Minister eyes changes to security certificate law amid terror case problems
By Jim Bronskill And Sue Bailey (CP)
December 13, 2009
OTTAWA—The federal government has launched a sweeping review of a crumbling anti-terrorist law, acknowledging the system needs fixing, The Canadian Press has learned.
“We are working on it actively, very actively, and recognize that the current situation is not ideal – and that there is a need for change,” Peter Van Loan, Canada's public safety minister, said in an exclusive interview.
The review of the rickety national-security certificate system could scrap or revamp a law used to arrest and deport non-Canadians considered a threat to national security.
Certificates have existed for three decades, and more than two dozen have been issued since 1991, when they became part of federal immigration law.
But legal challenges and upbraidings from judges over miscues by Canada's spy agency have seen recent cases slow to a crawl – or collapse altogether.
“I'm contemplating what we would do in the future, and whether that is an appropriate instrument,” Van Loan said.
“I'm taking a serious look at it, trying to work our way through what the implications of the court decisions are and how we can balance that with our ability to assure the national security of Canadians.”
The government has initiated just six certificate cases – four terror suspects, a hatemonger and an alleged Russian spy – since the 9-11 attacks on the United States.
But for critics, the deportation tool has come to symbolize the worst excesses of the fight against Islamic extremism.
Opponents say the process is fundamentally unfair because detainees are not given full details of the allegations against them.
A case involving Montrealer Adil Charkaoui, a native of Morocco, fell apart recently when the government withdrew supporting evidence, saying its disclosure would reveal sensitive intelligence sources and methods of the Canadian Security Intelligence Service.
A judge's demand for information in the Charkaoui case “pushed us beyond what we could accept,” CSIS director Richard Fadden said in an October speech.
Charkaoui, a French teacher and father of three, wants compensation for his six-year ordeal.
“I think strongly that any country must defend their own interests against terrorism, against any threat,” he says, “but they must do it in (a) very fair way.”
Four active cases range from seven to 10 years old, illustrating the legal limbo that certificates can create for detainees.
Mahmoud Jaballah and Mohamed Zeki Mahjoub, both Egyptian, were arrested in 1999 and 2000 respectively, while Hassan Almrei of Syria was detained one month after Sept. 11, 2001, and Mohamed Harkat of Algeria seven years ago this month.
But even if the courts find the certificates to be valid, it's unclear whether the men could be deported because each says he has reason to fear being tortured if forced back to his homeland.
The Supreme Court of Canada has ruled that such suspects can be deported to face a risk of torture only if they pose an exceptional risk to national security.
All four men have been granted release from prison under strict conditions that control virtually their every move while the cases play out in the Federal Court of Canada.
RCMP Commissioner William Elliott says security certificates have become a means of controlling terror suspects from abroad “when there really isn't anywhere to send them.”
“They're here indefinitely, but there has been a series of decisions by courts which have given those individuals more and more liberty,” Elliott said in an interview with The Canadian Press.
Canada has tried to get assurances that terror suspects won't be mistreated, he noted. “But if you have a country that tortures people, you've got to really wonder about how good their word is. So it's a problem. I'm glad we're not in the lead on it.”
If the government ever argues before a judge that certificates are a good means of detaining someone indefinitely, the whole scheme will be struck down as unconstitutional, said Craig Forcese, a national-security law expert who teaches at the University of Ottawa.
“The courts are just not going to turn a blind eye to use of the immigration law as a sort of underhanded way to put persons in detention if the deportation prospect is removed from the table. It just isn't viable.”
Toronto lawyer Barbara Jackman, who has represented several certificate detainees over the years, calls the system the Cadillac of the security world: big, flashy vehicles for warning ethnic minorities to stay in line.
“It's hype and show, that's what they are.”
Reid Morden, director of the Canadian Security Intelligence Service from 1988 to 1992, sees the certificate process differently.
“Rather than the Cadillac, I would say it's kind of the instrument of last resort if you're trying to get somebody out of the country.”
Canada's generous laws make it a “safety net for undesirables,” says Morden. “Once you step off the plane you're here forever.”
As a result, Morden says he wonders just how worried officials should be if someone “gets deported back to a country where things are perhaps less orderly in terms of process.”
“Canadians have a little difficulty with this, I think, but this is not a tea party.”
Some certificate cases that have resulted in actual deportations from Canada raise serious questions about whether the removal of those detainees did anything to stamp out terrorism.
An investigation by The Canadian Press into files that have long since slipped below the public radar reveals:
-An alleged Sikh extremist who left Canada for the Central American country of Belize has disappeared.
-An Algerian man who once lived in Montreal has languished for years in his homeland's prison system and tried by the courts without counsel, a violation of basic justice principles.
-And a former member of the Palestine Liberation Organization – a past association that made him unwelcome here – has since been embraced as a citizen of Belgium, one of Canada's democratic allies.
In two cases where certificates failed, the government is trying more conventional means to deport men living in the Toronto area.
Manickavasagam Suresh, an alleged fundraiser for the Tamil Tigers, had been subject to a security certificate for more than a decade. But when the process was revamped last year, the government did not issue a new certificate.
A Canada Border Services Agency official told The Canadian Press that Suresh now faces a hearing before the Immigration and Refugee Board to determine whether he can remain in Canada.
Certificates levied against Palestinian Issam Al Yamani were thrown out by the courts on two occasions. He is still fighting a deportation order, saying he fears torture if sent back to Lebanon, his former home.
Al Yamani, 53, has been waiting for a federal assessment of that risk for more than three years. “And I haven't heard anything from them,” he said in an interview.
Critics say deportation, even if possible, is a poor means of tackling the threat of extremism because it merely punts the problem to another country.
Jackman, lawyer for both Suresh and Al Yamani, says security agencies in Canada should track suspected terrorists.
“And if they are engaged in criminal activity, charge them.”
Forcese says the advent of the Anti-Terrorism Act in 2001 has made it much easier to charge people because it expanded the scope of what constitutes terrorist activity.
In cases where there is insufficient evidence for a charge, he argues, the government could ask a judge for a peace bond, an order issued under the Criminal Code that allows authorities to keep someone under surveillance.
Van Loan said he is looking at peace bonds as a potential solution that relies more heavily on the criminal law – through existing or new legislation.
“I think if there's any situation where we can successfully carry out a prosecution, we should.”
The RCMP's Elliott agrees, but says the evidence isn't always there to make a case in court against a potentially dangerous terrorist.
The Mounties simply don't have the resources, or the mandate, to follow alleged extremists around, Elliott said.
He says non-Canadians suspected of terrorist activity are not entitled to the same rights as citizens and should be shipped out of Canada.
Elliott concedes that's not always possible, however.
“I think the reality of it is, there is no simple solution.”
