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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