WILL CANADA GET OFF THE TORTURE TRAIN?
The Case of Secret Trial Detainee Mahmoud Jaballah Challenges the Legality of Governmental Decisions Leading to Deportation to Torture

August 16, 2004, Toronto -- An air of history hangs over Court 7-2 of the Superior Court building in downtown Toronto this summer morning as Mahmoud Jaballah, marking three years behind bars on secret evidence neither he nor his lawyer is allowed to see, enters the prisoner's box. Along with a packed room full of supporters, Jaballah's wife and children are sitting on the hard wooden benches behind him, separated from their loved one by thick glass, his kids eagerly anticipating only their second touch visit with their Dad since his arrest in August, 2001.

Jaballah's indefinite incarceration in many ways symbolizes the shame of Canada's secret trial system, under which a refugee or permanent resident can be arrested, held without charge or bail on secret "evidence" they're never allowed to see, and then deported to face torture or other cruel and inhuman treatment at the hands of states which regularly fill the Amnesty International roster of human rights violators.

Here is a man who, after all, came to Canada as a refugee. In Egypt he had been severely tortured many times, held indefinitely without charge or trial, then kicked back onto the street. In Canada, he was arrested on a secret trial security certificate in 1999, but in a rare move, a Federal Court judge quashed the certificate and had him released after the better part of a year behind bars.

Jaballah thought he could get back to his life as an Islamic school principal with his wife and six children, but Canada's scandal-ridden spy agency, CSIS, would not have it that way. They had him re-arrested on a second certificate in August, 2001, and he's been in prison ever since, despite a CSIS agent admitting in open court (at the severely limited "public" portion of the secret trial) that the agency had "no new evidence" on Jaballah, only a "new interpretation" of the facts already dismissed by the Federal Court in 1999.

As Jaballah has languished behind bars, and his children have been forced to speak to him during short visits through malfunctioning phones and thick glass, the federal immigration bureaucracy has engaged in a process known as a pre-removal risk assessment, attempting to determine what would happen if Jaballah were deported to Egypt. Their conclusion was clear: Jaballah would face torture, perhaps death, at the hands of Egyptian authorities.

But does this mean Mr. Jaballah can stay in Canada? Apparently not, for the same immigration bureaucracy has now concluded that despite the substantial likelihood of torture awaiting Mr. Jaballah in Egypt, he must be deported anyway for the alleged benefit of Canada and Canadians.

It is a scene out of Orwell or Kafka, that this man and his family may be irrevocably torn apart on the basis of secret "evidence" which has already been dismissed.

Jaballah won new attention recently when, due to a number of technical difficulties with his second certificate proceeding, a third certificate is to be issued against him this fall, and the process will start again. While it is hopeful that Jaballah will have yet another chance to prove his innocence on the vaguest of vague allegations, he continues to lose precious months and years behind bars. According to current Canadian law, as someone who is not a citizen, he is not eligible for bail while a security certificate is being heard, and he continues to face the prospect of indefinite incarceration.

This morning in court, there is a sense that the historic events of the past few years are coming to a head. Over the weekend, it was revealed that despite the substantial likelihood of torture, Adil Charkaoui, a secret trial detainee held in Montreal since May, 2003, is also slated for deportation to Morocco. Earlier this year, a similar decision was made against Egyptian refugee Mohammad Mahjoub, held since June, 2000. As these things go, a rubber-stamp immigration department will likely come to similar conclusions with respect to Algerian refugee Mohamed Harkat in Ottawa (held since December, 2002) and Syrian refugee Hassan Almrei (in solitary confinement three full years this October).

How is it that this modern, "evolved" country called Canada is now, in the 21st century, prepared to open a potentially explosive spigot by starting up the assembly line of deportation to torture?

As each of the secret trial detainees comes to court to challenge these deportations to torture, they will likely be looking towards Court 7-2 and the much-anticipated decision of Justice Andrew Mackay, who is considering the motion put forward by Jaballah's lawyers, Barb Jackman and John Norris, that the decision to deport Jaballah, knowing he faces torture, is patently illegal and breaches the principles of fundamental justice.

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As Jackman approaches the podium to make her case, one can sense that here is yet another major culmination in a legal career of over a quarter century, standing up for the rights of refugees and taking the hardest to handle cases, the "security" files of people who, for whatever reason -- or for no reason at all, as it often turns out -- have run afoul of the government.

A few years back, Jackman took the case of secret trial detainee Manickavasagam Suresh to the Supreme Court and established that return to torture should not occur.

