Government seeks way to deport terror suspects held on security certificates
The Ottawa Citizen
Monday, February 07, 2005
A federal official has conceded that the government does not have the legal
right to indefinitely detain foreign-born terrorist suspects who cannot be
But Alex Swann, a spokesman for Public Safety Minister Anne McLellan, said
the government intends to aggressively pursue the deportation of terror
suspects through the controversial security certificate process. And the
question of when that pursuit formally ends is something that may have to be
decided by the Supreme Court.
"As long as we're working through the security certificate process with the
aim of removal, that (detention) continues to be an option," Mr. Swann said.
"When a deportation is unsuccessful, I don't know when that time comes," Mr.
Mr. Swann maintained the question of when the government must end its
pursuit of a terrorist suspect's deportation remains hypothetical.
The Immigration and Refugee Protection Act, which sets out the security
certificate process, allows the government to detain foreign-born terror
suspects on the strength of secret evidence until they can be deported.
The law does not speak directly to what happens after a court quashes a
deportation order as unreasonable.
That question has become critical in the wake of a recent Federal Court
ruling that promises to make it more difficult to deport those deemed
national security threats.
In a ruling that struck down the deportation of Toronto's Mohamed Mahjoub,
Judge Eleanor Dawson said government officials must consider whether he
poses an ongoing threat to Canadian security.
In doing so, officials must examine the credibility of those who contend he
is a threat and consider conflicting evidence, including the possibility
that he is no longer capable of acting on terrorist designs because of his
This week, Mr. Mahjoub will ask the court to release him while officials
reconsider his deportation order in keeping with the judge's ruling.
Mr. Mahjoub, 44, has been held in a Toronto jail for the past 41/2 years.
The Canadian Security Intelligence Service (CSIS) alleges he is a
high-ranking member of an Egyptian terrorist group, Vanguards of Conquest,
affiliated with al-Qaeda.
Six foreign-born men, including Ottawa's Mohamed Harkat, are in custody on
security certificates issued by federal cabinet ministers. Five of the men
are Arab; all contend they will be tortured if returned to the countries
from which they fled.
Mr. Mahjoub's lawyer, John Norris, says the law does not specifically
address whether the government has the power to indefinitely detain foreign
terror suspects. That power is spelled out in Britain's anti-terror
legislation, he said, but not in the Canadian law.
"At least in Britain, they were honest about what they were doing. They
said, 'We're holding them indefinitely.' Here, it is still an open
In Canada, he said, it's possible that a Federal Court judge could order a
terror suspect detained indefinitely based on a concern about the
individual's threat level. The law says a judge can release a terror suspect
if his deportation does not take place within a reasonable time provided the
individual does not pose a danger to national security.
"It's possible that a Federal Court judge would say that this person is
still such a danger they will not release him. So it is possible to have
indefinite detention under the Act," he said, adding: "But you can bet we
would challenge that every way we possibly could."
The British law bars the government from deporting terrorist suspects to
places where they could be tortured, but allows for their indefinite
imprisonment. (Canadian law permits the government to deport terrorist
suspects in exceptional circumstances to countries where they face a
substantial risk of torture.)
Britain highest court, however, has ruled that the legislation violates
international human rights laws and must be reworked.
Prime Minister Tony Blair's government has announced plans to release terror
suspects from jail under strict conditions. The government's "control
orders" would impose a variety of conditions, everything from house arrest
to curfews to electronic monitoring.
Mr. Blair has rejected calls to bring the suspects to trial, saying the
secretive work of Britain's security services cannot be compromised by
public court hearings.
Mr. Norris said he hopes the Canadian government will engage in a similar
"I wish that discussion would happen. We really hope that when the
government reviews the anti-terrorism legislation, they will include a
review of the security certificate procedures because our view is that it's
wrong to use immigration procedures to protect national security. This is so
wrong-headed in so many different ways.
"Other measures are going to be more effective and certainly more fair than
The Liberal government has indicated that it's unwilling to review the
security certificate process as it examines other anti-terror legislation.
Mr. Swann said the government has been "generally successful" at removing
terrorist suspects from Canada, and has no immediate plans to modify the
Only three security certificates have been quashed by the courts out the 27
issued since 1991.