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Cablegate: Canada's Security Certificate System

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DE RUEHOT #0360/01 0712143
ZNR UUUUU ZZH
O 112143Z MAR 08
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7502
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY
RUEAIIA/CIA WASHDC PRIORITY

UNCLAS SECTION 01 OF 03 OTTAWA 000360

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PTER PHUM PINS CA
SUBJECT: CANADA'S SECURITY CERTIFICATE SYSTEM

REF: 07 OTTAWA 1924

1. (U) Summary: Revised legislation to improve the balance
between national security and civil rights has enabled Canada to
meet a Supreme Court deadline and to seek updated immigration
"security certificates" against five alleged members of the al-Qaeda
network. The legislation permits the continued detention or
monitoring of individuals deemed to pose a significant risk to
national security, pending deportation. However, it also extends
significant new rights to individuals subject to certificates,
notably through the appointment of security-cleared lawyers or
"special advocates" to represent their interests, new rules on
disclosure and use of secret evidence, admissibility of evidence,
and expanded detention and release provisions. The new legislation
required the government to re-file its requests for certificates,
together with supporting (including confidential) evidence, with the
Federal Court of Canada, which must review each certificate to
determine whether it is reasonable. Of the five individuals still
subject to the certificates, one is in custody and four have won
conditional release, pending deportation. End summary.

ANOTHER VICTORY FOR THE CONSERVATIVES

2. (U) On February 12, the Senate approved new "security
certificate" legislation, which the Commons had passed on February
6, and which came into force on February 23. The Conservative
government had submitted the bill specifically to address a February
23, 2007 Supreme Court ruling that the existing certificate approval
process infringed Canada's Charter of Rights and Freedoms by not
allowing individuals subject to security certificates to know the
cases against them and by denying them the same detention review
rights as permanent residents. The revised legislation also
reflects some recommendations of parliamentary committees reviewing
the 2001 Anti-Terrorism Act (also now undergoing revision in the
Commons, following Senate approval of new legislation on March 6).
The Supreme Court had suspended its ruling for one year to give
Parliament time to rewrite the law.

3. (U) Prime Minister Stephen Harper had made passage of the
revised legislation on security certificates a prominent feature of
his policy agenda in the October 2007 "Speech from the Throne"
(reftel), as part of the government's efforts to combat terrorism
and to enhance law and order. However, human rights groups, as well
as at least one of the individuals subject to security certificates,
have already argued that the new law still violates civil rights and
have indicated that they will continue to challenge the law's
constitutionality.

AN "IMPORTANT TOOL"

4. (U) Minister of Public Safety Stockwell Day has publicly
described security certificates as an "important tool" to protect
Canada from terrorist threats, while still respecting civil rights
and freedoms. The security certificate system has been in use since
1978 to detain and deport non-citizens - both permanent residents
and foreign nationals -- whom the government deems inadmissible to
Canada under various security-related provisions (including
terrorism, serious criminality, organized crime, or human rights
violations) of the Immigration and Refugee Protection Act (IRPA).
IRPA authorized detention pending deportation on the basis of
sensitive information without any disclosure to the individuals in
question, subject to review by the Federal Court of Canada.
Certificates are preventative in nature and deal with potential
threats, not crimes after they take place.
Qthreats, not crimes after they take place.


5. (U) The Minister of Citizenship and Immigration and the
Minister of Public Safety must both sign a warrant for detention
when the government judges an individual presents a danger to
national security, to the safety of any person, and/or is unlikely
to appear at a proceeding for removal (deportation). A Federal
Court must review the "reasonableness" of each request for a
certificate; if the Court upholds the request, the ruling becomes a
removal order.

6. (U) Prior to implementation of the new legislation, the
government had issued 28 security certificates. Courts had quashed
three of these, while the government was able to deport 19 other
subjects from Canada. Six certificates were still valid as of
February 2008 under the old legislation. The government has now
sought re-issuance of five new certificates under the revised
legislation, which the Federal Court must now approve, while the
Supreme Court must rule on the constitutionality of the new
legislation in light of its 2007 ruling.

