Monday, November 17, 2014

My Log 449 Nov 17 2014: CP Concordia screens Secret Trials5, a blockbuster of a film that one hopes may turn Canadian public opinion back in favour of traditional legal defences, away from secrecy and government skullduggery

Logo of the Canadian Security Intelligence Ser...
Logo of the Canadian Security Intelligence Service. (Photo credit: Wikipedia)
Christian Peacemaker Teams protesting at 277 F...
Christian Peacemaker Teams protesting at 277 Front Street, CSIS' Toronto Headquarters (Photo credit: Wikipedia)
Supreme Court, Ottawa, Canada
Supreme Court, Ottawa, Canada (Photo credit: Wikipedia)
To judge from the experience of the five Canadian permanent residents of Middle Eastern origin whose cases are dealt with in the remarkable documentary film, The Secret Trial 5 which was screened last week by Cinema Politica Concordia, the condition of civil liberties in Canada is indeed perilous, and poses a threat to every Canadian. These men have spent a combined total of 30 years in detention, and none of them has ever been accused of a crime, or has never been confronted with the evidence on which he has been detained. They were made subject to an immigration procure known as a Security Certificate, originally designed to apprehend people before deporting them, but a procedure used in these cases to keep the detainees in jail indefinitely, even without their being charged with anything, but also used to extend control over them into their post-release lives.
If you think this is bad, it seems to be getting even worse, according to Adil Charkaoui, one of the two men who has succeeded in fighting his way through the Kafkaesque nightmare of the Canadian security system, who was present at the screening to answer questions. When these men were detained, legislation under which they were held was directed rather specifically at a certain limited part of the population, he said. But when he succeeded, with the help of the Toronto civil liberties lawyer Lorne Waldman, in having the security certificates declared unconstitutional by the Supreme Court, amendments were made to the legislation that has resulted in every Canadian being made subject to the laws, and, he said, proposed legislation following the recent disturbances in Ottawa around the House of Commons promises to make matters even more authoritarian.
The director of this powerful film is Amar Wala, a young man almost straight out of film school, who on the night of the Montreal screening was in the United States presenting his film, but the two producers, Noah Bingham and Madeleine Cohen, were present to help Charkaoui answer questions.
I don’t feel obliged here to run through all the arguments presented in these cases, which have already been much written about and discussed. But I should record the names of the five detainees, describe their fates, and  comment on at least one aspect of the case that struck me most forcibly.
First, the bare facts.  In 1999 Mahmoud Jaballah, a Scarborough high school principal, was
arrested and detained without charge, followed over the next few years by  Mohammad Zeki Mahjoub, of Toronto, Hassan Almrei of Mississauga, Mohamed Harkat of Ottawa, and Adil Charkaoui, of Montreal. All were detained under provisions of immigration control laws providing for use of a Security Certificate, preliminary to deportation.  Almrei and Charkaoui pursued cases to the Supreme Court, and each was eventually cleared and released, although the Court allowed the government a year to amend the law so as to make it constitutional. These amendments added to the process so-called Special Advocates, lawyers given special clearance to see a summary of the evidence held against the detainees, although, having once seen this evidence, they were forbidden from speaking to the lawyers or the detainees. When Harkat’s case came before the Court, the Court for the first time in its history conducted a session in secret to consider evidence, and subsequently found that the process was now constitutional. At one point during these years, a special prison was built in Kingston to house these men. It became known at Guantanamo North, cost $3.2 million to build, and has since been abandoned. The cost of this whole process, beginning to end, has been estimated at $60 million taxpayers’ dollars --- so far.
What I thought might be useful for me to  concentrate on here are the horrendously restrictive conditions applied to each of these men when the decision was made to release them from detention. These were so onerous that one of the five, Mahjoub, having been released after seven years of detention, during which he conducted several hunger strikes, found the conditions so destructive of his family life that after two years he surrendered to the authorities and requested to be put back in detention, as the lesser of two evils. He declined to take part in the film, in which he was joined by the five federal government departments which did not have the courage to answer questions from the filmmakers. Let’s name these cowards:

*Canadian Security Intelligence Service
*Canada Border Services Agency, Public Safety Canada
*Immigration Canada
*Correctional Services, Public Service Canada
*Canada Department of Justice.)

But the aspect of this terrible system that most impressed me when I saw the film was the agonizing recital given by Sophie Harkat of the actual restrictions imposed on these people after their release to their homes. (I was living in Ottawa during most of these years, and can testify that Mrs. Harkat was heroic in her defence of her husband. Other wives in other cities may have been as assiduous in that, but I have no personal knowledge of their activities.) In effect, the homes of the detainees were transformed into prisons, and their families into their jailers.  Ms. Harkat  told  of having to accompany her husband  virtually every time he moved, including if he wanted to go to the washroom, of his needing permission to leave the house, or to go anywhere (even to the store to buy a container of milk) and of the awful pressures such measures imposed on the men and their families. These restrictions made Canada sound more like East Germany under the Stasi, or the Soviet Union during the worst of Stalin’s excesses. I did not take notes of all these impositions, but I have since found a more detailed description of them on the web site Homesnotbombs.blogspot. ca.   and here is a slightly redacted version of an item that appeared on that blog:

