Canada Day in Solitary Confinement
By MATTHEW BEHRENS*
TORONTO (1 July 2003) -- Today was Canada Day, and as millions celebrated with fireworks and patriotic sentiments, I received a collect phone call from the Metro West Detention Centre. It came from Hassan Almrei, a 29-year-old Syrian refugee who has spent the past 20 months in solitary confinement on a CSIS (Canadian Security Intelligence Service) secret trial security certificate.
We talked about the irony of his calling on a day that many use to proclaim Canada the greatest country in the world, and how this would be a much better, stronger country if we did not have secret trials targetting largely Muslim men for execution by deportation.
We also discussed the bail hearing that was held last week, another in a series of similar proceedings which reveal the courts of Canada are being led around on a CSIS-directed leash.
At these proceedings, we learn that bureaucrats responsible for administering these secret trials -- as well as those responsible for deliberations regarding deportation to torture and murder -- seem to make things up as they go along.
There is no accountability because there is so much secrecy and so little oversight. There is no sense of legal responsibility because there is so much buck passing: the statute was passed by Parliament, the reasoning goes, so it must be sound. One thinks of Nuremberg when one hears these officials who traffic in human misery reduce flesh-and-blood fears and concerns to a "synthesis" of facts which are "balanced" against the interests of the state by representatives of that state.
This is all behind closed doors in the interests of "national security."
Having attended a number of these proceedings, one begins to see similar patterns develop. The deck is always stacked against the defendant, and so the Crown rarely seems to present any case law. It's in the bag.
The security certificate process is in many ways a nightmare on stage. One enters the court chamber, having been checked for metal objects and anything which might disrupt the show, and proceeds to watch a drama whose tragic plot is almost always predetermined.
On a hot June morning the week before Canada Day, a detention review is scheduled for Hassan Almrei, who has not seen more than three days outside of solitary confinement over the past 20 months. For the Crown attorneys, this is "unfortunate" but, well, it's in the script, and you cannot deviate from the script.
Besides, if the blood in a staged tragedy is really ketchup, then the 20 months in solitary can't be real either. Perhaps the endless days and nights in lock-up are an aesthetic metaphor, but surely not a living hell where every moment that ticks by, it appears the only way out could be a one-way ticket back to Syria and one's state-sponsored murder.
As we await Almrei's entrance, a well dressed man and woman, looking far more serious than a sunny day would suggest is necessary, look hither and yon throughout the court. They are the "ushers" for the judge, a Mr. Blanchard who, had he been entered in a separated-at-birth contest, would be a stand-in Deputy Prime Minister John Manley with a bad case of sunburn.
Almrei is a Syrian refugee caught up on the post-11 September 2001 hysteria, when CSIS was looking to bag anyone it could to show the Americans Canada was a serious playing ground for alleged terrorists. But even the most cursory of glances at Hassan's story indicates that there is no substance to the allegation.
Subsequent revelations show the foundation of CSIS's weak case resembles nothing if not quicksand, and that the only way such a case can continue is because of the secret "evidence" which cannot be seen, much less challenged, by a defence lawyer. No, a summary of that evidence can only be heard behind closed doors by a CSIS-approved judge, and the defendant and the defence lawyer are left in the dark.
So it has been in Canada for well over a decade, long before the new round of legislative atrocities introduced and passed by a rubber stamp Parliament post-9/11.
It is scary how the term 9/11 has entered our common vocabulary. Before 2001, 9/11 meant a nightmare for the people of Chile, whose democratically elected government of Salvador Allende was brutally overthrown on September 11, 1973, by a group of respectable terrorists with names like Nixon and Kissinger. There were no mass roundups of white men in suits following that coup and the subsequent years of torture and murder. There was no international effort to shut down the network of terrorists which General Pinochet, with CIA assistance, sent throughout the Americas and Europe to terminate with extreme prejudice any opponents of the regime.
But in the play that CSIS directs, such historical memories are best left for the critics who demand impossible concepts like consistency, truth, and humanity in their shows.
