know, the Service did not ask anything about the conditions that Abu Zubaydah was being held in. So, you are not going to ask anything about the conditions that somebody else is being held in. So, you are going to have two sources of information, you know nothing about how the information was produced. One corroborates the other, and then you put it in the report. A. No. I have stated that we seek as many sources of information as possible, and if the information comes from similar types of sources, about which perhaps we do not have information as to how it was obtained, under what conditions, we would seek other forms of corroborated information. Q. So, let me try this. CIA says to you, we got information from Abu Zubaydah. “We got information” ï·“ï·“ if I could find the name here I can pronounce ï·“ï·“ Ramzi bin alï·“Shibh, that say, for example, my client was in Afghanistan. And you have done nothing to make any inquires about where the CIA got the information, or how they extracted the information, one is corroborating the other. Would it go into a report? A. Not necessarily. Again, corroboration comes from looking at a variety of sources. I, as an analyst, would consider a CIA source, if this is the one we want to use here, as a source of information. I would also seek corroboration from information that did not come from the CIA. Q. But, assuming you have two sources, there are two pieces of information from the CIA. CIA is your closest cooperating agency. Isn’t that a fair assessment? A. The Service has a relationship with many different agencies. I cannot typify one as being closest, or not. Q. But, the CIA is the one that you probably acknowledge that you work with. That is public information. A. Fair enough. Q. And some of the other countries you don’t acknowledge, whether or not you have relations? A. True. Q. All right. You got two pieces of information from the CIA. Would it go into the report, into any report? A. Again, we seek to find information from a variety of sources. If the only information that we have on a specific incident, or a specific individual, comes from one unique agency, we take that unique source into consideration, before doing our analysis. Q. And then put it in the report, I take it? A. Not necessarily. Q. But, also, it is not a guarantee that it will not go into the report? A. That is correct. Q. So, you may have two pieces of information. You do not bother to make any inquiries about how the information was obtained, and maybe, it will end up in a report, even though maybe both of them, were obtained under torture? A. That is possible, yes. JUSTICE LEMIEUX: The question I was going to ask you is how can you possibly corroborate information, when you have not even inquired whether source “A”‘s information has been obtained under torture? How can you corroborate when you do not even inquire, to see what condition source “A”, which you are trying to seek the corroboration was extracted under torture? If it was extracted under torture, how could it be corroborated? Because it is automatically unreliable. I do not understand how you can corroborate information, which has been obtained under torture. If potentially ï·“ï·“ it seems to me it is a non sequitur. THE WITNESS: In this instance, My Lord, we are talking about information that has been obtained from a foreign agency, let’s say the CIA. The Service does not rely 100 percent solely on information received from foreign agencies. The Service carries out its own investigations, and receives information from its own sources. We would try to corroborate the information. Do our utmost to corroborate the information, using our own sources of information. Any good intelligence analyst never relies on a single source of information, unless the information is so catastrophic in its implications. But it is extremely rare for an intelligence service, let alone intelligence analyst, to rely on a single source of information. And I would also add that if My Lord said that all information obtained under torture is, by definition, unreliable, I am not sure there is consensus in that respect. In other words, if I may continue, it is certainly possible that information as obtained, may in fact be corroborated from other sources that were not subject to the same conditions. BY MR. COPELAND: Q. I understand that, but you do not make any inquires to find out whether they are obtained under torture, in the first place? A. Again, I think I have answered that question on several occasions. I personally, have not made those inquires. I am not aware whether or not other members of the Service have made those inquiries, or not. Q. But do you ask the other members of the Service that give you the information, whether or not they check to see whether the information was obtained under torture? A. I personally have not made those inquiries, no. Q. How do you ever find out whether information was obtained under torture? You personally? A. Again, I have not made those inquires myself. I have sought to have the information corroborated, from sources, other than the original source. Q. But, you never ask whether or not information that is being given to you, that you may or may not put in a report, you never make inquiries as to whether it was obtained under torture, or might have been obtained under torture? A. I have not made personal inquires in that regard, no. Q. And is there some reason why you have not made those inquiries? A. No. Again, I seek to corroborate the information through other sources. In its annual report for 2004-2005 SIRC made the following comments in regard to their Review of a Counter-Intelligence Investigation: When CSIS initiates the process to enter into a new arrangement with a foreign agency, it informs Foreign Affairs Canada and the Minister of Public Safety and Emergency Preparedness that it will â€œclosely scrutinize the content of the information provided to, or received from, a foreign agency in order to ensure [our emphasis] that none of the information sent to, or received from, that agency is used in the commission of, or was obtained as a result of, acts that could be regarded as human rights violations.â€ SIRC took note of two issues arising from this statement (only the first issue is relevant to this article). First, the use of the term â€œensureâ€ implies that CSIS will make certain that the information shared does not lead to â€“ or result from â€“ acts that could be regarded as human rights violations. However, the Committee concluded that CSIS was not in a position to provide such an absolute assurance. Based on the answers PG gave in his cross-examination in the Harkat case, and the above noted SIRC report, I made a complaint to CSIS about their lack of concern as to whether evidence or information they received was obtained from torture. When the response I received from CSIS was unsatisfactory to me, I asked the Security Intelligence Review Committee (SIRC) to review the response given by CSIS. The matter is presently in the hands of the Review Committee.