7. (U) Persons subject to removal nonetheless have the right to a
pre-removal risk assessment (PRRA) by Citizenship and Immigration
Canada, subject to a further review by a Federal Court judge. If
the judge determines a person faces a risk of torture or death in
his/her country of origin greater than the risk he/she poses by
remaining in Canada, the judge may stay the removal order and the

OTTAWA 00000360 002 OF 003


individual may be detained (even indefinitely) pending deportation
or released, subject to whatever monitoring conditions the judge may
deem appropriate. Various conditions currently in use in different
certificate cases include the wearing of electronic GPS ankle
monitoring bracelets at all times, the posting of cash or bonds as
bail, living with/being accompanied by guarantor(s) at all times,
house arrest (approved supervised outings only), restrictions on
activities, restrictions on communications (no use of internet,
telephone, or other communication device), wiretaps on telephones,
opening of all mail, and access to the home by federal agents at any
time.

NEW PROVISIONS

8. (U) The revised legislation addresses the balance between
security and civil rights through substantial changes to procedures
relating to secret evidence and disclosure through the appointment
of "special advocates" from a list of independent, qualified, and
security-screened lawyers that the Minister of Justice compiles.
(Previously, persons named under the government's request for a
certificate received only a summary of the case against them.)
Under the new law, special advocates will have access to
confidential evidence on which the government may have based its

SIPDIS
decision to seek security certificates against specific individuals,
and, when appropriate, to challenge the relevance, reliability, and
weight of such confidential information - without disclosing it to
their clients. Special advocates may also act in all review and
other proceedings related to ongoing certificate cases. The
Ministry of Justice has already accredited 13 new special
advocates.

9. (U) The legislation also changes rules on disclosure.
According to a non-definitive opinion from the Law and Government
Division of the Parliamentary Information and Research Service, "the
rules for deciding what information or evidence will be heard in the
absence of the person subject to the certificate and the public are
now easier to meet." Under the previous system, a judge had to
determine that disclosure "would" be injurious to national security
or to the safety of any person. Under the new system, a judge must
decide only whether disclosure "could" possibly be injurious to
national security or endanger the safety of any person. However,
the revised law specifically bans use of any evidence if there are
reasonable grounds to believe authorities obtained it as a result of
torture. (Previously, the admissibility of any evidence was left to
the discretion of a judge.) There is a new but conditional right of
appeal on the reasonableness of a certificate to the Federal Court
of Appeal.

10. (U) New detention and release provisions go even further than
the changes that the Supreme Court had required, provide new avenues
of review and appeal, and may facilitate the release of detained
individuals. All persons subject to security certificates are now
entitled to an initial detention review by a Federal Court judge
that must commence within 48 hours of their detention. A judge
either deems the certificate to be reasonable or quashes it. If a
judge finds the case reasonable, he/she may order continued
detention or conditional release. Individuals may apply to the
Federal Court at six-month intervals for a review of their detention
or of the conditions of their release.

RENEWAL OF FIVE CERTIFICATES

11. (U) On February 23, the government renewed requests for
re-issuance of five certificates, dropping an earlier certificate
Qre-issuance of five certificates, dropping an earlier certificate
against Manickavasagam Suresh, an alleged Tamil Tiger fundraiser who
has been subject to a certificate since 1994. The government is
reportedly considering other -- as yet unspecified -- legal measures
against Suresh. Summaries of the cases against the five
individuals now subject to certificates follow:

