The Prohibition against torture is unequivocal, not subject to any derogation, Norris says, noting that this absolute prohibition is enunciated in the Universal Declaration of Human Rights, the Convention Against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), the American Convention on Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the African Charter on Human and People's Rights, the Banjul Charter.

He also notes that as was essentially recognized by the Suresh decision, this norm -- non-return to torture -- has now attained the lofty status of "jus cogens," a norm that supercedes everything else.

Norris quotes from a decision from the International Criminal Tribunal for the former Yugoslavia:

"Because of the importance of the values it protects, this principle (prohibition against torture or return to torture( has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even 'ordinary' customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.

"Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate.

"The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimize any legislative, administrative or judicial act authorizing torture.

Norris also quotes from a European Court of Human Rights decision which declares that EVEN in times of public emergency, REGARDLESS of an individual's conduct, there can be NO derogation and NO balancing of individual versus societal interests when torture is concerned. There are no legal loopholes, and, as the Chalal case in the UK reads, "the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration."

(Of course, one must keep in mind that there has never been an open court proceeding in which any of the allegations against Mr. Jaballah have actually been proven!)

Interestingly, a 1992 brief Canada sent to the UN Committee Against Torture stated in reference to a Supreme Court case that "extradition will offend section 7 if the imposition of the penalty by the foreign state would shock the Canadian conscience. The Court noted that torture is a penalty so outrageous to the Canadian community that surrender would always be unacceptable." (Section 7 states "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

Norris delves into a number of issues with respect to the decision to deport to torture: is the government's objective a rational one, does it minimally impair Jaballah's rights, and is the decision a proportional one considering all the elements? On all three counts the government fails.

"There is here an awkward tendency [on the part of the government] to go from the specific facts of the Jaballah case to the broader considerations of the fight against terrorism," he notes, and that awkward tendency will be acted out in almost embarrassing fashion later in the day when an attorney for the government rants and raves before the court.

What is the appropriate path here? Norris asks. At the end of the day, the decision at issue has the most direct and profound consequences for Mr. Jaballah.

Since 9/11, courts have struggled with how to combat terrorism, and what they have concluded, is, "We know this war may not be fought at any cost."

The most important form of security also accords due respect to the fundamental values enshrined in our charter. Every time a resolution condemns terror, Norris notes, it reaffirms the need to fight it in a way which respects fundamental human rights and liberties.

Jaballah's attorneys note throughout the day that the sole targets of Canada's "war on terror" appear to be those who are already vulnerable, refugees and other non-citizens, and not Canadian citizens or corporations. And while the anti-terrorism act in Canada allows for prosecution of those believed to be involved in terrorist activities, no such charge has been brought against Mr. Jaballah, "leaving open the question of whether this is because the state does not have sufficient evidence to launch a prosecution or effect control measures over him under the criminal regime. It clearly undermines the state assertion that there is a pressing and substantial objective in securing Mr. Jaballah's removal to torture.

"While clearly Canada's international and domestic obligations to fight terrorism are pressing and substantial, they pale in comparison to the right at stake -- the right to be free from torture and other forms of cruel, inhuman or degrading treatment or punishment. The right to be free from such treatment is pressing and substantial, particularly in the context of a post September 11 world. The fight against terrorism is not sufficiently pressing and substantial to override the right to be free from torture, particularly as there are other means of addressing valid state concerns. Further, there is no evidence that returning a person to torture actually advances the fight against terrorism -- admittedly an international fight. While it might result in Mr. Jaballah's death or serious injury and thus eliminate him as a potential threat to any state or person, this would not advance the fight against terrorism, as the use of repressive state means only furthers the grievances of those who promote or engage in terrorism."

Norris argues that the deportation decision needs to be quashed and returned to the minister for a new, legal decision.

Following a lunch break during which Mr. Jaballah's children are allowed to touch and hug their father for only the second time in three years, government attorney Donald Macintosh begins his reply. We listen intently, wondering how the government will now argue that, despite everything the court has heard that morning, the government of Canada STILL has a perceived right to deport Jaballah or anyone else to torture.

