Mohamed
Harkat finally gets to come home!  The government has
lost its bid
for a stay
of Judge Dawson's decision to release Mohamed Harkat on a control order.Photo: Government
lawyer, Donald A. MacIntosh
YayaCanada OTTAWA - June 9/06: Counsel for CSIS and the Minister of Public Safety, Donald A. MacIntosh, glowered angrily and muttered "No comment" over and over as he tried to make his way out of the courtroom today through a throng of questioning reporters. Sophie Harkat, and Counsel for Mohamed Harkat, Paul Copeland and Matthew Webber, were however quite happy to stand under the bright lights and take questions, having successfully fought a stay of Judge Eleanor Dawson's decision to release Harkat on bail, pending an appeal and whatever processes are involved in the government's intention to have him removed from Canada. The same Judge Dawson had earlier ruled to uphold the Security Certificate that contends Harkat is a threat to national security. "How do I feel?" Sophie Harkat replied to the most common and unimaginative journalistic query of all time. "That's a stupid question. I feel lucky to have these lawyers," she said, putting her arms around the shoulders of Webber and Copeland as they stood on either side of her. "Finally my husband is coming home. He has been moving from one prison to another, first the Ottawa Detention Centre, and then suddenly Guantanamo North in Kingston, and now home to what amounts to another kind of prison because he will be under house arrest with very strict conditions on his movements. But as hard as it will be for him with the bail conditions, we are all very glad that he is coming home." "What changes have you made to your home to accommodate the bail restrictions," asked a reporter. "Three bedrooms now have locks on the doors because they contain computers. The computers already have passwords on them. The required phone lines have been installed." Matthew Webber was asked if he thought the government was its own worst enemy. "Their conduct has come back to bite them, " he replied, "and it worked positively for Mr. Harkat." Paul Copeland added that the CSIS lawyers, the Canadian Border Services Agency (CBSA) and the delegate appointed by the Ministry of Public Safety had all been disrespectful of the courts and of the defendant, the defendant's wife, and their counsel. With all of the procedural delays, and the fact that an appeal was launched arguing that Mr. Harkat was still a danger to the public safety in spite of the severe bail restrictions imposed by Judge Dawson, yet provided no supporting affidavit of evidence, shows the frivolous and speculative nature of the appeal. Randall Palmer, from Reuters, asked Mrs. Harkat what she thought about Judge Dawson saying her husband had Al Qaeda connections, to which she responded that any evidence to that effect had been presented to Judge Dawson in secret, and was not allowed to be challenged by cross examination, and that some of the so-called evidence had been obtained by torture. Palmer then suggested that since Harkat had always had the option to voluntarily leave the country, why wouldn't he consider the option of going to a country that would take him rather than remaining a virtual prisoner in Canada. To which Paul Copeland responded, "Why should he go to another country? He has lived here for 11 years, his wife is here, this is his home. Of course he wants to stay here." The courtroom was filled to capacity by "Al Qaeda inspired" journalists, no doubt due to the oddly well-timed recent arrests in Toronto, and their editors' hopes to make further hay out of it. Consequently, some Harkat supporters couldn't get in. There were no armed guards whatsoever, and I asked the plain suited court officer about that afterwards. He said we didn't look dangerous. You know what, neither does Mohamed Harkat, but there are always armed guards in the court when he is present. I reminded the officer that we now live in a time when appearance doesn't count if CSIS decides somebody "might" commit a terrorist act. He laughed, and did not disagree. I'm always amazed at what Mohamed Harkat looks like in those ubiquitous clips from an old video that the CBC uses every time they talk about him. Somehow they always manage to make him appear dark, heavy-set, shifty-eyed, smoldering, dangerous. If you ever saw him in person, you would think completely otherwise. He is a small guy with a cheery smile and a completely open face, even when he looks terribly pale and fatigued. As Paul Copeland said outside the courtroom, after his initial consultation with Harkat lasting several hours he came away thinking that either his client was an expertly trained sleeper or he was a nice guy being screwed over by CSIS. Copeland's instincts told him the latter was true, and he has seen nothing to suggest otherwise in all the time he has been defending him. Today's proceedings began with the government's counsel Donald A. MacIntosh's adamant assertion that Judge Dawson had erred in granting bail to Harkat. She "ran afoul" of the law, he said; her decision did "not pass the tripartite test. Defence counsel's counter arguments do not show that the government's motion for a stay was "frivolous and vexatious", he argued, nor did they render the appeal arguments "nugatory". Clearly, although CSIS and the government are ostensibly concerned about the public's safety, they do not trouble themselves to ensure that the public can understand their arguments. Fortunately, the Judge put the "tripartite test" into plain words: 1. the merits of the case 2. the suffering incurred by the applicant if refused (termed "irreparable harm") 3. the balance of convenience (who suffers the greatest harm) Click here to read the official grounds for Appeal. I couldn't help noticing they requested the motion be heard at Toronto. Not sure what the reason was for that. Perhaps closer to where MacIntosh resides? Or to make it harder for supporters to