Report From Law Union Delegation to El Salvador

Report From Law Union Delegation to El Salvador

Kingston Immigration Holding Centre

Kingston Immigration Holding Centre

Since the attack on the World Trade Center five men have been held in Canada pursuant to the security certificate provisions of the Immigration and Refugee Protection Act. Adil Charkaoui was arrested in Montréal. Hassan Almrei, Mahmoud Jaballah, and Mohamed Mahjoub were arrested in Toronto. Mohamed Harkat was arrested in Ottawa. Mahjoub and Jaballah were arrested before September 11, 2001: Jaballah about a month before, and Mahjoub about a year before.

Adil Charkaoui, the only one who was a permanent resident in Canada, and who is therefore subject to a different bail regime, was released on stringent bail terms on his third bail hearing.

Mr. Harkat was detained at the Ottawa Regional Detention Centre for three-and-a-half years. The other three men were detained at the Toronto West Detention Centre. For most of the time Mr. Harkat was in regular population at the Ottawa Regional Detention Centre and Mr. Jaballah at the Toronto West Detention Centre. The other two at the Toronto West Detention Centre spent most of their time in segregation and frequently engaged in hunger strikes to try to improve their situation in the jail.

The conditions of detention for Almrei, Jaballah and Mahjoub at Toronto West became serious issues in the litigation relating to the continued detention of those three men and the attempts to have them released on bail. For Mr. Almrei the conditions of detention were considered in the Supreme Court of Canada.

The Federal government finally announced, in open court on October 19, 2005, that arrangements were being made to transfer the four men still in custody to a new facility to house them. That is how the Kingston Immigration Holding Centre came to be built on the grounds of Millhaven Penitentiary in southeastern Ontario.

Notwithstanding all of the problems that occurred in the detention of the three men in Toronto, Canada Immigration authorities did not consult the three men or their lawyers prior to planning and building the KIHC.

On April 24, 2006 Harkat, Mahjoub, Jaballah and Almrei were transported to the KIHC. Immediately upon their arrival at the facility it became apparent to the men that there were many, many problems with the KIHC.

The Federal Correctional Investigator in his 2005-2006 annual report had noted that there were no plans for the Correctional Investigator to have jurisdiction over the institution. He noted that when the men were in the provincial jails the Ombudsman had jurisdiction to deal with complaints made by the men. The Correctional Investigator noted that the failure to provide for a correctional investigator or an ombudsman meant that Canada was in violation of its international treaty obligations under the Optional Protocol of the Convention Against Torture. A Parliamentary Committee looking into the security certificate issue and the conditions at the KIHC deplored the lack of a correctional investigator and recommended that the Minister of Public Safety correct that problem, but nothing was done.

Arrangements made for the visitors to the institution were problematic. A two-hour visit starting at 9:00 AM was available, as was a two-hour visit in the afternoon. Those time periods were useless for the wives and young families of Jaballah and Mahjoub. To travel to KIHC in the morning to arrive by 9:00 AM would require a departure no later than 6:00 AM. KIHC is in the middle of nowhere and there is nothing to do and no place to go over the lunch hour. Requests to change the visiting hours fell on deaf ears.

The KIHC is on the grounds of Millhaven Penitentiary and the very bright light from the penitentiary shone into the cells of the four men. Requests for curtains fell on deaf ears.

The KIHC is a very small facility attached to the Millhaven Penitentiary. It consists of two buildings in a relatively small area with high wire mesh fences topped by razor wire. One building, a double-sized wooden mobile home, contains six small cells, a common area and an administrative office for the guards. There is a small yard made up of a patchwork of concrete and asphalt. The yard contains one wooden picnic table with bench seats attached. On the other side of the yard there is a concrete building with a small work-out room, a small common room for visiting, a video teleconferencing room, a room for medical examinations and a small storage room.

