Script for a Tableau (playlet) - performed by five people plus narrator at Toronto Good Friday Stations of the Cross for Social Justice - before an audience of 300 people. (Some photos posted on Murray Lumley's Facebook page)
Narrator:
You are attending a court scene where a detainee – in Orange Jumpsuit - an Arab refugee or immigrant, who might be from Egypt, Algeria or Syria and is a resident of Canada, has been arrested by Canadian Security and Intelligence Services or CSIS and is being held under the supervision of Canadian Border Services Agency or CBSA. He is not charged with any crime, but is held on the possiblity that he might be a danger to Canadian national security – meaning he is believed to be a terrorist or have had terrorist connections in the country he came from or has visited - until such time as he can be deported back to where he came from. There have been five such Detainees, since the mid-nineties, all Muslim men.
Because he is charged with no crime in Canada by which he could be legally incarcerated, he is being held using an Immigration instrument called a Security Certificate. CSIS has presented its case in a brief document to the government of Canada, and two Ministers – the Minister of Immigration and the Minister of Public Safety have signed the Security Certificate, which allows CBSA to keep the Detainee in secure custody until such time as he can be deported. The allegations that CSIS has against the Detainee are of a lower quality than would stand up in a normal court of law – meaning testimony of a secret witness or informer, hearsay, news articles and circumstancial evidence - for example the detainee was found to possess a map of Ottawa with some buildings or routes marked. This evidence is kept secret on the basis of National Security and only certain official people are allowed to see it - as you will see in our brief scene.
In the early 2000’s the Detainee and the others were kept in a Provincial jail – Metro West here in Toronto, which is designed for inmates convicted of crimes committed in Ontario and on sentences of two years less a day. Since the Detainees had committed no crime they could not be mixed with the prison population and were therefore kept in Solitary Confinement, often in cells that were cold and for which the jailers would do nothing to correct. This and other indignities caused the detainees to go on several hunger strikes which forced the courts at the instigation of the lawyers appointed to represent the Detainees, to order better conditions. Eventually the Canadian government built a $multi-million ‘Kingston Immigration Holding Centre’ – KIHC - located as a separate entity with its own guards at Millhaven Correctional Institution at Bath, Ontario.
The Detainees who have moved back and forth from complete incarceration to house arrest, where all of them are now, have never been deported because Canada has signed onto an international agreement to not send an immigrant or refugee back to their home country if there is a reaonable possibility that they will be tortured or killed. Federal Court Judges have upheld this decision and so the Detainees have been kept in either complete custody or house arrest with severely restrictive conditions on movement and communication with others. Court hearings seem unending. Under Canadian Immigration law the Detainees have the right to at least two kinds of hearings – 1. Reasonableness of the Security Certificate Hearings one of which is presently in its third year and 2. Detention Review every six months – which means that some of the strict conditions on travel and communication can be lifted if the Detainee has been of good, reliable behaviour. 3. Other kinds of hearings such as one where CSIS has been accused and admitted to listening in on Lawyer-Client telephone conversations.
In 2007 the Supreme Court of Canada struck down the Security Certificate legislation at the same time as one of the Detainees from Montreal had his Security Certificate quashed and became a free man. The Court gave the government one year to rewrite the legislation to make it more fair. The legislation of 2008 is almost the same but with the addition of the appointment of ‘special advocate lawyers’ who are allowed to see the ‘Secret Evidence’ but cannot communicate this to the Detainee or his lawyer. Their role is to represent the detainees interests in the secret trials. They are allowed to meet and talk with the detainee and his lawyer only before they see the secret documents, and not again after that.
There are two kind of hearings – public ones where a public summary of the allegations is provided to the detainee and his lawyers, and secret ones where only certain people get to see the ‘Secret Evidence’ but neither the Detainee nor his lawyer.
Let me introduce you to the characters:
1. person holding secret evidence box takes his/her place near ‘Secret Evidence Box’
2. the Detainee (who is at side of stage looking sad and confused)
3. the Judge has access to all of the information both secret and public and it is his or her responsibility to determine, through the course of the reasonableness hearing, to determine whether or not the detainee poses a danger to Canadian national security.
(walks across the front to the secret evidence box and looks inside while Narrator is reading and stays by the box)
4. the Government lawyer(s), who represent the interests of both the CBSA and CSIS also have access to all of the information available and are able to argue their case against the detainee in both open and secret trials. (walks across the front to the secret evidence box and looks inside while Narrator is reading and stays by the box)
5. the Special Advocate, the only person representing the interests of the detainee in the secret trials, may see all of the secret information and question the accuracy and sources of information and argue on behalf of the detainee. (walks across the front to the secret evidence box and looks inside while Narrator is reading, after looking in the box mimes asking questions of the government lawyer before the judge)
(two characters – Government lawyer, Special Advocate - depart the stage)
6. the Detainee’s lawyer and the Detainee receive a publicly authorized summary of the allegations which is the main document they are fighting against in the public hearings. They may never know the full case that the government lawyers have prepared and must present evidence and argue their case to the best of their efforts. The ‘Reasonableness Hearing’ is not about guilt or innocence of the detainee, but rather whether or not it is reasonable to detain - in jail or under strict house arrest – indefinitely, based on allegations that cannot be proven and without enough evidence to press charges under Canada's existing anti-terrorism laws.
(detainee and his lawyer walk across to the secret evidence box and are not allowed to look in the box but are given or take the redacted document - lawyer shows it to the audience revealing blacked out lines; they look at each other and sadly walk off stage)
Today, two detainees, Adil Charkaoui and Hassan Almrei are free men. Federal court judges found the security certificates against them to be unreasonable. Mohammed Harkat has had his certificate upheld earlier this year and remains under house arrest as an appeal is underway. Mahmoud Jaballah and Mohammed Mahjoub are currently in the midst of their reasonableness hearings and are awaiting a final decision.
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