New anti-terror tracking measures will address 'black hole': CSISposted on October 16, 2014 | in Category Security Certificates | PermaLink
Source: CBC News and The Canadian Press
Date: October 16, 2014Security lawyers warn that blanket intelligence source protection could endanger court proceedings
Public Safety Minister Steven Blaney has unveiled new federal plans to boost protection for intelligence sources, by giving them the same protections bestowed upon police informants in criminal cases.
The new bill, which will likely be tabled next week, is meant to clarify the current laws, the minister told reporters.
"CSIS is relying on those sources, since it is an intelligence agency, so that is why it is so critical and important that we enable CSIS with the same authority that other law enforcement agencies have … so CSIS can fully operate and protect Canadians within the scope of the law."
In response to a question on how such evidence could be tested in court without giving defence attorneys the ability to cross-examine sources, CSIS assistant director of operations Andy Ellis pointed out that the agency "has a very robust system in place" for gathering information.
"We make every attempt to ensure that the information we're getting is corroborated and accurate, and we do not act on single-source information."
Blaney provided details of the upcoming legislation at a news conference Thursday in Banff, Alta., where provincial and territorial justice ministers have been meeting.
Along with Ellis, he was joined by RCMP deputy commissioner Janice Armstrong.
'Black hole' on travel by suspected terrorists
The bill would also give Canadian security agencies greater powers to track terrorists abroad through expanded information sharing with partners.
Canada already relies heavily on the United States, Britain, Australia and New Zealand, fellow members of the so-called Five Eyes intelligence network.
Blaney acknowledged that such inter-agency co-operation "has happened at many levels in the past," but said the changes would explicitly authorize such practices.
"We now need to bring clarity to the law, so that these powers and these authorities that are within the law are clearly vindicated as we are facing this homegrown threat," he told reporters.
Ellis pointed to recent "thought-provoking" court rulings that, he said, had forced the agency to "reconsider how we undertook some of our operations to make sure that they were in keeping of what the courts had expected of us."
"Unfortunately, while we went about doing this, we held in abeyance the coverage of Canadians and other targets working abroad … representing a terrorist threat to Canada and to our allies," he noted.
"While that was held in abeyance, we had a black hole," he told reporters.
"We were unable to track where these people were, where they were moving, how they were moving and the nature of the threat they posed."
The new laws "will enable us to get back on the track we were on before to ensure we are able to perform the function that Parliament gave us in the first place."
The federal plan to bolster security powers follows a recent statement from the RCMP that the national police force has about 63 active investigations on 90 suspected extremists who intend to join fights abroad or who have returned to Canada.
'Highly dangerous' to extend witness protection: lawyer
Two lawyers with deep experience defending clients in national security cases have warned that extending blanket protection to spy sources could seriously endanger the fairness of court proceedings.
It could mean defence counsel and even judges would never have the right to question human sources who provide information on behalf of CSIS — such as when the government attempts to deport a terror suspect using a national security certificate.
Ottawa lawyer Norm Boxall, who represents Algerian refugee Mohamed Harkat in a security certificate case, told CBC News that there's no evidence such protections are required.
"These types of privileges can have far-reaching effects, and can close off information in cases where it would be important to have," he said.
"There is no problem to have a secret source — that can be done all the time, and within the existing law," he noted.
"The problem is when you have secret information and you choose to act on it, and that's the difference. If they want to use the secret information to enforce things — [for] deportation, or in criminal trials — they should have to produce the source."
Toronto lawyer Paul Copeland, who previously represented Harkat, said giving the class privilege to intelligence informants would be "highly dangerous."
"The only way you test evidence, in my view, is by cross-examining on it," he said in an interview.
"I think if they pass this class privilege, nobody will ever get at a human source in a national security case."
Copeland later served as a special advocate — a security-cleared lawyer who reviews and tests the federal evidence — in Harkat's certificate case.
He remains on the roster of special advocates periodically called to take part in security proceedings.
Cross-examining sources should be 'last resort': top court
The Federal Court of Appeal said in 2012 that human sources recruited by CSIS did not have the sort of blanket protection that shields the identities of police informants, even from the judge.
In the case of CSIS, this is instead decided on a case-by-case basis.
The Supreme Court agreed in a May ruling on the national security certificate regime that there should be no overarching privilege for CSIS sources.
The court noted the judge reviewing a certificate has discretion to allow the special advocates to interview and cross-examine such informants in a closed hearing, but said this should be "a last resort."
Making it standard practice to cross-examine CSIS sources, even behind closed doors, could "have a chilling effect on potential sources" and hinder the spy service's ability to recruit new ones, the court added.
Two judges — Rosalie Abella and Thomas Cromwell — dissented on the issue, saying CSIS informants are entitled to an assurance that the promise of confidentiality will be protected.
"This can only be guaranteed by a class privilege, as is done in criminal law cases."
Copeland points to a notorious chapter of the Harkat case in arguing there is good reason to test the credibility of human intelligence sources.
In a 2009 ruling in Harkat's case, Justice Simon Noel said CSIS "undermined the integrity" of the Federal Court's work by failing to disclose relevant details of a polygraph examination of a source.
CSIS neglected to tell him a secret informant failed portions of the lie-detector test — a lapse the spy service itself has called "inexcusable."
'Can't have their cake and eat it too'
Currently police can use information from secret informants to obtain search warrants or wiretap authorizations without fear the sources will be subject to cross-examination.
However, if those same informants are used as evidence of an accused person's guilt, the protection does not apply.
