COURT BOLSTERS PASSPORT DENIAL FOR TERRORISTS

UNCLAS OTTAWA 000079

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PTER PGOV PREL CA
SUBJECT: COURT BOLSTERS PASSPORT DENIAL FOR TERRORISTS


1. (SBU) Summary: A Canadian appeals court has upheld the
constitutional authority of the Foreign Minister (in charge also of
Canada's passport agency) to refuse to issue a passport to Canadian
citizens convicted of terrorist offences. The decision appears to
bolster the federal government's ability to withhold travel
documents on national security grounds under 2004 amendments to
passport regulations. End summary.

TRAVEL FOR TERRORISTS?
--------------


2. (U) On January 29, the Federal Court of Appeal ruled unanimously
that the government's decision in 2006 to deny Fateh Kamel (an
Algerian-Canadian convicted of terrorist offences in France in 2001
-- para 3) a Canadian passport was a justifiable violation of his
constitutional right to "enter, remain in and leave Canada." It
overturned a March 13, 2008 Federal Court ruling that had struck
down as unconstitutional a 2004 amendment to the Canadian Passport
Order authorizing the foreign minister to deny or revoke a passport
on national security grounds. The lower Court had found the
amendment "vague, even nebulous," had given the federal government
six months to rewrite the provision to conform to the Charter of
Rights and Freedoms, and had granted Kamel a judicial review of his
passport application. The Appeal Court's ruling cited a key
provision (section one) of the Charter that subjects rights to "such
reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society."


3. (U) In 2001, courts in France had sentenced Fateh Kamel to eight
years in prison for his participation in the Armed Islamic Group, a
terrorist cell that was responsible for the hijacking of an Air
France jet in 1994 as well as a series of bomb attacks in France in
1995, and for supplying fraudulent passports to militants. The
group is also linked to "Millennium Bomber" Ahmed Ressam. Kamel was
released early for good behavior and returned to Canada in 2005 on a
special single-use passport.

CANADIAN PASSPORT RULES
--------------


4. (U) Under the Canadian Passport Order, Canada's passport agency
may refuse to issue a passport to an applicant who: submits an
incomplete application; stands charged in or outside Canada with an
indictable offense; is imprisoned in Canada or forbidden to leave
the country due to conditions imposed by a court or correctional
institution; is imprisoned outside Canada or forbidden to leave a
foreign state due to conditions imposed by a foreign court or
correctional institution; forges, or knowingly uses, acts on, causes
others to use, or possesses a forged passport, or makes false or
misleading statements for the purpose of procuring or altering a
passport; is indebted to the Crown for expenses for repatriation or
for consular aid; already possesses a valid Canadian passport;
and/or "if the Minister is of the opinion that such action is
necessary for the national security of Canada or another country."


TEST CASES
--------------


5. (U) The federal government officially listed national security as
a ground for refusing to issue passports to certain individuals on
September 22, 2004. Prior to 2004, the government could only
restrict passports on non-listed grounds by asking the Governor
General to invoke the rarely used "royal prerogative" (a customary
authority and privilege vested in the monarch and exercised only on
the advice of the Prime Minister). In July 2004, the then-Governor
General invoked her prerogative to deny a passport to Canadian-born
Abdurahman Khadr, who had admitted to participating in terrorist
training in Afghanistan (and who is an elder brother of Guantanamo
Qtraining in Afghanistan (and who is an elder brother of Guantanamo
detainee Omar Khadr). Then-Foreign Minister Bill Graham explained
the decision as "in the interest of the national security of Canada
and the protection of Canadian troops in Afghanistan." Khadr
applied for a passport a second time in 2006, but the government
declined the application on security grounds on the basis of the
amended Canadian Passport Order. Fateh Kamel applied for a standard
passport in December 2005.


6. (SBU) According to a federal spokesperson, the ruling in the
Kamel case "strengthens the case, when there's national security
issues" that passport revocation or denial is justified, and "we are
very happy" with the judgment. However, the same official declined
to speculate about the outcome should Kamel reapply for a passport,
noting "that's a call for the minister." The ruling did not
explicitly clarify the status of applicants -- such as Abdurahman
Khadr -- who (unlike Kamel) have never been actually convicted of
terrorist offenses but about whom the government may have national
security concerns. Kamel has reportedly not yet decided whether to
appeal the ruling to the Supreme Court.
BREESE