Judge Finds Two and a Half Years of Solitary Confinement "not unreasonable" and bases his decision almost exclusively on secret evidence.
TORONTO, MARCH 21, 2004 -- Hassan Almrei, a 30-year-old Syrian refugee who has been detained by the Canadian government for two and a half years in solitary confinement, was delivered a cruel blow late Friday afternoon with the decision that his application for release on bail had been denied by the Federal Court.
Almrei, known to many Canadians for his 39-day hunger strike last fall for a pair of shoes and a guarantee of heat in his solitary concrete cell, is now wondering if he'll ever get out of jail after being held so long without charge on secret evidence neither he nor his lawyer is allowed to see.
This ongoing indefinite incarceration faced by Almrei and the other detainees who compose Canada's Secret Trial Five -- Almrei, Mohammad Mahjoub, Mahmoud Jaballah, Mohamed Harkat and Adil Charkaoui, collectively detained 129 months -- has been described by one federal court judge as Canada's Guantanamo Bay. In the past year, bail has been denied to four of the five, with Harkat not eligible for bail until the completion of his security certificate hearing.
The 60-page Almrei decision is both significant and scary for the great lengths to which federal court judge Edmond Blanchard relied on secret evidence to deny bail. Indeed, in a cookie cutter approach to decision making, Blanchard repeatedly states in reference to a variety of allegations about Hassan that "I have carefully canvassed the secret evidence as to its relevance, its reliability and the presence or absence of corroboration," before concluding that he is convinced by the secret stuff Hassan should be denied bail.
It is clear from reading the decision that Blanchard has left out a lot of the details which were heard in the public portion of the secret hearing. Indeed, a glaring omission from the decision is the well-known and oft-discussed fact that Almrei was deemed by the RCMP to be at the lowest possible risk level, coming to court in the same manner as any other prisoner.
Blanchard continued to rely on the notorious RCMP "picture book", a series of images of Osama bin Laden and weapons and other pictures which were allegedly downloaded from Almrei's computer to make him look like an al-Qaeda fanatic. Blanchard even acknowledges that evidence was shown to prove this book was a sham, and that these pictures were simply part of a much larger cache of images of everything from weight loss ads to soft porn images which the RCMP failed to include in its picture book. Nevertheless, he somehow accepts this as "proof" that Almrei is a devoted bin Laden fan as opposed to a curious news site canvasser who, like most computer users, has no control over which images get stored in his cache.
Blanchard also dismisses the evidence of Almrei's close friends by declaring that the character witnesses and bail sureties "have known Almrei only since his incarceration, and the remaining witness has known Almrei only since Mr. Almrei arrived in Canada." How long one is supposed to have known Almrei before becoming credible is not defined.
Under the security certificate regime, a refugee is eligible for bail 120 days after a certificate has been upheld in a secret hearing, with two questions to be determined: will the person be removed from Canada within a reasonable time and would the individual pose a threat to national security or the safety of persons if released? Even though the Immigration and Refugee Protection [sic] Act (IRPA) does not provide for the use of secret evidence in an application for release on bail, the judges have been behaving as if it does, satisfying themselves that since secrecy makes up so many other parts of the Act, they might as well allow this one to squeak by as well.
In Almrei's case, the "reasonable" time limit is clearly passed to the point of being unreasonable, as his certificate was "upheld" in November, 2001, and more than two years later he is still in solitary confinement.
As in other bad bail decisions with respect to secret trial detainees, Blanchard blames the lengthy delays on the victim, even though former Minister of Immigration acknowledged in April of 2003 that "the Minister's Delegate made serious errors in respect to the decision made pursuant to subsection 115(2)" [which relates to Hassan's application for protection against being returned to torture in Syria.] This means that the Immigration Department would have to re-examine the case, adding seven months to his incarceration.
Burt Blanchard insists "this detention is not imposed as a punishment...it is principally a means of providing preventative protection to the Canadian public." While the thought can hardly be consoling to the loved ones and the individual who is not being "punished," he adds further salt to the wounds with this stunning declaration: "I agree it is the applicant who holds the key to his own release: Mr. Almrei would be released tomorrow if he agreed to be removed from Canada. Mr. Almrei's efforts to resist removal by initiating numerous Court proceedings have contributed significantly to the total time he has been held in detention."
Almrei's lawyer Barbara Jackman had argued that the right to pursue effective remedies in the courts is guaranteed by Parliament and cannot be used against the detainees in determining whether removal will occur within a reasonable period of time. But Blanchard is having none of this constitutional stuff.
While it is easy to conclude Almrei could be released tomorrow if he agreed to be sent to Syria, there is still the matter of torture and worse that would await him if he agreed to waive his right to pursue remedies through the Canadian courts.
It is unclear how Blanchard can so blithely say Hassan can make it easy on himself by cancelling further appeals. After all, Blanchard is the same judge who had granted a stay of deportation to Almrei after acknowledging the expert testimony that Almrei would face detention, torture and worse if returned to Syria (a fact confirmed in a public statement of support from Maher Arar, the Canadian citizen also detained and tortured in Syria and thankfully returned home).
