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Secret Trial Detainee Mahmoud Jaballah Cannot be Deported to Torture: Federal Court

Many thanks to my good friend Matthew at Homes Not Bombs for sending the article below.

Federal Court Rules Secret Trial Detainee Mahmoud Jaballah Cannot be Deported to Torture
Judge Does not Close the Door on Other Deportations to Torture
Secret Trial Security Certificate Against Jaballah Upheld

TORONTO, OCTOBER 17, 2006 -- In a significant Federal Court ruling, Judge Andrew Mackay has ordered that secret trial detainee Mahmoud Jaballah, held without charge or bail since August 2001, "may not be deported to any country where there is a serious risk to his life or of torture or cruel and unusual punishment." That decision dovetails with another released today, upholding the security certificate that has kept Jaballah detained without charge more than five years. A bail hearing for Mr. Jaballah continues tomorrow (Tuesday, October 17) at 2 pm at Federal Court, 180 Queen Street West, in Toronto.

While Jaballah and his family are no doubt relieved that he is not about to be placed on a plane to an Egyptian torture chamber, he nonetheless remains in legal limbo, since Mackay also found that under the security certificate legislation, Jaballah is now officially an inadmissable person to Canada, and needs to be deported, somehow, somewhere, as soon as is humanly possible. Jaballah is detained at
Guantanamo Bay North at Millhaven Penitentiary near Kingston, Ontario.

THE SURESH QUESTION
Following the conclusion of the public portion of the largely secret security certificate proceeding this past September, Mackay asked counsel for the government and Mr. Jaballah for submissions on "the Suresh question." That's the loophole from a landmark Canadian Supreme Court decision that government officials pursuing deportations to torture have interpreted to mean that certain "exceptional circumstances" may justify such deportations, even though they violate Canadian commitments to the Convention Against Torture, among other legal instruments to which Canada is a party.

After quoting Justice Denis O'Connor's writing in the Arar Inquiry to the effect that "the infliction of torture, for any purpose, is so fundamental a violation of human dignity, that it can never be legally justified," Mackay notes that the prohibition on torture exists in Canadian law and international treaties and covenants that Canada has signed.

However, Mackay does not come right out and close the door on the general issue of deportation to torture. The government at this point is pursuing deportation to torture for the other four men subject to security certificates, and may well take heart, unfortunately, in the fact that while Mackay seems to have ruled out that possibility of deporting Jaballah under the "exceptional circumstances" argument, he does not make a ruling that deportation to torture can NEVER be justified. Indeed, he interprets it to mean that while "deportation to a country where there is a substantial risk of torture would infringe an individual's rights...in my view, infringement generally would require that the exceptional case would have to be justified under s. 1 [of the Charter)." Hence, by allowing for certain cases of "infringement" of rights, Mackay leaves open the door that the government so wants to widen with respect to deportation to torture.

UPHOLDING THE CERTIFICATE
Given the convoluted manner in which these security certificate cases have proceeded, reading the Mackay decision is an exercise in frustration and quibbling. He finds the certificate reasonable based on huge assumptions made by the government about Mr. Jaballah's phone calls overseas as well as on secret evidence neither Jaballah nor his lawyers was ever able to see, much less challenge. Jaballah won against a prior certificate in 1999, yet another one was issued against him in 2001 based on a new CSIS interpretation of a government case already dismissed as not
credible.

On the one hand, for example, Mackay says an inference COULD be drawn that by upholding the certificate, Mr. Jaballah, if allowed to remain in Canada "without restraints, would constitute a danger to the security of the country. Yet there is no case argued that he has been personally involved in violence. I conclude that the facts of this case do not create an exceptional circumstance that would warrant Mr. Jaballah's deportation to face torture abroad. This does not mean that he may not be deported. ....But deportation to Egypt or to any country where and so long as there is a substantial risk that he would be tortured or worse would violate his rights as a human being, guaranteed by s. 7 of the Charter [of Rights and Freedoms]. The [Minister of Citizenship and Immigration] may not exercise discretion in a manner that would violate Mr. Jaballah's rights under the Charter."

While this is a welcome sentiment with respect to deportation to torture, it is not matched with a similar concern over Mr. Jaballah's rights when it comes to the issues of indefinite detention without charge, use of secret evidence, and the construction of these cases under the precept that anything not normally admissable in a court of law can be entered at these hearings. Hence, at the conclusion of the September
hearing, a government lawyer stood up and proclaimed, without proffering a shred of evidence, that Mr. Jaballah was a skilled terrorist "communications relay" because he spared no time getting a phone when he got his first apartment in Toronto and, in addition to using a borrowed cell phone, he "procured" a fax machine and also had occasion to surf the internet. Muslims with cellphones and email, oh my!

The weakness of these cases was a major focus of Supreme Court hearings on security certificates last June. Jaballah, along with fellow secret trial detainees Mohammad Mahjoub (held since June, 2000), Hassan Almrei (since October, 2001), Mohamed Harkat (held Dec. 2002-June, 2006, now under draconian house arrest) and Adil Charkaoui (held May, 2003-February 2005, now under draconian conditions of "release"), now
awaits word on whether the kangaroo courts that they have been subject to will be declared unconstitutional by Canada's highest court.

In the meantime, Jaballah, a father of six, will likely find out in the next few days whether the government of Canada will appeal the decision not to deport him to torture. A more detailed report from court proceedings, including the refusal of a CSIS witness to acknowledge the systematic use of torture in Egypt and Syria, even in light of the conclusions of the Arar Inquiry, will be forthcoming shortly.

(More information: Campaign to Stop Secret Trials in Canada, tasc@web.ca,
416-651-5800)

posted by Annamarie at 1:05 AM