[VIDEO] The Agenda with Steve Paikin: Secret Trials, Secret Evidenceposted on December 05, 2014 | in Category Mohamed Harkat | PermaLink
Date: November 27, 2014
Click on the image below to watch the 32 minute television show online.
About the video:
The Canadian government can use a legal tool called a 'security certificate' to detain and deport non-citizens suspected of terrorist activities using secret evidence the accused and their lawyers cannot see. Over the last decade, five Muslim men - dubbed the Secret Trial Five - have been detained in Canadian prisons without charges under security certificates. The Agenda convenes a panel to discuss the security and civil liberty issues surrounding this legal tool.
Copyright © 2014 The Ontario Educational Communications Authority (TVO)
Secret Trials, Torture, and Deporting People Under the Radarposted on December 05, 2014 | in Category Security Certificates | PermaLink
Source: The Agenda - TVO.org Website
Date: November 27, 2014
On May 14, 2014, the Supreme Court of Canada upheld the constitutionality of the Canadian security certificate regime in Canada (Citizenship and Immigration) v. Harkat. In existence since 1978, security certificates have been a focal point for human rights advocates concerned with the growing size and reach of Canada’s national security apparatus. The decision is a turning point in the use of secret evidence in Canada.
Certificates enable the government to arrest and detain individuals on the grounds that such persons pose a threat to national security, have violated international (human rights) law, or have engaged in serious or organized criminal activity. Evidence supporting these allegations is collected, in large part, by the Canadian Security Intelligence Service (CSIS), and includes sensitive information that cannot be disclosed to anyone lacking high-level security clearance – including the person named in the certificate and his/her counsel. Among those permitted to view the evidence in secret hearings are a small group of “designated” Federal Court judges. If a judge finds that there is a reasonable basis for the allegations, the named person is subject to deportation from Canada.
The adequacy of this new Special Advocate system was the central issue in the Harkat case. The Court decided that parliament's improvements brought the regime into line with the Charter, but only if named persons receive an “incompressible minimum amount of disclosure” and Special Advocates receive the materials and resources needed to perform their statutory roles. It instructed the Federal Court to be vigilant in ensuring that these standards be met on a case-by-case basis. This approach places a great deal of responsibility on a small group of judges and lawyers.
The Supreme Court also upheld the finding of a Federal Court judge that the certificate issued against Mohamed Harkat is reasonable. So what happens next?
As with all men subject to a certificate post-9/11, Harkat claims he would be subject to torture or similar abuse if returned to his home country of Algeria. In the 2002 case of Suresh v. Canada (Minister of Citizenship and Immigration), the Supreme Court ruled that Canada is generally prohibited from deporting someone to face the substantial risk of torture or similar abuse. Derogating from Canada’s international legal obligations, the Court qualified this general prohibition by allowing for deportation to torture in “exceptional circumstances.”
One would think that, if ever there were an exceptional circumstance, it would pertain to something as serious as a security certificate. There is no precedent, however. Strictly speaking, there has not been a single case in which the government has successfully invoked the Suresh exception. In fact, courts have directly or indirectly rejected invocations of the Suresh exception in certificate cases involving Hassan Almrei, Mohammad Zeki Mahjoub, and Mahmoud Jaballah.
There are, however, good reasons to believe that deportation to torture has nonetheless occurred under the radar in deportation proceedings unconnected to certificates. In three cases – involving Mostafa Dadar, Bachan Singh Sogi, and Jama Warsame — Canada deported persons despite the fact that the UN Committee Against Torture decided that each of these men faced a substantial risk of torture. Warsame was to be returned to Somalia, even though he was born in Egypt and had lived in Canada since the age of 4. Tellingly, he was subsequently able to secure protection in the Netherlands.
Similarly, some of those alleged to have organized human smuggling aboard the MV Sun Sea were deported, despite there being a substantial risk of torture. Reports indicate that one of these men, Sathyapavan "Sathi" Aseervatham, was detained and tortured upon his return to Sri Lanka.
Unlike certificates, the procedures through which determinations of risk of torture are made have not been subject to rigorous judicial scrutiny. Persons who have been found inadmissible to Canada on the grounds of security undergo a three-step process.
