Secret trials in Canada

Five Muslim men have been held in prison for years. None of them have committed a crime, and not a single charge has been laid against them. Is this supposed to make us feel more secure?

Jessica Squires

On December 21, 2002—International Human Rights Day—Mohamed Harkat, a convention refugee and a Muslim, was arrested by the RCMP and Ottawa police at his home. He has been detained ever since. Harkat has never been charged, and neither he nor his lawyers has been able to review any evidence against him. The hearings against him are held in secret.

Welcome to the world of secret trials, Canada’s dirty little secret.

Harkat has been in Canada since 1995. Working as a gas attendant and pizza delivery man, he worked an average of 18 hours a day. In 1997, he was given refugee status. Since his arrest, he has been held on a

“Security Certificate,” a legal document that allows the government to arrest non-citizens and detain them indefinitely—without ever charging them or allowing them to see any evidence held against them. If his Security Certificate is deemed “reasonable” (by a judge approved by CSIS, the Canadian Security and Intelligence Service), Harkat may be deported to Algeria, his country of origin. Harkat fled Algeria because of political persecution. If he is returned, he will likely be tortured or killed.

Security Certificate proceedings use the lowest standard of proof of any judicial proceeding in Canada. Crown lawyers may table anything as “evidence,” including newspaper articles and online reports. There is no ban on hearsay, as is typical in criminal proceedings, but because Harkat is not a citizen, his rights to fundamental justice are curtailed. Most of the Crown’s so-called “evidence” is heard in secret proceedings behind closed doors, without the presence of Harkat or his counsel.

Harkat is one of Canada’s “Secret Trial Five,” a group of five Muslim men who have been detained for years on Security Certificates. Like Harkat, these men’s lives have been torn apart by accusations that they cannot challenge in a fair and independent trial: Hassan Almrei, a refugee who has been facing deportation to Syria since October 2001; Mahmoud Jaballah, a refugee from Egypt who was arrested in August 2001; Mohammad Mahjoub, a refugee from Eygpt who was first detained in June 2000. The fifth man, Montreal resident Adil Charkaoui, was detained on May 21, 2003. All five men were arrested under Security Certificates, a provision of the so-called Immigration and Refugee Protection Act (IRPA).

After years of legal challenges and public campaigning against Security Certificates, all five men have won release from prison, but under extremely harsh bail conditions. These conditions were so intrusive for Mohammad Mahjoub and his family that he voluntarily returned to jail in March 2009.

The Security Certificate process violates the Canadian Charter of Rights and Freedoms, the United Nations (UN) Universal Declaration of Human Rights, the UN Convention on Refugees, the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention on Torture. The Security Certificate also runs contrary to the Canadian justice system. Thus the Security Certificate, which dates back to 1991 and was strengthened in 2002, is a one of the most obvious symbols of a government-led attack on civil liberties since September 11, 2001.

“National security” is the argument used to justify these detentions—with no further explanation or evidence. Under the Anti-Terrorism Act (ATA), similar violations of rights are extended to all citizens.

In February 2007, the Supreme Court of Canada ruled Security Certificates unconstitutional because of the use of secret evidence and because of differential treatment of refugees and permanent residents under the Act. The Court gave the government one year to fix the process or scrap it. In late 2007, the Harper government rammed through cosmetic changes that introduced the use of so-called “Special Advocates,” lawyers who are present during secret proceedings, ostensibly to defend the interests of the detainee, but who are not permitted to talk to the detainee or his lawyers once they have seen the secret evidence. Because the lawyer of the accused cannot review the evidence against him, mounting a proper defence remains impossible.

Despite these restrictions, the detainees and their supporters—trade unions, student unions, human rights groups, peace organizations, civil liberties campaigners and many others—have managed to prevent the deportation of any of the men, and have played a role in winning their release from detention, even though the conditions remain draconian.

Recent revelations that CSIS lied to the Courts about the results of lie detector tests used on informants in the Hakrat and Almrei cases have once again highlighted the completely unreliable nature of secret evidence. Civil liberties campaigners who have long criticized the use of Security Certificates have been increasingly vindicated as the public learns more about CSIS deception and manipulation.

The detainees and their supporters have vowed to continue the struggle for justice and the chance to clear their names. In the words of Harkat at a rally in Ottawa on May 9: “I will continue to fight until justice prevails… I have been persecuted for some things I have never done… I have nothing left to lose. I have already lost everything. I’m trying to get my dignity back. I’m trying to clear my name.”

For more information about Mohamed Harkat and the campaign against security certificates, please visit: http://www.justiceforharkat.com/news.php