"First We Serve Tea, Then We Send You to Torture: Only in Canada," Toronto Action for Social Change, June 2, 2008.

An update from the Campaign to Stop Secret Trials in Canada

The Federal Court of Canada Gears Up for a New Round of Secret Trials as Canada’s 3-D Strategy -- Detention (Indefinite), Draconian Control Orders, and Deportation to Torture -- Remains the Order of the Day

June 2, 2008, Toronto -- There is something beyond surreal about sitting in a room where individuals who are bound for torture are seemingly being treated so, er, politely, by those who are speeding their rendition to the dungeon.

Could Orwell have predicted such a scene: judges who are facilitating the judicial phase of the rendition to torture speaking about the (undefined and certainly unseen) rights of the individuals who are doomed by a process so patently unfair that the Supreme Court of Canada unanimously declared it unconstitutional?

Yet in another of an endless series of “case management” conferences last week, Federal Court Chief Justice Allan Lutfy and Judge Simon Noel appeared once again to be doing just that, enacting out roles reminiscent of the prison farm overseers from the 1960s classic Cool Hand Luke. Viewers likely need no reminder of the chilling manner in which leg irons beatings, and other forms of corporal punishment were inflicted on prisoners who, in the words of the tobacco-chewing prison boss played by Strother Martin, were subject to this abuse “for your own good.”

In this instance, Lutfy and Noel are trying to force-feed their own vision of how the secret forced-removal-to-torture proceedings should go forward, regardless of the wishes of those subject to the process and their counsel. This is being done “for your own good,” because secret trials and deportations to torture must move forward in the name of natural justice.

Thinking Positive: A new approach to torture?

After all, this IS Canada, and no one, repeat, no one, gets subcontracted to torture until we can ensure that their rights are being respected and, once the rendition order is made, we can all pat ourselves on the back. Why? Because we are ensuring that Parliament’s will is being done, even though the current version of security certificate legislation was condemned in House and Senate hearings by leading legal associations as unconstitutional, discriminatory, patently unfair, and unlikely to survive a Charter challenge.

Rather than spitting chewing tobacco, though, Lutfy is far more refined, playing instead in the realm of new age cliché and what can only be described as poorly disguised tips from a charlatan management 101 course. What else can one say about an atmosphere the hosts attempt to create that seems more akin to a social tea than the thinly veiled inquisition that it is and has been for decades?

Indeed, on this fine day, the detainees, both in person and calling in from their house arrest and from the Guantanamo North facility in Kingston, Ontario, are thanked for joining us. Do they have any other choice? They are all asked particular questions as a means of reassuring them that their rights are being looked out for by the guys in the black robes.

An objective observer might find a disconnect between all this talk of rights and justice and the inability of those subject to secret hearings and deportation to torture to determine the timeline of their defence in an indefensible process. The goal of the Federal Court is to have these cases wrapped up and swept away by the end of the year. Despite the fact that such cases have proven in the past to be deeply complicated, time consuming, and very expensive to conduct (often condemning the defence lawyers who take these cases to the door of bankruptcy while government lawyers never worry about their costs), the word from the court is clear: we must move forward at any cost.


A patently unfair process

As other case management sessions have begun, the Federal Court seems to have adopted the Walmart daily cheer to open its gatherings. Lutfy, referencing himself and his sidekick Noel, proclaims, “Our role is to think positive.” Which is a good thing, because if you really think about what these hearings are about -- the indefinite detention, the two-tier justice that affords the detainees the lowest standard of justice in Canada, the cases built on racist profiling and suspicions about some alleged future thought crime based on secret suspicions from the discredited CSIS spy agency -- it might just wipe that smile off your face. It’s a smile Lutfy self-references as well. In Toronto and Montreal, we sit by a speaker phone and are told every once in a while by Lutfy that he himself is smiling, because we need to be positive.

Yet these are death penalty cases in a country that subcontracts its executions and torture. All the men are at risk of torture and death at the hands of the Syrians, Egyptians, Algerians, and Moroccans. We do not pull the trigger or apply the electric shock and simulated drowning; we just provide the human materiel needed for such atrocities.

At the heart of this late May gathering is a discussion on how to move forward with the secret hearings that the men and their lawyers will not be allowed to attend. Although “special advocates” will be allowed inside the secret hearing, they will not have been properly instructed by the detainees, because the detainees do not know the case. The SAs, as the special advocates are lovingly referred to, will be unable to discuss the case after seeing the secret file, and there is no guarantee the secret file is in any way complete, since CSIS tends to present only information that bolsters its case, and nothing that would exonerate an individual of suspicion.


Defence lawyers facing down bankruptcy

The lawyers who handle the public side of these cases are asking that their funding be equivalent to the pay being given special advocates. Rather than grant this on consent, the government is likely to oppose it, and there will need to be a hearing on the matter before the secret hearings can commence. Lawyers representing the men in the public cases said they would decline to take them on unless they could get proper funding. The detainees who were at the conference agreed with their counsel on this point, and had no problem that this would delay the actual removal to torture hearing.