An immigration official (IO) will conduct a Pre-Removal Risk Assessment (PRRA) to determine whether the individual faces a substantial risk of torture or similar abuse.
A security and intelligence analyst in the Canadian Border Services Agency will file a threat assessment.
A Ministerial Delegate (MD) will review these reports. If s/he decides there is a risk of torture, but an even greater threat to Canadian security, s/he may invoke the Suresh exception by issuing a “danger opinion." The affected person is not provided an oral hearing nor may s/he see classified evidence included in the reports.
National security has a tendency to politicize decisions of this nature. In several cases, an MD has ignored objective evidence of torture included in PRRA assessments. In a case involving Arshad Muhammad, an MD met with the Director General of Border Operations of CBSA, Glenda Lavergne, before issuing her decision to deport Muhammad. Fortunately, the Federal Court intervened, finding that the MD’s decision was unsupported by the factual record. In most cases, persons in Muhammad’s place lack the financial capacity to challenge these sorts of decisions, and may be deported before a court has a chance to intervene.
Importantly, none of these cases involved a person named in a certificate. While certificates undoubtedly raise important constitutional and moral issues, they are but one, decidedly small part of a larger assemblage of practices through which Canada screens, detains, and deports asylum seekers. As Harkat moves through the removal process, the Supreme Court may have occasion to reconsider the constitutionality of deportation to torture. This is urgent, given revelations concerning Canada’s role in the torture of Maher Arar and others.
In my view, a new approach must include assurances that decisions about the removal of security risks be based on law and the facts, be less subject to political interference, include greater disclosure or Special Advocates, and be subject to independent review. The gains made in the certificate regime will count for little, unless we also improve the ways in which decisions about deportation to torture are made.
Graham Hudson, associate professor and undergraduate program director for the Department of Criminology at Ryerson University, is appearing on The Agenda Thursday to discuss Canada's use of security certificates to detain suspected terrorists. Here, he expresses concerns about whether some Canadians deported as security risks have faced torture.
Copyright © 2014 The Ontario Educational Communications Authority (TVO)
ByTowne to screen film of five terror suspects jailed without trialposted on November 11, 2014 | in Category Upcoming Events | PermaLink
Date: November 9, 2014
Five men who were jailed without trial and never shown the evidence against them — it sounds like something from Soviet-era Russia, but it happened here and it’s still happening.
Filmmaker Amar Wala said he was shocked, as were many Canadians, to hear that five men men were detained in this country without due process.
In his first feature-length film, The Secret Trial 5, being screened in Ottawa next weekend, Wala tells the stories of Adil Charkaoui, Hassan Almrei, Mahmoud Jaballah, Mohamed Harkat and Mohammad Zeki Mahjoub. Each man each spent anywhere from three to seven years in jail, plus time in strict house arrest under the country’s controversial security certificates.
The law allows the government to detain and deport non-citizens if they are considered a threat to national security.
Under that law, these five men were never charged and never saw the evidence against them, said Wala.
“A person should never be held in prison without being charged with a crime,” he said. “That’s something we believe in, very deeply, in Canada. We believe in the right to a fair trial and we’ve abandoned that principle here. So I really hope that the film makes them understand just how these things effect people, not just the men but their wives, their children, their communities, us as a country.”
Sophie Harkat, wife of former pizza deliveryman Mohamed Harkat, said they are starting to feel a sense of freedom now that her husband’s strict house arrest conditions have been relaxed. The Algerian immigrant was issued a security certificate in 2002 and spent 43 months in prison, both at the Ottawa-Carleton District Detention Centre and the Kingston Immigration Holding Centre (dubbed “Guantanamo North”). After his release, he spent three and a half years under house arrest in Ottawa.
In a Supreme Court ruling, security certificates were deemed unconstitutional in 2007, but the law was amended the following year. Harkat has challenged the new law, but it was upheld in the spring. The government is now able to deport him.
Sophie Harkat said she hopes The Secret Trial 5 will shed light on his story and security certificates, in general.
“His family believes in him, we all believe in his innocence, but that’s not the important thing here,” she said. “Due process is the important thing. Due process for him, for the others and for anybody that will come after us.”
Wala raised about $50,000 through Kickstarter to fund the making of The Secret Trial 5. Now he and his fellow producers have started another campaign to fund a cross-country tour of the film.
