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Government loses bid to send Mohamed Harkat back to jail But government lawyer had them rolling in the aisles July 13, 2006 YayaCanada OTTAWA: Counsel representing the Ministry of Immigration and Citizenship and the Ministry of Public Safety and Preparedness, Donald McIntosh, made a valiant but lame attempt today to be seen to be defending Canada's security at the expense of Mohamed Harkat and his family. Instead of hearing reasoned arguments, an august tribunal had to suffer through a litany of petty complaints. In fact the word "complaint" was used in the Justices' dismissal statement. If you're interested in reading the full decision, pay a visit to the recent decisions page of the Federal Court of Appeal in a day or so, where I assume it will be posted. A lot of people are asking, "Isn't this the second time the government has appealed Harkat's bail release?" Uh, uh. But I'm not surprised people are confused. The Security Certificate process is very convoluted and is eating up a lot of court time. First Harkat's lawyers tried and lost a bid to have Harkat's Security Certificate ruled invalid and unjust. Judge Eleanor Dawson upheld the Certificate, which doomed Harkat to automatic deportation. The government had to appoint somebody in the Ministry of Citizenship and Immigration to expedite things, but they must have had other priorities because no amount of queries on the part of Harkat's lawyers could extract any indication of when he might be shipped out. Sometimes a delay can be a good thing, like iodine on a paper cut - painful but effective. It opened a window onto a rule that Canada has - that deportations must be carried out in a reasonable amount of time to prevent people from being incarcerated indefinitely. No, the idea was never to keep Security Certificate detainees in jail forever. It just worked out that way, because our government has no Plan B. The Certificate is used only on non-citizens, with the aim of "removal" - the government's euphemism for "so long Charlie". And contrary to Stockwell Day's flippant and poorly informed remark that these detainees don't have to rot in jail since all they have to do is pick another country and head for it, the fact is that once people are deemed to be terrorists in one country, they will hardly be welcome in another. In Harkat's case, Algeria's military junta would accept him, but only so they could torture and/or kill him. Luckily, Canada does not deport people to torture.* And that's where Plan B would have come in handy - if we had one. Then Adil Charkaoui was released on a "control order". Hallelujah! Even though it might better be called Plan D-minus, a control order has to be better than jail. Harkat's lawyers asked for and got a bail hearing in November 2005, so that Harkat might be able to at least await deportation at home with his family, even if under very restricted conditions. The main thrust of the case was that the deportation proceedings were taking an unreasonable amount of time, and that Harkat's mental condition was deteriorating due to the uncertainty and the fear of being deported to torture. Judge François Lemieux turned down the application on the grounds that some of the remedies taken by Harkat's team had used up some of the time and that it takes time for government to get things done. It was his decision that not enough unreasonable time had passed to warrant release just then. Which left the door open for another try at a later time. The next bail hearing was held in March 2006 with Judge Eleanor Dawson sitting again. Lo and behold, she granted Harkat bail with a long list of strict conditions, and even laid out very clearly the areas of Ottawa to which he was allowed to go - with prior approval, that is. Talk about excitement. Sophie phoned Moe and told him to get ready to come home. But then the government announced not only its intention to appeal the bail release, but to ask for a stay of Judge Dawson's order - in other words, for Harkat to be kept in jail until the appeal could be prepared. Mohamed unpacked his belongings and sat down to wait some more. In the meantime, without warning, four of the Security Certificate detainees were suddenly transferred to a special facility built just for them, on the outskirts of Kingston, to which there was no public transportation, making it very difficult for the families to visit them. It quickly earned the nickname, Guantanamo North, but that's another story. Finally a Judge was prepared to say that enough was enough and on June 9 the request for a stay was dismissed. Moe Harkat could really, really come home. Today, with prior approval, and wearing a tracking device, and nervous about speaking to anyone who hadn't had prior approval, Moe Harkat appeared as a spectator beside his wife Sophie in the seats of the Federal Court to hear the appeal to send him back to jail. Within a very few minutes it was clear that the appeal didn't amount to much more than the arguments given when the stay was requested. McIntosh simultaneously insisted that defence counsel's arguments constituted "collateral attack" on Judge Lemieux's decision to deny bail back in 2005, and proceeded to launch an attack of his own on Judge Dawson's decision to allow it. And it was clear he didn't think this appeal tribunal fully understood the complexities of the case or why the Ministry needed so much time to get its act together. As McIntosh spoke, I had an epiphany of sorts. I finally understood what "miriati [meery-atty] factors" are. I'd heard him say it many times, but couldn't find it in a dictionary. Today, he repeated it several times as if repetition would somehow win the day, and suddenly I realized that either I'm going strangely deef, or McIntosh has an odd way of pronouncing "myriad of factors". I learn something new every day. McIntosh argued the date from which Judge Dawson counted the time, subtracting a few days, as if that would make a serious difference in the impact of the delays. He audaciously presumed to decide what Judge Lemieux would have decided if he had been sitting instead of Judge Dawson (oh, if only Judge Dawson had phoned in sick that day], and then as much as declared that if Judge Lemieux would decide thusly, then Dawson should have too. If anyone in the peanut gallery had been carrying a violin, I'm sure they would have begun to play a soulful tune. McIntosh also decried the fact that Judge Dawson had used the word "imminent" instead of "reasonable". She should have ruled on whether or not the Ministry had acted in a reasonable period of time, and not on the fact that removal was not imminent. The deportation order itself did make it seem that, barring a