The federal government is quietly studying alternatives to deporting terrorism suspects under the much-maligned national security certificate as attempts to remove them get bogged down in the courts.
The effort reflects candid federal admissions that it's almost impossible to send non-citizens with alleged terror links to their home countries because they may be tortured or killed.
Currently, three people arrested under security certificates — Mohamed Harkat of Algeria, and Mahmoud Jaballah and Mohamed Zeki Mahjoub, both from Egypt — are out on bail under strict surveillance as their cases slowly grind through the courts.
Harkat was recently served with a deportation order, but his lawyers argue he should not be removed while the security certificate system is still under judicial review.
A federal interdepartmental body known as the Alternatives to Removal Working Group began meeting in March 2009 to explore policy options for managing people deemed a threat to national security, documents disclosed under the Access to Information Act show.
The group, which includes the RCMP, Citizenship and Immigration, the Canadian Security Intelligence Service, Canada Border Services Agency, Justice, Public Safety and Foreign Affairs, has "produced a detailed body of work" on tools available under the law, says one internal memo.
Among the alternatives to deportation identified are greater reliance on:
- The Anti-terrorism Act to prosecute suspects.
- Other Criminal Code provisions relating to offences including violence, theft, forgery and conspiracy.
- Preventive measures including a peace bond, an order issued under the Criminal Code that allows authorities to keep someone under surveillance.
Another document shows the federal Privy Council Office was keenly eyeing the British debate over use of control orders — a means of strictly monitoring terror suspects through curfews and prohibitions on communication.
Britain announced this week it would scrap control orders — denounced as too draconian by critics — in favour of less-restrictive measures to be introduced at year's end.
Some of the heavily censored federal records were obtained by Mike Larsen, a doctoral candidate and researcher at York University's Centre for International and Security Studies. Others were released to The Canadian Press.
The documents show that while the working group is examining alternatives to deportation where the possibility of torture exists, it has not abandoned the option altogether.
"One possible solution to this dilemma is to seek assurances from the receiving state that the individual will not be tortured or otherwise be subjected to cruel, unusual, inhuman or degrading treatment or punishment," says a policy note prepared by the group.
Such assurances can include access to counsel, an independent medical exam, a guarantee of fair trial rights or establishment of a monitoring mechanism to ensure the person deported is not abused in their homeland. Some assurances may simply reaffirm existing obligations under international law, the note says.
"Canada has obtained such assurances from a number of countries in the past, including Egypt, China and Sri Lanka. To date, Canada has not been able to rely on such assurances to deport individuals to countries where they might otherwise face a substantial risk of torture."
However, the note points to recent British cases, saying the legal debate has shifted from broad arguments of principle about whether assurances can ever be appropriate "to fact-based arguments about whether assurances should be considered sufficient and reliable in the particular circumstances of a specific case."
In an interview, Larsen said consideration of these issues should not take place behind closed doors.
"There should be public consultation," he said. "There should be open dialogue."
The notion of diplomatic assurances about torture involves serious national policy discussions about whether certain foreign countries can be trusted, he said.
Vic Toews, the current public safety minister, was not available for an interview, and his department declined to allow officials to speak on the subject.
In late 2009, then-public safety minister Peter Van Loan acknowledged the security certificate system needs fixing.