The Secret Trial 5 will be at the ByTowne Cinema Nov. 16-18.
Copyright 2001-2014, Free Daily News Group Inc.
New anti-terror tracking measures will address 'black hole': CSISposted on October 16, 2014 | in Category Security Certificates | PermaLink
Date: October 16, 2014
Security lawyers warn that blanket intelligence source protection could endanger court proceedings
Public Safety Minister Steven Blaney has unveiled new federal plans to boost protection for intelligence sources, by giving them the same protections bestowed upon police informants in criminal cases.
The new bill, which will likely be tabled next week, is meant to clarify the current laws, the minister told reporters.
"CSIS is relying on those sources, since it is an intelligence agency, so that is why it is so critical and important that we enable CSIS with the same authority that other law enforcement agencies have … so CSIS can fully operate and protect Canadians within the scope of the law."
In response to a question on how such evidence could be tested in court without giving defence attorneys the ability to cross-examine sources, CSIS assistant director of operations Andy Ellis pointed out that the agency "has a very robust system in place" for gathering information.
"We make every attempt to ensure that the information we're getting is corroborated and accurate, and we do not act on single-source information."
Along with Ellis, he was joined by RCMP deputy commissioner Janice Armstrong.
'Black hole' on travel by suspected terrorists
The bill would also give Canadian security agencies greater powers to track terrorists abroad through expanded information sharing with partners.
Canada already relies heavily on the United States, Britain, Australia and New Zealand, fellow members of the so-called Five Eyes intelligence network.
Blaney acknowledged that such inter-agency co-operation "has happened at many levels in the past," but said the changes would explicitly authorize such practices.
"We now need to bring clarity to the law, so that these powers and these authorities that are within the law are clearly vindicated as we are facing this homegrown threat," he told reporters.
Ellis pointed to recent "thought-provoking" court rulings that, he said, had forced the agency to "reconsider how we undertook some of our operations to make sure that they were in keeping of what the courts had expected of us."
"Unfortunately, while we went about doing this, we held in abeyance the coverage of Canadians and other targets working abroad … representing a terrorist threat to Canada and to our allies," he noted.
"While that was held in abeyance, we had a black hole," he told reporters.
"We were unable to track where these people were, where they were moving, how they were moving and the nature of the threat they posed."
The new laws "will enable us to get back on the track we were on before to ensure we are able to perform the function that Parliament gave us in the first place."
The federal plan to bolster security powers follows a recent statement from the RCMP that the national police force has about 63 active investigations on 90 suspected extremists who intend to join fights abroad or who have returned to Canada.
'Highly dangerous' to extend witness protection: lawyer
Two lawyers with deep experience defending clients in national security cases have warned that extending blanket protection to spy sources could seriously endanger the fairness of court proceedings.
It could mean defence counsel and even judges would never have the right to question human sources who provide information on behalf of CSIS — such as when the government attempts to deport a terror suspect using a national security certificate.
Ottawa lawyer Norm Boxall, who represents Algerian refugee Mohamed Harkat in a security certificate case, told CBC News that there's no evidence such protections are required.
"These types of privileges can have far-reaching effects, and can close off information in cases where it would be important to have," he said.
"There is no problem to have a secret source — that can be done all the time, and within the existing law," he noted.
"The problem is when you have secret information and you choose to act on it, and that's the difference. If they want to use the secret information to enforce things — [for] deportation, or in criminal trials — they should have to produce the source."
Toronto lawyer Paul Copeland, who previously represented Harkat, said giving the class privilege to intelligence informants would be "highly dangerous."
"The only way you test evidence, in my view, is by cross-examining on it," he said in an interview.
"I think if they pass this class privilege, nobody will ever get at a human source in a national security case."
Copeland later served as a special advocate — a security-cleared lawyer who reviews and tests the federal evidence — in Harkat's certificate case.
He remains on the roster of special advocates periodically called to take part in security proceedings.
Cross-examining sources should be 'last resort': top court
The Federal Court of Appeal said in 2012 that human sources recruited by CSIS did not have the sort of blanket protection that shields the identities of police informants, even from the judge.
In the case of CSIS, this is instead decided on a case-by-case basis.
