Elements of farce in Harkat bail hearing

UPDATE: JUDGE DAWSON ORDERS:
Harkat is to be released from detention forthwith and delivered to his residence by CBSA
Read the court order (pdf format)

The Supreme Court in Ottawa was busy today with Security Certificate issues in both courtrooms.

OTTAWA: We're supposed to have respect for the law, the courts and the government. But shouldn't the respect go both ways?

I'm always complaining that judge and counsel sit on cushioned seats while the public must suffer on hard benches, but today I also observed the fresh water provided to them and how the water in the public fountain tasted like urine.

Don't drink that water, warned a friendly Commissionaire. You can buy bottled water in the coffee shop. Bottled water? I don't think so. I went into the washroom and turned my head sideways under the faucet.

I was also stunned to learn that the government's counsel doesn't speak French! Why does the government insist on bilingualism and then hire a Ministry lawyer who can speak only English to a French witness, offers no translator, and mumbles so incoherently anyway that nobody sitting behind him, regardless of native tongue, can understand what he's saying?

These are a few minor questions that crossed my mind as I sat through yet another farcical Supreme Court bail hearing in the Mohamed Harkat case. The rest of my questions are of a more serious nature.

Across the lobby in the other courtroom, another victim of Canada's Security Certificate, Adil Charkaoui, was at the same time challenging the legality of the destruction of evidence in his file by CSIS. Just a couple of days ago, a CSIS document was miraculously discovered that attributed some rather odd statements to Charkaoui, and was leaked to the press - by whom?

Doesn't the timing of this seem like a malicious attempt to smear and dilute Charkaoui's case against CSIS? Why does our government choose to operate increasingly in a covert, underhanded manner?

Now Harkat is back in the slammer on a pretext that nobody really understands, just as a review of his bail, with the hope of relaxing some of the conditions, is due next week.

It was revealed in court today that the Canadian Border Security Agency (CBSA) has been aware since last November that his mother-in-law and a surety, Pierrette Brunette, has been sleeping away from home on and off since last November. If the CBSA has waited all this time to make an issue out of it, why couldn't they have waited a few more days and bring it up at the bail review? Was this an attempt to influence the media against Harkat, and therefore the public? That's the way it seems, for sure.

Why indeed did they delay so long, in taking advantage of Sophie and Mohamed's absence on an approved outing, to invade the household to obtain photographic proof that Brunette was no longer resident there. Not only is the timing suspect, but so is their photographic evidence which proved only that Brunette had a separate bedroom, and did not show that all of her furniture, including a grand piano, are still there, that her mail still comes there, that her music school clients still telephone there, and that her business office is still there.

Is the government's case for retaining the Security Certificate such a weak one in the face of the exemplary behaviour of the detainees that deliberate smear tactics are being resorted to?

There was a public demonstration against Bill C3 going on in front of the courthouse that I never got to take photos of. What a circus the government has created at tax payers' expense in what can only be seen as desperately shoddy attempts to prove that Canadians should be living in fear of Islamic terrorism and supporting the deaths of our soldiers in a war that can't be won in the Middle East.

As to this latest bail hearing for Harkat, I would like to be able to say that I heard clear arguments for and against this latest assault on his freedom, but as I mentioned before, the government's counsel mumbled as if he didn't want to be understood by the public. And some of the questions that could be heard were blatantly inadmissible - such as trying to get Pierrette Brunette to quote her new partner and make commitments on his behalf (anybody who watches court TV knows that "hearsay" is inadmissible), and ordering her to produce the invoices she has recently sent out (presumably to find out what address they referred to), when it's the job of a judge to order a witness to produce documents.

Mohamed Harkat was brought into the room in handcuffs - the kind that attach to a belt around the waist to restrict arm movement. That's a first. And this is after 18 months of full cooperation with his bail conditions, submitting peacefully to this latest arrest, and years of perfect behaviour while incarcerated. A deliberate attempt to make him appear dangerous to the media?

I reported earlier that he was in maximum security in the general population. But during a break in the proceedings he told me he's being kept in lockdown. His eyes were somewhat bloodshot and, when asked, he admitted that he'd not been sleeping well. But he smiled with an air of acceptance, and otherwise did not complain.

Canwest has a pretty good rundown on the case made today by the government's counsel, David Tyndale. He tried hard to make the court believe that the supervision scheme had broken down, even though there was nothing presented in court that suggested Harkat was ever without a surety present at all times.

