The Case of Canada national security

The longest-running national security cases in Canada has resulted in a massive civil lawsuit, as an Egyptian-born Toronto man is suing the federal government for repeatedly trying to deport him over alleged ties to the 1998 terrorist bombings of U.S. embassies in Africa.

The federal government first arrested Mahmoud Jaballah in 1999 through the use of a national security certificate, a controversial tool that uses classified evidence kept secret from the accused. That kicked off a 17-year battle between Jaballah and the federal government over the legitimacy and constitutionality of the certificates. Jaballah has always maintained the allegations against him are false.

A person named in a certificate as a security risk to Canada can be deported under immigration law. Between 1999 and 2016, the government signed three security certificates naming Jaballah, all of which ultimately failed to stand up in court. The government’s case ultimately died in the Federal Court of Appeal in October 2016.

Jaballah has now filed a statement of claim seeking general damages for him, his wife and his six children totalling $34 million, plus an additional $3.4 million in aggravated and punitive damages — though it’s the judge that sets damages if a plaintiff wins. The lawsuit was filed in Toronto in the Ontario Superior Court on Nov. 28, 2018.

Security certificates have long raised concerns in Canada that their secrecy denies accused people the ability to defend themselves. In 2007, the Supreme Court of Canada ruled the certificate regime was unconstitutional in the landmark R. v. Charkaoui case. A new regime was established that uses “special advocates,” lawyers who can view the evidence but are still barred from sharing it with the accused.

Jaballah arrived in Canada with his family in May 1996 using false Saudi Arabia passports. The family claimed refugee status, pointing to persecution by Egyptian authorities who accused him of links with al-Qaeda terrorists.

The statement of claim says the Canadian Security Intelligence Service immediately started investigating Jaballah, including surveilling him and tapping his phone, and he was interviewed multiple times in 1998 by CSIS agents. Jaballah was arrested on Mar. 31, 1999, under a certificate that named him as a security risk to Canada. The certificate was quashed for insufficient evidence by a Federal Court judge in November 1999, and Jaballah was released from detention.

Jaballah was arrested again in August 2001 after the government said it had new evidence and signed a second certificate. He would spend the next six years in detention, waging a legal battle against the certificate and the government’s effort to have him deported. He argued that he would be tortured if sent back to Egypt. In 2006 and 2007, according to his statement of claim, he went on two hunger strikes in the Kingston Immigration Holding Centre in protest of his detention conditions.

In the spring of 2007, following the Charkaoui ruling that the certificates were unconstitutional, Jaballah was released into house arrest while the government deliberated on how to respond to the Supreme Court decision.

On Feb. 22, 2008, the government signed a third certificate naming Jaballah. The certificate publicly outlined some details of the case for the first time, including the government’s contention that Jaballah helped terrorist cells publicize the 1998 bombings of U.S. embassies in Kenya and Tanzania that killed more than 200 people.

Between 2008 and 2016, Jaballah remained under various house arrest conditions. A complex set of court proceedings took place, much of it in secret by special advocates representing Jaballah, to have the certificate thrown out for abuse of process. Jaballah’s lawyers argued the evidence was insufficient and included foreign intelligence obtained through torture. CSIS also admitted during this time that it had listened to phone calls between Jaballah and his lawyers. Finally, in June 2016, the Federal Court ruled the evidence against Jaballah was not solid enough and the certificate was thus unreasonable. Jaballah was released from all the remaining conditions of his house arrest. The government’s appeal was rejected.

The lawsuit claims Jaballah’s rights were serially violated by the government, not only because of the use of the certificate regime but also due to the “repeated threats and attempts to deport Jaballah to Egypt where he faced a high risk of torture.” It also says his family suffered from his detention and the terms of his house arrest, including the fact that one of his children was deported in 2012 after being convicted of gang-related criminal offences.

The lawsuit claims the government’s investigation into him was negligent and complicit in Egypt’s human rights abuses. It also says Jaballah was defamed by the media coverage of the allegations against him, saying it destroyed his reputation, caused him to lose many friends, and “made him effectively unemployable.