TORONTO, FEBRUARY 11, 2009 – In a stunning confirmation of what secret trials opponents have long suspected, a redacted version of a secret Canadian government manual reveals that the draconian conditions of house arrest imposed on those subject to security certificates are being used as a cover for intelligence gathering purposes on the detainees, their families, their supervisors, their friends, and their communities.
There are currently four men under the most severe house arrest conditions in Canadian history, placed there because of the two-tier justice security certificate procedure declared unconstitutional by the Supreme Court in February 2007. Before their release from prison, they had to agree to court-imposed restrictions that included wearing GPS monitoring bracelets 24/7, agreeing to phone taps and opening of mail, surveillance cameras both outside and, in one case, inside their homes, and unannounced searches and seizures by government agencies.
In addition, trips outside the house could occur only with government permission, no visitors are allowed without prior government approval, and there is no internet or cell phone access. These and a host of other measures are applied against individuals who have never been allowed to see the case against them, who face the lowest standards of any court in Canada, and who are fighting deportation to torture.
Difficult as these conditions can be, the men and their families have long charged that their lives have become even more miserable because the Canadian Border Services Agency (CBSA), whose role is to monitor compliance with those conditions, has been exceeding its authority. Indeed, CBSA has been introducing additional restrictions not approved by the court, making arbitrary decisions that allow no route of appeal, and behaving as if some of their agents have the heart-thumping theme music to CBC’s overhyped “The Border” performing repeat rotation on their ipods.

For example, upon releasing the detainees from Gitmo North, the Federal Court entrusted wives, older children, and community friends with monitoring the individuals’ compliance with terms and conditions. But as time has gone by, and more CBSA officers have been hired, the men and their families find themselves constantly followed and overtly surveilled, making it impossible for families to enjoy a rare outing together without being closely followed by officers wearing bullet-proof vests and sidearms. This behaviour unfairly marks the families as suspicious, if not dangerous, to the general public, and traumatizes the children and their friends.
Indeed, this fall, young children of the detainees testified in court about the impossibility of enjoying a government-approved family trip to a skating rink, to a parent-teacher interview, or even to a department store to buy Eid gifts because of the manner in which they were followed and felt criminalized by the overt (and unnecessary) monitoring of CBSA agents.
Why, the families ask, is such intrusive surveillance necessary when the court has declared its trust that family supervisors have promised to report any breach, when the men can be tracked via the GPS, when the phones are monitored, when they cannot make any move (including a quick trip to the corner store for milk) without the government knowing about it at least 72 business hours in advance? In addition, if the CBSA really felt that the detainees were up to no good, wouldn’t covert surveillance make much more sense? After all, someone allegedly up to no good is not going to try something when state agents follow his every move, often within a few feet of one another.
CBSA says that this is all needed to ensure compliance with the terms and conditions of house arrest. One suspects, though, that as an institution, CBSA, like its brother agency CSIS, simply does not trust any decision of the Federal Court of Canada with which it disagrees. Their approach, court decisions be damned, is that if Canada’s national security is to be protected, these agencies must do whatever it takes, even if it goes beyond the letter of the law or the terms of the release conditions.

The appearance of a presumption of guilt regarding the detainees, their families, and their friends, is well borne out by the national policy manual released almost in full following a secret hearing this week in Toronto for detainee Mohammad Mahjoub and his family. It follows on months of hearings during which officials from the CBSA confirmed that all mail to the detainees’ homes (including credit card bills, bank statements, phone bills, magazines, personal letters, and birthday cards addressed not just to the detainee, but to his wife and children) is photocopied and sent to their Counter-Terrorism branch in Ottawa for further investigation.
Also recorded and passed along to Ottawa are all phone calls, along with photos of the detainees, their family members, visitors, and bystanders who happen to be in the line of view when agents have taken shots.
The CBSA asked agents of the spy agency Canadian Security Intelligence Service (CSIS) to listen to all of those phone calls. In December, 2008, it was revealed that solicitor-client calls are among those recordings that have been listened to by CSIS agents for close to two years, allowing one party to the proceeding exclusive access into the defence strategy of the defendants. (The long-standing principle of solicitor-client confidentiality is a fundamental bedrock of a democratic society, and the Supreme Court of Canada affirmed in 2001 that it is a principle of fundamental justice and so is protected by the Charter of Rights and Freedoms).
While the Federal Court did issue an order calling on CSIS to stop listening to such calls, there was no penalty for this violation. Indeed, the judge hearing the case stated: “I don't want to hear any more about it. It is done. It is over. It is finished. It has happened. We understand it happened. It is unfortunate, but there is nothing we can do to change the past. We can only look at what goes from here in terms of where it will go from here.”
But what if those illegally obtained solicitor-client phone calls served an “intelligence gathering” purpose that allowed CSIS to continue to build up its unfounded accusations against the detainees, their families, and their friends? Where does the cycle of illegality end, and where is the bold statement that declares such behaviour will be severely dealt with? In a system supposedly built on checks and balances, an agency like CSIS needs to go to court and seek judicial approval for any intrusive investigation that may severely curtail someone’s privacy rights. While the Federal Court almost always grants warrants for CSIS investigations, it is highly unlikely that the court would sanction such an intrusion into the calls between a lawyer and her client. In this instance, CSIS got through the back door what it could not receive through the front.

These are damnable restrictions to be imposed in such an artitrary, secretive way by government agencies against people who have never been accused of any crime, who have insisted from the beginning that all they want is a fair trial in which they could defend themselves, but who have been deprived of one of the procedures, habeas corpus, that has always since the thirteenth century AD, been regarded as the bedrock of British law.
It is certainly to be hoped that this film will arouse Canadians to the tremendous dangers posed by this lunatic concentration on the so-called Security State, something that was inaugurated and carried to fruition by the Liberal governments, and has been very much deepened (and worsened) by the appalling government of
Stephen Harper.

When Adil Charkaoui was asked last week what sort of response they had received from Canada’s politicians, he said the Bloc Quebecois was originally the most sympathetic, the NDP was not bad, they had tried to interest the Liberal party in their dilemma, but had succeeded only in getting a favourable response from a few MPs, and as for the Conservatives --- he gave a contemptuous wave of the hand to indicate that nothing humane could be expected from them.

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