attend? Or Toronto has better Judge shops? To successfully appeal a court decision, the Appellant must prove that the Judge who made the original decision had erred in some way. So MacIntosh first tried to show that Dawson erred in her calculations when she ruled that the amount of time taken by Immigration to get the deportation process moving had been excessive. Judge Lemieux had earlier decided the time was not excessive, and MacIntosh tried to show that the efforts of defence counsel to show that excessive time had by now certainly passed were a "collateral attack" on Judge Lemieux's decision. This again showed that he knows big words, but also revealed his own misinterpretation of Judge Lemieux's decision, and succeeded in boring the rest of us who had already sat through all of the "time" arguments. But if you're interested click here to read the summations and final summations where the issue of time passed was dealt with in front of Judge Lemieux. Then MacIntosh went on to discuss a misinterpretation of Judge Dawson's in the Almrei trial, which turned out also to be irrelevant to this matter. He also complained that she had added conditions to Harkat's bail without holding a hearing to find out whether or not he would abide by them. But since Harkat had repeatedly said under oath that he would abide by any restrictions, and that his sureties had said so as well, and since Matthew Webber made it clear that it is not unknown for a judge to add conditions when ruling, that argument was also rendered irrelevant. Item 9 of the written Appeal document stated that Harkat had been "untruthful in his testimony before the court", but when arguing verbally MacIntosh used the word "lied" as often and as strongly as possible, and stated that Judge Dawson herself, when presiding over an earlier application to strike down the Security Certificate, had said that Harkat lied. I seem to recall that she said that Harkat hadn't convinced her of certain things, but I could be wrong about that. MacIntosh was certainly unconvincing in his arguments. If Harkat lied on the stand about other things, he concluded, who is to say he is telling the truth when he says he will abide by the bail conditions? But since Judge Dawson had made her decision to grant bail with full knowledge of her prior decision to uphold the Security Certificate in this case, this proved a weak argument indeed. Matthew Webber pointed out that Harkat's motivation to abide by the bail terms was based not only on his strong desire not to be deported, but on his wish to stay out of jail where he has been languishing without any charges having been laid against him for 3-1/2 years. In addition, Judge Dawson had concluded that the risk to the public was greatly diminished by the bail conditions. "Besides", added Webber, "the government has the option to throw Harkat back in jail if he breaches any of the conditions of his bail." MacIntosh was not comforted by that option. He shouted that the conditions had not been tested, and that if the terms were breached harm to the public would be done. Webber countered by citing Lord Carlisle, the UK's "independent" reviewer of terrorism legislation, (.pdf file format) who reported that any breaches of control orders to date have been minor and were not prosecuted. In addition, Montreal resident Adil Charkaoui has adhered so well to the conditions of his control order that some of the restrictions have actually been eased. MacIntosh argued that Sophie Harkat and her mother, Pierrette Brunette, did not have the objectivity to be Harkat's supervisors, nor did the three sureties, Bush, Squires and Skerritt. But, countered Webber, Mrs. Harkat is not only motivated by her desire that her husband not be deported or returned to jail, but also by a strong sense of obligation to the many community supporters and people who have pledged and donated bail and surety funds. Webber added that the duties of the other three were minimal and that they were more of a bond guarantee than close supervisors. All in all, it seemed that the Appellant's case was indeed looking "frivolous and vexatious". Court was adjourned over the lunch period during which time the Judge formulated his opinion. The rest of us went shopping, ate lunch, and/or tried to relax. Yours truly came back to the court a little early and was rewarded by the sight of CSIS lawyer, James Mathison, as he grudgingly submitted to the security check. He hadn't fully emptied his pockets and he activated the beeper a number of times before figuring that out. I couldn't help wondering how much the actions of CSIS had contributed to the rigmarole we are all expected to go through these days in the name of national security, while still trying to think of ourselves as living in a free country. Perhaps his embarrassment was a harbinger of what was coming next. Justice Robert Decary did not agree that a speculated danger to the public under extremely rigid conditions of bail outweighed the very real and legal injustice being done to Harkat if he were kept in jail any longer. There were some audible sighs, but for the most part the courtroom was hushed when the Judge stood up to leave. Sophie Harkat hid her face in her hands and wept silently. We all took turns patting her and hugging her. After a while she gathered enough composure to go out and face the media, who were standing in a semi-circle with their video cameras trained intently on the courtroom door, waiting for her to emerge from inside. And so, Mohamed Harkat will be coming home by Tuesday, his lawyers think. It all depends on how long it takes the Minister's delegate to get things arranged. Judging by how they've dragged their heels throughout, it might be wise not to count too expectantly on a speedy process. But miracles do happen. The Harkats have waited a long time for this one. So who's to say there won't be more. Appeal Document Comments:
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