Egyptian with links to al-Qaeda jailed since 2001; seeks protection

TORONTO - An alleged terrorist with links to al-Qaeda should be returned to Egypt despite facing a substantial risk of torture, government lawyers argued yesterday.

Mahmoud Jaballah is accused of orchestrating several bombings in East Africa as a senior member of the Egyptian group al Jihad.

He was detained in Canada in August 2001 after officials deemed him to be a threat to national security. Under immigration law, the government is not required to reveal its evidence against him.

Mr. Jaballah has asked for protection from deportation back to Egypt. Immigration officials denied his initial request, but his lawyers have appealed the decision.

During a hearing in Federal Court yesterday, lawyers representing the attorney general and immigration minister argued the need to protect the security of Canadian residents trumps Mr. Jaballah's right to personal safety.

"Every Canadian citizen, every visitor, every permanent resident, has the right to life, liberty and the security of their person, and deserve protection from people like Mr. Jaballah," lawyer Donald McIntosh said.

"They deserve protection from people who, if left to their own devices, would assist and facilitate the kinds of diabolical acts like those of Sept. 11."

The lawyer argued the Supreme Court of Canada has suggested in its rulings that it is permissible to deport individuals facing torture in certain circumstances.

But Barbara Jackman, a lawyer representing Mr. Jaballah, said those instances are limited.

"The court allows it in exceptional circumstance such as war, natural disasters, epidemics and other major catastrophes," Ms. Jackman said. "The question is whether you can return to torture when we are not in a state of emergency or if we're not in a time of war."

The lawyer also argued the Supreme Court does not permit individuals facing the death penalty to be extradited. Ms. Jackman suggested cases of possible torture should be handled with even more care.

"Unlike the death penalty, there is no debate about torture. States do it, but they don't admit it. The death penalty is admitted to by states, but they justify it," she said.

Ms. Jackman said Canada cannot condone activities on foreign soil that would not be permitted in this country.

"It would be unthinkable for any Canadian citizen to be submitted to torture. It is not unthinkable in the government's view for Jaballah to be submitted to torture. It's unequal treatment," Ms. Jackman said.

Mr. McIntosh responded that Mr. Jaballah is not being persecuted because of his citizenship. Rather, he faces torture because of his own actions.

"We are not talking about an immutable characteristic. We're talking about the fact Jaballah belonged to a terrorist organization. He could have withdrawn from the organization at any time. More importantly, he could have never belonged to it in the first place," Mr. McIntosh said.

The court has reserved its decision in the case.

© The Ottawa Citizen 2004