National (in)Security Law and Issues
by: Paul Copeland
Since the late spring of 2004 an ever increasing amount of my practice has been devoted to:
representing men being held in security certificate matters under the Immigration and Refugee Protection Act
representing Abdullah Almalki who was granted standing at the Arar Inquiry
representing Abdullah Almalki at the Iacobucci Inquiry
Harkat Case
I took over the case involving Mohamed Harkat from Rocco Galati and Bruce Engel in the late spring of 2004. While on the Illegals Motorcycle Club annual ride in June I was talking about the case in a pub with my fellow riders. The Illegals Road Captain, Phil Campbell, put his hand on my shoulder and said “Paul, this case is perfect for you.” I asked “Why” and he said, “Because there are no rules”.
That in fact is how I have dealt with the case and the two other security certificate cases that I have now worked on.
In the Harkat case Justice Dawson in the fall of 2004 found that the security certificate issued against him was reasonable. At the same time she dismissed our Charter application. In May of 2006 Justice Dawson granted release to Mr. Harkat on perhaps the most stringent bail terms ever imposed in Canada. In June of 2006 we argued the Section 7 fundamental justice Charter issue in the Supreme Court of Canada. In July of 2007 the Federal Court of Appeal, without calling on us, dismissed the government’s appeal of the bail ordered by Justice Dawson. In February of this year, the Supreme Court of Canada found that the procedure used on the security certificate reasonableness hearings violated section 7 of the Charter and was not saved by section 1 of the Charter. The Supreme Court gave the government one year to amend the legislation. Once a year is up we can apply to quash the decision that the security certificate was reasonable.
In the Harkat reasonableness case there was a great deal of argument relating to my client’s alleged association with a senior Al Qaeda man named Abu Zubaydah. I argued that a three line statement attributed to Abu Zubaydah should not be admitted into evidence because it was obtained by torture. At the time the case was heard Abu Zubaydah was somewhere in the world in a CIA black-site.
Last year Abu Zubaydah was moved to the American concentration camp at Guantánamo, Cuba. In order to be prepared for the next reasonableness hearing I have been writing to the American Ambassador, to John Sims, the Deputy Attorney General of Canada, to the American Secretary of Defence, Robert Gates and to the Attorney General of the United States, Alberto Gonzales, now described as Gonzo. I want to make sure that I have an opportunity of interviewing Abu Zubaydah and perhaps getting evidence from him before we complete round 2 on the security certificate.
No substantive replies have been received in regard to any of my correspondence.
Iacobucci Inquiry
Pursuant to the terms of reference for the Inquiry, Commissioner Iacobucci has ruled that everything done by the Inquiry is going to be done internally and in-camera. Needless to say this is frustrating and disappointing for me and for my client, Abdullah Almalki. Barb Jackman, counsel for another one of the men tortured in Syria, has filed a Judicial Review application in the Federal Court seeking to overturn that procedural ruling.
Justice Iacobucci, held hearings for participation rights and funding requests. All three men who were the subject of the Inquiry were granted participation rights and granted limited funding. Many of the groups that had been interveners in the Arar Inquiry were approved as interveners in this inquiry.
Participation rights were granted to a rather obscure organization called the Canadian Coalition for Democracies. That organization appears to be a front-group for David Harris, a now lawyer, and self-described former Chief of Strategic Planning for CSIS. I have known Mr. Harris, now a security intelligence consultant, for 14 years and have on occasion debated with him on television. Probably because of a lack of other alternatives, Mr. Harris and John Thompson of the MacKenzie Institute are used by the media as spokespeople for the right wing view of national security issues. David Harris recently testified before a U.S. Senate Committee and said the Canadian government and its security agencies were infiltrated by Islamic extremists. The comments were so off the wall that the Canadian Ambassador Michael Wilson appeared on television and refuted Harris’ comment and said Harris has been with CSIS for 8 months some 18 years ago.