The Supreme Court of Canada in the Suresh decision, written shortly after the events of 9/11/2001, states clearly: "Canadian law and international norms reject deportation to torture. Canadian law views torture as inconsistent with fundamental justice. The Charter affirms Canada's opposition to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. Torture has as its end the denial of a person's humanity; this lies outside the legitimate domain of a criminal justice system. The prohibition of torture is also an emerging peremptory norm of international law which cannot be easily derogated from.

"The Canadian rejection of torture is reflected in the international conventions which Canada has ratified... International law generally rejects deportation to torture, even where national security interests are at stake."

The Suresh decision notes that "the Supreme Court of Israel sitting as the High Court of Justice and the House of Lords have rejected torture as a legitimate tool to use in combatting terrorism and protecting national security...We conclude that the better view is that international law rejects deportation to torture, even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Charter."

However, government lawyers have taken one line out of Suresh and abused it well beyond its limited shelf-life. That line reads "barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter." It later states again, "We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified," noting such circumstances might include "cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like."

By claiming that "extraordinary" or "exceptional circumstances" exist in the cases of the Secret Trial Five -- Muslim men who have individually had security certificates issued against them and who have collectively been held 159 months in detention without charge or bail -- the federal government is hoping to get on board the torture train.

Nevertheless, the Supreme Court notes that "We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases."

And one of those future cases is before the courts today. Much has happened in the two-and-a-half years since the Suresh decision, both in the courts and politically. Courts have heard numerous cases involving human rights balanced against that vague term "national security," and most statements condemning terrorism have also been built on a strong foundation which states that fundamental human rights and civil liberties cannot be cast away in this period.

Jackman begins by pointing out that Canada is a signatory to a key international law document, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While the government often states that it is not bound by international law, she points out that section 3f of the Immigration and Refugee Protection Act (IRPA) states that the act is to be construed and applied in a manner that "complies with international human rights instruments to which Canada is signatory."

Whether the government was trying to sound nice and liberal or they really mean it does not matter; the term "complies with" means they are bound by such things as the Convention Against Torture. IRPA also states that decisions taken under its authority must be consistent with the Canadian Charter of Rights and Freedoms, "including its principles of equality and freedom from discrimination."

"Our position is that there is an absolute prohibition on return to torture," Jackman declares. "Mr. Jaballah shouldn't have to justify why he shouldn't be returned to torture," Jackman argues, saying that onus should rest in the hands of the government.

Jackman notes that traditionally in Canada, and through a wide variety of judicial case law, exceptional circumstances are meant to imply states of emergency, wars, disasters, famines, and epidemics, none of which currently afflict Canada.

"We are not in a state of emergency, we are not in a time of war. There is no catastrophe in Canada, evens SARS would not qualify." She notes that although terrorism is a dangerous phenomenon, the problem of terrorism in Canada has not reached even remotely the level of a crisis. Indeed, she says, some emergencies may fall short of war, but in such an instance, Canada could submit a notice of derogation (intention to withdraw from compliance with treaties to which Canada is a party) based on a state of emergency, but this has not happened either.

So where, she asks, are the "exceptional circumstances" that would justify Canada sending Jaballah back to the torture chambers in Egypt?

Jackman then explores a double standard with respect to non-citizens. What happens to Canadian citizens who are suspected of being members of or associated with terrorist groups? Jackman asks.

They are prosecuted and, if convicted, punished with prison, but they face no torture. They can also be released on a bond to control their behaviour, yet in Jaballah's case, there has been no bail and as a non-citizen, he will face torture if deported.

This is clearly a case of differential treatment based on citizenship status, a case of discrimination which is prohibited by the Charter and Supreme Court case law. Jaballah's deportation would violate his equality rights as "he would not face torture if he were a citizen." This conclusion builds on the already marginalized position Jaballah holds in Canadian society, where as the Supreme Court of Canada has pointed out, "it is settled law that non-citizens suffer from political marginalization, stereotyping and historical disadvantage."

"Human rights are human rights, whether you're a citizen or a foreign national. It should not matter what your status is" when determining such weighty issues, Jackman concludes.

Jackman reminds the court how important it is to remember that torture is one of those rare things around which there is an international consensus. Unlike the death penalty, states don't admit to torture, given the wholesale condemnation of it, but, like the death penalty, torture is irreversible in the damage it does.

Attorney John Norris then moves to the podium to explain how international law very much applies in this instance. He reiterates the fact that IRPA's section 3f is designed to comply with international law, making these treaties and covenants binding on the government of Canada. "This is a new development," Norris states, as the former immigration act "approximated this interpretation," but IRPA "clearly incorporates it."

"There is no indication that in denying protection [to Jaballah] that the minister's delegate gave due consideration to 3f, and this could be the basis to conclude that this decision [to deport to torture] was not lawfully made."