In her arguments, Jackman had also submitted that further detention constitutes cruel and unusual punishment and is contrary to sections 7 and 12 of the Charter of Rights and Freedoms (which guarantee, respectively, the "right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice" and the right "not to be subjected to any cruel and unusual treatment or punishment")
But again, Blanchard seems to have been daydreaming through the hearings. His decision seems to come out of nowhere with respect to the wretched conditions under which Almrei is held, even declaring at one point that, as if he were at summer camp, Almrei has enjoyed ample access to air, showers, books and the like (all of which he has had, at best, limited access to). He concludes "the conditions of the applicant's detention are certainly not ideal. However, I must be mindful that the legislative scheme provides for preventative detention upon issuance of a security certificate." Having "considered" the conditions and length of his detention, Blanchard somehow concludes "I find that he is being detained under reasonable conditions."
In terms of the second question which must be determined --the alleged threat posed by Almrei to Canadian security -- Blanchard's conclusions are startling, especially since they are based so firmly in the realm of the secret evidence. The fact that someone's liberty can be denied by reliance almost exclusively on secret evidence poses serious questions for those who believe we still live in a democracy. The fact that the word of CSIS composes this secret evidence is even more frightening, given the historic and contemporary abuse of the truth which is a CSIS hallmark. Even its own very accommodating oversight committee consistently criticizes CSIS for not getting its facts right, for withholding information which runs counter to its theories, and for overstating alleged threat assessments.
How serious is the matter? For example, Blanchard relies on the use of secret evidence with respect to Hassan's alleged association with four individuals. One of the individuals (anti-Soviet fighter Ibn Khattab) is dead, the other three are at liberty, none of them charged with nor convicted of terror-related allegations. In three instances, Hassan readily acknowledges those associations (he knew and helped get a fake passport for Nabil Al-Marabh, who was held on a minor immigration violation in the U.S. before being deported to Syria; he knows a fellow by the name of Al Kaysee who, last we checked, was alive and well and living in Toronto; and he used the name of a man named Al Taha as a reference on a visa application so he could come to Canada. He was told to put this name down by a friend, though he has never met or spoken with this individual.)
If secret evidence is being used with respect to the three men still alive, serious questions again arise: why are they all at liberty if the nature of the evidence that involves them is so injurious to national security? If these men are in any way a threat to national security, hasn't CSIS' cover with respect to possible surveillance of these men been blown by acknowledging that they are men of concern if their names appear frequently in the judicial decision?
Or is it simply the fact that, as with the other secret trial cases, anything goes, and CSIS simply needs to bag a few victories to show its American friends what a prime player they are in the international war against freedom?
Delivering the bad news that you have been denied bail is always a difficult task. Delivering it to someone who has spent two and a half years in solitary confinement is beyond belief.
On the Sunday afternoon that we went to visit Hassan with the bad news, he was clearly saddened. He, and we, were hopeful that with the arrival of spring, he would be able to live in our community, to get on with a life so violently interrupted by CSIS and so horribly repressed by the long line of lies and misperceptions which have been used to justify his ongoing nightmare.
As we drove away, we could not help notice the irony that one of the factories that we pass on our trip to and from the jail is Northrop Grumman Canada (formerly Litton Systems Canada), a corporation which is one of the largest weaponsmakers on the planet.
Responsible for the guidance system of the cruise missile as well as the guidance systems for many other weapons of mass destruction which have killed hundreds of thousands of people around the globe in acts of state-sponsored terrorism, we could not help but reflect on how their executives were home that night in the warmth of their expensive homes, free from criminal prosecution and trial, free from detention despite their very bloody public record.
Just a few kilometres from Northrop Grumman (now a star wars contractor with the dubious honour of being one of the few major corporations with the responsibility of finding newer ways to end all life on earth) sits Hassan Almrei in solitary confinement, never accused of, much less charged with, anything more than helping an acquaintance get a false passport so the latter could visit an ailing mother.
Hassan has been clear--show him the evidence in public so he can answer to it.. He is just a regular guy who made a stupid mistake; if he were white, he would, like the Litton executives, be free today. But Hassan is a Muslim male, and he is not permitted to make a stupid mistake in a country that is built on a growing foundation of Islamophobia.
WHAT YOU CAN DO:
1. Join the "Bail, not Jail" Demonstration on Saturday, April 3, 11:30 am, Metro West Detention Centre, 111 Disco Road. We will be gathering at 10:30 am at St. Clair West subway (on the street, in front of the Loblaws) to form a car caravan to go to the jail. To be in one of those vehicles or to volunteer your vehicle to help get folks there, please contact us at (416) 651-5800 or firstname.lastname@example.org
Following a rally at the jail, you are invited to join us on a walk to vigil at the neighbourhood terrorist, Northrop Grumman Canada.
(if you are not coming from Toronto, you can meet us at the jail at 11:30 am)
2. PLEASE SUPPORT HASSAN. Cards of support would be most welcome at this difficult time. When he was on hunger strike, it was the scores of letters and cards from people across Canada which helped him get through. His hopes dashed for release on bail, he needs to hear from you now more than ever. Please send a quick note of support to:
Metro West Detention Centre
111 Disco Road
Rexdale, ON M9W 5L6
3. COME TO COURT. It is likely that sometime in the next month the legal fight for Hassan will continue in the court. Watch for our e-mail invites to fill the courtroom!
For more info:
Campaign to Stop Secret Trials in Canada
c/o PO Box 73620, 509 St. Clair Ave. West
Toronto, ON M6C 1C0, email@example.com, www.homesnotbombs.ca
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