The Canadian Charter of Rights and Freedoms came into force in 1982. It was the so-called War on Drugs which allowed the police -- both local and RCMP -- to gain public support for violating the Charter Rights of certain people. The RCMP had long been responsible for gathering information on people and using this information to barter with other organizations within Canada and internationally. In 1984 CSIS was established but the RCMP maintained its own secret police. Over the years the RCMP built up a booming business, copyrighting emblems, insignias etc and contracting to perform services such as information gathering, finding people, stinging people and extracting confessions by using means which went beyond what police services who contracted with them would accept. The drug war helped fill jails and provided excuses for building more jails. But the War on Terror? This has opened up a whole new frontier.
TORONTO - MAY 26, 2003 - The painfully long persecution against Mahmoud Jaballah, an Egyptian refugee claimant who has spent almost 7 years in Egyptian and Canadian jails despite never having been charged nor convicted of any offence, continued this week as the Federal Court of Canada upheld the secret trial CSIS security certificate against him.
In a mixed decision, Justice Andrew MacKay says "new" public evidence was presented to help him determine that the certificate was reasonable, yet Jaballah's attorney, Rocco Galati, points out that this "new" evidence was never put before Mr. Jaballah in open court.
MacKay also noted that Minister of Immigration Denis Coderre was guilty of abuse of process for extensive delays in making a determination about Jaballah's future, even though the Immigration Department did conclude in August, 2002, that Jaballah was at risk of torture and execution if returned to Egypt. MacKay determined that the decision of the department would have to be the decision of the minister: that Mr. Jaballah is in need of protection.
Jaballah has the distinction of being the only person, among the 30 or so security certificates which have been issued since 1992, to actually win against the stacked odds of a secret evidence case, a victory which occurred in 1999 following seven months of detention and a hearing in which CSIS perjured itself. But in August 2001, Jaballah was arrested on a second certificate.
"CSIS perjured itself in 1999, no question," Galati says. "This (Jaballah's victory in 1999) was an embarrassment to CSIS, it caused an internal review within CSIS which they refused to disclose to me expect for a lot of black lines, as to why and how they could have lost the case. Many witnesses have indicated that after the decision CSIS indicated to them they didn't care what the Federal Court has to say, they were going to get Jaballah, and sure enough, they got him."
That fall, CSIS officers admitted in open court that they had no new evidence against Jaballah, only a new interpretation of the facts which were already dealt with in the 1999 hearing.
MacKay notes in his decision that in January and February of 2002, he held in camera (behind closed doors) hearings with CSIS on five occasions, and "I considered again those documents not previously released on national security grounds and confirmed for myself that these should continue to be held without disclosure to Mr. Jaballah." Neither Jaballah nor his attorney was allowed to attend the secret hearing or to respond to allegations made against him at that time.
It's a process which is open to incredible abuses. As Galati points out, "You can't sit as a Federal Court judge unless CSIS allows you to sit on one of these cases. Secondly, in every other area of the law, informant privilege, therapeutic records, sexual assault cases, there is a balance where a judge sits in chambers and decides whether or not the documents released would endanger national security. In these cases, the Federal Court has never devised a common law process for vetting out what will or will not endanger national security. They simply accept the word of CSIS. Anytime CSIS says it's national security, the Federal Court accepts that. Well, that's abrogating your judicial function."
Indeed, it's a merry-go round in which Parliamentarians defer to the court, and the court defers to CSIS, and CSIS acts above the law. Judge Mackay says "I do acknowledge that under the IRPA a person who is the subject of the Ministers' certificate and his or her counsel may not see the information relied upon by the Ministers, an invidious position but one provided by Act of Parliament."
If it is so invidious, MacKay's silence is appalling, given that his role in upholding the secret process is no different than those judges who upheld slave laws, laws barring women suffrage, or the anti-Semitic laws of Nazi Germany. Simply because it has been made law does not make it right, or just.
