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 -------------- -------------- -------------- ¶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 -------------- -------------- -------------- -------------- ¶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 -------------- -------------- -------------- ¶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 -------------- ¶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