By YayaCanada OTTAWA - Friday, November 4, 2005 Continuation of Defence Counsel Summations Matthew Webber began by citing the Hassan Almrei case in which he said the language was significant with regard to the onus on the applicant [ Canada ] in that it speaks clearly to an onus shift once evidence has been filed by the respondent [ Harkat defence] that removal will not happen in a reasonable time, and of the requirement for evidence as to why. Judge Lemieux interjected: How does the onus shift? Mr. Webber replied: The state must give evidence as to the reasons for the delay, and if the state fails to give evidence, the applicant is entitled to be released. Judge Lemieux: Yes, that is quite clear in the Almrei case. Webber: "Once the appellant's [ party appealing a final decision or judgment - in this case the Harkat defence ] case is put on paper, the Crown must do something. It can't sit mute; it must give reasons for the delay." "The Judge must look at the causes of the delay," continued Webber. The Judge must also take into account the conditions under which Harkat is being held during this delay. "It's a jail; there are bars; you can't leave; this is a huge prejudice in addition to the effect on Mr. Harkat's existing PTSD." [ Post Traumatic Stress Disorder - see psychiatrist's report ] Webber continues: The time is now well in excess of double 120 days; the case has been made but no answer has been received. The reasons for not carrying out removal in a reasonable time cannot be in camera evidence [ in the judge's chambers; in private ]. Therefore we are sure the Court has not heard it, and we know there is no evidence. Of course, the Judge must also consider the risk factors of release. All the factors in the [ Adil ] Charkaoui case must be considered. Mr. Harkat's case on every level is at least as good. Judge Lemieux: But in Mr. Harkat's case, the Security Certificate was deemed reasonable by Judge Dawson. That is not the case with Charkaoui, although a Judge is about to consider it. Webber: A finding that the Security Certificate was reasonable is not synonymous with a finding of Risk Factor. The risks in this case have been based on incredibly misleading intelligence, as in using 10 detainees out of 202 to determine that released individuals return to terrorist activities. The witness for CSIS, "P.G." admitted to no expertise on conditions of bail. The evidence of "P.G." is utterly and completely worthless. As in the case of Adil Charkaoui who had massive public support, Harkat has impressive and outstanding support. People have been willing to sign on the dotted line as surety, there were truly impressive witnesses - Jessica Squires, Len Bush and Kevin Skerrit - who are willing to closely supervise Harkat. "I am a criminal lawyer, My Lord. I have represented murderers, and never before have I put before a court a bail package as vigorous as this one." While it is true that the secret evidence against Harkat cannot be assessed by us, the proposal for bail conditions can be very flexible. Mr. Harkat would accept fewer or more conditions than those of Charkaoui in order to have a semblance of freedom. Dr. Cameron used a risk assessment tool, for what it is worth to the court to help find there is some evidence that Harkat is at the low end of the risk scale. Harkat would agree to the "geo fence" being smaller, and if it is deemed that CSIS requires it, we can provide the names of all the signed sureties so that they can be assessed by them. Judge Lemieux interjects: Since the certificate has been judged reasonable for removal, the only question is should he be released for that time period. [ until removal is carried out ] Webber: The question is whether he will be in jail or under house arrest. Judge Lemieux: I note that the Algerian, Zaoui, was released in New Zealand as well. Webber: This is an example of how wrong "P.G." was that "once an Islamic extremist, always an Islamic extremist". "P.G." claimed it's for life, that notoriety does nothing to diminish it, that passage of time in prison does nothing, and that bail release conditions do nothing. "I am shocked" that a CSIS Senior Analyst would make admissions that he had never asked under what conditions information had been obtained nor had there been a single discussion on how the US was treating its detainees. "P.G." also admitted that although a document on torture was generated on the heels of the arrest of Abu Zubaydah, he had never seen the document. The passivity of CSIS amounts to willful blindness. They have purposely remained ignorant. CSIS, by their own admission, are treating inherently unreliable information as reliable. This diminishes the value of any and all CSIS work. Judge Lemieux interjects: Except there are many sources open to CSIS, some of which are not human sources - such as intercepts and surveillance. Does that mean that everything CSIS does is useless? Webber: If they didn't ask the question - it's worthless! Judge Lemieux: Then all information should be discounted from detainees? Webber: Yes. Judge Lemieux: I understand. Webber: CSIS characterizes the Human Rights Watch report as a self-serving document, which is an utterly outrageous characterization. I would suggest it more characterizes "P.G." who says: There is no other study out there like mine - I wrote it directly on the heels of the Charkaoui decision - to prevent release. His report systematically tried to debunk each and every consideration in the Charkaoui decision concerning passage of time, notoriety, etc. In the case of Harkat, he has testified he does not now nor has he ever supported Islamic extremism, and we have not seen a piece of evidence that he has. Judge Lemieux: Judge Dawson accepted whatever evidence was given in that regard in March 2005. Webber: Whatever was in it, it still does not support "P.G"s huge generalization that there is a lifelong allegiance. In the Baltovich case, a man accused of killing his girlfriend was released on appeal on the grounds that if he had posed a threat to witnesses this had diminished through passage of time. "P.G." used the example of Khadr who existed on a completely different plane. He was arrested; he comes back to Canada with help from the Prime Minister; then he freely returns to the Middle East where he engages in activities. He was not on bail at all. CSIS counsel summations Related: Scoop: Ahmed Zaoui Prepares To Celebrate 100 Days Bail Human Rights Watch Report: The United States’ “Disappeared” The CIA’s Long-Term “Ghost Detainees” Human Rights Watch Report - Still at Risk; Diplomatic Assurances no safeguard against torture CBC: Baltovich trial timeline Al-Qaeda family': Khadr yayacanada.com Main Page - "Abolish the Security Certificate" |