Guantanamo North?

Security Certificates and Secret Trials in Canada

by Jessica Squires

December 2005

“Those who exchange liberty for security will soon find they have neither.”

Benjamin Franklin (attributed)

“As someone who has suffered and endured physical and psychological torture at the hands of a regime that does not respect basic human rights, I find it very shocking that Canada will deport Mr. Jaballah to Egypt, a country it admits practices torture on detainees.

“There is nothing on earth that justifies shipping off someone to torture. The best way to have security is to support and promote justice. If someone is guilty of breaking the law, then he should be allowed to see the evidence against him and to defend himself in an impartial and fair manner.

“It is about time for Canada to repair the damage that was done to its reputation since it was criticized by various human rights organizations for being directly or indirectly complicit in sending people to torture. Canada has a choice to make and I hope it chooses the right one by committing not to send people back to countries where they will face a substantial risk of being abused and tortured.”

Maher Arar (Canadian citizen deported to Syria and tortured)

Without warning or explanation, a Muslim man is arrested and detained. Neither he nor his lawyers are given access to any evidence against him, and no charge is laid. The man is detained indefinitely on the basis that he might, at some point in the past, present, or future, pose a risk to national security. The Canadian Security Intelligence Service (CSIS) has collected the required signatures of the Federal Ministers of Public Safety Citizenship and Immigration to authorize the detention.

While in detention, the man is denied proper heat in his cell. He is denied access to a Koran. He is not provided with meals in a timely fashion to enable him to pray during Ramadan. He is not able to touch his wife or children for years, seeing them only through thick panes of glass. If his Security Certificate is deemed �reasonable� by a CSIS-approved judge, he can be deported to his country of origin, which he fled because of religious or political persecution. If he is returned, he will likely be tortured or killed.

This is the Immigration and Refugee Protection Act Security Certificate. This is Guantanamo North.

ALGERIAN REFUGEE MOHAMED Harkat was arrested, ironically, on Human Rights Day, on December 10, 2002, in Ottawa. Harkat has been in Canada since 1995. Working as a gas attendant and pizza delivery man, he worked an average of 18 hours a day. In 1997, he was given refugee status after successfully claiming government persecution should he return to Algeria.

Mohamed Harkat

On December 10, 2002, Mohamed Harkat was arrested by undercover police agents outside his home in Ottawa. Since then, he has been in jail, in the dark as to the specific evidence against him. CSIS alleges that Mohamed either has been, is, or will be involved with terrorism. Mohamed denies any involvement with any terrorist organizations.

Harkat is one of Canada’s Secret Trial Five, five Muslim men whose lives have been torn apart by accusations they have not been allowed to fight in a fair and independent trial. Three men are imprisoned in Toronto: Mohammad Mahjoub, a refugee from Eygpt who has been in prison since June 2000 (almost four years in prison without charge); Mahmoud Jaballah, a refugee from Egypt who was arrested in August 2001 (three years this summer), and Hassan Almrei, a refugee who has been facing deportation to Syria since October 2001 (two and a half years in solitary). The fifth man, Montreal resident Adil Charkaoui, was detained on 21 May 2003. All five men were arrested under “security certificates,” a provision of the Immigration and Refugee Protection Act (IRPA) that have been described by Amnesty International as “fundamentally flawed and unfair.”

THE SECURITY CERTIFICATE, which dates back to 1991 and was reintroduced in the Immigration and Refugee Protection Act in 2002, is one of the roots of the attack that has been mounted, with frightening rapidity, on civil liberties and international norms since September 11, 2001. “National security” now endangers all of us. It is being used to justify legislation that would amend the Citizenship of Canada Act to allow naturalized citizens to be subjected to indefinite detention, secret trials, and deportation. And with C-36, the Anti-Terrorism Act, similar violations of rights are extended to all citizens.

Human rights monitoring groups including Amnesty International and the International Civil Liberties Monitoring Group have all denounced the use of security certificates because the accused is denied the protection of basic rights, such as a full and complete defence.

The Security Certificate also runs contrary to the Canadian justice system. Because the lawyer of the accused cannot review the evidence against him, mounting a defence becomes impossible. The Security Certificate violates the most fundamental principles of justice and human rights. It violates the Canadian Charter of Rights and Freedoms, the Constitution, the UN Universal Declaration of Human Rights, the UN Convention on Refugees, the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention on Torture.

As Amnesty International points out, the International Covenant on Civil and Political Rights provides for the right to a fair, open and independent trial; to be presumed innocent until proved guilty; to be present for one�s own trial and to defend oneself; and to examine, or have examined, the witnesses called by his accusers ,under the same conditions as his accusers are allowed to cross-examine him. All of these provisions are abrogated by the Security Certificate process.

International law is also clear on the point that no deportations should take place to countries where there is risk of torture or death in custody. In the case of Algeria, the country to which the government is trying to deport Mohamed Harkat, recent human rights reports make it clear that the risk of torture is high. Similar risks are documented for Egypt, and Maher Arar’s public testimony regarding his treatment in Syrian prisons leave no doubt as to the great risk of torture in that country.

Recently, immigration officials and government ministers have attempted to rely on so-called �diplomatic assurances� that no torture will occur. Such assurances have been widely exposed as unreliable by Human Rights Watch and the UN.

The government’s actions have, however, met with significant resistance on both sides of the prison walls. Two of the men detained in Toronto have undertaken hunger strikes in recent months to address basic needs such as adequate heat in their cells, proper exercise, and contact visits with their children. And several high-profile Canadians, such as Alexandre Trudeau and several NDP Members of Parliament, have lent their support both to the campaign to abolish Security Certificates and to the efforts by the support committees to secure bail releases for the five men. One of the five, Adil Charkaoui, won bail in a Montreal court last year. He has yet to hear the determination on his own Security Certificate.

And although three of the men have had deportation orders signed against them, the government has so far found it impossible to deport them, since even men with no rights can ask for a risk assessment to be done before they are deported. And in three cases a judge has overturned a government decision to deport based on such risk assessments.

However, that impasse raises a further question for the Canadian government: how long can a person be detained without charges, in a legal limbo?

In Ottawa, Sophie, Mohamed Harkat�s wife, awaits a decision in her husband�s application for bail. His Certificate was upheld in March of 2005. No risk assessment has yet been completed.

Jessica Squires is an activist and a member of the Justice for Mohamed Harkat Committee.

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