Indeed, as Galati pointed out at today's press conference with respect to the decision, "I find the judgment disappointing, depressing, but not surprising. If you had asked me in 1942 and 1943, do you find the government's treatment of Japanese Canadians and Italo-Canadians in the camps surprising, I would have said no, it's depressing, it's not surprising, because nobody's willing to do anything about it. Parliamentarians defer to the courts, the courts defer to CSIS, CSIS says it's above the Constitution, so you have the police running courts and Parliament."
It's something Galati has noted time and again, and today he called upon the Canadian courts to stop shirking their responsibility.
"The [Jaballah] judgment further highlights the judicial cowardice in pretending that the "process" has been dictated by Parliament when in fact anyone who is sober and reads the Act can see that the process is not in the statute itself, but rather, has been invented by CSIS and accepted by the Federal Court judiciary without any question whatsoever, contrary to all the other guidance from the Supreme Court of Canada on how to balance privilege with the right to know the case against you.
"The judgment further re-enforces the complete abrogation of the responsibility by the Canadian judiciary to enforce the Constitution, the highest law of the land, by lamely deciding that a judge who hears one of these certificates has no constitutional jurisdiction and that after the decision is made there is no right of appeal from these decisions.
"Lastly, after 11 years and 30 such cases having come before the courts, the Supreme Court of Canada has yet to muster up the courage or the guts and actually exercise its responsibility to Canadian society for which those judges are paid, and actually grant leave to review this medieval, inquisitorial, star chamber proceeding and actually tell the Canadian public and the victims of this process that yes, it's okay, the Canadian constitution has no problem with it. It's high time that the Supreme Court of Canada stopped hiding behind the cowardice of denying leave on such cases and actually face Canadian society and these people subject to these certificates and deal with the constitutionality of these certificate processes on its merits."
Even if the court had quashed the second certificate, there would be nothing to stop a third or fourth or fifth one from being issued until CSIS got what it wanted. While this is clearly an abuse, MacKay in his decision defended this process, stating this "exceptional process is not subject to the principle that parties are limited to bring one proceeding, at least where new evidence or information is presented. If it were otherwise, the continuing security interests of the state, assessed and re-assessed on the basis of a mosaic of information gathered from various sources over time, might be compromised."
Apart from missing the fact that CSIS admitted in open court that it had no new evidence (and that MacKay has magically added what he considers "new" evidence in his decision) Mackay's judgment creates a potential revolving door: if you fit the bill of threat-du-jour, you might be in and out of prison on security certificates the rest of your life, regardless of court findings, if CSIS has it in for you.
In other instances, MacKay's "reasoning" completely loses any sense of "reason," as in what he states that "information not on the public record" partly "contradicts" evidence Jaballah gave in his first hearing, "and it could only be ignored if there were persuasive explanation on his part, explanation which only Mr. Jaballah could provide, but which he declined to do."
But how can one respond to information when one is not allowed access to it?
Questions remain as to what will now happen to Jaballah. While Galati is filing new motions before various courts, and Jaballah is eligible for bail 120 days from the release of this decision, Minister of Immigration Coderre has yet to indicate what his final position will be with respect to sending Jaballah back to Egypt.
"This minister of immigration and his predecessors, in my experience as a lawyer practicing for the last 13-odd years, has been that they have complete disdain and contempt for the Supreme Court and Federal Court and the ministers of immigration have been contemptuous and tried to slither and slide their way around constitutional pronouncements," Galati said.
"Mr. Jaballah and his family call on the minister to either charge Mr. Jaballah in a real court of law in front of a real judge and jury under Bill C-36, or release him to his family, or find him a safe third country alternative.
"Mr. Jaballah's case highlights the intolerable racial and religious gulag against Muslims and Arabs that has been created by this government and been lamely accepted by the courts without lifting a finger under their constitutional responsibility."
