GOOD PROSPECTS FOR REVISED SECURITY LEGISLATION

UNCLAS SECTION 01 OF 02 OTTAWA 001961

SIPDIS

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PTER PGOV PREL CA
SUBJECT: GOOD PROSPECTS FOR REVISED SECURITY LEGISLATION

REF: OTTAWA 1924


1. (U) Summary: The Harper government on October 22 introduced a
bill to amend Canada's long-standing system of immigration security
certificates in response to a February 2007 Supreme Court ruling
that had struck down key provisions as unconstitutional. The
certificates provide the government the means to detain non-citizens
who are deemed to pose a serious threat to Canada's security,
pending deportation to their countries of origin. Parliament will
also imminently review another bill to revive lapsed provisions of
the Anti-Terrorism Act, as well as an omnibus crime bill, as the
October 12 Speech from the Throne had promised (reftel). Chances of
passage of all of these measures are high. End Summary.

SECURITY CERTIFICATE PROCESS
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2. (U) "Security certificates" have been part of Canada's
immigration legislation since 1978. The government has issued such
certificates only 28 times to detain and attempt to deport
non-citizens deemed to be serious threats to public safety and
national security. The Minister of Citizenship and the Solicitor
General must sign each certificate, which a Federal Court judge in a
closed-door hearing must then endorse. Detainees do not have the
right to hear the evidence against them, but can receive a summary
of the allegations. Five individuals are currently subject to
post-9/11 security certificates, of whom four are under strict house
arrest, while one remains incarcerated. Many detainees in the past
have argued successfully that they would face a known risk of
torture or death if they returned to their country of origin, and
have won the right to remain here under surveillance, at least until
conditions in their home country permit safe deportations.


3. (U) On February 23, the Supreme Court had struck down the
existing system of security certificates on the grounds that the
process violated the Charter of Rights and Freedoms, specifically
section 7, which states that individuals may not be deprived of
their liberty "except in accordance with the principles of
fundamental justice." The Court made clear that defendants must be
able to know the case against them and to mount a meaningful
defense. The Court also ruled that different detention review
provisions in place for permanent residents and for non-residents
was discriminatory. The Court suspended its judgment for one year
to allow the government time to rewrite the law.

BALANCING SECURITY WITH RIGHTS
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4. (U) The government tabled new legislation on October 22 to
respond to the Supreme Court's conditions. Minister of Public
Safety Stockwell Day said the government believes that security
certificates remain "an important tool to protect Canada from
terrorist threats" but that the process "must also protect rights
and freedoms." The new legislation contains two major provisions:
creation of "special advocates," government-appointed and
security-cleared lawyers to represent and protect the interests of
individuals facing security certificates; and, extension to foreign
nationals of the same detention review rights as permanent
residents.


5. (U) The special advocate will be able to challenge the
government's claim that information against the individual cannot be
disclosed for reasons of national security or public safety, as well
as to question the relevance, sufficiency, and weight of the
information. Proceedings will nonetheless continue to be in
closed-door hearings, and the defendants will still not have access
Qclosed-door hearings, and the defendants will still not have access
to the actual evidence. However, any person subject to a security
certificate will have the right to an initial detention review by a
Federal Court judge within 48 hours, followed by ongoing reviews at
six-month intervals. The bill takes into account recommendations
from the parliamentary committees reviewing the Anti-Terrorism Act
as well as Supreme Court concerns.

BILL EXPECTED TO PASS EASILY
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6. (U) The bill must pass through the legislative process and be in
place by February 23, 2008 when the one-year stay from the Supreme
Court expires. If not, the security certificate process will cease
to function and all detainees could apply for the termination of
their certificates.


7. (SBU) The Harper government has insisted that it "will not waiver
when it comes to safeguarding of the security of Canadians" and has
previously accused the opposition parties, notably the Liberals, of
being "soft on terror." However, the Liberals were quick to voice
their support for the new bill, which likely will face only minimal
opposition in Parliament. The NDP will oppose the bill, while the
Bloc Quebecois has not revealed its position.

NEXT STEPS

OTTAWA 00001961 002 OF 002


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8. (SBU) The Harper government next plans to introduce a bill,
perhaps even on October 23 and probably - unusually -- in the Senate
rather than the Commons, to restore two controversial but never-used
clauses of the Anti-Terrorism Act permitting investigative hearings
and preventative arrest. The clauses had been subject to automatic
"sunset" clauses and lapsed in March after the three opposition
parties refused to support legislation to extend them. Liberal
justice critic Ujjal Dosanjh on October 22 said that the Liberals
would approach a revised anti-terrorism bill "with no preconceived
notions or bias." The government has also introduced an omnibus
crime bill, combining several pieces of legislation from the
previous session - most of which had already made it through the
Commons to the Senate - and this also faces likely adoption in the
near future.
WILKINS