and Immigration v. Mohamed Harkat
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OPINION: Right to a Fair Trial is not just for Canadian Citizensposted on October 23, 2013 | in Category Security Certificates | PermaLink
Source: Pro Bono Students Canada / CCLA Rights Watch Blog
Date: October 10, 2013
The opinions expressed here are those of the author's. They do not necessarily represent CCLA or PBSC policy. Please visit CCLA’s website, www.ccla.org, for official CCLA publications and policies.
Today, the SCC hears an important case regarding the constitutional rights of immigrants in Canada. Mohamed Harkat will challenge the constitutionality of security certificates. Harkat is an Algerian who came to Canada in 1997. He has been subject to a security certificate since 2002. He was detained until 2006 and has since been under strict bail conditions. While his conditions have relaxed over time, they have included: a GPS monitoring device, curfew, surveillance cameras at the front of his house, interception of mail and phone calls, and no internet access.
Security certificates allow the Canadian government, on the basis of secret evidence, to deport non-citizens who are deemed a security threat to Canada. The regime also allows for detention – with no statutory limitations on the length – so long as the detention is reasonable. Because it is not a criminal proceeding, the standard of proof is much lower than beyond a reasonable doubt. The standard applied is whether there are reasonable grounds to believe that the named person is a security threat.
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Harkat ‘optimistic’ of second appeal of security certificate at high courtposted on October 16, 2013 | in Category Security Certificates | PermaLink
Source: Metro News Ottawa
Date: October 10, 2013
Mohamed Harkat speaks to reporters in the foyer of the Supreme Court of Canada on Oct. 10, 2013. Photo by Joe Lofaro.
An Algerian-born Ottawa man accused of being an Al Qaeda “sleeper cell” agent was at the Supreme Court of Canada Thursday as federal lawyers argued for the court to uphold laws that would deport terrorist suspects.
Mohamed Harkat, a former gas station attendant and pizza deliveryman, was arrested in 2002 under a security certificate. The tool gives Canada permission to deport foreigners without charging them on the basis of national security.
He was placed on house arrest after spending 43 months in prison. It was only this past July the Ottawa man was permitted to remove his GPS tracking bracelet from his ankle.
On Thursday he was appealing for the second time the constitutionality of the security certificate provisions in the Immigration and Refugee Protection Act.
“I hope for the best and I’m still optimistic what’s going on so far,” said Harkat in the court foyer during a break in the hearing.
In his argument to Canada’s highest court, federal lawyer Robert Frater called for government informants to be kept under a veil of secrecy, otherwise “the informants will close up like a clam.” Federal lawyer Urszula Kaczmarczyk also argued for those named in a security certificate to only receive a summary of the case against them, without divulging sensitive intelligence information.
But what defence counsel is left with is a summary of “bald” allegations, argued Harkat’s lawyer, Norm Boxall.
“You must have information and other evidence and it’s not just being told the allegation,” said Boxall. “For example, there’s an allegation that he went to Afghanistan. When? Where? How? Why?”
Matthew Webber, Harkat’s other lawyer, also asked for an exclusion of the original Canadian Security Intelligence Service (CSIS) wiretaps used in building a case against Harkat, which were destroyed in 2009. The destruction of that evidence is “prejudicial” to his client, said Webber.
Outside the courtroom the foyer was bustling with supporters who came to observe the rare proceeding. Harkat also had the support of his wife, Sophie, during the hearing.
“I’m hoping one day I’m going to clear my name,” Harkat told reporters. “I’m telling the Canadian people and the world I’m not part of bin Laden, what they’re saying. It will prove itself.”
The hearing will continue Friday behind closed doors.
Copyright 2001-2013, Free Daily News Group Inc.
Supreme Court urged to accept revamped national security certificate rulesposted on October 16, 2013 | in Category Mohamed Harkat | PermaLink
Source: The Toronto Star
Date: October 10, 2013
OTTAWA —As the Supreme Court of Canada prepared to take the rare step of going behind closed doors Friday to hear secret government evidence in an anti-terror case, it was warned secrecy is becoming the alarming trend in federal courts.
The Canadian public is unaware that secret evidence is being invoked in lot more than anti-terror cases, said lawyer Barbara Jackman of the Canadian Council for Refugees.
Jackman said while there have been some 30 security certificate proceedings in the past 22 years, there is a huge upswing in the use of secret evidence and closed-door proceedings in a range of other civil proceedings, notably immigration matters.