The Supreme Court agreed in a May ruling on the national security certificate regime that there should be no overarching privilege for CSIS sources.
The court noted the judge reviewing a certificate has discretion to allow the special advocates to interview and cross-examine such informants in a closed hearing, but said this should be "a last resort."
Making it standard practice to cross-examine CSIS sources, even behind closed doors, could "have a chilling effect on potential sources" and hinder the spy service's ability to recruit new ones, the court added.
Two judges — Rosalie Abella and Thomas Cromwell — dissented on the issue, saying CSIS informants are entitled to an assurance that the promise of confidentiality will be protected.
"This can only be guaranteed by a class privilege, as is done in criminal law cases."
Copeland points to a notorious chapter of the Harkat case in arguing there is good reason to test the credibility of human intelligence sources.
In a 2009 ruling in Harkat's case, Justice Simon Noel said CSIS "undermined the integrity" of the Federal Court's work by failing to disclose relevant details of a polygraph examination of a source.
CSIS neglected to tell him a secret informant failed portions of the lie-detector test — a lapse the spy service itself has called "inexcusable."
'Can't have their cake and eat it too'
Currently police can use information from secret informants to obtain search warrants or wiretap authorizations without fear the sources will be subject to cross-examination.
However, if those same informants are used as evidence of an accused person's guilt, the protection does not apply.
"They can't have their cake and eat it too," Boxall said.
"There is a real safeguard that's attached to the police informer privilege."
The new federal bill should include the same sort of protection to ensure fairness for someone facing allegations in a security proceeding, Boxall said.
Canada appears to be mistakenly following the British path as opposed to the American one, which sees informants testifying in court in terrorism cases and facing rigorous cross-examination, said Steve Hewitt, a senior lecturer in Canadian and American studies in the history department of the University of Birmingham in England.
"Informants provide information for a variety of reasons. Some are quite noble, others do it out of blatant self-interest, including the desire for money," said Hewitt, author of Snitch: A History of the Modern Intelligence Informer.
"There must be external scrutiny through a court of law or, inevitably, abuses of justice will occur."
© The Canadian Press, 2014
[VIDEO] The Secret Trial 5 World Premiere at Hot Docs Documentary Festivalposted on May 20, 2014 | in Category Security Certificates | PermaLink
Independent Jewish Voices Appalled by Court Rulings on Hassan Diab and Mohamed Harkatposted on May 19, 2014 | in Category Mohamed Harkat | PermaLink
Source: Independent Jewish Voices
Date: May 15, 2014
FOR IMMEDIATE RELEASE – May 15, 2014
Independent Jewish Voices Appalled by Court Rulings on Hassan Diab and Mohamed Harkat
OTTAWA – With the decision to extradite Hassan Diab to France affirmed by the Ontario Court of Appeal, human rights supporters across the country are appalled by the decision, and fearful of the precedent this sets for Canadian citizens.
“Independent Jewish Voices is stunned by the Kafkaesque trial against Dr. Diab, who has been wrongly accused of a heinous crime committed decades ago,” says IJV spokesperson Sid Shniad.
“Despite the fact that Dr. Diab’s fingerprints, palm prints, handwriting and physical description do not match those of the suspect, he still faces extradition to a foreign country. What kind of democracy are we living in?”
Due to Canada’s extradition laws, it makes no difference that according to an Ontario judge, the evidence levelled against Dr. Diab is “confusing,” “weak,” and “suspect.” The request — however unreasonable — of a foreign country, takes priority over the rights of a Canadian citizen.
Dr Diab’s extradition is opposed by countless civil society organizations that support human rights. There is, however, one organization in particular that has been publicly supportive of Dr. Diab’s extradition: The Centre for Israel and Jewish Affairs (CIJA).
“Independent Jewish Voices is deeply disturbed that the pro-Israel lobby group CIJA — which falsely claims to represent Canada’s diverse Jewish communities — has been supportive of Dr. Diab’s extradition,” says Shniad. “It is an affront to the Jewish tradition of support for universal human rights, including due process under the law, to support the extradition of a man accused of a crime despite the absence of any valid evidence against him.”
This decision directly follows the Supreme Court’s decision to uphold the Security Certificate process in the case of Mohamed Harkat.