The list of problems at KIHC was almost endless:

Strip searches before and after visits;
return to one’s cell four times a day for count (this in an institution that had four inmates);
problems with the use of the phone to call family and friends, particularly for overseas calls to family;
prohibition from using the washroom facilities in the common area when exercising;
disputes and arguments with guards;
taunts and threats from guards;
interference with religious practice;
property issues, including when property could be brought into KIHC;
lack of an adequate process to resolve issues at KIHC;
quantity and quality of the food;
foreseeable problems with the lack of air conditioning; the requirement to wear prison-issued clothing;
a poorly designed common space desk that, because of its design, could not be used for board games or writing;
the promise of a ping pong table, subsequently broken;
lack of canteen facilities;
denial of use of a big grassy fenced area immediately beside the KIHC site;
daily visits by the nurse, which the inmates felt was invasive and unnecessary;
the poor quality of the food provided; and
the lack of educational programs

This an incomplete list of all of the issues.

A meeting was held with senior CBSA and Corrections Canada on May 4 to discuss the many problems. All requests for action were refused and no changes were made.

Shortly after the transfer to KIHC my co-counsel Matt Webber and I were successful in obtaining an order for the release of Mr. Harkat on bail, albeit on the tightest bail in Canadian legal history so far as we know.

The three men still in KIHC commenced a hunger strike on May 13, 2006 and stayed on the hunger strike until June 26, 2006. Some of the problems were resolved at that point. Visits were changed to the afternoons, the requirement for one hour advance notice to make a phone call was eliminated, air-conditioning was promised, and canteen was provided.

A second hunger strike to deal with many of the remaining issues commenced on December 6, 2006.

Barb Jackman and John Norris, the lawyers for all three men, commenced litigation in the Federal Court for damages and injunctive relief concerning the conditions at KIHC. Chief Justice Lutfy of the Federal Court conducted numerous mediation sessions over many months in an attempt to resolve the litigation and improve the conditions in the jail.

Majoub and Jaballah were successful in being granted bail and ceased their participation in the hunger strike in March of 2007.

Mr. Almrei continued on the hunger strike, drinking only orange juice and water, for a total of 156 days.

I took over as counsel for Mr. Almrei in the spring of 2007. I first met him in person on May 9, 2007 when he was to be cross-examined upon his affidavit in support of the motion for injunctive relief in relation to jail conditions. This was scheduled to be heard for a week in Federal Court in late May 2007.

I spent most of the day with Mr. Almrei. He was born in Syria on January 1, 1974. He was raised in Saudi Arabia. When he was 16 years old, in 1990, with financial assistance from the Saudi government, he flew to Islamabad with the intention of joining the muhajadeen fighting the communist government in Afghanistan. The fight against the Russian invaders and later, after the Russians left, against the Najibullah government, was supported by the Saudis, many other Arab governments and mainly by the CIA. Hassan came down with malaria and after 27 days returned home. He made four more trips to Afghanistan in 1991, 1992, 1994 and 1995. Eventually he left the Middle East and came to Canada where he made a successful refugee claim.

During the course of our discussions Hassan told me of an on-going argument he was having with the nurse in the KIHC. She came to see him every day. He did not want to see her and had told her and jail officials that if he needed medical help he would ask for her. The morning of the day I saw him the argument had been a little more heated.

After meeting with Hassan and representing him at the cross-examination I left to drive to Ottawa for a hearing in the Harkat case. The next day when driving back to Toronto I received a call on my cell phone from a friend of Hassan. I was told that when Hassan had returned to his cell after the cross-examination, he was advised that because of the argument with the nurse he was to be locked in his cell. Hassan responded to that by announcing that he would stop drinking juice and water. Based on the information I had concerning lengthy hunger strikes I thought that likely left Hassan a few days to live. When I spoke with senior jail officials, it appeared that they thought the same thing. They had given Hassan a non-resuscitation letter and wanted him to get legal advice from me about signing it. I declined to give him legal advice on that issue. Hassan discussed the matter with MP Bill Siksay who was visiting him. I tried over the phone to resolve the issues but had no success.

Late that day when I got back to Toronto I sent emails to the government lawyers on the case. I proposed some minor changes to the situation in the jail that would stay in place until the court reached a decision on the injunctive relief application. The next day the government agreed to my proposals and Hassan ended his hunger strike. The motion for the injunction was settled on the first day of the week scheduled for the hearing. Settlement was achieved after another mediation session with Chief Justice Lutfy and agreement to terms and conditions set out in a sealed document that was filed with the court.

