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Canada The difficulty of due process in the age of counterterrorism

Muhammad Aqeeq Ansari is currently being held by Canadian authorities despite not being charged with a terrorism-related offence, and faces deportation to Pakistan. All he says he knows is that “a CBSA officer has more power than a judge” because of the low thresholds of proof the Canada Border Services Agency needs to meet in deportation cases such as his.

Ansari family handout

From behind the prison plexiglass, the prisoner with a three-inch beard wears an orange jumpsuit and cradles the telephone receiver to his ear.

"I am certain that I am the victim of racial profiling," he says. He later adds: "I want the world to know they are telling lies against me."

Muhammad Aqeeq Ansari, 31, tells two visiting Globe and Mail reporters he is not a terrorist. Federal agents have been investigating him for four years, he said, adding that he can explain everything – the assault rifles he bought, the money he moved, his alleged ties to extremists overseas.

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The non-citizen resident of Canada points out that he has never been charged with a terrorism crime. He is charged under the Immigration Act with being a likely threat to national security and faces deportation to his native Pakistan. He was arrested just days after the terrorist shooting near Parliament Hill and has been in jail ever since.

Unlike criminal charges, for which proof beyond doubt is the legal standard, under Section 34 of the Immigration Act, authorities need only prove "reasonable grounds to believe" he is a threat.

"Can anybody beat that?" Mr. Ansari asks.

Next-best options

Counterterrorism in Canada is changing. Last weekend, police in Montreal detained 10 young suspected jihadi travellers at an airport, seized their passports and released them. The Prime Minister and other politicians hailed the stratagem as a victory, even though no criminal charges were laid.

Authorities suggest they are scrambling to keep their "targets" off planes and off the streets. Since October, when suicidal lone-wolf extremists killed two soldiers, the prospect of police putting together perfect prosecutions for tomorrow seems to have been shunted aside in favour of what works today.

"There has been a considerable shift," RCMP Deputy Commissioner Mike Cabana told a Parliamentary committee last month. The Mountie, who is in charge of the nation's major criminal investigations, said the "key objective in addressing the current threat environment is to mitigate the risk of violence." To that end, "the RCMP is doing everything in its power."

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He told the Senate Committee on National Security that criminal terrorism charges are not strictly necessary. Sometimes, police have to disrupt potential threats while they continue to investigate. "While disruption measures are sometimes necessary to protect public safety, they can never – nor should they – replace the pursuit of criminal charges," he said.

He said the recent infusion of hundreds of detectives into RCMP-led terrorism squads has not solved the problem of how to deal with a long-term threat: the ranks of youth who feel the pull of propaganda from the Islamic State and other groups.

Few of the reported cases of suspected jihadis over the past six months involve alleged offences under the federal Anti-Terrorism Act. In an e-mail to The Globe on Friday, federal prosecutors said they have charged only 10 people with terrorism offences since last October.

In other cases, suspects got away before authorities could stop them. Sometimes, police opt for lesser charges, such as passport fraud, or invoke a seldom-used terrorist peace bond. National-security detectives have also passed some criminal investigations, such as that involving Mr. Ansari, to immigration officials. In others, they have seized passports.

The common thread in each of these next-best options? The legal burden of proof is much much lower than what a criminal prosecution would oblige. And so is the obligation for the state to disclose its files.

Top-secret problem

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In Canadian counterterrorism circles, there is a problem known as "intelligence-to-evidence."

Government authorities often have a lot of information they do not want to expose in court. The Crown may have to abandon the case if a judge might oblige security agencies to disclose sensitive spying methods, such as a wiretap technique, an informant's identity, or a foreign partner's top secret file.

Nowhere in Canada has this been better represented than in the case of Adil Charkaoui. The Moroccan-born resident of Montreal went to the Supreme Court twice in the mid-2000s to counter allegations that he was a terrorist sleeper agent. Today, he faces accusations from Quebec media and politicians of radicalizing Muslim youth.

The Canadian Security Intelligence Service had recommended he be kicked out as a top-level threat. He denied the accusation, but the CSIS dossier included allegations he likely attended an Afghan training camp and that significant terrorist figures jailed and interrogated in Morocco, Guantanamo Bay, and the United States recognized him. CSIS reports leaked to the media alleged he had been overheard talking about attacking passenger jets.

Yet, none of this could be called evidence – even in the low-threshold process for security certificates under which Mr. Charkaoui was charged. His lawyers demanded CSIS officers prove their suspicions, and the government withdrew its case.

Today, CSIS and the RCMP are struggling to find ways to track young extremists without scuttling future prosecutions. Defence lawyers now try to discover if CSIS was involved in a case in the hopes the spy agency will resist any order for disclosure.

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The issues – and Mr. Charkaoui – are not going away.

Case in point

But there can be workarounds.

Ask Muhammad Aqeeq Ansari whether he has heard of Al Capone, and he says he knows nothing of the 1930s Chicago gangster who was prosecuted for tax evasion when all other strategies failed.

All he says he knows is that "a CBSA officer has more power than a judge" because of the low thresholds of proof the Canada Border Services Agency needs in deportation cases such as his.

Mr. Ansari says he first knew he had problems in March, 2011, when a CSIS intelligence officer showed up at his door to invite him to Starbucks. There, he was told someone had written a "poison pen" letter against him alleging ties to extremists: Would he like to get anything off his chest?

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He says he was fired from his job as a computer programmer for an Alberta energy company without explanation. He moved to Ontario, got a new job and picked up a hobby – going to firing ranges and legally acquiring guns, including a weapon known as the Bushmaster Advanced Combat Rifle.

Asked about these and nine other guns he bought, Mr. Ansari told two Globe and Mail reporters he acquired them as a natural and logical outgrowth of his love for the video game Call of Duty.

In 2013, he says he was overtly followed by government cars. The same year, police seized the weapons and raided his house. He pleaded guilty to unsafe firearms storage and surrendered them.

His file was passed from CSIS to provincial police to an RCMP national-security squad before ending up at the CBSA. Authorities say they recovered a memory stick on which Mr. Ansari recorded himself talking to a friend in Urdu: "Someone sent me here for a purpose That purpose, I can't tell you."

Mr. Ansari says he was talking about sending money home for charity, but during an immigration hearing, he was portrayed as a likely terrorism sleeper agent. He has been ordered deported, and it is not known if he will still be in Canada for his next hearing, on June 1.

Early this month, he said he may appeal – but it is probably futile. "My lawyer says to tell you that I'm hopeful."

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