 The
Challenge: DAY TWOOn June 13, 14, 2006 at OTTAWA, Adil Charkaoui, Hassan Almrei and Mohamed Harkat challenged the constitutionality of their respective security certificates at the Supreme Court of Canada. Click here to read the information flyer that was handed out to the public during the "Camp Hope" vigil held on the lawn of the Supreme Court as the hearings took place. YayaCanada On my
way into the courthouse the afternoon of the second
day, I met James
Loney just as he was departing and he stopped long enough for me to
get a shot of him. He looks well recovered - at least physically
- from his ordeal in Iraq, and had come to give support to the
families of the Security Certificate detainees.
  I thought you might like
to see the informality
of a courtoom set up with a viewing screen. =>Surprisingly, although people felt freer to move around, the atmosphere was just as hushed as if a Judge and court officers were present. The next photo shows the lobby and mezzanine. Now you know what lawyers do when court takes a short recess - they lean on the mezzanine railing and phone home. It's hard to find the washrooms in the Supreme Court building, not because there aren't plenty of them, but because they are disguised. They have heavy, ornate wooden doors as if they were court offices, and the signs are subtle.  Anyway, for future
reference, you'll find a ladies' room if you go through that door on
the main floor - the one with the flag in front of it - and turn to
your right. Be careful of the taps. They are fancy, but they fall
apart easily.Maybe the men's room is to the left. Probably. Again, I was able to attend only in the afternoon. A lawyer representing the Canadian Border Security Agency (CBSA) was speaking as I arrived. She was saying that the Security Certificate is used only against "very, very undesirable people" and it involves "very, very sensitive information". Presumably there are ways to determine which people and information are only "very" undesirable and sensitive, and which are just plain undesirable and sensitive. But that was not gone into. It seemed plain to me, however, that this lawyer unwittingly echoed the case of the challengers when she said that people are treated differently in the context of the Security Certificate. But, unlike the challengers, she didn't seem to think being treated differently was a bad thing. And she argued that "preventive detention" is not indefinite where there is no prospect of "removal" (the government's euphemism for "deportation") because detainees can always take advantage of "greater" and "higher" procedures. Those procedures were not elucidated. It appears that the Supreme Justices, some at least, may have got the point of the challenge. As Justice Abella queried: If the 120 days have passed after a deportation order has been given, and there has been no removal, and the detainee can't be removed because Canada does not deport to torture, then what's to prevent indefinite detention?  Well,
came the reply, it is the "intent" of the government
to remove people and in cases of delay release depends on the
particular facts and the types of release available, such as Mohamed
Harkat's recent control order."It doesn't appear that the law contemplated this situation," interjected one of the Justices. Well, the government's purpose in this case is a different one from that in criminal law because there is the "intention" to remove, responded the lawyer. Justice Abella: Parliament doesn't get off by just saying "we had a different purpose". Still, the lawyer felt that the "Constitutional minimums" had not been violated. And in the case of complaints about conditions in the jails, these were investigated and found not to be "very gross" or tending to cause "outrage". In other words the conditions were not "abhorrent and intolerable" - the line below which the official guidelines state that jail standards must not be allowed to go.  Hassan
Almrei had the same conditions as everyone else in
the jail, she went on (presumably just above "abhorrent and
intolerable"). The same as people with shorter and longer sentences,
she said. (Does anyone in a jail designed for people with a two year maximum sentence stay as long as Hassan Almrei has? No. He's been incarcerated since late 2001.) The lawyer went on to say that in Security Certificate cases, there doesn't have to be "scientific proof" that the person is guilty, only a reasonable idea of the level of danger, and only "egregious" cases. (I don't know about you, but when I hear the affectation "egregious" I wonder how much else has been overblown.) It seems to me that to say that proof is not required to incarcerate these detainees is another virtual admission on the part of this lawyer that the Security Certificate is a travesty and needs to be struck down. Other crimes as well as terrorism are dealt with under the Security Certificate, we were told. Espionage, subversion, crimes against humanity - a broad range with broad terms, and none of it having to be proved. This lawyer concluded by saying that if the Court should find for instituting the appointment of a "special advocate" to act as go between to help interpret what is and what is not necessary to be kept secret, then the government recommends a 12-month suspension (not abolition) of the Certificate to allow time for Parliament to make the amendments, which amendments Parliament is in a better position to decide, and which must be legislated very specifically.  Other
government lawyers took their turns to argue such
things as how the detainees don't have any rights to begin with since
they don't even have the right to be in Canada. They weren't
granted refugee status, so they're not refugees. The issue is not
a criminal one, they said, but an administrative one.What these people need to know about the accusations against them is not the issue. All that is necessary to know is whether or not the current model meets the minimum standards that the Constitution demands. The shortcomings of a government appointed Special Advocate model were outlined as follows: The UK model allows no contact between the S.A. and the detainee, and this is liable to create distrust on the part of the detainee. But if the S.A. is allowed to communicate with the detainee, he or she could inadvertently disclose secret information. The example of jailhouse informants was given where those informants deduced what the investigators knew from the questions they asked. On the other hand, a Judge is impartial. "But," interjected one of the Justices, "the Judge has to rely on secret service information, and they are not known by that name for nothing." At last, a bit of comic relief. Everyone in all of the courtrooms found that quite funny.  Moving on to the icy cold pragmatism of a
lawyer from the Ontario Attorney General's office, we were bluntly told
that "detention occurs in a real world", not an ideal one. Many
competing interests have to be balanced, such as the different types of
inmates coming into the system. Even the lengthiest detentions,
even those involving segregation for long periods, do not violate the
relevant sections of the Act.Sounds as if the Act itself needs a bit of warming up. It reminds me of Donald Rumsfeld telling the soldiers in Iraq who complained of abysmally poor conditions and defective equipment that they must "fight the war you're given, not the one you want." If you die from it, we'll give you a medal. But if Security Certificate detainees should die after years of soul destroying conditions and no knowlege of why, there will be no state funeral and no reward of any kind. Someday, long in the future, a Prime Minister who has read history and has a social conscience will apologize too late to the children of their children for the injustice that was done. Listen to us, says this government's lawyer. Hassan Almrei is being treated the same as other prisoners; his medical needs are met; he has a good relationship with the guards who even allowed him to clean outside his cell (wow, what a treat). He was in segregation for his own protection, and later at his own request because he believed it was the right place to be. Tread with caution, he advised the Justices, when deliberating on the length and conditions of detention. Again, it seems that these defenders of the status quo are unwittingly pointing out the callousness, the ugliness and the gross unfairness of the whole system. One can only hope the Judges see that. Above right photo: Detainee's children, growing up without their father. Above that: Alex Trudeau talking to Sophie Harkat and Christian Legeais. See photos of banners below - this isn't all of them by any means! Reuters: Govt defends detention laws, denies profiling Treatment of terror suspects violates basic rights, high court told Should the court disagree and strike down the system, the government is asking the judges to suspend the ruling for a year so a new strategy can be put in place. 
          Information flyer yayacanada.com Main Page - "Abolish the Security Certificate" |