Some of the court goings on were laughable. The CBSA witness, Peter Foley, claimed not to recall that Pierrette Brunette actually did change her residence in November 2006 with the full knowledge of CBSA. Because of the special arrangements that needed to be made with regard to the GPS setup and the phones and surveillance cameras, it wasn't until the middle of February that Sophie and Mohamed were able to join her.

Foley said he kept all correspondence and would have remembered something as momentous as that. That's his job; that's what he's paid for. Yet everyone who knows the Harkats knew that they weren't able to move right away along with Brunette, and Foley can't recall that.

I personally have a copy of an email from Sophie dated in November 2006 asking that I send her something at the old address because that's where she was, and another email dated in November apprising me of her mother's new address and telephone number. In a March 2007 email, she said, "We moved just recently (in Feb)".

Nobody was keeping this a deep, dark secret.

Is Foley's lack of memory due to his not wanting to see that it's been perfectly okay all along for Brunette and the Harkats to be separated for significant periods of time as long as Mohamed was never left alone without a surety? Brunette also went on vacations and on business trips, all to the knowledge of CBSA with no problem indicated.

Yet the government's counsel is blaming Brunette and the Harkats for not reporting this "breach of bail conditions". In his mind they were breaching bail by living separately, and they were duty bound to squeal on themselves. Foley gets paid to monitor them, gave at least tacit approval by making the arrangements for transferring the GPS setup, yet he himself did not report this as a breach and furthermore now gets away in court with saying that he doesn't even recall the move.

Foley got his information about the current situation from estranged common-in-law spouse, Alois Wiedermann, who Brunette says has been trying since June 2007 to force her to sell the house, in which they have joint financial interests. Foley admitted he hadn't bothered to speak to Brunette or Sophie after his talk with Wiedermann. He examined a few weeks worth of surveillance tapes, had his people take a few misleading photos of Brunette's bedroom, and then swooped in on Harkat while he was in the shower.

Tyndale said, in attempting to prove that Brunette was not maintaining her office at the residence, that there was no computer in her bedroom. "Of course not," she responded. "My computer is in my locked office." Brunette's office had to be locked to meet the bail conditions that prevented Harkat having access to the internet. The CBSA photographers apparently were interested only in Brunette's bedroom, reminiscent of sleazy private eyes who used to photograph couples caught in or staging corpus delictum for divorce purposes.

Records of the surveillance tapes were produced to show that in late November and early December 2007, Brunette began leaving the house in the evening. But the point revealed by that was that she was at the house virtually every day. She simply wasn't sleeping there all the time. Having broken off her relationship with Wiedermann in June, she found a new companion in October, and finally had a place to go to get away from the domestic tension.

But she continued to act as surety when Sophie couldn't. In fact, she made it her top priority, cancelling client appointments in order to make herself available.

Brunette's idea of a permanent residence is the commonly accepted one: it's one's address, it's where one gets one's mail, where one is telephoned, where one's furniture and belongings are. Sleepovers are not an indication of having moved. But that's what the government seems pruriently hung up on - her sleeping arrangements.

Is this a result of religion not being as cleanly separated from state as it once was? Or is it just a hook on which to hang this latest travesty of our justice system?

Something else that seemed a bit ridiculous: the judge ordered Sophie and her mother excluded while Foley gave his testimony. And yet when the public went outside for a break in the proceedings, any one of them could have passed on what was said inside. When I joked about that to Brunette, she laughed. But she didn't ask me what was said, and I didn't inform her. Clearly, she was going to tell the truth no matter what anyone else said.

Can the public be blamed for seeing these proceedings as farcical and expensive in terms of money and human consequences?

Harkat's counsel Matthew Webber, in his summations, reiterated that Harkat has never been left unsupervised by a surety and commented on the human aspect - the toll on all concerned that the rigid bail conditions exact, contributing substantially to the painful breakdown of Brunette's relationship with Wiedermann. He also raised the issue of length of time served and the corresponding law of "diminishing risk", and if Harkat isn't a perfect exemplar of that concept after 18 months of so-called freedom, it's hard to imagine what example could be used.

Tindale, however, insists he is going "on the basis of his record" when what he means is that he is going on what CSIS has accused him of in secret and has predicted ("once an ideologue, always an ideologue) will happen if Harkat is ever allowed to go free.

Judge Dawson reserved judgment as to whether or not Harkat can go back home until his bail review comes up next week. Her decision is not likely to come down until sometime Friday morning.