“Canada’s treatment of Dr. Diab and Mr. Harkat are reflective of the same systemic flaws,” says Shniad. “Our government and judicial system are in the business of violating international law, demonizing Arabs and Muslims, and branding them terrorists while denying them the right to a fair trial. All those who believe in justice should be outraged. We should demand that Parliament intervene immediately to abolish Security Certificates and end unjust practices like the extradition proceedings against Dr. Diab.”
For more information contact:
Sid Shniad, Steering Committee member of Independent Jewish Voices – Canada
604-314-5589, ijv-vancouver AT ijvcanada.org
LETTER: Where's the Justice?posted on May 18, 2014 | in Category Mohamed Harkat | PermaLink
Source: The Ottawa Citizen, letter to the editor
Date: May 17, 2014
Re: Harkat promises fight 'to the end,' May 16.
Where has my Canada gone now that Mohamed and his wife, Sophie, have lost their struggle for justice? As a result of secret trials where he saw neither the evidence nor his accuser, Harkat is to be deported to Algeria, where he may face possible torture and death.
Do we really feel safer because their battle for justice has been lost? Is democracy more secure in Canada because secret trials have been Ok'd? Or has democracy been sacrificed to the so-called "war" on terrorism? Oh Canada, my shameful chosen land.
© Copyright (c) The Ottawa Citizen
Photos from May 14th, outside the Supreme Courtposted on May 17, 2014 | in Category Security Certificates | PermaLink
Click on the photo above to see more pics from the rally that morning.
Thank you to those dedicated supporters who came out on Wednesday morning to hold up our banners and let the world know that regardless of what 8 Supreme Court judges may think security certificates are not acceptable to Canadians. They are a blight on our reputation as a country that purports to stand for human rights. And they must be abolished.
Supreme Court rules against Harkat; deportation proceedings imminentposted on May 16, 2014 | in Category Mohamed Harkat | PermaLink
Date: May 14, 2014
The Supreme Court of Canada has ruled the security certificate issued against accused al-Qaida sleeper agent and Ottawa resident Mohamed Harkat reasonable, making proceedings for his deporation imminent.
In a ruling issued Wednesday morning, the Supreme Court upheld the constitutionality of the controversial security certificate process.
The decision, issued by all eight Supreme Court judges, marks the end of the security certificate appeal process for Harkat, who has been fighting the government on this front for more than 12 years. It’s a worst-possible outcome for Harkat, who now faces deportation.
“The ruling is difficult to describe in words. It’s more than disappointing. It’s devastating for Mr. and Mrs. Harkat,” said Boxall. “This does bring an end to the security certificate proceedings, but I’m sure it doesn’t bring an end to Mr. Harkat’s right to clear his name and maintain his right to live here.”
Harkat and his wife Sophie first heard the news from Boxall Wednesday morning. While they were at the Supreme Court when the ruling was issued, they did not speak with reporters.
Harkat was born in Algeria and moved to Canada as a refugee in September 1995. The former pizza delivery man was arrested outside his Ottawa home in 2002 on a national security certificate. The security certificate regime allows the federal government to detain and deport non-citizens deemed security threats without presenting all evidence against them.
Wednesday’s ruling answered six questions regarding the constitutionality of the general security certificate process and the reasonability of Harkat’s security certificate. The court unanimously ruled on five out of the six points.
First, the court ruled that the Immigration and Refugee Protection Board’s security certificate regime does not violate the Charter of Rights.
The ruling also found that Harkat’s security certificate is reasonable, and that the proceedings against him were fair.
In 2010, Federal Court Judge Simon Noël ruled Harkat a member of al-Qaida. But the Federal Court of Appeal overturned Noël’s findings in April 2012, ruling that Harkat’s right to a fair trail had been compromised by the destruction of 13 intercepted communication recordings collected by the Canadian Security Intelligence Service (CSIS). Wednesday’s ruling upheld Noël’s 2010 decision.
“In the present case, Mr. Harkat benefited from a fair process,” read Wednesday’s ruling. “Noel J.’s conclusion that the security certificate was reasonable is reinstated.”
This means the government will begin the process to deport Harkat — and most likely soon. A new deportation order will not be issued, as the security certificate is essentially a deportation order in itself.
