Colin Freeze, Globe and Mail Published, Wednesday, Sep. 30, 2009

Ottawa has spent $60-million over the past two years in its failed attempts to deport a handful of immigrants accused of having ties with al-Qaeda, The Globe and Mail has learned. According to sources, the money has been used to fund legal cases involving five men detained under security certificates – a long-standing program that Ottawa has used in the hopes of ridding the country of suspected terrorists.

Security-certificate cases have become paralyzed in the courts and polarizing for the public, and are on the verge of becoming obsolete. On Wednesday, a Federal Court judge formally quashed the case against Adil Charkaoui, the Montreal-based Moroccan being detained on a security certificate, after lawyers representing the Canadian Security Intelligence Service said the spy agency could not abide court-ordered disclosures of its secrets. Mr. Charkaoui is contemplating a multimillion-dollar lawsuit for the six years he spent under a federal detention and surveillance regime.

While public discussion of security certificates has long centred on legal principles, budgetary officials are now conducting a review to determine whether taxpayers are getting value for the money spent on litigation.

“The Treasury Board Secretariat has required that a comprehensive evaluation be conducted for the Security Certificate Initiative in 2009-2010, in its second year of funding,” reads a Justice Canada letter soliciting feedback from legal insiders this past summer. “The evaluation will focus on assessing the continued relevance and performance of the Security Certificate Initiative which includes the Special Advocates Program.”

The multimillion-dollar legal bill is being spent on both prosecution and defence, and it is not uncommon for as many as six lawyers on each side to square off in security-certificate cases.

It’s these costs that are being put under a microscope as part of Ottawa’s continuing “strategic reviews,” which are examining a host of federal programs. The Treasury Board is trying to assess the security-certificate program through “interviews, surveys and a review of documents and performance data.”

While the Justice Canada letters circulated to insiders don’t affix a price to the program, some who were contacted by the Treasury Board say they were told it was pegged at $60-million over two years.

Value for money becomes a question given how ineffective security certificates have become. The federal government’s legal battle to deport Egyptian Mahmoud Jaballah, is a decade old, having been launched in 1999. Cases against three other al-Qaeda suspects are also continuing, and unlikely to result in deportation because doing so would send them to homelands where they would probably be tortured.

However, proponents say the security-certificate process would be a bargain at any price, given how the tool was painstakingly created to balance civil liberties with national-security imperatives. Anil Kapoor, part of the “special advocate” class of lawyers recently created to fight these cases, said “the public does win. If any security-certificate procedure prevents one terrorist attack or ensures the release of an innocent person, it will be well worth the price.”

While the government did contact Mr. Kapoor for his views, he did not disclose the amount of tax dollars that have been spent.

When the Supreme Court found the security-certificate process was tilted in favour of the state – given how Crown lawyers could advance their arguments in secret, judge-only hearings – Parliament’s fix was the creation of the special advocates to go to bat for the detainees in the secret hearings. This has added to the program’s bottom line.

The special advocates don’t charge the government exorbitantly – $275 an hour, which is more expensive than Legal Aid, but less than what many could charge in other cases. However, all the special advocates had to be screened for Top Secret clearance, and they often travel to fight their cases.

Similarly, the Justice Department has had to adjust, by redoubling its prosecutorial efforts. Justice is also compensating federal agencies – CSIS, the RCMP, and Immigration Canada – who are using more money and more personnel in these cases.