Security certificate cases and Canada’s failure to use the intelligence it collects

This piece appeared in the Hill Times on February 25, 2019.

If there is one legal tool that divides Canadians like few others it is the so-called ‘national security certificates’. These are administrative processes whereby the government can remove those who are not Canadian citizens and who are seen as ‘undesirable’. To cite Public Safety Canada:

The security certificate process within the Immigration and Refugee Protection Act (IRPA) is an immigration proceeding for the purpose of removing from Canada non-Canadians who are inadmissible for reasons of national security, violating human or international rights, or involvement in organized or serious crimes. Only permanent residents or foreign nationals can be subject to a security certificate. The Government of Canada issues a security certificate only in exceptional circumstances where the information to determine the case cannot be disclosed without endangering the safety of a person (for example, by putting a witness’ life in danger) or national security (for example, by revealing investigation techniques).”

I don’t know how many times certificates have been issued or how many times they have actually resulted in removals. The ones that have gained the most attention are the cases of five Muslim non-citizens: Mohamed Harkat, Hassan Almrei, Mohamed Mahjoub, Mahmoud Jaballah, and Adil Charkaoui (the latter received Canadian citizenship in 2014). .

As a former CSIS analyst who was aware peripherally of these five cases I believe that the way in which they have been handled speaks volumes about the ineptitudes of the Canadian government when it comes to the use of intelligence. I have long argued that there is an appalling lack of ‘intelligence culture’ in our country and that is not a good thing. Clearly, in light of my background, I hold to an extreme bias in this regard and many will take issue with my remarks.

First and foremost, these cases should never have gone to court – any court. The determination of admissibility is an immigration issue, not necessarily an one that the intelligence agencies should rule on. I imagine that decisions on whether to allow or deny entry to Canada are made hundreds, if not thousands, of times a day at our foreign embassies, consulates, and international border crossings, and I am not aware of any of these that have been challenged up to the Supreme Court of Canada.

The only reason that he five aforementioned individuals are still here is that the information on their alleged ties to terrorism was not available before they reached our shores. Had immigration officers abroad or at border points had access to this data their journey to Canada would have been nixed and I am fairly sure that the saga would have ended there.

But they did come and the information, in the form of intelligence, arrived later. These cases somehow morphed from routine immigration processes into court cases that called into question the nature of the intelligence used to support removal. Multiple hearings were held, amici curiae were created, and the whole matter became a human rights one, tainted probably by the Maher Arar affair and fears that the ill-named ‘war on terror’ was trampling on international standards of justice.

CSIS information, some undoubtedly collected by the agency and some received by allies, was subjected to court scrutiny in ways it was never intended: intelligence in Canada is NOT collected to evidenciary standards. I assume that a lot was withheld to protect sources (the bread and butter of any spy outfit) – hence the entirety of what CSIS knew was never disclosed publicly. As a result the case for removal was probably not as strong as it could have been.

So, here we are. One man has been granted citizenship (Charkoui) although allegations of his ties to terrorism or ‘radicalism’ continue to dog him.
Mr. Jaballah is suing the Canadian government for $34 million over his certificate . Mohamed Harkat is still in limbo and claims he will be tortured if returned to his native Algeria. There does not appear to be any end in sight.

That these cases still bedevil us points to how we are getting it wrong in Canada. Either we apply the legal tools we have or we don’t. Perhaps it is time to have CSIS collect intelligence to evidenciary standards, as some other nations’ spy agencies do, although this is much easier said than done and would call into question why CSIS exists in the first place (i.e. the RCMP already does this).

In the end I fear that intelligence is misunderstood, dismissed and seen as less than useful by many in government. Yes, CSIS must work within the law and must have oversight (as it does in spades), but it must also be allowed to do what we ask it to do. If the government continues to ignore the security advice CSIS gives it calls into question why we have such an organisation working for Canadians. Some would welcome a “For Sale” sign outside CSIS HQ: I would not be among that crowd.

Phil Gurski is a former strategic terrorism analyst at CSIS and the author of ‘An End to the War on Terrorism’.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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