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Are security certificates obsolete? Add to ...

Civil-liberties victories in the courts for people jailed under Ottawa's controversial security-certificate legislation have eroded the federal government's ability to jail and deport foreigners deemed dangerous.

The flip side of the victories for defendants in the security-certificate cases, officials suggest, is that the government is left with fewer and fewer options to remove legitimately dangerous foreigners once they set foot inside Canada's borders.

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No new security-certificate cases have been launched in three years.

Thursday, Adil Charkaoui left court a free man for the first time in six years after a judge lifted the last of his bail conditions. Ottawa branded Mr. Charkaoui a terrorism suspect in 2003, the last federal attempt to bring a "security-certificate" case against an individual suspected of links to al-Qaeda.

A couple of years ago, a vexed Canadian spy official neatly framed security officials' frustration in an internal e-mail: What if Osama bin Laden himself materialized in Canada, sitting astride a camel and toting an AK-47?

The Canadian Security Intelligence Service executive told his colleagues that only one policy response from Ottawa could be guaranteed: No one would dare sign another "security certificate."

The quip amounted to an elegy for an extraordinary power that's grown so cumbersome to use it verges on obsolete - even if it was designed as an expedient way to deport foreigners on the grounds of "reasonable suspicion" that they were national security threats without having to reveal why.

The tool has existed since the Cold War, a time when foreigners in Canada didn't have anywhere near as many rights as citizens. Intelligence officials could bring secret dossiers to politicians that laid out why individuals had to be ousted for the greater good.

All that was needed to make it so were the signatures of a couple of cabinet ministers.

"I certainly signed a couple when I was minister," said Ron Atkey, who handled immigration in the 1979 Joe Clark Progressive Conservative government.

Ottawa was far less "gun-shy" about cases then, he said. "They were all in camera . And the public didn't really have a right to know," Mr. Atkey said. "You did it with great fear and trepidation," he added, "but you did it."

During the 1980s, the Charter of Rights and Freedoms was enshrined, and higher courts ruled in favour of ever greater transparency and legal protections. Foreigners were invested with increasing rights.

"We never used it," Reid Morden, a CSIS director in the late 1980s, said in reference to his time at the security agency. He said he saw security certificates as cumbersome and bad fit for the Cold-War espionage threat that was paramount at the time.

But he didn't mind having the "blunt instrument" handy. "It's always good to have it in the arsenal," Mr. Morden said. "In the suite of powers, I think it's a useful tool."

As the al-Qaeda threat mounted in the 1990s, security certificates returned to vogue. Even if the secret deportation dossiers grew a lot thicker, and the court battles that resulted became more public and protracted.

The essential unease among cabinet ministers with approving banishment remained.

Wayne Easter, a Liberal MP who served as solicitor-general from 2002 to 2003, recalls that he once spent three hours poring over a binder of Top Secret information before deciding to approve a certificate.

While he said he wouldn't reverse any past decisions, Mr. Easter said he'd like to see a system that better weighs security against civil liberties. "There needs to be better balance," he said.

Ottawa is struggling to find one. The outcome of the Charkaoui case is seen as a watershed.

"Our objective is to ensure Canadians are safe from terrorist threats," Public Safety Minister Peter Van Loan said in a statement circulated by his office. "We are examining the impact of the decision on that objective."

Follow on Twitter: @colinfreeze

 

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