In a major test of the country’s new secrecy-shrouded special advocate regime, the Federal Court has quashed an “unreasonable” security certificate and condemned Canada’s spy agency for failing to voluntarily disclose secret evidence inconsistent with its allegations that an Arab man poses a risk to national security. On Dec. 14, Justice Richard Mosley quashed Hassan Almrei’s security certificate on the basis that there are presently no reasonable grounds to conclude that Almrei remains a danger to national security, even though he said the Canadian Security Intelligence Service (CSIS) did have reasonable grounds to consider the Syrian national dangerous when he was first detained on a security certificate in October 2001. (The law requires the court to assess whether there is a current risk to national security when deciding whether a certificate is reasonable). [PHOTO: Lorne Waldman and Sarah Boyd were Hassan Almrei’s public counsel.] While Almrei, who was admitted to Canada as a refugee in 1999, did lie to Canadian authorities, did associate with persons believed to be Sunni Muslim extremists and did engage in criminal activities, including using a false passport for himself, and was prepared to obtain false passports and travel documents for others, “the Hassan Almrei of 2001 is not the same person I heard and observed in the courtroom,” the judge explained.He found that Almrei has changed for the better during eight years in detention and is “unlikely to violate the principles of his” Muslim faith.

Moreover, the judge found that even if Almrei remains the same person, as the government maintains, “it is unlikely that after such a prolonged period of detention he could re-enter the life that he had and reactivate his contacts in the false document trade. Given the notoriety that he has acquired, that would be foolhardy for him and for anyone inclined to do business with him.”

Justice Mosley’s ruling breaks new ground on several fronts. It marks the first time that a security certificate case has been decided on the merits by a judge since Parliament replaced the old security certificate regime struck down two years ago by the Supreme Court of Canada with the controversial special advocate system that kicked in Feb. 22, 2008.

His 185-page ruling addresses novel procedural and factual issues; canvasses the murky state of knowledge about the Bin Laden network; and sheds considerable new light on the behind-the-scenes work of Canada’s special advocates (SAs)  — teams of two security-cleared lawyers who have been working behind closed doors to challenge the credibility and reliability of the government’s secret evidence against five Arab men who were held under security certificates post 9-11.

Almrei’s SAs played a key, if not decisive, role in getting his security certificate quashed. Gord Cameron of Ottawa’s Blake Cassels and Graydon and Paul Copeland of Toronto’s Copeland Duncan spent hours digging through secret CSIS electronic surveillance and intercept evidence (that was disclosed by CSIS under compulsion, rather than voluntarily as it should have been). Described as “highly relevant” by the judge, the evidence they unearthed contradicted the testimony — and undermined the credibility — of some “human sources,” on which much of the government’s case rested.

According to Justice Mosley, the SAs “very effectively performed the roles for which they were given a statutory mandate: to protect the interests of the respondent in the closed proceedings; to question the withholding of information; and to challenge the relevance, reliability and appropriateness of the information [not disclosed to Almrei] and other evidence relied upon.”

The questions remain: does the SA system work? Has it cured the worst effects of the problem that the named person is not allowed to see the government’s secret evidence?

According to Almrei’s SAs, and two of his public counsel, Canada’s security certificate regime remains unfair, and possibly unconstitutional. But they also agreed the system can sometimes reach the right result — as they say it did in Almrei’s case. (At press time, government counsel had not called back.)

“In some cases the work of the special advocates can make the system fair, but in other cases [SAs] won’t,” observed Almrei’s lead public counsel Lorne Waldman of Toronto’s Waldman and Associates.

“In this case, because we had exceptional special advocates, and they were able find the inconsistencies that undermined the credibility [of the human sources of CSIS], the system worked,” commented Waldman.

“But that doesn’t mean it will work in every case,” he cautioned. Waldman maintains that the security certificate regime violates the Charter and should be scrapped because it unduly restricts communication between the person named in the security certificate and his or her SAs.

“To the extent that the [SA] process is or is not constitutional, it seems to have worked in this case, probably because we had a really good judge,” observed Copeland. “The result was favorable to Mr. Almrei in what I would regard as a significant uphill battle.”

Cameron acknowledged “it’s challenging to protect the interests of a person that you are not allowed to talk to. But in this case it worked because the secret evidence could be refuted without the assistance of the named person.”

Cameron pointed out “that is not going to always be the case, so the process wouldn’t necessarily be as successful for a named person in another case.”

Sarah Boyd, Almrei’s public counsel along with Waldman and Paul Williams, said the judge’s finding that the government breached its duty of candour to the court in what remains a largely ex parte process is a black eye for CSIS.

She said the court has also sent a strong message that in order to prove that a security certificate remains reasonable, CSIS must continue updating its case until the certificate is judicially reviewed (in this case, eight years after the original certificate was issued). “The entire picture changed immensely over eight years,” Boyd said. “They can’t just rely on the initial case.”

She added the decision also confirms that CSIS had “serious problems” with its human intelligence sources. “It’s a very clear statement from the court that they need to change the way they do things. They need to be much more careful. There is a difference between intelligence and evidence, and if they are going to start presenting intelligence as evidence, it needs to be up to the standard” of evidence.

Cameron highlighted the importance of the judge’s statement that the presence of SAs doesn’t relieve the government of its duty of utmost good faith to the court, including making full disclosure of all exculpatory evidence.

On that score, the judge found CSIS and the Ministers of Immigration and Public Safety breached their duty of candour to the court. He noted the CSIS report created to bolster the new security certificate issued in 2008 “was assembled with information that could only be construed as unfavourable to Almrei without any serious attempt to include information to the contrary, or to update their assessment. As [a CSIS] official observed, in an unguarded moment, they thought that they had done their job in 2001 and there was no need to continue the investigation.”

At press time the government had not yet announced whether it will seek to certify a question for appellate determination — its only appeal route. However the government has said it is reviewing the security certificate law — which allows foreigners suspected of terror links to be detained and deported once a court affirms that there objective grounds to reasonably believe they are a risk to national security. The government said “an increasingly complex legal environment” as well as spiraling costs have triggered the review.

Almrei marks the second of five security certificate cases against Arab nationals to collapse. The case against Adil Charkaoui imploded after the government threw in the towel by refusing to allow the court and SAs to review some of its secret evidence.

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