It's not every day that a Conservative Minister of Public Safety is put on the hotseat by one-time Egyptian employee of Osama bin Laden. Yet on Thursday, after years of tortuous legal process, Stockwell Day found himself in Federal Court testifying for the first time about the secret power that had allowed him to order the banishment of several alleged terrorists from Canada.
Speaking to a Toronto court via videolink from British Columbia, the retired politician's testimony amounts to the first time any Canadian minister of the Crown has been compelled to speak about the behind-the-scenes thinking that goes into the government's highly controversial "security-certificate" procedure.
The power, used about a half-dozen times in the past decade, is seen by the Ottawa security bureaucracy as an important anti-terrorism tool. Yet it is also frequently challenged for being antithetical to Canadian civil liberties, and more often results in legal stalemates than actual deportations.
Several security-cases have been picked apart by Canadian courts over the years, but what's never happened – until now – is testimony yielding a first-hand insight into what a Minister is thinking when he or she signs the orders.
"I wanted to know who our people – CSIS – talked to, how they can be confident about that level of allegation," Mr. Day said in his videolink testimony Thursday morning. He was stressing that he did not sign any security certificates frivolously.
"I wanted full disclosure, I wanted total transparency, I wanted no surprises," Mr. Day said. He says he did this by asking intelligence officials "questions beyond what would be in the notes and references or index, all to establish a confidence level to whether the certificates should be signed or not."
As Public Safety Minister, Mr. Day had sent five alleged Islamist extremists toward detention and deportation with a series of penstrokes on Feb 22, 2008. (This measure reinstated certain preexisting cases that had been voided after the Supreme Court demanded the government make fixes to the controversial law.)
One of the men targeted by the security certificates was Mohammad Zeki Mahjoub.
Mr. Mahjoub had been branded a threat by the Canadian Security Intelligence Service shortly after he arrived to Canada in the 1990s. Following an investigation, CSIS learned that Mr. Mahjoub had met Osama bin Laden several times prior to coming to Canada, and even operated a large Sudanese farm for the al-Qaeda leader.
Because CSIS relies on secret sources and has no powers to make arrests or lay charges, it provides ministers with dossiers that can be used to invoke the security certificate power – which effectively allows the foreigners to be branded threats and jailed indefinitely until deportation, even without having to show evidence of crime.
Via videolink, Mr. Day recalled how he had seen CSIS information indicating Mr. Mahjoub had been a leader in an Egyptian terrorist faction known as the Vanguards of Conquest. He also said he learned Mr. Mahjoub had snuck into the country with a fake Saudi passport.
Mr. Mahjoub, who has long existed in a legal limbo in Canada, was in the Toronto courtroom and watched Mr. Day's testimony with no discernible reaction.
His lawyers had fought for Mr. Day’s testimony. Thursday's hearing was also attended by Mahmoud Jaballah, another Egyptian fighting a security certificate.
The government's legal cases to remove these and several other men date back to the early 2000s, but have been consistently undercut by allegations of Canada being complicit in foreign torture. Defence lawyers argue that CSIS may be relying on information beaten out of prisoners in foreign jail cells, or that the security-certificate detainees would be likely tortured themselves if Canada deports them to their homelands.
Mr. Day said he considered whether evidence used to make the assessment might have come from torture. Records show the CSIS director of the day wrote memos telling Mr. Day it was "difficult if not impossible" to determine whether torture taints any particular intelligence exchange between Canada and a foreign state.
Pressed on his role as Public Safety Minister, Mr. Day said he always made reasonable decisions based on the information he received from officials he trusted. But "if you are asking whether I went to various countries to establish that on my own, I think that would be an unreasonable task," he said.
Told that the courts eventually tossed out some information incriminating Mr. Mahjoub for fear of a torture taint, Mr. Day said "that was a decision of the court and we live with decisions of the court."
The testimony continues.