New disclosure obligations set out by the Supreme Court of Canada have played a key part in the collapse of a federal security certificate case against a second terrorism suspect.
In quashing the certificate against the Syrian-born Toronto resident Hassan Almrei, a Federal Court judge said yesterday that the material the Canadian Security Intelligence Service disclosed to the court under the new rules contradicted information from its informants.
In his ruling, Mr. Justice Richard Mosley also said CSIS filed outdated, unreliable information about how al-Qaeda operates.
The ruling is the latest blow to the controversial certificate system, which relies on evidence heard in secret to detain and deport foreign residents.
"This decision proves this process is a flawed process," said Mr. Almrei's lawyer, Lorne Waldman. The new rules have helped, he said, but "I still don't believe it is a fair process."
Mr. Almrei is a former mujahed who went to Afghanistan in the 1990s. His arrest in 2001 was justified, but he's no longer a security threat, Judge Mosley wrote.
In September, Moroccan-born Montreal resident Adil Charkaoui was cleared after the government withdrew its certificate evidence against him rather than subject it to scrutiny.
Mr. Charkaoui was the plaintiff in the 2008 top court ruling known as Charkaoui II, which requires that CSIS retain and disclose all relevant information to the judge in a security certificate case.
That case is expected to be pivotal in the three remaining certificate cases against men suspected of being Islamic terrorists.
Norman Boxall, a lawyer for another certificate suspect, Mohamed Harkat, called the Charkaoui II decision important.
"Like Almrei, there has also been disclosure in Harkat raising serious issues with confidential informants," he said.
Barbara Jackman, who represents certificate suspects Mohamed Mahjoub and Mahmoud Jaballah, said Charkaoui II resulted in greater disclosure than 10 years of previous legal wrangling did.
In an interview with The Canadian Press this weekend, Public Safety Minister Peter Van Loan said he would review the embattled certificate system.
"I'm taking a serious look at it, trying to work our way through what the implications of the court decisions are and how we can balance that with our ... national security," he said.
In his ruling, Judge Mosley said there were grounds to be suspicious of Mr. Almrei because he had been to Afghanistan, had arrived in Canada on a bogus passport and gave a forged passport to an Arab Afghan.
"Almrei was at the very least an opportunist willing, for a suitable fee, to violate Canada's laws," the judge said.
But as CSIS was compelled to release more evidence, "surveillance and intercept reports ... contradicted human source reports," Judge Mosley wrote.
Also, CSIS had to tell the court that one informant failed a polygraph test while a second one didn't undergo the lie detector that the agency said he had.
CSIS's credibility was further hurt by closed-door cross-examinations by court-appointed advocates, a role created after another Supreme Court ruling that Mr. Charkaoui, Mr. Almrei and Mr. Harkat won in 2007.
Mr. Waldman said the government made a mistake in using a security certificate rather than charging Mr. Almrei with lesser criminal offences in 2001. He is unlikely to be deported to Syria because of the likelihood that he would be tortured there.
Tu Thanh Ha