HASSAN ALMREI

-- Syrian-born Hassan Amrei, aged 30, has been held in solitary
confinement since his arrest in October 2001. He is the only
individual subject to a certificate to remain in custody. He
arrived in Canada in 1999 and obtained refugee status in 2000.
Canada contends he is part of an international document forgery ring
with ties to al-Qaeda. Almrei has admitted to participating in
weapons training at a camp in Afghanistan affiliated with bin Laden.
He is alleged to have gained access to a restricted area at
Toronto's Pearson airport in September 1999. In November 2003, a
Federal Court judge halted Almrei's deportation to Syria and ordered
a review of his case on the ground that he could be subject to
torture. The government has argued that the risk is not
sufficiently substantial to forego his removal, a contention that
Almrei is currently challenging in the Federal Court. He is in
custody in Kingston, Ontario;

ADIL CHARKAOUI

-- Moroccan-born Adil Charkaoui, aged 31, has lived in Montreal

OTTAWA 00000360 003 OF 003


since 1995 and has been subject to a security certificate since May
2003. Canada contends that he trained at an al-Qaeda camp in
Afghanistan in 1998 and formed part of a sleeper cell in Canada,
based on information from Ahmed Ressam (the "millennium bomber"),
who said he trained alongside Charkaoui at al-Qaeda's Khaldun camp
in Afghanistan in 1998, where Charkaoui was in charge of recruits.
Charkaoui maintains that he traveled to Pakistan for five months in
1998 to study at a Karachi religious school. Other evidence against
Charkaoui came from Abu Zubayda, but the government has now decided
not to utilize this evidence, which may have resulted from
"waterboarding." Charkaoui won conditional release in February 2005
in Montreal;

MOHAMMED HARKAT

-- Algerian-born Mohammed Harkat, aged 36, came to Canada in
September 1995. Canada contends he is an al-Qaeda sleeper agent who
has repeatedly lied to officials about his terrorist links. He
claims that he was for five years a relief worker with the Muslim
World League in Pakistan. The Canadian Security Intelligence
Service (CSIS) alleges that he traveled to Afghanistan during those
five years, but has withdrawn some evidence in its case apparently
obtained from Abu Zubayda, possibly as a result of "waterboarding."
Harkat admits that he met the late alleged al-Qaeda financier and
senior operative Ahmed Said Khadr (whose son is now separately
facing a military trial in Guantamino after five years imprisonment)
in Canada, but insists that he maintained no meaningful connection
with Khadr. Harkat won conditional release in March 2007 in Ottawa;


MAHMOUD JABALLAH

-- Egyptian-born Mahmoud Jaballah, aged 41, was first detained on a
security certificate in 1999, but the Federal Court threw the case
out by ruling that CSIS relied too heavily on dubious information
from Egyptian security agents. He was detained on a second
certificate in August 2001, which the Federal Court subsequently
upheld. Canada alleges that Jabarah is a full-fledged member of Al
Jihad, acting as a communications conduit for terrorist cells
involved in the bombings of U.S. embassies in Kenya and Tanzania in
1998. It further claims that he had contacts with bin Laden top
aide Ayman al-Zawahri, including by phone. Jaballah has admitted
contacts with individuals wanted by international law enforcement,
including Hassan Farhat, Mustafa Krer, Kassem Daher, Mohamed
Mahjoub, Thirwat Salah Shehata, Adel Al-Bari, and Ibrahim Eidarous.
Jaballah won conditional release in April 2007 in Toronto;


MOHAMED MAHJOUB

-- Egyptian-born Mohamed Mahjoub, aged 44, came to Canada in 1995
and was detained in June 2000. CSIS contends that he was a
high-ranking member of the "Vanguards of the Conquest," a radical
wing of the Egyptian Islamic Jihad, and participated in
decision-making on the Vanguards' terrorist operations. An Egyptian
court convicted Mahjoub in absentia for his involvement with the
Vanguards and sentenced him to a fifteen-year prison term. Mahjoub
admits meeting Osama bin Laden and working in a senior capacity at
bin Laden's agricultural firm in Sudan in the early 1990s. On
arrival in Canada in 1995, he stayed with the late Ahmed Said Khadr
for three weeks. Mahjoub won conditional release in April 2007 in
Toronto and is fighting removal on the grounds that he faces torture
or death if returned to Egypt.
WILKINS

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