Lutfy, however, was livid that such a proposal might stall the rendition hearings. “It continues the vicious cycle of waiting until the funding issue is decided, and the delay would be an affront to the law passed by Parliament,” he declares. “We need to move forward expeditiously in the interests of natural justice.”

Yes Virginia, they really do talk about natural justice in this Kafkaesque nightmare. But then they shift gears and go back to the Walmart cheer.


It's all about the energy, Dude

“Don’t you feel the energy I have?” Lutfy asks one of the lawyers, who is trying in vain to inject an air of reality into this Alice in Wonderland theatre piece. The lawyer says it probably makes sense to deal with the issue of funding since that will impact on the rest of the day’s agenda; he is told to sit down and think about Mr. Lutfy’s energy.

The next part of the agenda deals with the naming of designated judges for the new secret hearings. Interestingly, there are no new judges who might bring a fresh perspective on these cases (despite the obvious flaws and near impossibility of winning one of them). The judges have all made negative findings about the individuals subject to the current process, and appear to buy the government’s thesis that these men are in some manner or another not to be trusted to be returned to their families and get on with their lives. Whether that will change if the judges actually hear some cross examination behind closed doors remains to be seen. But one cannot help but wonder whether a possible apprehension of bias against the detainees (as well as the potential unwillingness by members of the court to contradict the prior findings of their fellow judges) might cast a certain air of doubt over their ability to approach these cases in a completely unbiased fashion.

Then again, even if these judges feel the case is less strong than a prior judge has concluded, it doesn’t matter, because the standards of proof are so low that pretty much anyone can be found to be a threat based on the process as currently set out.


What would a sane person say about this process?

Meanwhile, Lutfy keeps chiming in about the need to move on, not recognizing that the most expeditious way to move on is to settle the funding issue. “If any sane person looked at this process they’d wonder about whether we know how to run our business,” he states at one point, ironic given that a look at the “new” law shows it is essentially the old law, and that every major legal association in Canada condemned it as unconstitutional before it was passed by the gutless Liberal Party in conjunction with the Tories.

“We’ve got to work together for the interests of justice for the named person,” Lutfy keeps reminding everyone on a regular basis, perhaps forgetting that his unprecedented decision to place the baseless and unfounded suspicions from CSIS on the Federal Court’s website last February did a huge disservice to the rights of the named persons.

In good tag-team fashion, the gavel goes over to Noel, who chimes in with his own page from the “How to be a Good Manager” self-help workbook. “There has to be humour,” he opines. “Without humour, we’re not going anywhere.” It must be a terribly reassuring thought for Hassan Almrei, who sits in solitary confinement in a multi-million dollar facility watched by 17 staff. Equally reassuring for the four men under draconian house arrest (Mahmoud Jaballah, Mohamed Harkat, Mohammad Mahjoub, Adil Charkaoui) whose loved ones are both jailers and jailed. What a joke, eh? Perhaps, like those condemned to crucifixion in Monty Python’s Life of Brian, all these detainees and their loved ones really need to do is, as the catchy tune goes, “Always look on the bright side of life.”

“It’s all gonna work out,” Lutfy closes the conference, a reassuring statement to those holding the whips and chains in Egypt and Syria, awaiting the new rendition bait.


People power restrains CSIS

But work out for whom? A Federal Court that has always maintained the security certificates are okay (only to be resoundingly contradicted by the Supreme Court of Canada)? A spy agency whose incompetence, bias, and racist profiling remains exposed to public view every day these men remain in Canada? Or the detainees and their loved ones, who have yet to have a real trial where charges are laid, evidence presented, and a case needs to be proven beyond a reasonable doubt?

The answer ultimately lies with all of us. As advocates working for the rights of those subject to Canada’s rendition to torture proceedings, we see daily the pain and suffering experienced by these men, their families, and their communities. And so it is perhaps a tad difficult to adopt the Walmart-style cheer and the “power of positive thinking” approach adopted by the Federal Court.

Nevertheless, we can look back at our work of the past seven years and note that the public campaigning around this issue has had a positive effect in constraining CSIS’s ability to wreak this particular form of terror. After all, CSIS used to issue between 1 and 3 certificates a year from 1991 to 2003. Yet since May, 2003, they have only issued 1 certificate (and even that one seemed terribly convenient, at a time when the need to scare the Supreme Court into accepting the process was quite pressing). This is not because the “security” climate changed, but because the political climate around these outrageous hearings has changed.

We have shown that grass roots education, exposure, and political action can change the climate. It ultimately remains up to all us to truly put an end to this process. Stay tuned!

Getting Involved

1. Sign up for information updates on secret trials in Canada and deportations to torture at tasc@web.ca

2. Contribute to the costs of our campaign. Cheques can be made out to Homes not Bombs and sent to PO Box 73620, 509 St. Clair Ave. West, Toronto, ON M6C 1C0.

3. Contribute to a special fund for the special needs of the families subject to secret trials and deportation to torture. Cheques can be made out to the same group as above and earmarked “Esperanza Fund”Recommend this Post

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