Jackman told the Supreme Court that since 2008 the Federal Court has conducted secret proceedings in more than 100 cases of judicial review of decisions such as sponsorship applications where the Ottawa cites national security as a reason to bar a public hearing. The number could not be confirmed immediately with federal court officials
“Secrecy is becoming the norm,” Jackman said, intervening in a crucial test case of the federal government’s power to deport non-citizens who are suspected of terrorist ties or spying.
The federal Conservative government is urging the Supreme Court of Canada to uphold the country’s second attempt at crafting special immigration warrants — known as security certificates — to deport terror suspects, and to go further: to grant a “class privilege” or blanket protection to the identity of secret informants.
Mohamed Harkat, an Algerian-born man suspected of running guest houses for training Chechen terrorists in Pakistan on behalf of Al Qaeda-affiliated groups, came to Canada in 1995, claiming refugee status.
Arrested in 2002 on suspicions he was a “sleeper agent,” Harkat has long denied the allegations against him and challenged the latest version of security certificates as unconstitutional.
The high court already struck down in 2007 the first security certificate regime as drafted under Liberal governments. The Conservative government re-tooled the law and modelled it on the British regime, which drew inspiration from Canada’s watchdog agency’s powers over CSIS.
It named “special advocates” — lawyers cleared by the Justice Department — to hear the secret government evidence in a closed courtroom along with the judge. But it does not allow those advocates to disclose the evidence or even talk to the defence without clearing it with the judge.
Intervening for the Canadian Bar Association, lawyer Lorne Waldman, who often acts as a top-secret-cleared special advocate, told the high court it’s a far from ideal system that does not adequately protect a suspect’s rights.
The appeal took a bizarre turn Thursday when federal lawyers argued most of the evidence justifying the deportation of Harkat is already public and known to Harkat.
Ottawa nevertheless wants the high court to affirm the rules that allow the person named in the security certificate to receive only a summary of the case against them without access to original material or supporting details to protect sensitive intelligence information. It says the special advocates provide enough protection to Harkat’s rights.
In fact, Ottawa wants the high court to back the regime and go further — to grant government informants a “class privilege” or blanket protection against revelation of their identity.
former gas station attendant and pizza delivery man, argues the regime remains a violation of Charter guarantees of due process and fundamental justice.
Federal lawyer Urszula Kaczmarczyk urged the judges not to decide whether the whole regime is unconstitutional based on Harkat’s challenge, because most of the evidence against him is already known.
Kaczmarczyk said Harkat, who came to Canada on a false passport claiming refugee status, has received summaries of 14 allegations against him, which amounted to enough information to allow him to defend himself.
Original CSIS tapes and notes about the wiretaps used against Harkat have been destroyed, but Federal Court trial Judge Simon Noel concluded the evidence supported the security certificate issued against him, and declared it “reasonable,” she said.
Noel dismissed Harkat’s story that denied any knowledge or involvement with terrorists training in Peshawar as “meticulously fabricated” but not at all credible.
Chief Justice Beverley McLachlin told Kaczmarczyk the constitutionality of the whole regime has been challenged and “you have to answer that or face the consequences.”
Harkat’s lawyer Norm Boxall said the new system “is better than nothing,” but it does not allow the defence to make any substantive challenge of the Crown’s case in the portion that is held in open courtrooms.
Justice department lawyer Robert Frater said the court should grant a blanket protection to informants, not decide on a case-by-case basis, because otherwise “the informants will close up like a clam.”
© Copyright Toronto Star Newspapers Ltd. 1996-2013
La cause de Harkat de retour en Cour suprêmeposted on October 16, 2013 | in Category Mohamed Harkat | PermaLink
Date 10 octobre 2013
>>> REPORTAGE VIDEO IÇI <<<
La Cour suprême du Canada entend, jeudi et vendredi, la cause de Mohamed Harkat, cet Ottavien d'origine algérienne soupçonné d'activités terroristes par le gouvernement canadien.
Mohamed Harkat conteste la constitutionnalité du certificat de sécurité délivré contre lui et qui a permis aux autorités canadiennes de l'arrêter.
L'audition de la cause sera entourée de secret. Pour la première fois dans l'histoire du plus haut tribunal du pays, la journée d'audience de vendredi aura lieu à l'extérieur de l'édifice de la Cour suprême. Les juges seront retranchés dans un endroit tenu secret pour des raisons de sécurité nationale.
Une dizaine d'intervenants doivent défiler devant le tribunal, dont la directrice générale du Conseil canadien pour les réfugiés, Janet Dench.
