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In the Mind of the Minister

On Thursday, former Minister of Public Safety Stockwell Day appeared in a Vancouver courtroom to testify in Mohammad Mahjoub’s ongoing challenge to his security certificate. The BCCLA National Security Blog went down to the Federal Court to watch.

Mr. Day was one of the ministers responsible for designating Mr. Mahjoub a national security threat and issuing a security certificate against him. According to Professor Kent Roach at the University of Toronto’s Faculty of Law, this is the first time a minister is required to explain – in live testimony – how an individual is determined to be a national security threat.

A brief refresher on security certificates and Mr. Mahjoub’s case may be in order. As readers of these pages will recall, security certificates are a creature of immigration law and authorized under the Immigration and Refugee Protection Act. They are issued against non-citizens and serve to designate them as threats to public safety and national security. The certificate by itself allows for the arrest and detention of the named individual. If a Federal Court judge finds the certificate to be “reasonable”, then the certificate is converted into a deportation order. Right now, Mr. Mahjoub is fighting the “reasonableness” of his security certificate at the Federal Court. (More on this in a bit.)

Security certificates are deeply problematic from a due process perspective. Because they ostensibly deal with national security threats, much of the government’s evidence against an individual is going to be kept secret, even from the named person himself. The problems with this are clear – how is anyone expected to defend against accusations of terrorism if he isn’t even allowed to know the evidence against him? This was what was at stake in the Charkaoui cases before the Supreme Court of Canada. Following Charkaoui, the security certificate regime was amended to create the system of special advocates, who are security-cleared counsel that have access to secret evidence. But there are serious problems with the special advocate system as well, such as the severe restrictions on communications between the special advocates and their clients. And 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 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 lawyer in examining the evidence.

Mohammad Mahjoub is a citizen of Egypt. He came to Canada in 1995, seeking asylum. He was determined to be a Convention refugee in 1996, after a hearing before the Immigration and Refugee Board.  In 2000, he was made the subject of a security certificate and arrested, spending the next seven years in jail before being released on a long list of conditions, including round-the-clock surveillance and monitoring, even while under house arrest. In 2009, he voluntarily returned to jail, telling the Federal Court that he could no longer subject his entire family to the serious invasions of privacy that the conditions of his house arrest required. He was released eight months later under new conditions, which have been variously modified since then. He has never been charged with any crime in Canada.

Mr. Mahjoub has been fighting his security certificate since he was first arrested, and this current hearing is just the latest round in assessing the validity of the government’s concerns with respect to the threat he purportedly poses to the Canadian public.

The history of Mr. Mahjoub’s case is a troubling one. In 2010, the Federal Court of Canada found that there were reasonable grounds to believe that some of the information used by the government to support Mr. Mahjoub’s security certificate was the product of torture, and refused to admit it in the case against him. In December 2011, the Canadian Press reported on a court-ordered summary of CSIS’s case against Mr. Mahjoub, which stated that “[t]he bulk of the information utilized in Mr. Mahjoub’s certificate was supplied by agencies associated to torture.”

In 2005, CSIS admitted that it had systematically destroyed evidence in the security certificate files; notwithstanding this fact, the government continued to insist it could rely on the destroyed evidence to support its claims that Mr. Mahjoub posed a threat to national security. Earlier this summer, the Federal Court ruled that the government could not continue to rely on summaries of wiretap information because the original underlying records had been destroyed.

In May of this year, the Federal Court ordered the removal of 11 lawyers and legal assistants from the government’s litigation team in Mr. Mahjoub’s security certificate proceedings, following the discovery that government lawyers had taken privileged and confidential documents belonging to Mr. Mahjoub and co-mingled them with the government’s own files. The Court found that this taking and co-mingling compromised the appearance of fairness in the administration of justice, and ruled that the government lawyers involved had to be removed from the case in order to preserve public confidence.

And earlier this month, Mr. Mahjoub’s lawyers appeared before the Federal Court to present evidence that CSIS had been intercepting telephone calls between Mr. Mahjoub and his legal counsel, in clear violation of solicitor-client privilege.

Mr. Day’s testimony yesterday focused primarily on how he came to the decision to sign off on Mr. Mahjoub’s security certificate when it had to be reinstated following the revisions to the security certificate regime post-Charkaoui. Mr. Day served as the Minister of Public Safety and Emergency Preparedness from 2006 to October 2008; he signed Mr. Mahjoub’s security certificate in February 2008, and most of the questions to Mr. Day dealt with the issues he considered during the fall of 2007 and early 2008.

Mr. Day was on the stand for close to five hours. Some of our observations from the testimony:

  • As early press reports have already noted, Mr. Day seemed to have little detailed recollection of how he came to determine that Mr. Mahjoub posed a threat to public safety. When pressed on how he came to the conclusion that information subsequently tossed out by the Federal Court – such as the intelligence summaries based on destroyed evidence and the information potentially derived from torture – could be relied upon to sustain the security certificate against Mr. Mahjoub, Mr. Day asserted that he talked to very many people on very many different occasions (too numerous to recall or delineate), which led him to the conclusion that Mr. Mahjoub had to be detained in order to protect the Canadian public.
  • One of the points that Mr. Day was certain of, however, is his belief that if there was any evidence that information was derived from torture, CSIS would not be using it. This was an interesting statement, considering the directives we’ve been seeing from the current Minister of Public Safety, giving the green light to use and trade torture-tainted information. It’s also a perplexing statement, given that Mr. Day acknowledged that he had been informed by Jim Judd, then-director of CSIS, that information used to support Mr. Mahjoub’s security certificate was very likely the product of torture.
  • Mr. Day had originally testified that he understood the security certificate to be a mechanism through which asylum seekers could be detained while their refugee claims were being adjudicated, if they were found to pose a threat to public safety. This was a curious position to take, considering that Mr. Mahjoub had already been found by the Immigration and Refugee Board to be a Convention refugee in 1996, and it was not until 2000 that he was made the subject of a security certificate and arrested. It was also a curious position to take given that there are other mechanisms in the immigration laws which permit detention of asylum seekers while their claims are pending (see, for example, the detention of the Tamil migrants from the MV Sun Sea and Ocean Lady). This confusion about the purpose and nature of the security certificate was troubling, given Mr. Day’s role in authorizing them to be used against not only Mr. Mahjoub, but four other men.
  • In describing how he came to the decision to sign Mr. Mahjoub’s security certificate, Mr. Day made repeated reference to the fact that Mr. Mahjoub – a recognized Convention refugee – entered Canada using forged documents. On cross-examination, Mr. Mahjoub’s counsel Yavar Hameed asked Mr. Day if he was aware of the general proposition under international law that refugee claimants should not be penalized for their illegal entry or presence in the country of refuge. After a fair bit of back and forth, Mr. Day defended his consideration of the forged documents by pointing out that while the illegality of Mr. Mahjoub’s entry may not be weighed against him in adjudicating his asylum claim, the Minister of Public Safety certainly should be able to take every piece of information available into consideration when it comes to determining risk to public safety. This notion of “exceptionalism” when it comes to matters of national security and public safety is something we have seen repeatedly.

The security certificate cases have proved to be an opportunity to gain a better public understanding of the workings of Canada’s public safety and national security apparatus – all the more necessary in light of the continuing erosion of CSIS oversight and the elimination of the CSIS Inspector General’s office altogether. We’ll continue to provide updates on all of the security certificate cases as they make their way through the courts.