By YayaCanada OTTAWA - Tuesday, November 8, 2005 Counsel for Defence Replies to Summations made by Counsel for CSIS Mr. Webber: My friends in their submissions often made the comment that the Defence has fallen into the habit of arguing Criminal Law with regard to unreasonable time. My Lord, we don't take this from anything other than the language of Parliament. We know that where the accused has waived or consented to delay there is little recourse. Judge Lemieux: In the Almrei case the importance of analyzing the causes of delay is outlined quite clearly. Webber: We are not arguing Criminal Law when we talk about the shifting onus. It is the Crown's duty to give reasons, and they have failed to explain their delay. We have explained our delays. Judge Lemieux: What do you consider to be indicia of unreasonable delay? Webber: We can go to the credibility of the state's assertion that removal can be carried out in a reasonable time. Judge Lemieux: Mr. Harkat couldn't apply until the certificate was judged. Charkaoui was released quickly because his security certificate was not reviewed. Webber: This is the first time in three years that my client has had an opportunity to apply for bail. After no response to any correspondence, CBSA drops its document on our desk on the first day of bail application, and that was the first indication that anything was being done. This is simply a matter of when and where the shift occurred. Judge Lemieux: To be fair, two days after Judge Dawson's decision there was notification that the minister would seek opinion [on likelihood of torture]. Defence submitted a fair amount of information which Citizenship and Immigration had to take into account when preparing their memorandum. It addresses concerns put by Mr. Copeland. Such a document has to be extensive; is that unreasonable time? Webber: My client was in jail for three years, and then for another six months during the time he was waiting for that report. Maybe it's not unreasonable time, but no evidence has been given to show that. In Almrei, it was shown that only six employees are assigned the security certificate cases for the whole country - an exception was made for Almrei. But the Crown had an obligation and Harkat had the right. Their witness, Ms. Milne from Immigration, said: Down the road, sometime when we get a decision, we can get him out quickly. Meanwhile, my client languishes in jail. Judge Lemieux: Convince me that now there has been an unreasonable delay. You have to file a response to the CBSA document by December 1st. Can I use some kind of projection to say he cannot be removed in a reasonable time? Where do I go in this? Webber: This bail hearing is premised on the condition of passage of unreasonable time; my client was allowed to bring application after 120 days. If it were not prima facie, what business would we have doing this? Why bring an application we can't possibly win? It has to be possible that 130 to 140 days is unreasonable. It's an utter waste of time if not possible, if not a prima facie case. Who knows - maybe they are understaffed; maybe we would have had no problem accepting the reasons. But no reasons were given. Judge Lemieux: The onus has shifted; it's as simple as that. Webber: There is either systemic delay or your own delay. If you don't explain it, you're out of court. We're talking about a human being here. Testimony was called in other cases - people who worked for the service - to explain to the court. Often delays were justifiable, but those explanations are mandatory. To say that defence counsel causes delays and then complains of it is not helpful. We are defending our client's rights; should we fast track it and not properly defend our client? All of the defence responses have been timely. Judge Lemieux: Mr. McIntosh quite appreciated that. Webber: But lack of response from the other side - why did they need all that time? That's a void for me. Lack of response is parallel to lack of evidentiary material before the court. Maybe the report was generated very quickly. No disrespect meant, but it didn't look like a lot of thought went into it. Maybe it took them that long, maybe it didn't. Every case is different, but the primary issue here is removal, and they failed in that area. The secondary issue is national security. It is not "obvious" that the ministry wants it to happen quickly as my friend [McIntosh] has said. My client is entitled to bail subject to satisfaction on the safety issue. Judge Lemieux: You say they failed in their onus. Therefore step one is cleared, and move on to step two. Webber: They say they called a witness [Milne], but the evidence was useless in answering the delay. CSIS placed reliance on the CBSA report. They are trying to use that as an illustration of how "complex" the case is. Judge Lemieux: Can't I assume that a lot of effort went into preparing the CBSA report? Webber: It is easy to generate a 30 to 40 page factum in 3 or 4 days. We know that from experience. But we don't know how long it took. Mr. Webber addresses the issue of danger to national security Webber: My friends can't just dismiss the applicability of Charkaoui with regard to passage of time in jail [having a mitigating effect on one's potential to offend]. It would be hard to assume that Mr. Harkat maintained any contacts he might have had while incarcerated under controlled circumstances. Charkaoui had the benefit of a non-association list. Mr. Harkat was all of 19 years of age when he left Algeria so how could they know his associations there? They say it's not feasible to release names [citing national security]. It's a scary Catch 22 situation - there is no list, but the list is a secret. We accept that national security is a burning priority, but they must accept that a balance must be struck. That's why we're here - to strike that balance. They say there is no way that my client