By YayaCanada OTTAWA - Tuesday, November 8, 2005 Counsel for CSIS resumes Summations Judge Lemieux opened by asking CSIS counsel Donald McIntosh to respond to three areas in question: 1. I want your views on the kind of evidentiary burden Mr. Harkat has. In the Almrei decision it says "some" evidence must be given to show that there are reasonable grounds to believe that the case has not been expedited in a reasonable time and that the appellant will not pose a danger to society. This seems to suggest a requirement lower than "balance of probabilities". 2. What is the difference between the security certificate decision of Judge Dawson and the decision I must take? Hers was not a decision that is conclusive proof of danger to national security. Judge Lemieux cited precedents that membership in a terrorist organization should not be conflated with danger to Canada. 3. Can I release Mr. Harkat if he has not demonstrated he is not a risk to national security? The proposed bail conditions were characterized by Mr. Mathison [ CSIS defence counsel ] as very, very onerous. Can conditions diminish the burden he has to demonstrate that he is not a danger to national security? What is the relationship between release conditions and danger to national security? Mr. Copeland interjected that the defence and counsel for CSIS had agreed that there was a matter they needed to discuss with Judge Lemieux in private. The court adjourned temporarily for a meeting in chambers. When court resumed, there was no announcement as to the content or outcome of that meeting. Donald McIntosh, counsel for CSIS, resumed his summations that had been interrupted on November 4. McIntosh: The recommendations in the Almrei case were not as precise as one would hope. The ultimate burden to establish reasonable time for removal remains as always with Mr. Harkat and that onus does not shift. What can shift is the evidentiary burden and that's what Almrei refers to. The filing of "some" evidence is required to meet the evidentiary burden, and I agree it is below standard. Assuming that some evidence was filed to show unreasonable time, the burden can shift to the Crown. Time was taken in the process of exhausting all of the remedies open, and time was also taken in obtaining diplomatic assurances that the appellant would not be tortured if deported to Algeria. The diplomatic assurance had to be assessed to take into account such things as the human rights record of the assuring government and the capacity to fulfill the assurance. The Supreme Court did not take an "absolutist position" on it. Assurances can be litigated. It was left open to obtain assurance which must then be weighed and be subject to judicial review to assure proper weight. Judge Lemieux: We've got the assurance in this case. McIntosh: Mr. Harkat has taken inconsistent postitions as to time taken. He himself asked for a 15 day extension in preparing submissions to CBSA. And then he asks for CBSA officials to come before this court to show reasons for taking an unreasonable time to respond. The CBSA have to deal fairly with it or it will be struck down; the officials must proceed to ensure "procedural fairness and natural justice". Harkat has presented a plethora of materials - reports from experts, from Amnesty International, from Human Rights Watch - to show both the probability of torture and also that he is not a danger to Canada. It requires time to assess all that material yet they are saying "I want a decision yesterday", and they complain about lack of responses to correspondence. Judge Lemieux: Mr. Copeland has said he has established prima facie. McIntosh: This is inconsistent with Mr. Harkat asking for more time. If one can do that, it becomes a situation where there is no way the minister's delegate could ever comply. They have a duty to assess the cogency of his replies and if they do that, more time is taken. They have fixated for the purposes of demonstrating unreasonable time on the fact that no decision has been made and ask His Lordship to ignore all the procedures involved. They must balance risk of torture against the danger he poses to Canada. This is extremely complicated balancing, and if all you were to look at is the absence of decision ... you must consider in terms of all criteria to be considered, and the additional factor of assurances. How can Canada control the speed at which a foreign government acts on assurances? This takes a number of negotiations. In several case it's taken "months and months and months". Mr. Harkat has to take a consistent position and Your Lordship has to take into account his conduct in asking for more time. Judge Lemieux: Mr. Harkat is a foreign national; he could not seek judicial release until the judgment was made on the Security Certificate. At his first opportunity he applied, and submitted all materials required to show reasons for not removing him. He asked for only a 15 day extension. On the basis of that the minister's delegate prepares a memorandum. From Harkat's point of view, there have not been unreasonable requests for extra time. The natural evolution of this case so far is as has been described; the question is whether it's unreasonable given he's incarcerated. McIntosh: He could have applied for release in July instead of October 7. Extensions were entirely appropriate but it becomes impossible for the government if the appellant can argue in court unreasonableness when the appellant himself has sought extensions. They are trying to benefit from their own litigation. No apsersions on counsel - they are entitled to ask for extensions - but if extensions are denied it breaches natural justice and fairness and if granted it becomes unreasonable time. Judge Lemieux: Yes, I understand your