October 02, 2008, Michelle Shephard, National Security Reporter Toronto Star

Critics call the prison where Syrian refugee Hassan Almrei spends his days “Guantanamo North.” As the sole prisoner at the specially built detention centre on the grounds of Millhaven penitentiary in the Kingston area, Almrei is locked up alone, with guards looking in from an adjoining room. Later this month, he’ll mark the seven-year anniversary of his incarceration on a “national security certificate” as the federal government continues to try to deport him as a danger to Canada.

But aside from the mental anguish of being locked up alone, there’s little comparison physically between the conditions of Almrei’s detention and the notorious U.S. prison on a navy base in Cuba.

Almrei walked to an interview last week unshackled, dressed in his own clothes, and brought his visitor a bottle of water and juice he had been able to purchase. He spends most days reading and watching TV – CPAC, Canada’s parliamentary channel, is his favourite.

It is, however, the legal limbo in which he is trapped that draws comparisons to Guantanamo. The national security certificate cases typify the struggle that has taken place since 9/11 between Western governments and the courts regarding terrorism law.

“This is not Guantanamo Bay that people think of, but the comparison … is a matter of a principle,” Almrei said in an interview last week with the Toronto Star.

“I am in jail for seven years in a country where they call themselves a democratic country. They believe in principle of law (but) they have a double standard – one for Canadian citizen, one for non-citizens.”

The national security certification is an immigration law where the threshold of proof is lower than in criminal prosecutions; Almrei has asked to be charged criminally if the government has evidence linking him to terrorism.

Today, Almrei will ask a Federal Court judge to grant him bail. Of five outstanding national security certificate cases, Almrei is the only individual still detained.

His previous bail applications have been turned down largely because the 34-year-old isn’t married and doesn’t have family here, which means there’d be no one to oversee his compliance with his bail conditions.

The national security certificate legislation was enacted more than 20 years ago but received increased public debate after 9/11 and had to be rewritten after the Supreme Court struck it down as unconstitutional in February 2007. The high court objected to the government’s use of secret evidence.

In February, the government enacted the new law, which now has provision for “special advocates” who will have security clearance and can cross-examine the secret evidence presented by Canada’s spy service, CSIS.

Last Friday, the new law was the target of another epic constitutional challenge launched by top civil rights litigators. Toronto lawyer Lorne Waldman opened the hearing by acknowledging that national security certificates have already seen years of court battles – two of which reached the Supreme Court – but that more were warranted.

“These cases go to the heart of the rule of law in Canada. These cases challenge everything we believe to be fundamental,” he said to Federal Chief Justice Allan Lutfy.

Waldman and others argue the law doesn’t ensure fairness because of the restrictions imposed on the special advocates. They are forbidden from talking to anyone, even the accused, about the case once they’ve viewed the secret evidence (unless they obtain the judge’s consent). The government lawyers submitted that the restriction was necessary to safeguard against “inadvertent disclosure of confidential information.”

Toronto lawyer Paul Cavalluzzo, who served as the commission counsel in the inquiry into the Maher Arar affair, is one of the designated special advocates. But Cavalluzzo is among those opposing the new law, saying he required free access to Arar throughout the inquiry to effectively challenge the government’s information. (The U.S. rendered Arar to Syria in 2002 based on information received from Canada authorities. The government issued an apology and a $10.5 million settlement last year.)

“I believe one of the key skills required to perform my function was to be able to elicit information from interested parties, without revealing any secret information,” Cavalluzzo wrote in a court affidavit.

The government called the challenge “premature” and “hypothetical” in defending the law’s fairness.

“(The law) strikes an appropriate balance between protection of the confidentiality of material which if disclosed could be injurious to national security and protection of the rights of the individual,” the government’s written brief stated.

Almrei listened to the proceedings last Friday through a telephone link. Two other men the government accuses of having links to Al Qaeda came to the court.

Mahmoud Jaballah and Mohamed Mahjoub have both been granted bail with strict provisions. During the hearing Mahjoub’s GPS locator beeped loudly, prompting him each time to record the time and his whereabouts in a notebook.