The material filed with the Inquiry by Mr. Harris on behalf of the Coalition contains what is described in its heading as the Affidavit of Alastair Gordon in Support of Motion for Standing.
But when one looks at that document, it is not signed by Mr. Gordon, is not sworn, and has signatures on it by Naresh Raghubeer, Executive Director, for and on behalf of Alastair Gordon, President, Canadian Coalition for Democracies and by David B. Harris (Legal Counsel).
Leaving aside the politics of the Coalition, it is a mite depressing to me to find the Inquiry granting participation rights to that organization when no affidavit material was filed in support of their application.
Hassan Almrei
Hassan Almrei is the last remaining person held in custody at the Kingston Immigration Holding Centre. Alexa McDonough, a NDP Member of Parliament, has estimated that it is costing $2 million a year to keep Mr. Almrei at that facility. Mr. Almrei has been in custody since October 2001. In late July, 2007 I completed a detention review for him in the Federal Court. The review was done on the new bail rules set by the Supreme Court of Canada in February 23, 2007 in Mr. Almrei’s case. Justice Lemieux has reserved his decision on that detention review application.
Hassan was born on January 1, 1974 in Syria. He was raised in Saudi Arabia where his parents and most of his siblings still live. When he was 16, in 1990, he first attempted to go to Afghanistan, funded to the extent of three-quarters of the cost of the trip by the Saudi government, as part of the muhajadeen campaign supported by the CIA, first against the Russians and then against the Russian supported government,. He got malaria in Pakistan and went home after 27 days. He went to Afghanistan in 1991, 1992, 1994 and 1995. Eventually in January 1999 he came to Canada and made a successful refugee claim.
Here are some extracts concerning Hassan from material filed at the detention review:
Bill Siksay M.P.
In my meetings with Mr. Almrei I have always found him to be open and direct. He has clearly made his points and has always been respectable to me and others with me. In my experience he is an articulate and clear-thinking person. Despite the difficult circumstances he has faced over many years, I have not found him to be angry or vindictive. Instead I have been amazed at the grace with which he handles his situation. Mr. Almrei has regularly expressed to me his appreciation for my efforts to secure a just resolution of his concerns about the conditions of his detention, and change the law regarding the security certificate process. I have had some very personal conversations with the him, including the one we had when he asked me to help him draft instructions to CBSA of officials that he did not want to be resuscitated should he fall unconscious as a result of his hunger strike.
Alexandre (Sacha) Trudeau, film-maker
I consider Hassan a good friend. It is true that I first met him in a professional capacity as I was researching a documentary on Canada’s national security certificates. But beyond our journalistic relations, I quickly developed a real admiration for his intellect and strength of character. Over the past couple of years, I have enjoyed our frequent conversations and have always found him to be a very thoughtful, sensitive and kind person.
Over the time that I have known Hassan, I have not just found him to be a very intelligent and likeable individual. I have also found him to be a man of honour and integrity. The dignity with which he has faced his detention has amazed me. I witnessed some of his jailors come forward and say that Hassan was so trustworthy that they would have absolutely no problems in having Hassan be their neighbour. I had already every reason to understand how this behavior of the prison guards could make sense. Hassan treats people the way he himself would like to be treated and this without distinction of race or religion.
I truly believe that Hassan does not pose a threat to anyone in Canada. I believe that he has every intent to try regain something of a normal life. And he dreams of regaining this life here in Canada. I believe that he admires Canadian society and wants to honour Canadian society by living a model life. Despite all the difficulties that he has faced, I believe that Hassan is a man without anger in his heart whose only desire is to live peaceably and seek a worthwhile outlet for his curious and profound mind.
I look forward to many years of friendship with Hassan.
As of posting on September 12, 2007, Justice Lemieux had not released his decision on the detention review .
NAPANEE — A preliminary inquiry into criminal charges against Shawn Brant began Monday with much less fanfare than his previous court appearances.