But the case law Macintosh relies upon pre-dates the Suresh decision, and much of his response is based in paranoid ramblings and name-calling.

Indeed, he sounds like a broken record, constantly falling back on a number of key terms he incessantly repeats: "everyone in Canada has a right to be protected from people like Mr. Jaballah...only a Canadian citizen has a right to leave or enter Canada, no one else!...the onus is on him to establish why he shouldn't be deported."

He disagrees that the Supreme Court sided against deportation to torture, declares that international law cannot be determinative in such a situation, and returns to a rant about people "are willing to kill innocent people," "people who will assassinate people for Osama bin Laden," "evil terrorist organizations," etc.

"Mr. Jaballah has no section 15 rights whatsoever!" Macintosh thunders, adding "If something happens to Mr. Jaballah if he's returned to Egypt then it'd be too remote for section 12 to apply." (Section 15 states " Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." Section 12 states "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.")

As the next few hours progress, they are filled in with never proven assertions that "This man is associated with the most senior members" of terrorist groups and that "There is no evidence that death or torture is a certainty."

On it goes, a collection of hyperbole worthy of Joe McCarthy: "Horrendous evil...evil fanatics...the government believes he's an ongoing threat, a serious threat, he could never be released."

There is much irony in the point. No one ever really gets to see the whole case in perspective. The evidence is heard behind closed doors without Jaballah or his lawyers present. In this case, the evidence behind closed doors has been dismissed, and CSIS has said it has no new evidence against Jaballah. What totality of the case could Macintosh be thinking about, other than the reams of National Post articles and other substance-less tomes he carts around in his briefcase?

Jackman closes with a brief reply, noting that everything Macintosh is arguing she heard when they were arguing the Suresh case years ago, and the world has moved on since then.

"This is a case of the individual against the state, not a case of competing interests, otherwise all criminal cases would be about competing interests." She points out Jaballah's claim is not based on the right to remain, it's based on the right NOT to be returned to cruel treatment.

"Just as the charter is a growing tree, respect for human rights is a growing tree, and if there's any time we need it, it's in the post-9/11 world. In times of crisis or perceived crisis states override human rights, and its up to the courts to ensure those rights are protected."

In terms of Jaballah's alleged "evil," she says Suresh was alleged to be an executive of the Tamil Tigers (responsible for killing 60,000 people), yet the Supreme Court of Canada did not find "exceptional circumstances" warranting his return to torture, and in fact Suresh is out on bail.

How are Canada's international relations promoted by returning someone to torture? she asks, especially when "Canada is having a difficult time holding its head up when all of Europe has prohibited absolutely a return to torture."

As we leave the courtroom, one cannot help but think of a similar scene in Inherit the Wind, the 1950s movie about the famous monkey trial in Tennessee in which the right to teach evolution was challenged by those professing Darwin was evil and that only a Biblical interpretation of human history was to be allowed. By the end of that film, the Biblical proponent is awash in his own bloated rhetoric, superstition, and intolerance, and suffers a breakdown in court following a major rant. In the end, common sense prevails.

In this court, Mr. MacIntosh undergoes a similar apoplectic meltdown, himself trying to hold back the positive evolution of Canadian law as he thunders about "this man," "this terrorist," this "evil fanatic" in language so hateful and harsh that it's a wonder he is not charged with emotional abuse of Jaballah's children. It is hyperbole upon hyperbole, with no legal basis.

Justice Mackay ends with a short nod to Jaballah. "It's an important case. It's been an important case since day one. I appreciate how difficult it is for you and your family, but you are helping us evolve Canadian law," he says, and hopes that a just result will be obtained.

As in Inherit the Wind, one hopes that beyond the blather, the judge and the Canadian people will find true justice here, put an end to such abhorrent notions as deportation to torture, and end the secret trials which continue to imprison not only five Muslim men and their families, but a whole community which continues under siege from the "gotta justify that big budget increase" spies at CSIS.

(report from Matthew Behrens of the Campaign to Stop Secret Trials in Canada)

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