The eager CSIS Crown Mr. MacIntosh is on hand, a man who has done so many of these cases it appears his frequent objections are auto-pilot gestures that respond to any attempt by the defence to enter bits and pieces of truth. But these truths may upset the smooth production of "allegation made," "allegation need not be proven," "allegation found 'reasonable' by secret evidence presented behind closed doors," "individual subject to execution by deportation to a country where affixing to anyone the label 'alleged ties to terrorists' is enough to spell the end.
Before the detention review even begins. MacIntosh jumps to the lectern to remind the judge, who may not have seen this movie before, that the issue of the conditions under which Almrei has been held for the past 20 months are "irrelevant." It is pretty clear MacIntosh has never visited a prison cell where one is held in what is bureaucratically referred to as "administrative segregation." Ever the fair minded soul, however, he concedes there may be some "tangential relevance on constitutional grounds."
Almrei's lawyer, Barbara Jackman, argues that what is considered "reasonable" in terms of Almrei's detention must be contextual, taking into consideration his living conditions and the lack of speed with which his case has progressed through the immigration bureaucracy. She points out Almrei's constitutional rights have been violated, and invites the judge to view the conditions in which Almrei has survived for the past 20 months.
Jackman first calls Frank Griswaldo, the security manager of Metro West Detention Centre, to discuss the conditions. He discusses how, currently, the West is made up of ranges with 10 cells each and a common area. Designed in the 1970s for one individual, these cells currently have on average three individuals squeezed into them. That over-crowding alone has been a factor considered by judges in numerous cases, he points out on questioning from Jackman.
Griswaldo describes solitary: a single cell, 9 x 12 feet, a bed and a toilet. There is a tiny window which, if Almrei stands on his bed, he can look out. There is always a light on, slightly dimmer at night. Almrei's time outside the cells is "unfortunately very limited." While "we try" to provide showers daily, that doesn't always happen -- it's more like every three to four days. Same for yard access, for which Hassan is entitled to 20 minutes, although it is usually closer to 10 minutes when he actually does get it.
When Hassan is in the yard, he is there by himself. In the wintertime, in addition to his orange jump suit, he is allowed access to a coat, but no winter boots, when taken outside. There is a library, but he is not allowed to use it. A Muslim cleric has only been allowed to see Hassan once or twice in 20 months.
Had Hassan been held on the range, he would have better access to services for Muslims. There are no educational programs.
Griswaldo allows that Metro West is a short term facility, with 90 per cent of people awaiting trial. Immigration cases are held on the range unless they are high profile. How did Hassan end up in solitary? He describes how, when Hassan was brought in to the jail in October 2001, "immigration personnel brought us individuals who were alleged terrorists, it was new to us, new to me, fair to say it was new to the ministry."
Jackman asks if a meeting was held to determine where Almrei should be held in the jail, and asks if CSIS was involved. "They [CSIS] can't tell the superintendent what to do, but they can make recommendations," Griswaldo states.
"Do you know what CSIS did recommend?" Jackman asks.
"I really don't know," he replies.
But what is significant is Griswaldo's next revelation. "The RCMP has advised us this is no longer a high profile case, they lifted the security level, so he came to court through Toronto court services level just like everyone else today." The RCMP has concluded his "threat" level is low.
Griswaldo confirms there have been "absolutely no" problems with Hassan, noting that he was placed in solitary when, after a day on the range, he was beaten by other prisoners. Of course, anyone who has been tarred through the media as a terror suspect is not likely to receive a warm welcome behind bars.
Jackman asks why Almrei cannot be transferred to a place like Beaver Creek, a federal facility with educational programs and other services for longer term detainees.
"The fact that he's not been sentenced limits the ministry's options," comes the reply. But a sentence in a security certificate case is not to jail, but to torture and execution abroad.
Jackman asks if 20 months in solitary is normal.
"No," he says.
"If this court continues Hassan's detention, are there other options for him?" she asks.
"Unfortunately, the answer would be solitary."
On cross examination, Crown MacIntosh asks in Orwellian fashion whether Hassan has been mistreated and whether he is denied "necessities." Someone whispers in the gallery, "Yah, freedom's a necessity!" The question is so far removed from reality, MacIntosh might as well be asking a torturer whether his victim is provided the "basic requirements" in between pokes with the electric cattle prod. The Crown cannot bring himself to accept that seemingly endless incarceration in solitary is mistreatment in and of itself.
