Mohammed Azhar Ali Khan

Canada is among the world’s freest, most democratic and liberal countries and Canadians enjoy the rule of law and the charter of rights and freedoms. Yet such are the turbulent times we live in that even Canada is having difficulty balancing the need to protect Canadians while ensuring that Canadians continue to enjoy the blessings of freedom and security.



Even before the two terrorist incidents that recently killed two soldiers in Ottawa and Quebec, Canadian security had foiled terrorist attempts in Ottawa and Toronto by some Canadian Muslims. These were educated, well-settled youth, not drug-addicted, mentally ill or unstable loners who had embraced Islam to clean up the mess in their lives. So Canadian security remains alert, as it should. Some terrorist attempts were thwarted because Muslims tipped off the authorities.



Two developments highlight the dilemma of the government and of Canadian citizens who want their country to be safe but who also wish to protect the freedoms with which Canadians are blessed. One is the Diab case; the other the Secret Trial 5.



Dr. Hassan Diab is a Canadian academic who has been extradited to France to stand trial for an attack on a synagogue in Paris in 1980 that killed four people and injured more than 40. The chief suspect in that crime escaped but left behind a sample of his handwriting in his hotel.



French authorities claim that the suspect’s writing resembles that of Diab. France withdrew two handwriting reports that it had submitted after Diab’s lawyers asserted that the writing was not that of Diab but of his former wife.



Five Canadian, American and European experts described the French handwriting report as flawed and unreliable. Justice Robert Maranger of the Ontario Superior Court labelled the French report as “very problematic,” “convoluted,” “very confusing,” and “suspect.” But he ordered Diab’s extradition to France saying that the federal extradition law admits foreign evidence even if it is so unreliable that it would be inadmissible in Canadian courts. The Royal Canadian Mounted Police asserted that Diab’s fingerprints and palm prints do not match those of the suspect.



The Ontario Court of Appeal and the Canadian Supreme Court refused to overturn the Superior Court’s ruling. Ironically, Canadian provinces differ in their interpretation of the Canadian extradition law. If Diab lived in British Columbia, he would not be extradited, but because he lived in Ontario, he was forcibly sent to France.



Diab denies having anything to do with the bombing or being in France at the time of the explosion. However, the question is not whether Diab’s denials are solid but whether there was enough reliable evidence to extradite him to France and whether he will get a fair trial there. The evidence against Diab is flimsy. The only hope is that the wide publicity the case has had will prod France to conduct a fair and speedy trial to uncover the truth.



The other case involves five Muslims who together spent 30 years under arrest without being charged or being shown evidence of any wrongdoing. Their plight is documented by the film The Secret Trial 5, which a team of Christian, Jewish and Muslim Canadians made on a shoestring budget because they value freedom and fairness.



When I saw the documentary in Ottawa, I was pleased that the theater was more than two-thirds full and that the mostly white audience clapped loudly to express their support for a free trial and the rule of law. The film has won the Honorable Mention Emerging Canadian Filmmaker Award HotDocs in Toronto and the Magnus Isacsson Award in Montreal. It was in 1999 when Mahmoud Jaballah, a Scarborough, Ontario, high school principal was detained without charge under the “security certificate” of the Canadian immigration law. The evidence was kept secret. In the next four years, Mohammad Zeki Mahjoub of Toronto, Hassan Almrei of Mississauga, Mohamed Harkat of Ottawa and Adil Charkaoui of Montreal were also arrested and held without charge. Mahjoub is still under house arrest. He is the only one who refused to appear in the Secret Trial 5 documentary. However, the Canadian Security Intelligence Service, Canada Border Services Agency, Public Safety Canada, Immigration Canada, Correctional Services Canada and the Department of Justice also declined the filmmakers’ request for interviews.



In 2007, the Supreme Court unanimously stuck down the security-certificate system as unconstitutional. But the government modified the law and the matter will again go to the highest court. Amar Wala, Noah Bingham and Madeleine Cohen produced the film.



Wala began working on the film in 2009 when he was 26. It took five years and a “very difficult struggle” to complete it. But he did so to uphold justice and human rights. Thankfully, Canadian security has foiled attempted terror several times. But people have also been wronged. The government had to pay Maher Arar millions for its role in his torture in Syria. Abdullah Al-Malki, Muayyed Nureddin and Ahmed Abou-Elmaati have sued the government for complicity in their arrest and torture in Syria and Egypt. Former Supreme Court of Canada Justice Frank Iacobucci’s report and that of Justice Dennis O’Connor criticized the government’s handling of these cases.



It is a thankless situation for the government and citizens alike.

 

— Mohammed Azhar Ali Khan is a retired Canadian journalist, civil servant and refugee judge.