position. McIntosh then read from precedents that to deport to torture on the basis of danger to the security of Canada requires evidence of serious threat, and would allow some evidence to be given which may not normally be admissible. Judge Lemieux: You are referring to the evidence given of Islamist proclivity to not be able to shed their beliefs. McIntosh: That would be considered admissible. Judge Lemieux: It may be, but what weight should be given to it? McIntosh: The test of danger, according to the Supreme Court, must be given a fair, large and liberal interpretation, and it must be grounded on objectively reasonable grounds - substantial grounds. A national security case is totally different than a criminal case. Judge Lemieux: The Supreme Court seems to be saying the threat must be serious, but doesn't talk about balance of probabilities, and a Security Certificate case doesn't have to. McIntosh: There are unique parameters in a national security case. The Supreme Court was critical that there are no procedures set up to determine if someone is a danger to national security, but it must be based on something other than mere insubmissibility. The whole exercise becomes circular. A person is entitled to make submissions in spite of the certificate being upheld as reasonable. Judge Lemieux: You seem to concede that there is a difference between inadmissibility and determination of danger. How does he show he is not a danger to society? The onus is now on Mr. Harkat. McIntosh: With regard to his past associations, he must demonstrate on an objective basis that he is no longer involved. The CBSA has given reasons which Mr. Copeland has to debunk. Judge Lemieux referred to two previous cases that had been struck down because the minister's delegate had not been supplied with certain confidential information and he said that all information must be supplied. Mr. McIntosh agreed that certain appendices that would have served as supporting documents had not been provided. CSIS did not appeal, he said, because the court's decision was a "salutary" one. Mr. McIntosh went on to discuss conditions of bail and acknowledged that danger can be obviated by strict conditions. In this case, he said, no means can protect Canada. The Judge must assess the extent to which they will be complied with. In general, however, danger can be lessened by conditions. Judge Lemieux: Thank you for that. McIntosh: Mr. Webber said that the Harkat case is the same on all levels as Charkaoui's. This is utterly not true. As a permanent resident, Charkaoui is subject to different conditions. Judge Lemieux: Mr. Webber's comments will be assessed according to the statutory scheme before the court. McIntosh: Charkaoui's security certificate had not been determined to be reasonable; this would make him more willing to comply. Harkat knows he's been found to have lied to the court; he has very few reasons to cooperate - to follow the conditions. "Each case turns on its facts." Harkat's case is different from Charkaoui's. The Justice did not decide on Charkaoui's credibility. The Judge in the Harkat case must make an independent finding. There are precedents to show that conditions of bail and loss of sums will not suffice. Judge Lemieux: There are proposals as to such things as language, lock down, computer and Internet use. Mr. Mathison himself said the conditions were very, very tough. McIntosh: We accept these people come to the court in good faith. They met Harkat in a controlled environment and the meetings were short - 20 to 30 minutes - and then they deposed that they thought he was willing to comply. How could they possibly express an opinion as to whether he would comply? This case has become a cause celebre. These are reasonable people who do not agree with the security certificate process, and that is their principal motivation for becoming involved, not because they know Harkat. They will not provide adequate scrutiny. Len Bush, for instance, does not have a list of Harkat's associations. When asked why, he said, "I didn't ask him." Len Bush is opposed to the whole process. How can they possibly be certain Harkat will not breach his conditions. Judge Lemieux: They all said that if he breaches the conditions they will report him. And you yourself say they are honest people. McIntosh: Dr. Cameron says Harkat is above average in intelligence. Jessica Squires works hard, is getting her Ph.D., lectures, is involved with students, could have unexpected duties in the future. She is not in a position to provide scrutiny. Given that he has above average intelligence ... Dr. Cameron admitted he has no expertise in assessing danger to national security. There is no opinion before the court as to whether they will report him, and I do not believe they will be able to do the job. The court cannot apply Charkaoui to Harkat; there was no assessment made of Charkaoui's credibility. I would ask you to go to the subject of Harkat's credibility. Harkat is known to associate with extremist groups, and it would not be feasible to provide a list for conditions of non-association as that would be dangerous to national security. You cannot apply criminal procedures to national security cases. Harkat heard all of the limitations presented to the court with regard to the GPS tracking system. The witness was a salesman trying to sell his own technology and thought he'd better say the good and the bad, but Harkat heard it all. He has unwittingly been provided with a recipe to exploit the system. Your Lordship is left with only the sureties. Judge Lemieux: Wasn't there a suggestion that "active GPS" would overcome those limitations? McIntosh: That hasn't been tried in Canada. The court would have to decide if it would apply to this case. Those limitations