MacIntosh asks if Griswaldo is aware of the allegations against Almrei, to which he replies "something to do with being associated with 9/11."
"Would you agree with me that individuals associated with 9/11 pose a threat to your facility and the public?" MacIntosh asks.
"They can pose a threat," he replies, yet if this is the case, it is curious that the RCMP has downgraded his threat status to low.
Griswaldo is asked if Almrei is a security threat. "My answer to my superintendent, as a professional, is that he's not a threat."
Next on the stand
Next on the stand is Peter Dietrich, a regional program advisor with Citizenship and Immigration Canada (CIC) who speaks so softly it appears to those of us in the gallery that he's a character in a silent film.
Jackman asks how someone like Hassan ends up in a provincial remand centre, like the Don Jail, East Detention, Maplehurst or Lindsay.
"The province provides the facility for individuals who are not low risk," he says.
"Why a provincial jail for someone on a federal hold?" she asks.
"We have an ad hoc agreement with the province for higher risk people. We do not have an agreement with Corrections Canada. It's a working relationship, not a formal agreement."
The Feds, it appears, pay for each detainee, but it is unclear whether the province makes money on it.
"Why is there no ad hoc agreement with Corrections Canada?" Jackman asks. "Is this agreement with the province in writing, or in memos? You make it sound very informal."
"There is no memorandum of understanding," he says. The rates are set by the province, but there's nothing specific. Ideally we would have an agreement."
"Are you trying to get one?" Jackman continues.
"Efforts have been made in the past."
Jackman asks if there's been any discussions with the province on minimum standards, such as international human rights safeguards for immigration detainees.
"That you would have to address to the province," comes the bureaucrat's reply.
"But if a guard kills one of your detainees, are you not in some way responsible?"
"That's a complex legal question," Dietrich replies in a non-reply.
"I know, but you're the ones putting them there. Don't you want to make sure they're safe and secure?" Jackman asks.
He shuffles uncomfortably in his seat as Jackman continues.
"So the federal government has not put out conditions to be met by the province?" she asks.
"I'm not aware of it," he answers softly.
"Does Immigration have an understanding of acceptable conditions in detention?"
"Not that I'm aware of," comes the answer of the long-time immigration official.
"If it DID exist you'd see it, no?"
"I presume they would be the same guidelines as for others in Canada," Dietrich struggles.
His answers continue to come at a decibel level suitable for dogs down the street but not for humans within earshot. Even the judge asks Dietrich to speak up.
Jackman asks if Dietrich is aware of the conditions of long term detainees.
"Have there been any discussions on how to deal with them?" she asks, pointing to recent cases of endless immigration holds such as that of Rudy Pacificador (seven years), Mansour Ahani (nine years), and Mr. Suresh (two and a half years). "Have there been any discussions in terms of where they are held, and the conditions? Has anyone had any concerns?"
"I'm not aware of any discussions which may have taken place at my level among immigration officials responsible for such cases," Dietrich replies, to which numerous gallery members whisper "Nuremberg!"
"Has there been any discussion with the province about these cases?" Jackman asks.
"We, CIC, have had discussions with the province in an effort to find a facility for immigration purposes and to this point we have not been successful."
"You mean the superjail?"
"That deals with ALL immigration detainees, but have there been discussions regarding long-term detainees?"
"Not that I'm aware of," says the broken record.
"If a person is held in solitary confinement is that brought to the attention of Immigration officials?" Jackman asks.
"I'm not sure. If there is an issue with solitary confinement, they do what is necessary pursuant to government statute. We will eventually find this out in the context of a detention review."
There is a shocked pause as Dietrich's answer sinks in. He appears so out of touch with his human cargo that he is only finding out about the solitary confinement because he is testifying at a detention review.
"So you came here to find out?" Jackman asks. "If Hassan's detention is continued, his options remain the West or the East. Can you arrange to send him to Beaver Creek?" she continues.
"It's a federal facility," he replies.
"We don't have an agreement with the feds."
But neither, it appears, does one truly exist with the province.
Increasingly, it appears the options for Almrei are extremely limited. Whatever the Crown might think, it is obvious that this line of questioning should play a major role in determining whether Almrei should receive bail.