miracle, Harkat's deportation was "imminent". "Imminence" said McIntosh, "is a legal test - a large one." Apparently, "imminent" can mean anything, but "reasonable", well, just doesn't. Finally one of the members of the tribunal interjected to say that when trying a criminal case a person is entitled to a new hearing after 6 months, but when you've already been detained for 3-1/2 years ... ! Undeterred, McIntosh forged ahead. The decision should have been based on new circumstances. Again the Justice interjected that the decision was made one full year after the court found the Security Certificate reasonable. "Judge Lemieux was damned right nothing was happening in terms of removal!" Yes, the Judge said a swear word, and I hope he's not sorry. One of the other Justices then said, "If he loses today, and there's a new hearing tomorrow based on the number of extra days ...." and was interrupted by another Justice who said, "... or hours... !" So you see, it wasn't just the cheap seats tittering. McIntosh was high entertainment for everybody. Especially when his response was to sputter again that "imminence" was a much more stringent test and that Dawson should have ruled on "reasonable time". Even when a Justice reminded him that the government department McIntosh represents had said that removal was imminent - "You said May - that's imminent - she looked at that" - McIntosh repeated that imminent has a different meaning. And, he went on, Judge Dawson also erred on the issue of danger to national security in the terms of the release. She did not allow cross examination of the testimony of the sureties. Justice: Did you ask for it? McIntosh: She put in new terms and conditions. Justice: Was cross examination denied? McIntosh: She knew we weren't satisfied with the sureties. She had already decided bail conditions were acceptable. Justice: Did you object to the other conditions? McIntosh: The tracking device would not work. And Harkat was in court when the witness talked about the limitations to the system. Justice: Those limitations would be public knowledge anyway. It was Harkat's own witness. Wouldn't they have known that anyway? And here's where McIntosh really began to forget whose side he was arguing for. He said, "Oh, I'm sure they would be very careful not to impart that information to their client. I'm sure the witness said it unwittingly.' Justice: Wouldn't it have been a point to object to? McIntosh: Dawson appointed the CBSA to control when and where Mr. Harkat is allowed to go. And "due to the lack of efficacy of the system in question, she has imposed an undue burden on the authorities. She listed the areas. How could they cover such a large area? He's an ideologue - a committed ideologue." Justice: The area was agreed upon. Is that correct? McIntosh: Yes ... she .... Justice: You didn't have to agree. Why did you agree? McIntosh: Presumably she took into consideration his rights against the ministry's ... Harkat agreed not to speak Arabic ... his wife agreed not to speak Arabic. At this point the cheap seats were really starting to crack up. For one thing, Sophie Harkat got visible thumbs up for agreeing not to speak Arabic, especially when she barely knows a word of it. McIntosh was getting shrill. He has connections with Abu Zubaydah and... and... he ... he ... has a severe gambling problem! "Is the gambling part of his terrorist ideology?" somebody quietly muttered. "Good thing he's not allowed to use the Internet, because there's poker, and stuff." McIntosh: And Sophie Harkat gave her husband a credit card anyway! This proves she's not a reliable surety. Sophie Harkat wasn't a surety when she gave her husband the card, and had no inkling she would end up being one. And hey, we public may not know big law words, but we're pretty sure a wife handing her husband a credit card is not a legal error. McIntosh: Judge Lemieux took them through every bail condition and asked can you live with that? Of course they will say they will. But it can't be tested. No sooner had the cheap seats murmured "it's being tested right now", than one of the Justices said quietly, "It can't be tested until he's released." But McIntosh was oblivious. McIntosh: The new conditions were not tested. He kept talking until finally, I guess, he just ran down and went silent for a long moment. "Do you have anything else?" asked a Justice. "No ... I don't think so," came the vague reply. A break was announced, after which defence counsel was supposed to make submissions. But when court resumed, one of the Justices announced that after discussion with his colleagues, it was decided to adjourn until 3 pm. And that was good, good news. At 3 pm, a Justice read a short statement and dismissed the appeal. One of the things made clear was that the some of the bail conditions might be better than others, but in the aggregate, they were sufficient. When the Judge had finished the statement and announced that the appeal was dismissed, Paul Copeland stood up and asked for costs in view of the extra time and expense this appeal had cost the Harkats! The three Judges conferred briefly and verbally revised their statement to "dismissed without costs". But ya gotta give Copeland big points for having the grit to ask! That was a great moment. I should mention this: during the break in the proceedings, as I was taking photos of the Harkats, a man drew me aside and asked, "Is that Mohamed Harkat?" When I said yes, he shook his head and said, "He doesn't look very dangerous." Oh, I said, that's because you're not looking at him through the CBC lens filter. The man laughed. Now the Harkats and their counsel are waiting for the results of the challenge to the Security Certificate that took place in June. So on to the PHOTOS. (Memo to the CBC that pays people to take lousy photos, especially of people they think are terrorists: Eat your heart out - if you have one.) * Please see Matthew Behrens' note in the comments section below, and his article: Will Canada get off the torture train? He is right that it is not correct to say that Canada does not deport to torture. More accurate would be to say that international law does not hold with deportation to torture, and Canada is perceived to be a respecter of international law. Matthew cites the case of Sogi Singh, however, whose support committee stated that his expulsion "is widely viewed as part of a trend to set aside long-established international safeguards against state use of torture." No doubt our government has a bit of a dilemma with such high profile cases as the Security Certificate detainees, and the recent challenge to the Security Certificate. Comments:
yayacanada.com PHOTOS Main Page - "Abolish the Security Certificate" |