The 42-year-old Mohawk protester was brought from the Napanee Detention Centre for a court appearance that was markedly less theatrical than previous appearances in court here. There were, as in many previous appearances, no protesters outside, nor were there any supporters in the public gallery as Brant was quietly led handcuffed and shackled to the prisoner’s box shortly after 9:30 a.m. wearing a worn white T-shirt, camouflage pants and work boots.
By 11 a.m., however, there were about a dozen people who appeared to support Brant in the courtroom, but they were a subdued group.
What wasn’t different about Brant’s latest appearance was the heavy police presence at the County Memorial Building — there were a number of Ontario Provincial Police officers scattered throughout the Dundas Street West site and visitors were searched and scanned with metal detectors before being allowed into the courtroom.
Brant is facing nine criminal charges in connection with various protests over the past nine months — breaching conditions imposed after he was charged with uttering death treats at a Deseronto protest last November, leading a group of Mohawk protesters that obstructed the main CN Rail line in April and for his role in what police charge was co-ordinating the blockade for National Aboriginal Day of Action on June 29 that blocked a large section of County Road 2, two CN Rail line crossings and propmpted police to close part of Highway 401 between Belleville and Napanee.
His stated goal during the events was to increase awareness of aboriginal land claims, native poverty and conditions on reserves.
Brant, the only one of his group arrested for his part in those incidents, is charged with six counts of mischief exceeding $5,000, two counts of breaching his recognizance and one count of failing to obey a court order.
Three days have been set aside for the preliminary hearing, which is held to determine if there is enough evidence to warrant a trial.
The inquiry began shortly before 10 a.m., with presiding Justice Robert Fournier granting a request from Brant’s lawyer Peter Rosenthal asking if his client could sit at the defence table without restraints.
Brant, looking pale, remained composed throughout the day, often watching the proceedings intensely or taking notes.
With what he termed his second “housekeeping” matter, Rosenthal criticized security measures enacted by the OPP, particularly those from Brant’s last two bail hearings, which were held at the Superior Court of Justice courthouse on Thomas Street East in Napanee.
The Toronto-based lawyer questioned the “quite unusual security precautions” taken by police during the hearings, including asking visitors to sign a guest book and to be videotaped before entering the courtroom.
“Many people thought they were being investigated,” Rosenthal contended. “Many planned to attend (today), but didn’t.”
In dismissing the complaint, Fournier said security “is often complex” and “it’s not within my jurisdiction to police the police.”
Then, in what is contrary to normal practice for a defence lawyer, Rosenthal argued against the Crown’s motion of having a publication ban put in place during the inquiry.
Typically, the accused in a case asks for a ban on publicity during preliminary inquiries — a move the judge is required to grant if sought by the defence.
Crown attorney Robert Morrison said the Brant matter was an “emotional type of case” and a ban must be enacted in order to protect the integrity of jury selection, if the matter is to go to trial.
Rosenthal, meanwhile, said the Crown presented “all sorts of inflammatory evidence” during the two previous bail hearings, which didn’t have any bans on content.
“To argue for a publication ban now, given that, is a bit odd,” he said.
In handing down his decision to enact a ban, Fournier said any informationpresented during a bail review “has no consequence … I do have a responsibility to protect the integrity of this process.”
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Security tight as inquiry opens; Mohawk activist Shawn Brant accused of mischief, breaching bail
Frank Armstrong Local news – Tuesday, August 28, 2007 @ 00:00
A preliminary inquiry for a Mohawk activist accused of mischief and breaching his bail conditions by leading two railway blockades and disrupting traffic on Highway 401 earlier this year began yesterday.
Shawn Brant, 43, faces nine criminal charges in relation to thedisruptions – one in April in the Napanee area and three in June in the Deseronto area.
Mohawks and their supporters ran a 30-hour blockade on the CN Rail tracks in Napanee on April 20 to protest the operation of a gravel quarry on land subject to negotiations between the Mohawks of the Bay of Quinte and the federal government.