can be properly supervised, but he will be under the competent surveillance of CSIS! Arar and El Maati dined together and El Maati co-signed his lease and that was enough to ship this man to torture. Mr. El Maati was being surveilled [by CSIS]. The point being that it's unacceptable to say that the bail proposal is inadequate. If the lack of a non-association list were relevant they should have told us that on day one and we could have saved some time. With regard to the onus, Mr. Dumont from CBSA has testified in the past, in other cases, but not this time. He has not come forward, subjecting himself to cross examination. Therefore you must consider our position that their evidential record may very well be on the thin side. Judge Lemieux: He [McIntosh] was trying to say that this stuff is complicated and requires serious consideration. Webber: He argued also - on the issue of dangerousness - on the report of Mr. Dumont, the witness he did not call. If that is to be considered then we want Mr. Dumont here, because he said a lot of contentious things. Judge Lemieux: You're saying it would not be fair to rely on Mr. Dumont's assessment of danger to the public since he was not cross-examined. Webber: My Lord, we are prepared to leave it at that. As far as "P.G."'s evidence is concerned, it is not capable of being rehabilitated. It would fail miserably under the rigorousness outlined by Justice Dawson. His examples add up to no more than 14 or 15 Islamic extremists returning to their activities after time in jail. His sweeping generalizations are not made in any comparative foundation at all. The point is not whether or not on a theoretical level it would be held up to scrutiny. We had his evidence under scrutiny before our eyes; that man's evidence was decimated here in this room. Judge Lemieux: It's argued that his evidence has to be taken in the totality of all evidence, some in the Dawson findings, some in the October 17th [CBSA] document, and what was asserted in camera. Webber: The only evidence anywhere that Islamic extremists are always Islamic extremists is "P.G."'s, and that has been discredited. With regard to the bail package we have presented: GPS is always a part of an overall package. It can't tell the whole story. There was evidence given by our witness of not only Passive GPS but also Active GPS, and that sex offenders in the United States - thousands of individuals - have subjected themselves to it. [ how Active GPS works ] Our witness's company could facilitate active GPS in the case of Mr. Harkat. Judge Lemieux: Can it detect movement? To a certain point? Webber: In and out of buildings. And there is an individual with him at all times to account for his movement and behaviour. The State had no questions for the witness from the company that can provide active surveillance, yet now says it won't work. Now we find out they argued it in camera. How can my friend challenge it now when he had a chance to do that before in cross examination? Active GPS is absolutely a viable method of supervision in concert with a comprehensive, detailed bail package. The package is very restrictive because I don't know my foe and have to cover all possibilities, hoping to meet the onus. There is no reason for concern as to whether or not active GPS will work. Judge Lemieux: Mr. McIntosh put to me that I don't have enough evidence to know if it will work. Webber: You have the evidence. He can't remove it, there is 24/7 monitoring of every movement that can identify and communicate a breach. This is what's required in the balancing process to protect society but not at the expense of individual liberty. This bail is as comprehensive as bail gets. Mr. Mathison said it was rigid to the point where it restricts the client's right to freedom of expression [to speak in Arabic]. Mr. Mathison also said that the conditions grew as the hearing went on. Yes, it was a natural evolution based on the requirements as they were revealed. Charkaoui's case has evolved to where the Crown is now consenting to variations. So it is working. I read on the Internet where Zaoui is celebrating 100 days of freedom. It shows we can strike a balance. My client's bail package is such that he can't do anything; he is transferred from one prison to another. In a free and democratic society, if that's possible it should be implemented and I wouldn't ask for it if it weren't possible. Just as a housekeeping matter, My Lord, I wish to submit materials that answer to three statements made by counsel for CSIS. One, that Harkat did not lie about an "alias". He admitted to it in court. Two, that he responded in court to the circumstances of his association with Khadr; three that his reason for not being forthcoming with regard to Thayer was that he was asked by Thayer not to have his name given to CSIS. [The name "Thayer" is spelled here according to how it sounded - it may not be correct] This is in answer to Mr. Mathison's question: "Why the lie?" Mr. Mathison interjected: My Lord, the question "Why the lie?" was put to suggest that you should look closely at these matters to determine why. Judge Lemieux: I want to thank counsel on both sides for their cooperation in helping me to decide this matter. Be assured that I will render my decision as expeditiously as possible. The matter is adjourned subject to the necessity of hearing further evidence. Mr. Copeland: My Lord, the Defence wishes to thank you for your overall interaction which assisted us greatly in presenting our case. NOTE FROM YYC: The foregoing is not a verbatim transcript. All of the testimony and arguments in the Mohamed Harkat bail hearing that have been posted on YayaCanada.com are reconstructions based on notes made during attendance at court. It has been confirmed by others in attendance, however, that these reports are accurate. yayacanada.com Main Page - "Abolish the Security Certificate" |