(report from Matthew Behrens of Homes not Bombs. Homes not Bombs is also campaigning to end the secret trial process in Canada and working to support the families of those affected by these draconian measures. Those in prison now that we know of on these certificates include Muhammad Mahjoub, Mohamed Harkat, Adil Charkaoui and Hassan Almrei and Mahmoud Jaballah. Homes not Bombs plans a mass act of nonviolent civil disobedience at CSIS, in Ottawa, on Friday, October 31. To get involved in the campaign, the action and more, contact us at firstname.lastname@example.org or PO Box 73620, 509 St. Clair Ave. West, Toronto,ON M6C 1C0.)
The longest, hottest summer experience in the city surely goes to Mahmoud Jaballah, who has spent the whole season in a city jail -- probably.
"Probably," because it's been impossible to determine Jaballah's exact status and fate. Mahmoud Jaballah is not a man I know personally. I became interested in him only when his lawyer, Rocco Galati, was reported last March to have withdrawn from his case alleging that fair representation of Jaballah was impossible since, among other things, Galati couldn't find out what he was actually charged with.
In mid July I contacted federal court officials in Toronto, who confirmed Jaballah was still in jail somewhere, but for security reasons they would not identify the jail. My request to learn the place and time of his next court appearance fared no better -- federal court officials in Ottawa told me it would not be possible to attend the court hearing where the judge will rule on Jaballah's fate since "the decision will not be read in open court."
This was unexpected. The judge in the case, Mr. Justice Andrew MacKay, said at a Mar. 11 Toronto hearing, "I believe I owe Mr. Jaballah the courtesy of making a decision in a public forum when I have had an opportunity to review the evidence. I anticipate that would not be before sometime next week at the very earliest and probably two weeks or more from now." Not only will the decision not be made in open court, but the "two weeks or more" has now stretched to five months.
I made a written request to interview the judge, and it was delivered by court officials. They have informed me that it was declined.
Sadly, this isn't a Kafka-like piece of summer fiction, some horrendous version of "American justice" according to which individuals are kidnapped and taken to an American-controlled compound, where they are held without charge and without being brought before a judge. This is Canadian justice being meted out -- perhaps for alleged terrorist activities, since Jaballah is said to have taught at an Islamic school in Toronto -- to someone who, like most other residents of Canada, arrived here from another country to make this one home. It shares some similarities with the recently reported case of Mohammed Mansour Jabarah, a Canadian citizen turned over by the Canadian Security Intelligence Service (CSIS) to U.S. authorities because of suspected al-Qaida involvement, to who knows what kind of future.
But the Jaballah case is happening in Toronto, our city. This is the real-life impact of the new security legislation, Bill C-36.
Jaballah has been in jail since Aug. 14, 2001 -- almost a full year. He arrived in Canada, apparently from Afghanistan, in 1996 with his wife and four children, made a home in Toronto and applied for refugee status, and since then much of his time has been taken up with government interventions that have been overthrown by the courts. His refugee claim was denied by the Immigration and Refugee Board in 1999, but there were allegations that CSIS interfered with the board's decision. While that decision was being challenged in the courts, Jaballah was detained by a national security certificate under the Immigration Act. That certificate was quashed by the court in November, 1999, and then in September, 2000 the court also quashed the refugee board's decision, and a new hearing on the refugee application was scheduled for Aug. 16, 2001.
But having the court on his side wasn't much protection: two days before that new hearing, Jaballah was again detained. His family was then told by government officials that they need not attend the refugee hearing, but fortunately Galati attended and argued strenuously against that directive, and the government official admitted the advice was incorrect.
Then came the attacks of Sept. 11 and the new anti-terrorist legislation, Bill C-36. Representatives of the solicitor general and CSIS met privately with Mr. Justice MacKay on four or five occasions, with neither Jaballah or Galati present to learn the allegations being made. In February Galati received a four-page document titled "Unclassified Summary of Information related to Mahmoud Jaballah," which he called a "wholesale, blind caravan of events and non-events from the avalanche of irrelevant newspaper articles and materials and a host of characters already dealt with in 1999 by Mr. Justice Cullen."