They blocked the CN tracks again on June 28 and 29 as part of a national aboriginal day of action on June 29 to bring attention to problems faced in First Nations communities, such as poor water quality, poverty and high youth suicide rates. They blocked Highway 2 near Deseronto and forced police to close off a stretch of Highway 401.
Security was unusually tight at yesterday’s hearing in Napanee Court.
Spectators and witnesses entering the court had their bags searched and about six uniformed OPP officers guarded the stairs and waiting area outside the courtroom. The officers also made people turn out their pockets and swept a metal detector over each person.
Peter Rosenthal, Brant’s Toronto lawyer, pointed out that unlike his client’s last court appearance when more than 100 supporters attended a failed bail application, few of Brant’s supporters came to court for him yesterday.
Rosenthal said they were too intimidated to show up after the Aug. 10 hearing, when spectators were made to show photo ID and provide their date of birth and were videotaped doing so. He accused police of abusing their authority while conducting security.
“Security is acceptable in this day and age, but making people write down their names and numbers is not,” Rosenthal said outside the courthouse. “When they do things like that, make people write down their name, address and birthday and videotape them, they want to investigate supporters of Mr. Brant, not do security.”
Brant has been behind bars since July 5. He had been out on bail after being arrested for the April railway blockade.
He’s alleged to have violated a condition of his bail that forbade him from inciting or participating in illegal protests that blocked thoroughfares.
Justice D.K. Kirkland decided Brant couldn’t be trusted to respect the courts and locked him away while legal proceedings continue.
The preliminary hearing is scheduled to last three days. It is intended to satisfy the judge as to whether there is enough evidence for Brant to stand trial in a higher court.
Brant has elected to be tried by judge and jury.
When the preliminary hearing wraps up tomorrow afternoon, Rosenthal said he will again appeal to the court to let his client out on bail.
Rosenthal has compared Brant to Martin Luther King.
A civil rights lawyer and mathematics professor at University of Toronto, Rosenthal, told the Whig-Standard he took Brant’s case because he believes in Brant’s stated mission to create awareness of aboriginal poverty and oppression.
“In my view, the protest that they did was very justified in light of the horrors that have been done to them,” he said. “I hope the Canadian government starts to really rectify some of those injustices so that protests are not required in the future.”
Several Crown witnesses presented evidence at yesterday’s hearing, including lead investigator OPP Det. Const. Doug Weiss and Sgt. Kristine Rae, community services co-ordinator for the OPP in Eastern Ontario.
Managers from CN Rail also took the stand, but no evidence can be published because evidence at preliminary inquiries is generally forbidden under publication bans.
The hearing continues today.
OPP commissioner Julian Fantino is expected to testify tomorrow.
Toronto Wednesday May, 16 – in a unanimous
vote, Toronto District School Board trustees
stood up to in front of a board room packed
with community supporters brandishing neon
Access to Education without Fear stickers, to
show their continual support for a Don’t Ask
Don’t Tell Policy at Toronto schools.
Although the promise of this sanctuary schools
was made to community members a year ago in a
similar meeting with a motion passed last May
by the board, it has taken a year before the
principle of Don’t Ask Don’t Tell has finally
become a concrete policy ready for
implementation.
Prior to the meeting, despite the rain, an
animated rally in support of the long awaited
policy was held outside of 5050 Yonge, the
headquarters of the TDSB. Supporters
including members of heath centres, community
agencies, legal advocates, youth groups,
parents, the Canadian Union of Public
Employees, the Canadian Auto Workers, as well
as effected community members rallied to show
their continued support for sanctuary schools.
Albert Koehl from the Education Rights Task
Force, one of the advocacy groups fighting for
similar policies for the past eight years,
highlighted the importance of this victory and
the tremendous efforts mounted by the Don’t
Ask Don’t Tell campaign.