« C'est une ironie, parce qu'on est en train de contester l'utilisation des preuves secrètes pour décider du sort d'un non-citoyen et là, on va également utiliser des audiences secrètes », souligne Mme Dench.
Mohamed Harkat réclame l'abolition du certificat de sécurité parce qu'il repose sur des documents secrets qui ont été détruits. Des groupes qui l'appuient estiment que cette procédure va à l'encontre des droits fondamentaux de Mohamed Harkat.
Au cours de l'audition, les avocats spéciaux nommés par le gouvernement et chargés de défendre les intérêts de Harkat viendront dire au tribunal qu'ils ne peuvent pas faire leur travail.
De son côté, le gouvernement fédéral demandera au plus haut tribunal du pays de maintenir le certificat de sécurité. Il estime toujours que Mohamed Harkat représente une menace à la sécurité du pays.
Jeudi matin, une cinquantaine de personnes arborant des affiches se sont rassemblées devant l'édifice de la Cour suprême en appui à Mohamed Harkat pour dénoncer les certificats de sécurité.
Rappel des faits
Mohamed Harkat, 45 ans, a été arrêté en décembre 2002 en vertu d'un certificat de sécurité parce que le Canada le soupçonnait d'être un agent dormant du réseau terroriste Al-Qaïda. Il avait ensuite été remis en liberté sous des conditions très strictes.
En avril dernier, la Cour d'appel fédérale confirmait la constitutionnalité du système canadien des certificats de sécurité dans le dossier de Harkat. La Cour estimait toutefois que certaines preuves déposées contre lui devaient être exclues d'un nouvel examen du certificat de sécurité.
En juillet, Mohamed Harkat a reçu l'autorisation de retirer le bracelet de surveillance électronique qu'il portait à la cheville depuis sept ans.
L'ancien livreur de pizza et préposé dans une station-service habite à Ottawa avec sa femme, Sophie Harkat. Il nie toute activité terroriste.
Avec les informations de René Hardy
Tous droits réservés © Société Radio-Canada 2013.
Supreme Court set to weigh appeals of Mohamed Harkat caseposted on October 16, 2013 | in Category Mohamed Harkat | PermaLink
Source: The Ottawa Citizen
Date: October 10, 2013
OTTAWA — Mohamed Harkat looks anxious, like a man with a trap door beneath his feet.
He’s seated in the living room of his modest brown-brick rowhouse on Ottawa’s southeast side. Sophie Lamarche Harkat, his wife and foremost defender, is at his side. The place is neat and tidy. The rest of their life is a mess.
Canada’s national security apparatus has had a stranglehold on Harkat since Dec. 10, 2002, when the gas station cashier was arrested here as an alleged al-Qaida “sleeper” agent.
It was international Human Rights Day. The recently married Algerian refugee claimant was hauled off to prison for 42 months under a secretive security certificate that allows federal immigration authorities to deport non-citizens deemed a threat to national security.
Then came seven years of virtual house arrest. All with no criminal charge and no trial.
After more than a decade Harkat, now 45, and his lawyers are still fighting deportation on grounds that call into question the state of fundamental justice in Canada.
On Thursday, the Supreme Court sits in open session to consider aspects of the case and whether national security secrecy trumps judicial transparency, accountability and the right to a full defence.
Both the government and Harkat are appealing a 2012 Federal Court of Appeal decision, which ruled that Harkat deserves a new Federal Court hearing to determine if he’s a threat to national security; that his right to a fair hearing was compromised by the Canadian Security Intelligence Service, which destroyed recordings of taped conversations from the mid-1990s; and that CSIS informants are not entitled to the blanket legal protection given to police informants to shield their identities.
On Friday, the high court is to reconvene in an extraordinary session at an ultrasecret, secure location to hear classified arguments. Harkat and his lawyers are barred from attending.
And therein lies the central issue — secrecy.
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VIDEO: AlJazeera Canada Reports on Security Certificatesposted on October 16, 2013 | in Category Mohamed Harkat | PermaLink
PHOTOS: Searching for Justice. Searching for the Justicesposted on October 15, 2013 | in Category Security Certificates | PermaLink
See more photos from the "investigation" of October 11th.
PHOTOS from the morning of October 10th, outside Supreme Court Buildingposted on October 15, 2013 | in Category Security Certificates | PermaLink
See more photos from the visual presentation of October 10th.
