Ottawa concerned national security detainee could face torture

The saga of a man accused by the Canadian government of being a national security threat took another twist Monday when a government lawyer asked a judge to consider the possibility he could be tortured in his native Egypt if deported.

Federal prosecutor Donald McIntosh in his final summationfor the case urged Justice Andrew MacKay to consider the constitutionality of deporting Mahmoud Jaballah in light of those concerns.

"This is one of the foremost issues of our time … these are questions that go to the very essence of democracy," McIntosh told the court.

"We would urge you to weigh in on these issues."

For the greater part of the last seven years, the government has been arguing that Jaballah is a threat to national security.

He was first arrested in 1999 on allegations that he was linked to an Egyptian group called Al Jihad, which the Canadian Security and Intelligence Service identified as a "terrorist organization." The accusations were thrown out months later, but he was arrested again in 2001 after CSIS said there was new evidence linking him to the group.

The government has accused Jaballah of fighting alongside Muslim extremists in wars in Afghanistan and Chechnya.

'A most unusual afternoon'

A Federal Court judge in Halifax earlier this year upheld a decision not to grant Jaballah asylum as a person in need of protection from torture or other grave harm.

The change in the prosecution's approach caught Justice MacKay by surprise.

"I don't know what's come over you … Mr. McIntosh," MacKay teasingly remarked. "This is a most unusual afternoon."

Outside court, Jaballah's supporters expressed similar feelings of disbelief.

"It is odd," said Matthew Behrens of the Campaign to Stop Secret Trials in Canada.

"The Crown said he was doing this at the request of the ministers … why is it now suddenly becoming an issue?"

The issue will likely be seized upon when Jaballah's lawyers present their final arguments later this week.

Security certificates allow authorities to detain suspected terrorists indefinitely without charge, and without making public any evidence against them, which critics contend is in violation of their Charter rights to due process.

Jaballah, Hassan Almrei and Mohammed Majoub remain detained under the certificates at the Kingston Immigration Holding Centre. Mohamed Harkat and a fifth man, Adil Charkaoui, have been released under strict conditions.

Harkat, Charkaoui and Almrei have challenged the legality of security certificates all the way to Canada's top court.

In June, lawyers for the federal government argued to the Supreme Court that the certificates were necessary because the importance of national security outweighed the rights of those detained.

A judgment has not yet been issued in the case