According to Boxall, the government can’t execute the deportation order until a pre-removal risk assessment is complete. The assessment would determine if Harkat would face mistreatment or torture if deported back to his home country of Algeria.
“In simple terms, you measure the risk to Canada if Mr. Harkat remains here, which I would submit is zero, and you would measure the risk to Mr. Harkat if he is deported to Algeria, which in my submission is significant. You balance those two and you come to a conclusion of whether it’s appropriate or not (to deport him),” said Boxall.
Wednesday’s ruling acknowledged the risks Harkat potentially faces in Algeria.
“He potentially faces deportation to a country where he may be at risk of torture or death, although the constitutionality of his deportation in such circumstances is not before us in the present appeal,” read the ruling.
According to a case from the 2002, known as the Saresh case, generally speaking, the government cannot deport an individual to a country where they face risk of death, but there may be “exceptional circumstances” in which deportation to torture may be justified.
Boxall said Harkat’s bail conditions will remain the same for the time being, unless there is a court order to change them. He said that if the government decides Harkat faces a significant risk in Algeria, he would stay here and there would likely be issues with respect to his bail conditions, which Boxall admits is “unchartered territory” for the Canadian legal system.
Public Safety Minister Steven Blaney welcomed the Supreme Court decision, Wednesday. When asked by CBC if Harkat would be deported, the minister said “it’s up to the CBSA to abide and implement Canadian laws.”
NDP Leader Thomas Mulcair said Wednesday his party is “cognizant” of the ruling, but still has some serious concerns with the government’s use of the security certificate process.
“We still do think that in a free and democratic society, that there are valid questions that have to be asked as to how these certificates are being used,” said Mulcair.
Liberal Leader Justin Trudeau also welcomed the decision, adding that the security certificate system has reached a point where there is a good balance between protecting an individual’s rights and ensuring the public’s safety.
Speaking to reporters at the court, Secretary General of Amnesty International Canada Alex Neve said the government must comply with international agreements against torture when deciding Harkat’s fate.
“There are also a set of international obligations that will apply if the government does move to try to deport Mr. Harkat. Obligations that are meant to protect individuals from torture and certainly it would be doubly troubling if … there’s not clear recognition of the international human rights obligations at stake,” said Neve.
Wednesday’s ruling also found that the “designated judge” — Noël — did not err in 2010 by refusing to exclude intercepted communication recordings collected by CSIS in Harkat’s case.
The ruling determined that the government followed its duty to candour and good faith in attempting to gather information for the court on Harkat. Wednesday’s ruling revealed the source of that information as “foreign intelligence agencies.”
The only point the judges could not agree on was the protection of CSIS human sources. All the judges, except for Justice Abella and Justice Cromwell, agreed that CSIS human sources should not be protected by informer privilege. However, the ruling ensured that if CSIS informants are produced by the government during the course of a hearing, they would appear during a closed hearing, which only the accused’s special advocates — not personal lawyers — would be allowed to attend.
Special advocates are lawyers with security clearance assigned to protect the interests of those named in a security certificate. In reaction to a 2007 Supreme Court ruling, Parliament revised the security certificate regime in 2008 to include “special advocates” in the process.
Wednesday’s ruling brings an end to a long chapter for the Harkat family. Following his arrest in 2002, Harkat was jailed for three and an half years. In June 2006, he was released on $100,000 bail. He has since faced some of the strictest house arrest conditions in Canadian history, at times requiring 24-hour supervision by his wife Sophie or mother-in-law, surveillance cameras at each entrance to his home and the wearing of a GPS monitoring device at all times.
Court orders in recent years have allowed Canada Border Services Agency (CBSA) officials to gradually ease Harkat’s release conditions. For instance, officials removed his GPS tracking bracelet last July, when he was also granted permission to travel outside the national capital region with five working days’ notice to CBSA. It is not clear what conditions he will live under now.
The security certificate process was introduced in 1978, but didn’t garner much attention until after the 9/11 attacks, when the government highlighted it as part of its anti-terrorism strategy.
Boxall will address the media again at a press conference tomorrow morning on Parliament Hill. He said Harkat and his family have not yet decided if they will attend the press conference.
michellezilio AT ipolitics.ca