MacIntosh rises with only one question. Has Dietrich received a complaint from Almrei? Dietrich's answer is no, but Jackman offers to present a letter written on behalf of her client protesting his treatment.
A "delicate balance" act
Following a 20-minute intermission, questioning begins for Brian Foley, a senior analyst at the intelligence branch of CIC. He discusses how there is a "delicate balance" act which has to occur in determining whether to deport Almrei.
"It's complicated and takes a lot of deliberation to reach a conclusion."
He says with Almrei, CIC will need to conduct a new interview with respect to new admissions he has made. That information will be "synthesized," and the process should take another six months.
Through Jackman's questioning, we learn that CIC's intelligence branch was created 18 months ago, and that Foley had been with the branch's predecessor, case management, since 1989. There he analyzes security cases and oversees administration of the six-person unit.
"Why will Hassan Almrei's case take six months when some of my clients' cases have taken eight years?" Jackman asks, drawing a Crown objection. She rephrases the question.
"There are cases of people waiting eight or nine years?"
"Perhaps," comes the reply.
"What's the difference between them and Hassan Almrei? Is his case prioritized?"
"Yes, it is a priority."
"How many priority cases do you have?"
"We have strict time frames we must adhere to," Foley says, awkwardly failing to answer the direct question.
"What's your training to be a security analyst?" Jackman inquires.
"I worked previously on organized crime."
"Are they [refugee security screening and organized crime] the same thing?"
Plight of refugees on a par with organized crime
Great. Now we have an admission of how the federal government truly views the plight of refugees. It's on a par with organized crime.
"What training, program or course is used for security analysts?" Jackman asks about the individuals who must make the delicate balancing act in determining whether Almrei and others in a similar situation can stay in Canada or be deported.
"There's no specific job training," Foley says, apparently seeing nothing wrong in his response.
"Is there any introductory training?"
"There is a training package we do for other units, for visa officers overseas. They sit in on a training session which is an afternoon, two to three hours."
"How do the Suresh principles (not returning someone to torture) fit into your job?"
"We must balance the risk of return to the threat to Canada."
"Is it fair to say if there is a risk of torture the decision-maker could still return them? They could be removed if there is a risk of torture?"
"Has that happened. Could that happen?" Jackman continues.
"I could not say."
"Have you read Suresh?" she asks.
"Isn't it clear that you can't return someone to torture?" Jackman demands.
Crown MacIntosh objects.
Jackman seeks clarity on the process and goes through the circuitous process these special refugee claims must travel. Foley confirms what Jackman explains, adding "This was all done before Suresh."
"No, it was not, this process was the point of Suresh," she counters.
"I stand corrected."
It can hardly be comforting for refugee claimants to know that individuals in charge of their cases need to come to court to get their history lessons.
Through further questioning, Foley reveals he seeks advice on cases from various officers in CIC, including pre-removal risk assessment (PRRA) officers, though PRRA officers are not directly involved because the process is run out of national HQ. None of these six security analysts has country-specific training, and once a determination is made, the analysts do not sign off on their recommendation because "It's not part of the process." Foley makes this process of seeking advice seem fairly informal, so much so that counsel is not informed of the conversations.
"So you do it secretly? And not tell counsel?" an incredulous Jackman asks.
"No, part of the process is that an analyst is obliged to research and seek advice."
"So you seek advice and not tell counsel about it? The risk officers are here [Toronto]. Was it done in Hassan Almrei's case? Do you find anything wrong with doing that seeking of advice and not telling counsel about that? If they get advice, whether or not it's formal, it impacts on the case. My question: is that unfair to seek opinions and not tell the person concerned?"
"We seek advice on relevant factors, seek the best advice available," comes the bureaucrat's reply.
"Can you review your notes and tell us if it was done in this case?" Jackman asks.
"I don't have that information."
"But you can find out, perhaps over lunch. I want to know if there were secret discussions going on in the department that we didn't know about."
After some Crown objections, Jackman explains that the risk Almrei might face in Syria is a relevant factor in his detention review, and that her line of questioning goes to the issue of Foley's credibility. "They [analysts] don't have any training, not even in intelligence matters," she explains to the judge.
"Is it fair to say your risk analysts do not have any specialized training on conditions in other countries?" she asks.
"That's true," Foley replies. "There may be some incidental knowledge, but not necessarily."
