Ottawa’s Hands Tied On Terrorism

Ottawa's hands tied on terrorism
By our laws, there's no way to hold suspects

John Ivison
National Post
Published: Thursday, November 26, 2009

What would happen if Osama bin Laden washed up on the coast of Vancouver Island in a rusting old hulk and claimed asylum? If it was left to our immigration system, he'd share the same fate as the one that probably awaits the 76 Sri Lankan Tamils who arrived in Canada last month aboard the Princess Easwary — that is, he'd walk free, be set up in a hotel, told he was entitled to work and handed a welfare cheque.

In both cases, experts argue, Ottawa's hands would be tied by the laws presently on the books — thanks to the recent court decision that imperilled the use of security certificates. As with the Tamils, bin Laden would initially be detained by the Canada Border Services Agency and then obliged to appear before an Immigration and Refugee Board review hearing to establish his identity.

As with the Tamils, the Minister of Public Safety would likely ask the IRB to detain him while it investigated whether there was “reasonable suspicion” of inadmissability on security grounds.

As with many of the Tamils, the al-Qaeda leader would probably find his refugee claim turned down — in their case, on the basis that some of them are suspected of being Tamil Tigers, seeking to regroup and rebuild their terror organization in Canada (traces of explosives have been found on the migrant ship, while one expert said it is owned by the Tigers); in his, because he is the world's most wanted man. Yet in both cases, any attempt to deport them back to whence they came would likely founder on the grounds that they would be tortured in their home countries. Removal to torture is not only inconsistent with Canada's international obligations, it very likely violates our constitution. Regardless of the alleged atrocities an individual may have committed, a pre-removal risk assessment by the federal department of Citizenship and Immigration trumps all other evidence.

This comparison is, of course, more than slightly facetious. In all likelihood, the immigration process would not come into play against the al-Qaeda leader, who would probably be thrown in jail on arrival under the Criminal Code and charged with crimes against humanity. But it does show how bankrupt the immigration process has become when it comes to dealing with terrorist suspects.

In the days of yore — that is, up until last month — the government had the option of detaining and deporting foreign nationals it suspected of violating human rights or being a threat to national security, through the issuance of a

security certificate. However, the case of Adil Charkaoui, a Moroccan living in Montreal, which collapsed in court last month has, in the eyes of many security experts, killed the security certificate as a tool against terrorism. Mr. Charkaoui's security certificate was lifted after the government withdrew evidence that the Canadian Security Intelligence Service deemed too sensitive to be disclosed publicly, as the Federal Court had demanded.

Richard Fadden, director of CSIS, expressed his frustration in a recent speech, saying the court's decision presented the agency with a fundamental dilemma: “To disclose information that would have given would-be terrorists a virtual road map to our tradecraft and sources; or to withdraw that information from the case, causing a security certificate to collapse.” The implication is that no new security certificates will be sought any time soon.

The end of the Charkaoui case has led some experts to say that it is time for the government to come up with a Plan B and shift the emphasis in the fight against terror toward the Criminal Code. Craig Forcese, who teaches national security law at the University of Ottawa's law school, said that a number of terror provisions introduced since 9/11 have extra-territorial reach and can be applied to crimes committed overseas. “The next stage is to finance law enforcement to use those provisions that have been on the books since 2001,” Mr. Forcese said. “At the moment, their use is comparatively uncommon, compared to the U.S. or U.K.”

A similar argument was made last month in a speech by William Elliott, the RCMP Commissioner, who said he believes law enforcement and criminal prosecution will be the “new paradigm of national security” in Canada and elsewhere. However, he noted that the Mounties would have to increase their “investigative capacity, including our capacity to conduct and support extra-territorial investigations.”

In his plea for more resources, Mr. Elliott said the RCMP has received only a “small portion” of the billions spent by successive government on national security since 9/11 and questioned whether the focus on enhanced security has overshadowed the role of law enforcement. “We need greater capacity to put more terrorism cases before the courts and more terrorists in jail,” he said.

This might seem to be one of those motherhood claims with which it is hard to argue. Except that cases in open court clearly militate against the use of secret evidence, such as that which CSIS deemed was too sensitive to reveal in the Charkaoui case.

As James Bissett, a former executive director of the Canadian Immigration Service, put it: “We get information from foreign intelligence services on the basis that it isn't made public. It has worked very well in the past and is only used in the most serious of cases.”

Another knock on a system that relies entirely on law enforcement is that the evidentiary threshold in immigration cases is much lower — the government wins if it can show “reasonable suspicion,” whereas in a criminal case it must prove the allegation beyond a reasonable doubt.

Finally, amassing evidence in a criminal case concerning events that took place outside Canada is very expensive — the recent Rwandan war crimes trial of Desire Munyaneza in Montreal took place in five countries over two years and cost millions of dollars. There certainly seems to be enough grounds in the case of some of the Tamil migrants to warrant “reasonable suspicion” they were linked to a terrorist organization — one man is even said to sport a Tamil Tiger tattoo.

Whether those suspicions can be proven beyond reasonable doubt in a timely and cost-effective manner is another matter. History suggests that the majority of the Tamil migrants will be released and that many will have disappeared by the time their refugee hearings come up in three or four years. As Mr. Bissett said: “The system is totally out of control.”

Mr. Fadden said he believes that Canada as a country has a “serious blind spot” when it comes to terrorism. “Many of our opinion leaders have come to see the fight against terrorism not as defending democracy and our values, but as attacking them. Almost any attempt to fight terrorism by the government is portrayed as an overreaction or an assault on liberty.”

The government has been caught off-guard by the Charkaoui case and is still reviewing its implications. But the Conservatives must be bold and come up with some form of legislative response that shows that the government, and not courts who believe civil liberties trump security, are setting the agenda in the fight against terror.

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