may not apply to this system. "I stand to be corrected, but I still think the limitation will apply". As an example this letter from one of the signed sureties: "I have not met Mr. Harkat, however I have received corresondence from him and have met his wife. I believe he will keep the peace and abide by the conditions." Alexandre Trudeau says that he's met Harkat on one occasion and has information from media sources, yet he supports the campaign for his release. Harkat has celebrity sureties like Alexa McDonough and Alexandre Trudeau, but they are not in a position to supervise. It is up to the court to decide whether or not Harkat's release is injurious to national security, and you must make an exacting determination with regard to Harkat's credibility. Judge Lemieux: These sureties are offering bail money - one must make that distinction. Alexa McDonough and Alexandre Trudeau are not going to be supervising him. McIntosh: This is all to show the court that they don't agree with the security certificate process. Sophie Harkat loves her husband and doesn't think he ever mislead her. She has not come to terms with the findings of Judge Dawson; she is not objective. She pleads to the court, "Give us a break". You hve to decide not just on stress or sympathy; you must be satisfied his release is not injurious to Canada. Is Sophie Harkat able to control him? In the past he gambled and she couldn't stop him. [ YYC: Sophie Harkat did stop her husband from gambling by threatening to divorce him. ] Harkat's mother-in-law is well meaning. She says most of the supervision will be up to Sophie. She also has not come to terms with the findings of the court. She said something to the effect - "You could lie to protect your wife". Her supervision would not be very exacting. Mr. Skerrit is very active as a union representative. He come to court in good faith. He's here because he believes the process violates international law. He visited Harkat in the detention centre. He is not aware of Harkat's associations in Algeria. He is not in a position to supervise him. Judge Lemieux: They gave evidence in terms of their ability to cooperate and coordinate themselves to be effective. McIntosh: What experience do they have with a terrorist? They are well intentioned, but Harkat is very loyal to the ideology, firmly committed ... and he is smart. Judge Lemieux: He denies that. McIntosh: He has been found to be incredible. He remains the central figure; he has so much to fear from removal to Algeria, but that didn't prevent him from saying things to the court that were found to be a lie. Are we to believe that since then he has had "some sort of ephiphany" and now "he's going to be a good boy"? Jessica Squires is a friend of Sophie Harkat; she is not a disinterested observer. Len Bush is not aware of Harkat's associations in Canada or Algeria. There is a third party in the house who is a central figure, but he never testified here and we can't assess how exacting he would be. [ The court adjourned here for a lunch break. ] Summations from CSIS counsel on the testimony of their witness "P.G.". McIntosh: Judge Dawson's decision is relevant to the testimony of P.G. This court must apply rigorous standards in assessing the reliability of information. Justice Dawson applied these standards. [ McIntosh cites from precedent a long list of things that must be considered ] There are statements by the defence that P.G. doesn't make certain inquiries. If it can't be satisfied that information is not obtained through torture, of course the court must ignore it. Ward Elcott [ former CSIS director and witness in the Maher Arar case] said we can only suspect torture, but that's as far as one can get in these circumstances. Judge Dawson was not satisfied as to how the information was obtained against Harkat. The court was reminded by Mr. Mathison that P.G. is not an intelligence officer, he's an analyst. He is apprised on a "need to know" basis. There is a tendency to view intelligence agencies as a whole as a monolithic organization where there is no dissent. CSIS is subject to the oversight of SIRC, and "most importantly, CSIS is subject to the close exacting scrutiny of this court" which is fair ... P.G. gave examples of lifelong terrorist activities: the Algerian in Spain - Lamari - who was released, Zarqawi - a most wanted terrorist today - who was incarcerated in a Jordanian prison; Zawahiri who was in an Egyptian prison and returned to his activities. These are concrete examples. Al Qaeda sleepers are a well documented phenomenon. The fact there isn't evidence that indicates released prisoners have returned to activities could be because: they may be in long term planning, they may be sleepers, they may no longer be connected. It's not an exact science. [YYC: I can't resist noting here that Mr. McIntosh omits "they may never have been connected".] Judge Lemieux: But how can you know? P.G. admitted that he prepared his study after the Charkaoui decision ... McIntosh: The summary he prepared was intended for litigation and for such purposes as to inform government, etc. Judge McIntosh: Or to isolate Charkaoui. McIntosh: CSIS also has a serious, onerous responsibility to alert officials to the possibility of danger. Dr. Cameron prepared his report for litigation. Nobody assessed Harkat until this application. It can't be said that the only reason for P.G.'s testimony was to influence the court. The Judge is more sophisticated than that - and will weigh it carefully. We recognize there needs to be a balance between civil liberties and national security. But all Canadians have a right to be protected against terrorists. Reply from Defence Counsel Matthew Webber yayacanada.com Main Page - "Abolish the Security Certificate" |