Spy agency went too far, watchdog says

CSIS exceeded mandate and violated the rights of Canadian `terrorist,’ review panel reports

Jim Bronskill

The Canadian Security Intelligence Service violated the constitutional rights of a citizen and strayed beyond its security mandate into the realm of law enforcement, says a federal watchdog.

In its annual report tabled late yesterday, the Security Intelligence Review Committee said Canada’s spy agency “arbitrarily detained” Mohammed Mansour Jabarah in contravention of the Charter of Rights.

Jabarah, a Canadian citizen, is an admitted Al Qaeda member and leader of a terrorist cell that plotted to bomb the American and Israeli embassies in Singapore and Manila. He was apprehended in Oman in March 2002 after the plan was derailed.

“Jabarah is a terrorist but also a Canadian citizen, and no matter how despicable his actions, the Charter conferred on him certain fundamental rights,” the review committee says in the report to Parliament.

CSIS officials travelled to Oman and arranged for Jabarah’s return to Canada and subsequent transfer to the United States on a government-owned aircraft, since he apparently could not be charged with a crime under Canadian law.

He pleaded guilty in the U.S. to a number of terrorism-related offences. Jabarah has not been sentenced and remains behind bars.

The review committee, which reports to Parliament, examined CSIS’s investigation against service operational policy and procedures, ministerial direction and applicable Canadian law, including the CSIS Act and the Charter of Rights and Freedoms.

The committee also obtained legal advice from Gerard LaForest, a former Supreme Court justice and Charter expert.

The report found Jabarah’s decisions, made without the benefit of any independent legal advice, resulted in his self-incrimination and surrender to U.S. authorities.

“SIRC’s review raised questions regarding CSIS’s contention that Jabarah’s decisions were made freely and voluntarily.”

The committee said a court would also have considered various factors, including: Jabarah’s age, his emotional state, whether his fear of the alternatives influenced his return to Canada from Oman, the length of time he spent in the company of CSIS officials while in Canada, and the circumstances surrounding his decision to surrender himself to a foreign jurisdiction.

A CSIS official told the committee Jabarah was not “read his rights” because CSIS isn’t a police service. “This response, subsequently confirmed in writing by the service, demonstrates a misunderstanding of the application of the Charter to government representatives carrying out their official duties.”

The committee found Jabarah could not be prosecuted for any crime in Canada, since his terrorist activities pre-dated Canada’s Anti-terrorism Act. Therefore neither CSIS nor the police had any right to detain him. Based on these and other circumstances, the committee concluded Jabarah was “arbitrarily detained” by CSIS in violation of the Charter.

In addition, his rights to silence, to legal counsel and to remain in Canada were breached, the report says.

The review committee also concluded CSIS “strayed from its security intelligence mandate into the area of law enforcement.”

CSIS did not immediately respond to the report.

A spokesperson for Public Safety Minister Stockwell Day said the government fully accepts the review committee’s findings.

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