Kelly O’Sullivan from CUPE spoke about the
importance of partnerships between trade
unions and community groups on such
initiatives; she stated “access to services is
fundamentally a workers issue.”
Graduate student and U.S. immigration advocate
Francisco Villegas highlighted the fact that
similar DADT policies have already been won
through community mobilizations in several US
jurisdictions.
Sima Zerehi from No One is Illegal and Judith
Rae from the Immigration Legal Committee spoke
about the need to continue community
mobilizations beyond the vote in order to
insure that the policy passed is also actively
implemented and communicated to all TDSB
staff, administrators, students, partner
agencies and communities. Zerehi made links
between similar paper policies at the Toronto
Catholic School board which are scarcely known
and have yet to be fully implemented.
Grade 10 student, Anika Ashraf, one of the
most passionate voices amongst the group spoke
eloquently about the outrage she felt upon
hearing stories of fellow students Kimberly
and Gerald Lizano-Sossa who were brutally
targeted by immigration enforcement while in
school. She spoke about the need to move
forward quickly on the implementation of the
policy in order to prevent such future
incidents.
Members of the DADT campaign will continue to
advocate on the policy in preparation for the
September 2007 school at an up communing
community forum on Saturday May 26 held at the
Bickford Centre, one of the schools advocating
for sanctuary schools.
For more information see
Toronto.nooneisillegal.org, email
nooneisillegal@riseup.net
February 9 & 10th, 2007
Event to be held at two locations: Friday night Keynote Session will be held at Bloor Street United Church, 300 Bloor St. West, at 7:00 p.m. Arrive early to register. Saturday sessions will be held at Ontario Institute for Studies in Education, U of T, 252 Bloor Street West, Toronto. Registration will begin at 8:30 a.m.
FRIDAY NIGHT KEYNOTE SESSION 7:00pm:
Justice for a Dying Planet: Law & the Climate Crisis
Atmospheric levels of CO2 are higher now than at any time in the past 420,000 years. This is an evening about “climate justice.” What is the problem? What are the fights that are underway (what fights need to happen!)? What are the solutions – what can the legal profession do – what can a motivated community do?
Speakers:
Gord Perks, Toronto City Councillor
Keith Stewart, Manager, Climate Change Campaign, WWF-Canada
Don Goldberg, Senior Attorney, Centre for International Environmental Law, Washington, D.C.
SATURDAY PANELS 9:00am-5:00pm:
International Law and Canada’s Participation in Afghanistan
Chair: Irina Ceric, PhD candidate, Osgoode Hall Law School, Law Union of Ontario
Speakers: Michael Mandel, Law professor at Osgoode Hall Law School, founding member of Lawyers Against War, and author of How America Gets Away with Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity
Angela Joya, PhD candidate in political science at York University, CUPE 3903 member, Member of fact-finding mission to Afghanistan to take place in Spring 2007.
Lauryn Oastes, Independent Consultant, International Human Rights, Development, and Gender Equality, Women For Afghanistan
Let the People Decide: The Ontario Citizens’ Assembly on Electoral Reform Presents an Historic
Opportunity for Change
Chair: Wayne Smith, Member, Fair Vote Canada
Speakers: George Thomson, Chair, Ontario Citizens’ Assembly on Electoral Reform
Matthew Certosimo, lawyer, Assembly member
Kael Deverell, member, Students’ Assembly on Electoral Reform.
On the Backs of Our Children: Chocolate, Other Comforts, and Child Labour
Chair: Dyanoosh Youssefi, Barrister and Solicitor, Criminal Defence Counsel
Speakers: Carol Off, Journalist, CBC radio’s As It Happens, Author of Bitter Chocolate
Anita Sheth, Senior Analyst, Advocacy Policy and Research, Save the Children
Donna E. Young, Professor of Law, Albany Law School
Steve Benedict, Director, International Department, Canadian Labour Congress
Challenging Police Misconduct in Ontario (a roundtable discussion)
Chair: Jackie Esmonde, Barrister and Solicitor, Roach, Schwartz and Associates, Law Union
Speakers: Bob Kellermann, Barrister and Solicitor, Law Union of Ontario, on the human rights and privacy rights implications of police use of “Form 208s” to record information about members of the public.