"Were you ever a PRRA officer [someone who might have some country-specific knowledge]?"
"Was anyone else in the office ever a PRRA officer?
"Not that I know of."
Under further questioning about who makes the decision about whether Almrei can stay in Canada, Foley explains that there are three director generals involved (also known as "ministers' delegates," one each from case management (which deals with inadmissibility for immigration cases), intelligence branch (security and removals) and Enforcement (removals).
Jackman then asks a question which in many respects speaks to the heart of the hearing.
"Is there a director general of admissions or of welcoming to Canada?" she asks.
"No," Foley says.
"Why are the delegates picked from enforcement rather than from some more neutral area? These are adversarial people who are signing off on certificates," Jackman points out.
After the judge interrupts, Jackman explains that "this process is a fixed process. Why would they pick a person's chief adversary in making these determinations? They are not a neutral party. So your role (judge) in making a determination is important."
MacIntosh from the Crown's table tries to clarify matters in brutally honest terms: Mr. Almrei "does not benefit from the presumption of innocence." Jackman replies that Almrei has never been charged or convicted in a criminal matter, then continues her questioning of Foley.
"Why is it that enforcement officials are the delegates?"
"I do not know."
Foley explains that Almrei is likely to have an interview in the next few weeks.
"What is the process? An officer shows up at the cell without notice to counsel?" Jackman asks.
"I don't think that's how we envision it," Foley stumbles.
"So there is a right of counsel to be present? Will officers tape the interviews? Have you ever received a transcript of a taped conversation in one of these cases?"
"No. Just a summary of notes."
"Notes are not countersigned to ensure their accuracy?" she asks.
"They do that sometimes."
Jackman returns to the issue of how long this process will take.
"So this case will take six months? How fixed is that?"
"Based on the outside case," says Foley.
"In terms of your experience, when officers in your unit -- I ask because I think it's the worst in terms of timing -- how accurate are these predictions of meeting your targets?"
"I have no idea."
"You may not meet your targets? You said you acted diligently. What is the intended time frame in a security certificate case? Do they have a target time frame?"
"The Act says 120 days."
"Where did that come from? How often does the department do that, within 120 days? In Almrei's case, the case was upheld in November 2001, a decision by the minister's delegate was made in January 2003. Why is that not a delay? January to October is more than six months, is that normal?
"There are outstanding circumstances, new process..."
"So you are unaware of other similar cases where such delays have occurred, like Jaballah [whose extended CIC delay was ruled an abuse of process in May]?"
"I'm giving him an opportunity to say he doesn't know," Jackman explains.
The morning closes with Jackman explaining that she wishes to question a CSIS and RCMP officer, but does not know their names to issue a subpoena. Such questioning is necessary, she says, because of the nature of the alleged case against Almrei. She notes that he was rounded up in the post 9-11 hysteria and, now that the dust has settled, some new issues need to be explored, but only the Crown knows the identity of the relevant agents.
MacIntosh allows that, while solitary confinement is "certainly not a pleasant experience," Jackman is trying, through such witnesses, to launch a "collateral attack" on the judicial decision which upheld the security certificate against Almrei as "reasonable."
Jackman responds that she DOES intend to attack the decision directly, not through back-door efforts, because she says it is a nullity because of a "fundamental breach of fairness and the principles of natural justice." (Almrei was not accorded due process because the court refused Almrei's right to testify "in camera" -- behind closed doors, in the presence of his lawyer -- about sensitive details which, if disclosed publicly, could endanger his life if deported, or endanger loved ones in Syria.)
Judge Blanchard interrupts Jackman to say, "I can't see how this would help you without getting into information we can't make available to you," a reference to the secret evidence she is not allowed to see. He reminds her the onus is on her if she wants to bring up argument regarding the prior decision.
"If the onus is on me, how can I bring evidence if I don't know the RCMP officer's name? If we're to meet the test, we can't do it unless we know who they are....You need to know the strength of the case to determine the level of risk," she concludes, and this judge needs to hear from the RCMP and CSIS that circumstances have very much changed from 2001 (for example, a key plank of CSIS allegations was Almrei's alleged association with Nabil Al-Marabh, who was deemed a terror suspect immediately after 9/11 but who was cleared of all such allegations one year later, AFTER the case against Almrei was deemed "reasonable.")
