Security Certificates

When justice and security collide

posted on October 02, 2009 | in Category Security Certificates | PermaLink

by James Morton, opinion piece Source: The Toronto Star URL: [link] Date: October 2, 2009 Courts have maintained proper balance between rights of the accused and national security

James Morton past president of the Ontario Bar Association Just a few weeks after Prime Minister Stephen Harper raised fears of left-wing ideologues on the bench, Public Safety Minister Peter Van Loan said he fears for the government's ability to fight terrorism. Van Loan complained of "an increasingly complex legal environment" in which judges are no longer deferring to the government in its efforts to deport foreign suspects. "It raises questions about whether we can protect national security," he said. Certainly it has been a difficult few months for the government's anti-terrorism policy. Judges have not been notably supportive of government positions. The Federal Court of Appeal recently upheld a ruling requiring the government to ask the Americans to bring Omar Khadr to Canada. That case is going to the Supreme Court but most observers do not see a government victory as likely. Three security certificate cases, in which non-Canadians are subject to deportation on ministerial certificates, also look close to collapse. But in each of these cases – the very cases Van Loan was commenting on – collapse has not been the result of judicial activism but because of weaknesses in the cases themselves.

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Five terror suspects: $60-million

posted on October 01, 2009 | in Category Security Certificates | PermaLink

by Colin Freeze Source: The Globe and Mail URL: [link] Date: October 1, 2009 Ottawa's controversial security-certificate program to rid Canada of alleged spies came with a multimillion-dollar price tag

Ottawa has spent $60-million over the past two years in its failed attempts to deport a handful of immigrants accused of having ties with al-Qaeda, The Globe and Mail has learned. According to sources, the money has been used to fund legal cases involving five men detained under security certificates – a long-standing program that Ottawa has used in the hopes of ridding the country of suspected terrorists. Security-certificate cases have become paralyzed in the courts and polarizing for the public, and are on the verge of becoming obsolete. On Wednesday, a Federal Court judge formally quashed the case against Adil Charkaoui, the Montreal-based Moroccan being detained on a security certificate, after lawyers representing the Canadian Security Intelligence Service said the spy agency could not abide court-ordered disclosures of its secrets. Mr. Charkaoui is contemplating a multimillion-dollar lawsuit for the six years he spent under a federal detention and surveillance regime. While public discussion of security certificates has long centred on legal principles, budgetary officials are now conducting a review to determine whether taxpayers are getting value for the money spent on litigation.

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Justice prevails in security cases (Toronto Star editorial)

posted on September 30, 2009 | in Category Security Certificates | PermaLink

by Unsigned editorial
Source: The Toronto Star
URL: [link]
Date: September 30, 2009

Is Canada's ability to fight terror being hobbled by Federal Court judges who are making it hard for officials to keep foreign suspects in detention indefinitely, or on a tight leash?

Public Safety Minister Peter Van Loan worries that may indeed be the case. "It raises questions about whether we can protect national security and I can tell you I am concerned," he told Canwest News Service this week. "I spend a fair bit of time thinking about it."

Van Loan's remarks came in the wake of judicial blows last week to Canada's controversial "national security certificate" regime – the law that allows Ottawa to hold foreign terror suspects in preventive detention indefinitely, or under close watch, until they can be deported.

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Crown to argue for better protection of state secrets

posted on September 30, 2009 | in Category Security Certificates | PermaLink

by Colin Freeze and Bill Curry
Source: The Globe and Mail
URL: [link]
Date: September 30, 2009


Crown lawyers acting for CSIS will argue today that judges need to better safeguard state secrets, after the agency sabotaged a high-profile terrorism case rather than disclose sources.

One week ago, Adil Charkaoui, 36, left a Montreal courtroom a free man, six years after the Moroccan was first branded an al-Qaeda suspect by the Canadian Security Intelligence Service. Today the case against him will officially die as much of it had lived - in complete secrecy.

Crown lawyers will go to a closed Federal Court hearing in Ottawa to explain specifically why they pulled CSIS evidence from the "security-certificate" case. They will argue it had to be sacrificed for the greater public good, after a Federal Court judge ordered CSIS to disclose information related to informers and wiretaps - disclosures the spy service insisted it could not make.

What's at stake are disclosures in a range of cases and, perhaps, the future of CSIS itself.

Madame Justice Danièle Tremblay-Lamer, the presiding judge who ordered Mr. Charkaoui freed at a public hearing last week, will preside over today's secret hearing. In a narrow sense, her decision is a fait accompli concerning the viability of the case - "The certificate will fall. How, is the question," she said last week - but some big-picture questions remain unresolved.