OPINION: The Supreme Court's secret hearingposted on October 14, 2013 | in Category Mohamed Harkat | PermaLink
Source: The Ottawa Citizen
Date: October 8, 2013
The Supreme Court’s decision to hold a closed hearing this week as part of Mohamed Harkat’s security certificate hearing is disquieting.
Nevertheless, it is part and parcel of the problematic practice of using secret intelligence as evidence.
The closed Supreme Court hearing will involve an adversarial challenge between government lawyers and security-cleared special advocates. Neither Harkat, an Algerian refugee who was arrested in Ottawa in 2002 on suspicion of being an al-Qaida sleeper agent, nor his lawyers will be present. This will strike many as unfair, but it replicates what happens in security certificates.
As also happens under security certificates, the special advocates who are supposed to represent Harkat’s interests in the closed hearing were only allowed to meet with Harkat’s lawyers in limited and judicially controlled circumstances.
In February of 2013, the Supreme Court allowed the special advocates to meet with Harkat’s lawyers, but only to discuss matters of “legal strategy.” The special advocates were warned that “no classified information will be directly or indirectly disclosed during such communications.”
And there is the rub. What if one’s “legal strategy” depends on what the “classified information” says?
The Supreme Court in its public order about the secret hearing used the telling and American term “classified information.” As found by both the Arar and Air India commission, the government over-classifies information. The security certificate regime encourages this practice by not allowing judges to balance the competing interests in secrecy and disclosure.
The special advocates are supposed to ensure that the detainees are treated fairly and that judges are fully informed about the relevant law and facts. But can the special advocates do their job properly if they are not allowed to consult with the detainee about the secret evidence that is being used against him? That is a central question the court must decide in this important appeal.
The secret evidence used in security certificate proceedings is intelligence that does not have to satisfy evidentiary standards. It may have been obtained from foreign agencies that use torture. It may be obtained, as is a concern in the Harkat case, from unreliable human sources.
The reliability of the secret evidence is often difficult to judge because the Canadian Security Intelligence Service (CSIS) — effectively the police force in these cases — destroyed original notes and intercepts after it made summaries until the Supreme Court ruled in 2008 that such a policy was illegal. Another issue in the appeal is whether it is fair to use CSIS’s summaries when they cannot be verified against the original information. The Court of Appeal concluded the summaries were the problem, not the solution.
The governments that are defending security certificates will have a strong argument that the system is fairer than a previous one struck down by the Supreme Court in 2007 that provided for no adversarial challenge of the secret evidence. In addition, Parliament attempted to charter-proof the new regime by allowing judges to allow special advocates to do what is necessary to ensure the fairness of the proceedings.
But the idea of judicial approval is problematic. It is based on a fear that the security-cleared advocates may inadvertently spill secrets even though they could go to jail for doing so. It requires the special advocates and the detainee to share their litigation strategies with the judge and perhaps even the government. Government lawyers have access to the same and likely more secrets, but they are not subject to the same restrictions if they decide to consult colleagues or experts about the case.
The governments have undermined their arguments that the new system is better than the old and consistent with the charter by making the aggressive argument that the identity of CSIS sources should be protected by a near absolute privilege that could mean that even special advocates will not be able to know who the sources are.
The governments argue that the identity of CSIS sources should be secret, just like the identity of police sources. The critical difference, however, is that if the evidence of a police informer is used in a prosecution, the informer’s identity will be revealed when they take the stand and are cross-examined. The identity of CSIS sources remain secret. They are never cross-examined even though their evidence can be used to indefinitely detain and deport non-citizens, possibly to torture.
The special advocates in the Harkat case asked the judge to allow them to cross-examine at least one of the human sources, but the judge said no. Presumably part of the closed hearing will examine this important question. It will test the traditional view that cross-examination is the best way to determine truth.
The Supreme Court will have to decide not only if the new system is constitutional but also whether secret intelligence can fairly be used as evidence. The court’s novel use of closed hearings means that the court will gain first-hand experience with this problematic practice.
It remains to be seen whether the court will conclude that the practice is fair.
Kent Roach is the Prichard Wilson Chair in Law and Public Policy at the University of Toronto and the author of The 9/11 Effect: Comparative Counter-Terrorism.
© Copyright (c) The Ottawa Citizen
[AUDIO] CBC's Michael Enright talks with Prof. Mike Larsen About Security Certificatesposted on October 07, 2013 | in Category Mohamed Harkat | PermaLink
CBC's The Sunday Edition: Security Certificates (October 6, 2013)