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Cablegate: Canada: Security Certificates Take Major Hit

VZCZCXRO1205
OO RUEHGA RUEHHA RUEHMT RUEHQU RUEHVC
DE RUEHOT #0794/01 2882016
ZNR UUUUU ZZH
O 152016Z OCT 09
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 9947
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 02 OTTAWA 000794

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PTER PGOV CA
SUBJECT: CANADA: SECURITY CERTIFICATES TAKE MAJOR HIT

REF: OTTAWA 747

1. (SBU) Summary: Canada's Federal Court has formally quashed the
immigration security certificate against alleged terror suspect Adil
Charkaoui. The Court also blocked a potential federal appeal to the
Federal Court of Appeal to clarify the limits of legal disclosure in
national security cases. The collapse of one of Canada's most
high-profile security certificate cases is a major setback to the
battered process and to the government's ability successfully to
uphold the four certificate cases still before the courts. End
summary.

2. (U) On October 14, Presiding Federal Court Justice Danielle
Tremblay-Lamer issued a 68-page ruling voiding the immigration
security certificate against alleged terror suspect Adil Charkaoui.
On September 24, Justice Tremblay-Lamer had lifted all remaining
bail restrictions on Charkaoui and signaled her intent to quash the
certificate after the federal government withdrew the greater part
of its sensitive wiretap evidence from the case rather than comply
with her previous order to disclose the information (reftel). She
continued to hear submissions and the certificate remained valid
until the Court made this final ruling.

"A SERIOUS QUESTION OF GENERAL IMPORTANCE"
------------------------------------------

3. (U) In its submission, the federal government acknowledged that
its remaining data against Charkaoui did not meet the burden of
proof required by the certificate. However, it asked the Court to
find that the Charkaoui case raised a "serious question of general
importance" -- the balance between national security concerns and a
defendant's right to the fullest defense possible -- as grounds for
an appeal to the Federal Court of Appeal. Pending clarification by
the Appeal Court, the federal government further asked the Federal
Court to uphold the security certificate against Charkaoui.

NO BASIS FOR APPEAL
-------------------

4. (U) Justice Tremblay-Lamer rejected both requests. She defended
her demand for greater transparency, arguing that the belief that
the court put individual rights ahead of national security was
"unfounded." She refused the appeal, finding that the issues raised
were particular to the Charkaoui case and of no broader importance,
as well as that no legal basis existed for further appeal. Justice
Tremblay-Lamer noted that "the notion of national security is a
question of perspective," adding that "grey areas can exist where a
misunderstanding is possible." She added that the federal
government's clear purpose in seeking the appeal was to rewrite her
previous disclosure order.

5. (U) Justice Tremblay-Lamer formally ruled that the government's
failure to present sufficient evidence rendered the security
certificate against Charkaoui null and void. She wrote that to
maintain the certificate without supporting evidence would violate
Charkaoui's constitutional right to life, liberty, and security of
the person under section 7 of the Charter of Rights and Freedoms, as
well as contravene fundamental principles of justice and of logic.

6. (U) In a brief response to the ruling, a spokesperson for the
Canadian Security Intelligence Service (CSIS) commented that "it is
unfortunate that, given the unique nature of this decision and the
implications for national security, the judge did not agree that the
case presented aspects that warranted an appeal."

EVIDENCE AGAINST CHARKAOUI
--------------------------

7. (U) The most recent summary of the case against Charkaoui
indicated how much confidential evidence the federal government had
withdrawn. The government reportedly disclosed that it still
Qwithdrawn. The government reportedly disclosed that it still
suspected that he was a member of al-Qaeda and had trained in
terrorist camps in Afghanistan and Pakistan, as well as that he
consorted with known Islamic extremists. It corroborated
Charkaoui's presence at al-Qaeda terrorist training camps in 1998
with evidence from so-called Millennium Bomber Ahmed Ressam, and
Noureddine Nafia, the former head of the GICM, a Moroccan Islamist
terror group. However, material gleaned directly from Charkaoui,
including his account of activities at mujahedeen training camps,
his alleged declarations in support of jihad, and references to a
June 2000 conversation in which he allegedly discussed seizing
control of a commercial airliner, had been blacked out.

SEEKING COMPENSATION
--------------------

8. (U) Justice Tremblay-Lamer nonetheless rejected Charkaoui's
request to reserve his right to sue the federal government for
alleged violations of his constitutional rights. She formally
closed the certificate case, advising that Charkaoui would have to
launch a separate case if he wanted to seek further remedy. At a

OTTAWA 00000794 002 OF 002


post-ruling press conference, Charkaoui told the media that he felt
"elated" and "totally vindicated" by the ruling. He stated that he
would seek a formal apology from the federal government. His lawyer
confirmed that Charkaoui would also seek substantial financial
compensation for his "arbitrary and abusive loss of freedom."

9. (SBU) Comment: The collapse of the federal government's
high-profile case against Charkaoui is a major setback to the
credibility of the battered security certificate system, to Canada's
ability to uphold the remaining four certificates, and to efforts by
security agencies to set limits to legal disclosure of sensitive
data in court. The Charkaoui case lasted six years and set
significant legal precedents, including two Supreme Court rulings in
favor of greater transparency of evidence in security cases.
JACOBSON

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