The double jeopardy -- Jaballah was being tried again on evidence already rejected by the court of Justice Cullen -- was compounded by evidence that neither Jaballah nor Galati was permitted to know. "I don't know what the case is to meet," Galati told Mr. Justice MacKay on Mar. 11, 2002 at a court hearing in Toronto. "I am sure you do, and I am sure my friend (the lawyer for the Solicitor General) does, because you have seen everything. I am in the dark."
Galati subsequently withdrew from the case, claiming that "the Court is being used as an investigative tool by the security forces without a judicial balance and fairness to the person in front of the Court."
Jaballah remains in jail, not knowing the charge or the case against him and without the ability to rely on the fair and independent judicial system that most Canadians have assumed exists here. What has this man done to deserve this rough treatment? We are not entitled to find out.
Appeals to the political process have met with little interest. On April 2, I wrote my member of Parliament, Carolyn Bennett, asking that she look into this matter. It was not until the last day of June that she forwarded my letter to the solicitor general, and one despairs as to when that answer will come and what it will say. A similar letter to Bill Graham, now the minister of foreign affairs, has never been answered, in spite of a follow-up phone call.
So it has come to this. In Canada you can be charged with an offence and not be entitled to learn the case against you. You can be put in jail for months and months with no remedy in the courts. Mahmoud Jaballah is experiencing the injustice that is now institutionalized. Hardly what you would call "glorious and free."
TORONTO - Federal regulators have revoked the charity status of the Canadian branch of a Saudi organization that has faced longstanding allegations of ties to terrorism.
A notice in the government publication Canada Gazette said the Muslim World League (MWL) is one of several charities that "have not met the filing requirements of the Income Tax Act."
The revocation came into effect on Nov. 15, but the organization, dedicated to promoting Islam, was still calling itself an officially registered charity on its Internet site yesterday.
The action by the Canada Customs and Revenue Agency was unrelated to terrorism allegations that have dogged the League, founded in Mecca in 1962 and later established in Etobicoke, Ont.
The MWL is among dozens of charities being sued by the families of those killed in the terrorist attacks of Sept. 11. "The Muslim World League has numerous connections to al-Qaeda," the suit claims.
The group has publicly condemned terrorism.
The Canadian branch has never itself been accused of supporting terrorists, although one of its directors was also a director of Benevolence International Foundation-Canada, which has been blacklisted under United Nations terror-financing regulations.
But the international offices of the Muslim World League, and those of its sister organization the International Islamic Relief Organization (IIRO), have surfaced repeatedly in intelligence reports and affidavits.
"I know that terrorists who have attacked or tried to attack the United States around the world have been associated with the MWL/IIRO," Special Agent David Kane of the U.S. Department of Homeland Security said in a recent court affidavit.
A U.S. law enforcement task force has been investigating allegations that a series of related companies and charities based in Virginia, including the IIRO and MWL, are involved in the financing of terror.
The class action lawsuit filed by the families of the victims of 9/11 lists several ties between the Osama bin Laden network and the MWL, including claims the charity's office in Peshawar was headed by al-Qaeda co-founder Wa'el Jalaidan."
"Wa'el Jalaidan spread Muslim World League offices around the world. These offices served in the early days of al-Qaeda to attract and train holy warriors for the war in Afghanistan," the suit alleges.
Canadian intelligence claims that Mohamed Harkat, an Ottawa pizza delivery man and suspected member of the bin Laden network, worked for the Muslim World League in Pakistan before coming to Canada. Mahmoud Jaballah, a member of the Egyptian Al Jihad who was caught in Toronto, worked for the IIRO in Pakistan.
During the 1979-89 war against the Soviets in Afghanistan, Saudi aid organizations were often used to move money and get fighters into battle zones. Since the war, some of these same groups have been accused of serving as conduits for supporting a broader international campaign of anti-Western Islamic terror.
The Financial Intelligence Branch of the RCMP said in a report last year that "the main source of funding of al-Qaeda are charities, NGO [non-governmental organizations] and commercial enterprises.
"The money is given by supporters and is funnelled to al-Qaeda through the hawala, the international underground banking system."