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DE RUEHOT #0747/01 2681512
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O 251512Z SEP 09
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 9880
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 02 OTTAWA 000747 
 
SIPDIS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PGOV PTER PHUM CA
SUBJECT: COURT QUASHES SECURITY CERTIFICATE, FOUR REMAIN 
 
REF: 08 OTTAWA 360 
 
¶1. (SBU) Summary: On September 24, the Federal Court of Canada 
announced it will quash an immigration security certificate against 
Moroccan-born Adil Charkaoui, reducing the number of active 
certificates in suspected terrorist cases to four.  The decision is 
the latest setback for the government in a series of legal rulings 
against the controversial process.  Though the government has 
indicated it may appeal, the ruling raises doubts about the 
government's ability to uphold the remaining cases and leaves Canada 
with fewer options to remove non-citizens deemed a danger.  End 
summary 
 
CHARKAOUI FREE, BUT CERTIFICATE IN PLACE - FOR NOW 
--------------------------------------------- ----- 
 
 
¶2. (U) Only a few hours into a scheduled two-day hearing into the 
ongoing security certificate case against Moroccan-born Adil 
Charkaoui on September 24, a Federal Court judge announced that she 
would issue an order by that day's close of business to revoke all 
bail conditions against the defendant.  The judge also signaled her 
intent to quash Charkaoui's security certificate entirely.  She 
postponed an official ruling on the latter until she has heard legal 
arguments in a closed-door hearing the week of September 28. 
However, she declared that the "certificate will fall," and noted 
that "how, is the question."  Until those legal arguments wrap up, 
the security certificate remains valid. 
 
¶3. (U) In use since 1978, the security certificate system allows the 
government to detain and deport non-citizens, both permanent 
residents and foreign nationals, whom the government deems 
inadmissible to Canada under security-related provisions of the 
Immigration and Refugee Protection Act, including those related to 
terrorism, serious and organized crime, or human rights violations. 
 
 
¶4. (U) Canadian authorities arrested Charkaoui on a security 
certificate in 2003 on suspicion of links with al-Qaeda and had 
released him conditionally in 2005.  The Federal Court had 
substantially relaxed his bail conditions on February 20, but still 
required him to wear an electronic monitoring device, prohibited 
contact with specific people, and denied him access to a passport. 
In August, the Canadian Security Intelligence Service (CSIS) 
withdrew most of the wiretap evidence and human source evidence 
rather than comply with the Court's March order to disclose the 
sources of confidential information against him.  Federal lawyers 
argued that the disclosure of information against Charkaoui would be 
"injurious to national security," compromise CSIS' ability to 
investigate security threats, and force the agency to reveal its 
confidential sources.  It admitted that its remaining evidence was 
too weak to support a security certificate against him. 
 
¶5. (U) When the certificate hearing resumed on September 24, federal 
lawyers asked the Court to continue restrictions on Charkaoui until 
higher courts clarify what sensitive information may be disclosed in 
court.  CSIS contended that its sensitive information against 
Charkaoui remains accurate.  However, the judge ruled that the 
government had failed to meet its burden of proof.  CSIS signaled 
that it may consider an appeal.  For his part, Charkaoui stated that 
he wants an official apology and will decide later whether to launch 
a lawsuit against the federal government. 
 
SECURITY CERTIFICATES SYSTEM 
---------------------------- 
 
¶6. (U) Canada has issued thirty-three security certificates 
(including five re-issued in February 2008 after revisions to the 
immigration law) since 1978 to detain and remove non-citizens who 
Qimmigration law) since 1978 to detain and remove non-citizens who 
pose a threat to national security.  [Note: the government has not 
issued any new certificates since 2006.]  The government issues the 
certificates on the basis of confidential evidence and a warrant 
signed by two cabinet ministers, subject to review by the Federal 
Court.  The government does not have to disclose the secret evidence 
to the defendant.  In response to a 2007 ruling by the Supreme Court 
of Canada, Parliament passed amended legislation in February 2008 to 
provide access to security-cleared lawyers ("special advocates") to 
examine and challenge confidential evidence on the defendants' 
behalf, to prohibit use of evidence that may have been obtained 
through torture, and to expand mechanisms for review and appeal, to 
better balance national security with civil rights. 
 
FOUR OTHER CASES BEFORE THE COURTS 
---------------------------------- 
 
¶7. (U) In addition to the Charkaoui case, the government has four 
other security certificates before the courts.  Courts released all 
four individuals with conditions, but one voluntarily returned to 
custody in March after failing to convince a judge to relax his bail 
conditions.  The remaining certificate cases are: 
 
 
OTTAWA 00000747  002 OF 002 
 
 
-- Algerian-born Mohamed Harkat; Canadian authorities allege that 
Harkat is an al-Qaeda sleeper agent and detained him, pending 
deportation, in 2002.  Authorities released him in 2006 on strict 
conditions.  In June, the Federal Court temporarily suspended 
hearings in his case after CSIS acknowledged that it did not inform 
the Federal Court that a key informant against him had failed 
polygraph tests in 2002.  On September 21, a Federal Court judge 
significantly eased bail conditions on Harkat, ordering Canada 
Border Services Agency (CBSA) to cease monitoring Harkat's mail and 
other communications, and lifting his 24-hour surveillance by the 
Canadian Border Services Agency (CBSA).  It also relaxed 
restrictions on his excursions outside the home and screening of 
visitors. 
 
 
Harkat was given permission to use computers and land-line 
telephones, but not the internet or cell phones.  He must report to 
authorities weekly, continue to wear a GPS ankle-monitoring device, 
obtain permission to travel outside the Ottawa area, and does not 
have access to a passport.  Harkat's next public court hearing is 
September 30.  The Court will hold in camera hearings in November, 
with further public sessions scheduled in January through April, at 
which his lawyers said they will press for the lifting of all 
remaining restrictions.  The government conceded in the most recent 
hearing that the passage of time and Harkat's high public profile 
have reduced any threat he may have posed to national security. 
 
-- Egyptian-born Mahmoud Jaballah; Canadian authorities first 
detained him on a security certificate in 1999, but the Federal 
Court threw out the case.  Authorities arrested him on a second 
certificate in 2001, alleging that he was a member of Al Jihad, and 
released him conditionally in 2007.  The Federal Court last reviewed 
his case on September 10. 
 
--  Syrian-born Hassan Almrei; Canadian authorities contend that he 
participated in an international forgery ring with ties to al-Qaeda. 
 Authorities arrested and detained Almrei in 2001, and conditionally 
released him in January 2009.  The Federal Court last reviewed his 
case on September 14. 
 
-- Egyptian-born Mohamed Zeki Mahjoub; Canadian authorities contend 
that Mahjoub was a member of the Egyptian Vanguards of the Conquest. 
 Authorities arrested him in 2000 and released him conditionally in 
2007, although he voluntarily returned to custody on March 18. 
 
¶8. (SBU) Comment: The collapse of the government's case against 
Charkaoui sets an important precedent for the remaining four 
certificate cases.  The controversial process has for some time been 
producing diminishing returns for the government.  If the security 
certificate regime collapses from the weight of repeated judicial 
setbacks, the government will be left with fewer options to remove 
non-citizens deemed a danger to Canada. 
HOPPER