Lora Patton, staff lawyer at CLASP, on the criminalization of school behaviour and the increased involvement of police officers in schools.
Dyanoosh Youssefi, Barrister and Solicitor, Law Union of Ontario, on Bill 103, the proposed new police complaints procedure and the ongoing challenge of establishing an independent and fair police complaints procedure.
Julian Roy, senior lawyer at Falconer Charney, on civil litigation strategies for challenging police misconduct, including how to identify and litigate a winning case.
Peter Rosenthal, Barrister and Solicitor, Roach, Schwartz and Associates, on the benefits and pitfalls of using the inquest process to challenge the police use of force which may have resulted in death.
Magaly San Martin, Community Legal Worker at Parkdale Community Legal Clinic, on using the Small Claims Court as a strategy to challenge police misconduct.
Precarious Employment: Gaps in the Law and Strategies for Fighting Back
Chair:Sherry Liang, Member, Canadian Labour Code Review Advisory Panel
Speakers: Tracy Heffernan, Staff Lawyer, Kensington Bellwoods Community Legal Services
Karen Dick, Organizer, Workers Action Centre
Dr. Cynthia Cranford, Professor of Sociology, University of Toronto
Environmental Law: Issues and Updates
Chair: Sarah Dover, Barrister and Solicitor, Campaigner, environmental justice
Speakers: Shawn Patrick Stensil, Energy Campaigner, Greenpeace Canada
Dayna Nadine Scott, Professor of Law, Osgoode Hall Law School
Rick Smith, Executive Director, Environmental Defence Canada
David McRobert, In-House Counsel & Senior Policy Advisor, Environmental Commissioner of Ontario
International Solidarity and Human Rights from the Philippines to Colombia
Presentation and discussion on how we can effectively work as allies with grassroots movements in other countries, and yet remain conscious of the effect of racism and imperialism on mainstream perceptions of global issues and struggles
Speakers: Mike Leitold, Barrister and Solicitor, Roach Schwartz & Associates, recently completed a human rights fact finding mission with other Canadian volunteers in the Philippines
Jeffrey House, Barrister and Solicitor,
Organizing Movement and Movement Lawyers
An informal roundtable to discuss the relationship between lawyers/legal workers and movements for social change.
Chair: Mac Scott, Immigration Consultant, Carranza Barristers and Solicitors, Ontario Coalition
Against Poverty, No One Is Illegal, Law Union of Ontario
Facilitators/speakers: Matthew Behrens, Organizer, Toronto Action for Social Change, Campaign to Stop Secret Trials
Amina Sherazee, Immigrant Rights Lawyer, Downtown Legal Service
Barbara Jackmam, Immigrant Rights Lawyer, Jackman and Associates
Zainab Amadhy, Organizer, Coalition in Support of Indigenous Sovereignty
John Clarke, Organizer, Ontario Coalition Against Poverty
Chris Harris, Youth Coordinator, Black Action Defence Committee
Howard Morton, Barrister and Solicitor, Law Union of Ontario
Sima Zerehi, Organizer, No One Is Illegal
PLENARY: The Duty to Consult Aboriginal People: Step Forward or Colonialist Trick?
Chair: Shin Imai, Professor, Osgoode Hall Law School
Opening and Closing Remarks: Murray Klippenstein, Barrister and Solicitor
Conference fees: $10.00 for Friday night keynote ($5.00 for students and unwaged), $35.00 for the Saturday panels ($10.00 for students and unwaged) or $10.00 per single session ($5.00 for students and unwaged)