Hassan Almrei may or may not have been a terrorist, but nobody could deny his suffering. For five years, Almrei had faced deportation to Syria and possible torture at the hands of secret police. Cooped up in what amounted to solitary confinement, he was prohibited from even touching his wife or children.

So, what was uppermost on Almrei’s mind? Shoes.

Administrators at Toronto’s Don Jail had steadfastly refused to let Almrei have any, lest he hurl them at guards. Frustrated and furious, Almrei had exhorted his lawyer, Barbara Jackman, to drop everything and litigate.
It was a syndrome Jackman, who has her own Toronto firm, Jackman & Associates, has come to know well. Clients on immigration security certificates always seem to fixate on this sort of irritant — annoying deprivations, to be sure, but decidedly minor in the grand scheme of things.

“We had to go to court for six days over that one,” Jackman recalls, a look of benign, seen-it-all resignation on her face. “The judge finally ordered the jail to give him shoes.”

A charter member of a growing cadre of Canadian lawyers who have learned to traverse the nuanced byways of terrorism law, Jackman says an individual who faces deportation lives under constant psychological pressure.
“They focus enormous energy on the most picayune living conditions — perhaps because it is the only arena they have some possibility of control,” she says.

Frenzy of fear

Six years after the 9/11 attacks on the World Trade Center launched a frenzy of fear and legislation around the world, lawyers fighting on both sides of Canadian national security cases have met the unusual challenges raised by it.

For prosecutors, that has meant facing a thicket of issues involving the use of clandestine information-gathering techniques. Succumb too easily to demands for disclosure, and you can jeopardize international alliances, endanger sources — perhaps even precipitate a violent incident on Canadian soil.

Defence counsel face quite different challenges. Clients tend to lack resources to pay legal fees, the work hours are grueling, and evidentiary blind alleys loom at every turn.

Take Dennis Edney, an Edmonton criminal lawyer who can only dream of having Jackman’s problems. She, at least, has access to her clients. Edney, on the other hand, has spent the past four years attempting to safeguard the interests of Omar Khadr without having once laid eyes on his 20-year-old client, who stands accused of hurling a grenade that killed a U.S. serviceman in Afghanistan in 2002.

Under draconian U.S. anti-terror provisions, Khadr — the only Canadian imprisoned in the notorious Guantanamo Bay detention centre — cannot meet with either Edney or his co-counsel, Nathan Whitling of Parlee McLaws LLP. The lawyers twice thought they had made a breakthrough and were preparing to leave for the airport when they learned U.S. officials had withdrawn permission for a face-to-face meeting.

Edney’s frustration is palpable. “You have a gutless country called Canada where the government has not been able to extract even the most meager of concessions from the U.S.,” he says. “My client is a boy who was shot twice and is blind in one eye, but they won’t even let an independent medical person in to visit him. Out of all the cases I have done, Khadr is the one that gives me nightmares. He has been completely abandoned — and we in Canada have done this. I feel sometimes as if I’m representing Charlie Manson, instead of some youth being held in Guantanamo Bay who has not been proven to have done anything wrong.”

The Khadr case has proved to be an odyssey for Edney and Whitling. It has taken them from U.S. courtrooms, where they made amicus curiae arguments, to the Federal Court of Canada, where they fought for an injunction to prevent CSIS and RCMP agents from interrogating Khadr in Guantanamo Bay in violation of his Charter rights.

Simultaneously, they have submerged themselves in an Ontario Superior Court proceeding involving the extradition of Khadr’s brother, Abdullah, to the U.S. They will ultimately argue that the U.S. — with help from Canadian authorities — is relying on evidence obtained under torture while Abdullah Khadr was in a Pakistan prison. “His story is far harsher than what happened to Mr. Arar,” Edney remarked. “We can prove this man was tortured, that he was arbitrarily detained and questioned for days at a time by both the RCMP and FBI.”

 As if his terrorism file is not thick enough, Edney is also representing a member of the so-called Toronto 17 — a group of alleged terrorists facing criminal charges under the Anti-Terrorism Act for hatching plans that purportedly included exploding buildings and beheading the prime minister.

Being enmeshed in the world of terrorism, torture, and international spying has “opened up a door to issues that were completely unforeseen to us,” Edney reflects. “Right now, I’m going through three million documents on the Toronto 17. The more I see, the more fascinated I am. Big cases like this often don’t make you any money, but they are often the most meritorious cases that help change society and the legal system. We are fighting to protect the laws that govern us; to keep them from eroding away.”

Roots lie in deportation cases

The terrorism provisions these lawyers find themselves dealing with today trace their roots back to deportation cases in the ‘60s, ‘70s, and ‘80s — cases that targeted refugees from Chile, political activists from Turkey, Marxist ideologues from behind the Iron Curtain, and U.S. anti-Vietnam war protestors. As is the case nowadays under the Anti-Terrorism Act, extraordinary secrecy tends to surround allegations made by Canadian authorities. “It was draconian,” Jackman recalls. “You would make submissions without any idea what the allegations were.”

In 1984, the government cleared the way for proper disclosure procedures and relatively fair hearings before the Security Intelligence Review Committee (SIRC).

Back in the heyday of SIRC, targeted individuals were rarely detained. And, while a defendant’s lawyer could not be present for in camera evidentiary hearings, he or she could at least ask questions through a security-cleared, independent counsel. Edited transcripts gave the defendant and his counsel a further understanding of the evidence against him.

After 9/11, however, Canada introduced or expanded the reach of a barrage of legislation allowing for undisclosed allegations, secret proceedings, preventive detention, and the possibility of long prison terms for associating with the wrong people.