One Last Thing
Measuring Success
SCOTT NEWARK
© 2009 FrontLine Security (Vol 4, No 3)

Canadians can be forgiven for wondering which way is up when trying to decipher the flood of news recently surrounding the status of Canada’s actions in security related cases. One day we’re subjected to shrieking headlines announcing the judge ordered “end” of security certificates – complete with a grinning Adil Charkaoui cutting off his electronic monitoring ankle bracelet – and the next it’s confirmed one of the ringleaders from the 2006 Toronto terrorism plots has just plead guilty. Toss in never-ending lawsuits against the Government from self-professed “innocently wronged” terrorism suspects, one-sided, closed door judicial inquiries where the alleged bad guys can’t be questioned, and a growing and impressive track record of terrorism convictions… and the haze thickens.

As is always the case when dealing with government: to get the right answers, you have to ask the right questions… so let’s start there. First the doom and gloom scenario.

What are security certificates, what is their current status and what does that mean for national security?
Security certificates are a decades-old process whereby the federal Ministers of Immigration and Public Safety (then Sollicitor General) could jointly issue a ­’certificate’ that directed the arrest and detention of a non-citizen on the basis that they posed an especially high risk to Canadian security. The grounds for that order had to be reviewed by a Federal Court judge although, unlike regular criminal proceedings and our centuries old historical precedents, evidence could be withheld from the detainee on national security grounds that divulging the full information could jeopardize informants or intelligence gathering techniques. The purpose, as the Chief Justice recently wryly noted in the 2007 Charkaoui case, was to expedite the removal of these persons. When it was legitimately applied to suspected Islamist terrorists, the process came grinding to a halt and the real issue is: why?

A frustrated CSIS officer once explained to me that the security certificate detainees were in a figurative cell with three doors. What he meant was that they were free to walk out of custody at any time… by simply leaving Canada. Guess what? These guys ­preferred Canadian prisons to life in their homelands of Egypt, Algeria, Syria and Morocco. This is an issue because Canada has decided to not deport people who might face the risk of torture back home… no matter what they’d done here or what risk they pose. Think Catch 22. Oh and by the way… all the aforementioned ­countries are signatories to the same UN Convention Against Torture that we’ve decided means we can’t send them home. For some ­reason we just ignore that as they sit next to us at the UN.

When the detainees and their publicly funded lawyers continued to challenge the dysfunctional process itself, it started to crumble. Many commentators today report that the Supreme Court “struck down” the security certificate process in 2007 in the Charkaoui case. Nothing could be further from the truth. What the Court did, however, was uphold virtually all parts of the process, including ‘secret’ evidence. It also decided that ­special lawyers, not judges, should review the secret evidence.

This self-serving edit was enacted and the ‘new’ system lurched on until, finally, a few months ago a judge properly acceded to a challenge of the reliability of the ‘secret’ evidence and CSIS was forced to reveal some significant and embarrassing flaws in its ­evidence. The system likely did come crashing down last month when CSIS finally decided that the public risk in revealing their sources outweighed the risk of seeing Charkaoui released. Unless and until we figure out a way to deport these guys, more ‘failed’ cases are on the horizon.

The good news in all of this is that the Government appears to have resolved to implement real improvements to immigration screening and removals that will prioritize Canadian security. They have a strong foundation to build on as, ironically, the same Supreme Court of Canada confirmed in the Charkaoui case that non-citizens do not have a Charter-protected right to enter or remain in Canada. Stay tuned because sensible reforms, long overdue, are coming.

What is the status of terrorism prosecutions in Canada?
In a word… good. After the first terrorism prosecution against Momin Khawaja was successfully concluded earlier this year, the federal Public Prosecution Service has continued with an impressive track record of convictions against Said Namouh in Quebec (a non-citizen who is now deportable) and ­Nishanthan Yogakrishnan (in the Toronto 18 cases), and the largely unexpected guilty pleas from Ali Dirie, Saad Gaya, Saad Khalid and Zakaria Amara (also from the Toronto 18).

The continuing guilty pleas suggest that the bad guys realize that their former jihadi partners might just end up as witnesses against them. Speaking as a former prosecutor, never underestimate the power of self interest. These cases are clearly being well managed by the Public Prosecutions Office. Expect more good outcomes.

Quite apart from the success of these prosecutions, we should never forget the legion of Muslim apologists who expounded at length that these charges were just “anti-Muslim discrimination.” Gee… I guess the ‘woe is us’ crowd were either lying or ignorantly unreliable as the would-be terrorists have now admitted that the allegations against them were correct.

Meanwhile, the extradition proceedings against Abdullah Khadr clearly demonstrates he’s headed to the U.S. although, like others, I confess puzzlement about why we aren’t prosecuting him given his warned, Chartered, inculpatory statements to the RCMP weeks after he returned to Canada.

Speaking of Canada’s First Family of Terrorism, Abdullah’s brother Omar is still in Gitmo thanks to President Obama’s latest rethink of national security.

In summary, outdated laws are on their way to being reformed, and the specially crafted anti-terrorism prosecution sections are working as intended. Our current and future challenge is to prevent rather than just prosecute terrorist crime. We are clearly on the right track.

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Scott Newark is an Associate Editor of FrontLine Security.
© FrontLine Security 2009

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