Another blow to the security certificate system

photo / mvcorks

While the Parliamentary inquiry into the treatment of Afghan detainees may be dominating the headlines, the government’s security certificate system received another blow last week when the Federal Court quashed the certificate against Toronto resident Hassan Almrei.  The Syrian-born Almrei was arrested in 2001 after a security certificate was issued against him, and has been subject to its restrictions since.  This is the second security certificate to be quashed in recent months; in September, Montreal resident Adil Charkaoui was cleared after the government failed to produce sufficient evidence in support of maintaining the certificate against him.

Justice Richard Mosley’s 183-page opinion is a fascinating read and highly critical of the government’s use of outdated information and poorly-substantiated allegations in order to maintain the certificate against Almrei.  (Justice Mosley also filed a separate closed decision, which sets forth his analysis of facts that — due to their national security sensitivity — could not be divulged in a public decision.  Justice Mosley’s references to his closed decision, however, suggest that it too is critical of the government’s evidence and use of unreliable information.)

In his decision, Justice Mosley acknowledged that Almrei “was at the very least an opportunist willing, for a suitable fee, to violate Canada’s laws”, observing that he:

lied and engaged in criminal activities prior to and following his entry to Canada.  He maintained contacts with other Afghan Arab veterans, associated with persons who were believed to be Islamic extremists and made contact with others who were involved in human smuggling and the false document trade. He was prepared to assist others in obtaining those services and himself procured a false passport and other travel documents.

Based on this and other information quickly assembled by the government in the wake of the September 11 attacks, Justice Mosley “would have had no difficulty upholding” the certificate filed in 2001.  What Justice Mosley found troubling was the government’s failure to subsequently verify the accuracy of the information it gathered in 2001, and its reliance on outdated and unreliable information in order to keep Almrei in detention.

The public summary of the “Security Intelligence Report” setting out the government’s evidence against Almrei was reviewed by expert witness Professor Brian Williams, who not only opined that the report “was not written by experts”, but appeared as if the authors had

went to Google with about two weeks notice and cobbled the material together.

The decision goes into significant detail criticizing the sources cited upon by the government (such as Wikipedia, among other internet sources of dubious reliability).  The Court also criticizes the government’s selective use of testimony from human sources.  In one example, a source who had provided “implausible” information incriminating Almrei in 2001 (when the source was “highly motivated to curry favour” with the government) subsequently provided another account in 2004 which tended to support Almrei’s evidence.  However, in preparing the 2008 SIR, the government ignored the new evidence and chose to reiterate the 2001 account.

Accordingly, Justice Mosley found

it troubling that the work done to prepare the new SIR in 2008 had not kept pace with developments in the field.  And the sources relied upon by the Service were often non-authoritative, misleading, or inaccurate. . . . [T]he SIR presented in 2008 simply recycled stale information without attempting to offer a more balanced and nuanced view.

Justice Mosley was also critical of the government’s “evidence” linking Almrei to Al Qaeda and other terrorist organizations, which consisted primarily of assertions that Almrei shared many of the same ideological views as members of Al Qaeda.  As the Court observes:

As I understand the Ministers’ position, anyone who shares the principles of Al Qaeda and is in some way linked to it is a member of the Bin Laden network.

. . .

[However,] individuals and groups who have no connection with Al Qaeda cannot be said to be part of the network without some other indicia of membership such as willingness to follow directions from Bin Laden.  It is not enough, in my view, to assert membership in an organization merely on the basis of a shared ideology.  That is what I believe the Ministers have been attempting to do in this case.  They can’t establish that Almrei is a member of Al Qaeda or an affliated organization and have attempted to bring him within the scope of this amorphous concept of a network based on his belief and participation in jihad.

An “unrestricted and broad” interpretation of organization does not encompass those who have expressed views that are sympathetic to the ideology of Bin Laden and Al Qaeda and approval of the actions they have taken.  That is far too broad a net to cast and would be incompatible with the freedom of expression guaranteed by our Charter.

As a result, the Court found that the government had breached its duties of utmost good faith and candour with respect to Almrei:

The duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all of the information including that which is unfavourable to their case.  That was not done in this instance.  The 2008 SIR was assembled with information that could only be construed as unfavourable to Almrei without any serious attempt to include information to the contrary, or to update their assessment.  As [CSIS agent Robert] Young observed, in an unguarded moment, they thought that they had done their job in 2001 and there was no need to continue the investigation.

This decision is noteworthy in several respects.  First, it highlights the crucial importance of access to the government’s evidence in these cases.  It wasn’t until after the Supreme Court’s decisions in Charkaoui I (2007) and Charkaoui II (2008) that “special advocates” — security-cleared lawyers who are permitted to review classified and sensitive evidence on behalf of the individual subject to the security certificate — were appointed and that the government was required to retain and disclose all materials relevant to the security certificate, not just the information that bolstered the government’s case.  Here, once the government was compelled to disclose its evidence and submit its witnesses to cross-examination by the special advocates, the weaknesses in its case against Almrei were exposed.

Second, this decision is important in what it didn’t do — opine on the constitutionality of the security certificate regime as a whole.  (Keep in mind that under the special advocate system, certain sensitive evidence made available to the special advocate will not be made available to the subject of the security certificate himself because of “national security concerns”, which means that the individual with the best knowledge of the facts and the most at stake in the case cannot assist his counsel in examining the evidence.)

Because Justice Mosley found that Almrei’s certificate could be quashed based solely on the lack of sufficient evidence, he declined to determine whether the security certificate regime itself comports with the Charter.  Nonetheless, without engaging a full-blown constitutional analysis, he makes the following observation in support of the status quo:

I think it is important to comment, however, on [Almrei's] argument that he was denied procedural fairness because of the lack of full disclosure.  It is my view that the essential elements of the government’s allegations against Mr. Almrei were disclosed to him in these and the prior proceedings.  Based on his testimony and the submissions made on his behalf, Mr. Almrei was clearly aware of the Ministers’ allegations against him.  He was not given full disclosure of all of the closed information that supported the Ministers’ case, such as human source reports, but that was unavoidable in the circumstances.

In the Matter of Hassan Almrei (Federal Court decision)

ETA: Lawyers Weekly features an interview in this week’s edition with the public counsel and special advocates in the Almrei case, where they discuss the questionable constitutionality of the security certificate system and why, in this case, special advocates worked.

Security certificate quashed by court (The Lawyers Weekly)