Judge Tremblay-Lamer will determine whether any questions from the Charkaoui affair are to be salvaged for the contemplation of appellate courts. Alternatively, she could rule the Crown simply resorted to legal shenanigans to save face and decline to send issues to the higher courts.

The government's legal gambit yields an insight into intelligence disputes, even as it leaves some of Canada's most learned legal observers mystified. One thing that is clear is federal security certificates - the rare cases where state secrets are invoked to jail and deport foreigners - have become no-win situations.

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Security questions (Ottawa Citizen editorial)

posted on September 30, 2009 | in Category Security Certificates | PermaLink

by Unsigned editorial
Source: The Ottawa Citizen
URL: [link]
Date: September 30, 2009


By the time a Montreal judge gave Adil Charkaoui permission last week to cut off the tracking device that has encircled his ankle for more than four years, one of the federal government's main tools to protect Canadians from terrorism was already shredded.

Charkaoui is one of five non-Canadians accused of terrorism links who have been tracked and detained under Canada's security certificate program, and whose cases are now stalled. The program has become so unworkable that it now appears headed for extinction.

No one disputes that governments must have tools to reduce the threat of terrorism. Sometimes this means that governments must be allowed to keep information secret, to protect sources and ensure the integrity of the intelligence-gathering system. But the clumsy application of security certificates is becoming an example of how not to fight terrorism. The federal government should heed the advice of numerous jurists, most recently Beverley McLachlin, chief justice of the Supreme Court of Canada, who warned about the dangers of sacrificing human rights and charter protections in the name of counterterrorism. She alluded to tactics "... that may not, in the clearer light of retrospect, be necessary or defensible." The cases of Charkaoui and others suggest that the main effect of these tactics is to erode public trust in the government's security apparatus, which itself represents a threat to security.

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Repeal security certificate legislation says Siksay

posted on September 30, 2009 | in Category Security Certificates | PermaLink

by News Release
Source: New Democratic Party of Canada
URL: [link]
Date: September 29, 2009


OTTAWA- Today New Democrat Bill Siksay (Burnaby—Douglas) tabled a Private Member’s Bill that would repeal all sections of the Immigration and Refugee Protection Act dealing with security certificates. Siksay and the New Democrats have a longstanding commitment to repealing this process.

“Security certificates have turned into one of the worst violations of civil liberties in Canada. Detaining individuals without charge, without trial, and without conviction for seven and eight years should not be possible in a country that has confidence in its justice system and that values fairness and due process,” said Siksay. “Security certificates were never intended to make it possible to imprison someone indefinitely, they were intended to be a mechanism for expedited deportation from Canada. But today that is not how they are being used, and that is why they must be ended.”

“Security certificates should never have been allowed to replace basic police and intelligence work and the full engagement of our justice system which should have resulted, if warranted, in charges, a fair trial, and a decision by a judge or jury given the facts of the case,” concluded Siksay.

The Supreme Court of Canada ruled that the original security certificate regime was unconstitutional. Changes were made to the legislation which introduced a “special advocate” process in an attempt to make the process fairer. Critics have pointed out that the special advocates only add a façade of respectability to a very flawed process.

Recently the courts have expressed concerns about the use of security certificates and have in some cases relaxed the conditions under which some detainees have been held. Five men are currently subject to security certificates in Canada: Hassan Almrei, Mahmoud Jaballah, Mohamed Harkat, Adil Charkaoui and Mohamed Mahjoub. Mr. Mahjoub is the only one currently being held in detention at the Kingston Immigration Holding Centre (KIHC) where he is on a hunger strike seeking to have the jurisdiction of the Canada prison ombudsperson extended to KIHC.

© 2009 New Democratic Party of Canada, all rights reserved.

Frustrating standoff

posted on September 27, 2009 | in Category Security Certificates | PermaLink

by Unsigned editorial
Source: The Globe and Mail
URL: [link]
Date: September 26, 2009

It is galling that a suspected terrorist from Morocco is free to roam Canada because of a dispute between the country's spy service and a judge. In this clash between security and liberty, it is difficult to say who won. But Canadians are the losers, in the collapse of the case against Adil Charkaoui.

Canada needs to be able to detain and if possible deport suspected terrorists from abroad. The mechanism it has been using - security certificates signed by the immigration and public safety ministers - may now be unworkable. The dispute is over the public disclosure of information the Canadian Security Intelligence Service (CSIS) says could help reveal the identity of confidential sources.