Jackman also reminds the judge that he should "take a view" at the jail to get a physical sense of the hell that has been Hassan's life for almost two years.
Crown MacIntosh places another ironic foot in his mouth when he points out that judges normally "take a view at a crime scene." The scene where someone has been locked away in solitary for 20 months could hardly be called less.
The afternoon's witnesses are people who have come forward to provide bail for Almrei. By prior agreement, Matthew Behrens will, with Dr. Aly Hindy, monitor Hassan if he's released on bail; surety will be provided by Frank Showler, Diana Ralph and Dr. Hindy.
Showler explains his lengthy history as a human rights advocate over seven decades. After Behrens explains how he would stay in touch with Almrei if released, Diana Ralph takes the stand and explains why she is there. Her testimony is powerful.
"As a Jew whose father was an international lawyer at the Nuremberg tribunal, it concerns me when groups of people are singled out for persecution," she states. "I'm also very concerned about not repeating the shameful decision of the Canadian government to incarcerate the Japanese during World War II. I don't want to be a party to that type of hysteria. I have a strong interest in standing up for people who are falsely accused."
Ralph says "Hassan comes across as a conscientious young man, two years older than my son, caught up in massive historical trends. I have the time and energy to develop a relationship with Hassan. If it were necessary, I have an apartment in our house where he could live."
Dr. Hindy says he has made arrangements for Hassan to live with a number of young people near the Scarborough mosque where he is an imam. As with prior witnesses who have come forward, Hindy is subject to very direct, partisan questioning from the Crown, who demands to know how Hindy would keep Almrei from associating with the bin Laden network (an allegation which Almrei has denied from the start).
"Not I, nor you, nor he would know how to join Al Qaeda," Hindy says, pointing out under repeated questioning that this question cannot be answered because it does not make sense. After all, how does one "associate" with this network, where is it, does it have a physical form in Canada other than in the paranoid imaginings of those behind the security certificate process? And if it DID exist, how would Almrei, separated from the outside world for so long, be able to make contact when the much self-vaunted CSIS has been unable to? And if it DID exist, and if Almrei did try and "associate" with it, wouldn't Almrei, under constant surveillance, thereby lead CSIS to them?
But the leaps of illogic do not matter. Simply asking the question repeatedly tars Almrei in the same manner that a Crown repeatedly asking someone if they're absolutely sure they are not a child pornographer taints the individual being questioned and the proceeding itself.
The Crown seems to imply that none of the sureties is good enough because they cannot monitor Hassan 24 hours a day.
Jackman counters that no one is released on bond with bondholders needing to know their 24-hour-a-day whereabouts, and if there is a precedent, the crown should bring one forward. The Crown does not.
The day comes to a close with argument about whether or not an affidavit of Almrei's can be sealed for his protection and the protection of his family. Media in attendance are given an opportunity to contact their lawyers to seek standing to argue that the affidavit should be made public. It is an ironic moment, one which will result in a day-long in camera hearing the next day arguing whether the affidavit, or expurgated parts of it, can be released.
It is a strange moment because the media have no problem trying to force into the open information which might result in harm to an individual. Yet it does not appear that the media have tried a similar tack at the start of these secret trial hearings by demanding to know the state's sealed evidence. It is hoped they might engage in this process at the upcoming hearings for Mohamed Harkat and Adil Charkaoui, also held on security certificates.
In the end, submissions from both sides must be presented and replied to by mid-August, and Almrei must wait until September for his next court date.
In the meantime, this Canada Day, while millions watch fireworks, Almrei is spending another night under a dim light in solitary confinement. In our conversations, there is a remarkable lack of bitterness, an almost unbelievable absence of hatred towards those who have punished him so harshly, and an undying hope and dream of all that he will achieve and contribute to this country, in which he sought peace and refuge, when he is hopefully released on bail.
For more info on secret trials and the CSIS security certificates, contact Homes not Bombs at PO Box 73620, 509 St., Clair Ave. West, Toronto, ON M6C 1C0. To be part of the National Day of Action to Stop Secret Trials in Canada (October 31), contact us at firstname.lastname@example.org or (416) 651-5800.
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