In July we commenced the third detention review hearing for Mr. Almrei, this time before Justice Lemieux. Significant reliance was placed on the evidence and findings from the two previous bail hearings. The new hearing was done under the new rules set out by the Supreme Court of Canada in its February 23, 2007 decision in Charkaoui, Almrei and Harkat case. We spent a total of six days in Court hearing evidence and adducing argument. Justice Lemieux has reserved his decision.

I am not allowed to give out the details of the settlement. I can tell you that the situation in the KIHC is better than it has ever been there or at the Toronto West. Still, it is outrageous that the unconstitutional security certificate process has kept Mr. Almrei in detention in inhumane conditions for 46 months.

The treatment of Mr. Almrei by CBSA and Corrections Canada officials at KIHC would have had the effect of driving most inmates stark raving mad. I do not suggest that was their intention, but their bureaucratic, unthinking, unresponsive attitude could well have achieved that result.

National (in)Security

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

Harkat Case

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 government’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 client’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 Guantánamo, 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.

Iacobucci Inquiry

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 Harris’ 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

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. Almrei’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 Canada’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 Lemieux had not released his decision on the detention review .

Shawn Brant’s Preliminary Inquiry Begins

Brant’s preliminary hearing begins

Jeremy Ashley The Intelligencer Local News – Monday, August 27, 2007 Updated @ 6:08:17 PM

NAPANEE — A preliminary inquiry into criminal charges against Shawn Brant began Monday with much less fanfare than his previous court appearances.

The 42-year-old Mohawk protester was brought from the Napanee Detention Centre for a court appearance that was markedly less theatrical than previous appearances in court here. There were, as in many previous appearances, no protesters outside, nor were there any supporters in the public gallery as Brant was quietly led handcuffed and shackled to the prisoner’s box shortly after 9:30 a.m. wearing a worn white T-shirt, camouflage pants and work boots.

By 11 a.m., however, there were about a dozen people who appeared to support Brant in the courtroom, but they were a subdued group.

What wasn’t different about Brant’s latest appearance was the heavy police presence at the County Memorial Building — there were a number of Ontario Provincial Police officers scattered throughout the Dundas Street West site and visitors were searched and scanned with metal detectors before being allowed into the courtroom.

Brant is facing nine criminal charges in connection with various protests over the past nine months — breaching conditions imposed after he was charged with uttering death treats at a Deseronto protest last November, leading a group of Mohawk protesters that obstructed the main CN Rail line in April and for his role in what police charge was co-ordinating the blockade for National Aboriginal Day of Action on June 29 that blocked a large section of County Road 2, two CN Rail line crossings and propmpted police to close part of Highway 401 between Belleville and Napanee.

His stated goal during the events was to increase awareness of aboriginal land claims, native poverty and conditions on reserves.

Brant, the only one of his group arrested for his part in those incidents, is charged with six counts of mischief exceeding $5,000, two counts of breaching his recognizance and one count of failing to obey a court order.

Three days have been set aside for the preliminary hearing, which is held to determine if there is enough evidence to warrant a trial.

The inquiry began shortly before 10 a.m., with presiding Justice Robert Fournier granting a request from Brant’s lawyer Peter Rosenthal asking if his client could sit at the defence table without restraints.

Brant, looking pale, remained composed throughout the day, often watching the proceedings intensely or taking notes.

With what he termed his second “housekeeping” matter, Rosenthal criticized security measures enacted by the OPP, particularly those from Brant’s last two bail hearings, which were held at the Superior Court of Justice courthouse on Thomas Street East in Napanee.

The Toronto-based lawyer questioned the “quite unusual security precautions” taken by police during the hearings, including asking visitors to sign a guest book and to be videotaped before entering the courtroom.

“Many people thought they were being investigated,” Rosenthal contended. “Many planned to attend (today), but didn’t.”

In dismissing the complaint, Fournier said security “is often complex” and “it’s not within my jurisdiction to police the police.”

Then, in what is contrary to normal practice for a defence lawyer, Rosenthal argued against the Crown’s motion of having a publication ban put in place during the inquiry.