Canada has alleged for the past six years that Mr. Charkaoui, who had been living in Montreal, was linked to al-Qaeda. He had been jailed for two years, then released with a court order that he wear a Global Positioning System bracelet. The dispute that permitted him to remove the bracelet this week must seem baffling, and beside the point, to most Canadians. If he was suspected of being a security risk for so long, why is he suddenly free of GPS monitoring? How frightened should Canadians be?

Caution is needed in disclosing evidence in national-security cases. It is unclear, however, whether there is less than meets the eye to CSIS's complaints. It may be that its file on Mr. Charkaoui is thin, which would explain why, as Mr. Charkaoui's lawyer Johanne Doyon put it, it stole away like a thief in the night when aspects of its evidence were to be laid bare in open court.

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Judge lifts all restrictions on Charkaoui

posted on September 25, 2009 | in Category Security Certificates | PermaLink

by Graeme Hamilton Source: The National Post URL: [link] Date: September 25, 2009 After six years, Charkaoui now a free man

More than six years after his arrest as an alleged al-Qaeda sleeper agent, Adil Charkaoui snipped off a GPS monitoring bracelet and left Federal Court a free man on Thursday after a judge said she intends to halt proceedings to have him deported. Although federal Justice Department lawyers maintain that Mr. Charkaoui remains a threat, they chose to withdraw much of the evidence against him rather than follow a court order to disclose information gathered from wiretaps, confidential sources and foreign intelligence serves. Under the security-certificate procedure used against Mr. Charkaoui, the government is allowed to file evidence seen only by the judge and court-appointed advocates representing the suspect. Justice Danièle Tremblay-Lamer decided last spring that much of the secret evidence against Mr. Charkaoui could be disclosed publicly without harming national security. On Thursday, she ruled that with that evidence withdrawn by government lawyers, the security certificate cannot be justified, and she ordered the immediate lifting of all conditions covering Mr. Charkaoui's release on bail. She said the certificate will inevitably fall following a closed-door hearing next week with the government's lawyers.

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Are security certificates obsolete?

posted on September 25, 2009 | in Category Security Certificates | PermaLink

by Colin Freeze Source: The Globe and Mail URL: [link] Date: September 25, 2009 Frowned upon by the courts, never taken out the drawer these days by crown attorneys, special tool appears headed for obscurity

Civil-liberties victories in the courts for people jailed under Ottawa's controversial security-certificate legislation have eroded the federal government's ability to jail and deport foreigners deemed dangerous. The flip side of the victories for defendants in the security-certificate cases, officials suggest, is that the government is left with fewer and fewer options to remove legitimately dangerous foreigners once they set foot inside Canada's borders. No new security-certificate cases have been launched in three years.

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Charkaoui to be freed

posted on September 25, 2009 | in Category Security Certificates | PermaLink

by Andrew Chung Source: The Toronto Star URL: [link] Date: September 24, 2009 Terror suspect to be freed Adil Charkaoui, 36, was arrested in 2003 under Canada's embattled "security certificate" system

[PHOTO: Adil Chakaoui smiles as he arrives at federal court in Montreal. Justice Danièle Tremblay-Lamer told the court shortly afterwards that she would issue an order to remove all the conditions limiting his freedom. (Sept. 24, 2009) ] MONTREAL – Once branded a terrorist operative, jailed, and headed for deportation, Moroccan-born Montreal resident Adil Charkaoui will soon be a free man. During a hearing in Federal Court, this morning, Justice Danièle Tremblay-Lamer told the court she will issue an order later today to remove all the conditions limiting his freedom. Upon hearing the news Charkaoui's parents seated in the audience broke down in tears. Charkaoui looked at them and breathed a deep sigh of relief. Charkaoui, 36, was arrested and detained in 2003 under Canada's embattled "security certificate" system, a provision of immigration law where non-citizens deemed a threat to national security can be deported while the evidence against them is kept hidden. The judge has yet to pronounce on the cancellation of the certificate itself and certain questions the Crown wants heard in the Federal Court of Appeal, and yet this latest step toward exoneration of Charkaoui's six-year ordeal came quite quickly. In late July, to circumvent a judge's order to disclose certain intelligence, government lawyers decided to withdraw the evidence, claiming that its disclosure would undermine national security. The intelligence apparently came from communications intercepts and human sources that the government doesn't want exposed. As a result, Crown lawyers submitted to the judge that the evidence that remains doesn't "meet their burden of proof" to support the certificate's use to deport Charkaoui. Still, Tremblay-Lamer made it clear during the morning hearing that in light of the withdrawal, she has no choice but to quash the certificate. "It's evident the certificate will be cancelled," she said.

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