Day was testifying Thursday about his role in issuing a security certificate against Mohamed Mahjoub. The former public safety minister said the warning about the possibility of torture came from an official at Canada's top spy agency.
Last year, reports from The Canadian Press showed that much of the information used in this case originated from foreign agencies that use torture and that the Canadian Security Intelligence Service (CSIS) knew this.
Day, who left politics in 2011, is testifying via video-link from Vancouver before a Federal Court judge in Toronto.
During cross-examination on Thursday, Day repeatedly answered, "I can't recall" or "I don't recall" when pressed by Mahoub's counsel about what he knew before he signed the security certificate and how he got the information:
- Was he aware some intercepted phone calls were in a language other than English? "I don't recall."
- Was he aware evidence had been destroyed? "I don't recall being told it was all destroyed."
- Was he told Mahjoub's family was at risk in Egypt? "I can't recall."
- Was he aware Mahoub's family had been persecuted after he was charged, and that his brothers were detained because of association with him? "I can't recall."
Mahjoub, a 51-year-old father of three living in downtown Toronto, has been imprisoned and under house arrest since 2000, without facing any charges because of secret information the federal government said deemed him a threat to national security.
Day also added that material pointed to Majhoub’s involvement in a group called Vanguard of Conquest, a group tied to the late al-Qaeda leader Osama Bin Laden, and that discussions on the security certificate would have been “too numerous to recall precisely."
When asked who was involved in these conversations, Day said there were “a number of discussions involving a number of people,” but noted one as Jim Judd, former director of CSIS.
Day to be cross-examined
Day’s presence at the hearing, which will determine if the security certificate against Mahjoub is reasonable, will likely also offer insight into how the government labels terror suspects and threats to national security.
Day was a senior federal cabinet minister from 2006 to 2011. He has also been minister of public safety and international trade, and head of the Treasury Board.
Despite strong government opposition, Mahjoub’s lawyers won the right to cross-examine Day.
When Day was public safety minister in 2008, he signed papers that sent men with alleged militant or terrorist connections to detention and possibly deportation.
This was done after the Supreme Court of Canada ruled in 2007 that the legislation involving security certificates was against the Charter of Rights and Freedoms. Canada’s highest court then gave the government one year to redraft it.
In 2008, while Day was minister of public safety, the redraft became law.
Full records no longer exist, but evidence of Mahjoub's alleged involvement in the militant group was obtained through a series of wiretapped conversations from 1996 to 2001.
Regarding these phone calls, Day said his guidelines would have been according to law, and one specific concern he recalls having brought up at the time was that certain materials could potentially be under solicitor-client privilege.
With security certificates, the government is allowed to detain residents and foreign nationals indefinitely if they deem them a threat to national security. This is permissible even without charging them and based on information that is secret even to the individual’s lawyers.
If a certificate holds up in court, the person may be deported. However, in cases where deportation could lead to the possibility of torture or death in someone's home country, that person is kept in Canada under house arrest or in prison.
Two other Muslim men are fighting their security certificates:
- Mahmoud Jaballah, who was arrested in Toronto in 2001.
- Mohamed Harkat, who was arrested in Ottawa in 2002.
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