Typically, the accused in a case asks for a ban on publicity during preliminary inquiries — a move the judge is required to grant if sought by the defence.

Crown attorney Robert Morrison said the Brant matter was an “emotional type of case” and a ban must be enacted in order to protect the integrity of jury selection, if the matter is to go to trial.

Rosenthal, meanwhile, said the Crown presented “all sorts of inflammatory evidence” during the two previous bail hearings, which didn’t have any bans on content.

“To argue for a publication ban now, given that, is a bit odd,” he said.

In handing down his decision to enact a ban, Fournier said any informationpresented during a bail review “has no consequence … I do have a responsibility to protect the integrity of this process.”


Security tight as inquiry opens; Mohawk activist Shawn Brant accused of mischief, breaching bail

Frank Armstrong Local news – Tuesday, August 28, 2007 @ 00:00

A preliminary inquiry for a Mohawk activist accused of mischief and breaching his bail conditions by leading two railway blockades and disrupting traffic on Highway 401 earlier this year began yesterday.

Shawn Brant, 43, faces nine criminal charges in relation to thedisruptions – one in April in the Napanee area and three in June in the Deseronto area.

Mohawks and their supporters ran a 30-hour blockade on the CN Rail tracks in Napanee on April 20 to protest the operation of a gravel quarry on land subject to negotiations between the Mohawks of the Bay of Quinte and the federal government.

They blocked the CN tracks again on June 28 and 29 as part of a national aboriginal day of action on June 29 to bring attention to problems faced in First Nations communities, such as poor water quality, poverty and high youth suicide rates. They blocked Highway 2 near Deseronto and forced police to close off a stretch of Highway 401.

Security was unusually tight at yesterday’s hearing in Napanee Court.

Spectators and witnesses entering the court had their bags searched and about six uniformed OPP officers guarded the stairs and waiting area outside the courtroom. The officers also made people turn out their pockets and swept a metal detector over each person.

Peter Rosenthal, Brant’s Toronto lawyer, pointed out that unlike his client’s last court appearance when more than 100 supporters attended a failed bail application, few of Brant’s supporters came to court for him yesterday.

Rosenthal said they were too intimidated to show up after the Aug. 10 hearing, when spectators were made to show photo ID and provide their date of birth and were videotaped doing so. He accused police of abusing their authority while conducting security.

“Security is acceptable in this day and age, but making people write down their names and numbers is not,” Rosenthal said outside the courthouse. “When they do things like that, make people write down their name, address and birthday and videotape them, they want to investigate supporters of Mr. Brant, not do security.”

Brant has been behind bars since July 5. He had been out on bail after being arrested for the April railway blockade.

He’s alleged to have violated a condition of his bail that forbade him from inciting or participating in illegal protests that blocked thoroughfares.

Justice D.K. Kirkland decided Brant couldn’t be trusted to respect the courts and locked him away while legal proceedings continue.

The preliminary hearing is scheduled to last three days. It is intended to satisfy the judge as to whether there is enough evidence for Brant to stand trial in a higher court.

Brant has elected to be tried by judge and jury.

When the preliminary hearing wraps up tomorrow afternoon, Rosenthal said he will again appeal to the court to let his client out on bail.

Rosenthal has compared Brant to Martin Luther King.

A civil rights lawyer and mathematics professor at University of Toronto, Rosenthal, told the Whig-Standard he took Brant’s case because he believes in Brant’s stated mission to create awareness of aboriginal poverty and oppression.

“In my view, the protest that they did was very justified in light of the horrors that have been done to them,” he said. “I hope the Canadian government starts to really rectify some of those injustices so that protests are not required in the future.”

Several Crown witnesses presented evidence at yesterday’s hearing, including lead investigator OPP Det. Const. Doug Weiss and Sgt. Kristine Rae, community services co-ordinator for the OPP in Eastern Ontario.

Managers from CN Rail also took the stand, but no evidence can be published because evidence at preliminary inquiries is generally forbidden under publication bans.

The hearing continues today.

OPP commissioner Julian Fantino is expected to testify tomorrow.

Brant’s trial date may be set this week.