"They can't have their cake and eat it too," Boxall said.
"There is a real safeguard that's attached to the police informer privilege."
The new federal bill should include the same sort of protection to ensure fairness for someone facing allegations in a security proceeding, Boxall said.
Canada appears to be mistakenly following the British path as opposed to the American one, which sees informants testifying in court in terrorism cases and facing rigorous cross-examination, said Steve Hewitt, a senior lecturer in Canadian and American studies in the history department of the University of Birmingham in England.
"Informants provide information for a variety of reasons. Some are quite noble, others do it out of blatant self-interest, including the desire for money," said Hewitt, author of Snitch: A History of the Modern Intelligence Informer.
"There must be external scrutiny through a court of law or, inevitably, abuses of justice will occur."
© The Canadian Press, 2014
[VIDEO] The Secret Trial 5 World Premiere at Hot Docs Documentary Festivalposted on May 20, 2014 | in Category Security Certificates | PermaLink
Independent Jewish Voices Appalled by Court Rulings on Hassan Diab and Mohamed Harkatposted on May 20, 2014 | in Category Mohamed Harkat | PermaLink
by Press Release
Source: Independent Jewish Voices
Date: May 15, 2014
FOR IMMEDIATE RELEASE – May 15, 2014Independent Jewish Voices Appalled by Court Rulings on Hassan Diab and Mohamed Harkat
OTTAWA – With the decision to extradite Hassan Diab to France affirmed by the Ontario Court of Appeal, human rights supporters across the country are appalled by the decision, and fearful of the precedent this sets for Canadian citizens.
“Independent Jewish Voices is stunned by the Kafkaesque trial against Dr. Diab, who has been wrongly accused of a heinous crime committed decades ago,” says IJV spokesperson Sid Shniad.
“Despite the fact that Dr. Diab’s fingerprints, palm prints, handwriting and physical description do not match those of the suspect, he still faces extradition to a foreign country. What kind of democracy are we living in?”
Due to Canada’s extradition laws, it makes no difference that according to an Ontario judge, the evidence levelled against Dr. Diab is “confusing,” “weak,” and “suspect.” The request — however unreasonable — of a foreign country, takes priority over the rights of a Canadian citizen.
Dr Diab’s extradition is opposed by countless civil society organizations that support human rights. There is, however, one organization in particular that has been publicly supportive of Dr. Diab’s extradition: The Centre for Israel and Jewish Affairs (CIJA).
“Independent Jewish Voices is deeply disturbed that the pro-Israel lobby group CIJA — which falsely claims to represent Canada’s diverse Jewish communities — has been supportive of Dr. Diab’s extradition,” says Shniad. “It is an affront to the Jewish tradition of support for universal human rights, including due process under the law, to support the extradition of a man accused of a crime despite the absence of any valid evidence against him.”
This decision directly follows the Supreme Court’s decision to uphold the Security Certificate process in the case of Mohamed Harkat.
“Canada’s treatment of Dr. Diab and Mr. Harkat are reflective of the same systemic flaws,” says Shniad. “Our government and judicial system are in the business of violating international law, demonizing Arabs and Muslims, and branding them terrorists while denying them the right to a fair trial. All those who believe in justice should be outraged. We should demand that Parliament intervene immediately to abolish Security Certificates and end unjust practices like the extradition proceedings against Dr. Diab.”
For more information contact:
Sid Shniad, Steering Committee member of Independent Jewish Voices – Canada
604-314-5589, ijv-vancouver AT ijvcanada.org
LETTER: Where's the Justice?posted on May 18, 2014 | in Category Mohamed Harkat | PermaLink
by Alma Norman
Source: The Ottawa Citizen, letter to the editor
Date: May 17, 2014Re: Harkat promises fight 'to the end,' May 16.
Where has my Canada gone now that Mohamed and his wife, Sophie, have lost their struggle for justice? As a result of secret trials where he saw neither the evidence nor his accuser, Harkat is to be deported to Algeria, where he may face possible torture and death.
Do we really feel safer because their battle for justice has been lost? Is democracy more secure in Canada because secret trials have been Ok'd? Or has democracy been sacrificed to the so-called "war" on terrorism? Oh Canada, my shameful chosen land.
© Copyright (c) The Ottawa Citizen
Photos from May 14th, outside the Supreme Courtposted on May 18, 2014 | in Category Security Certificates | PermaLink
Here is a photo submitted by one of our amazing supporters. It was taken on the morning of the release of the Supreme Court's decision in Ministry of Citizenship and Immigration v. Harkat
Click on the photo above to see more pics from the rally that morning.
Thank you to those dedicated supporters who came out on Wednesday morning to hold up our banners and let the world know that regardless of what 8 Supreme Court judges may think security certificates are not
acceptable to Canadians. They are a blight on our reputation as a country that purports to stand for human rights. And they must be abolished.
Supreme Court rules against Harkat; deportation proceedings imminentposted on May 16, 2014 | in Category Mohamed Harkat | PermaLink
by Michelle Zilio
Date: May 14, 2014
The Supreme Court of Canada has ruled the security certificate issued against accused al-Qaida sleeper agent and Ottawa resident Mohamed Harkat reasonable, making proceedings for his deporation imminent.
In a ruling issued Wednesday morning, the Supreme Court upheld the constitutionality of the controversial security certificate process.
The decision, issued by all eight Supreme Court judges, marks the end of the security certificate appeal process for Harkat, who has been fighting the government on this front for more than 12 years. It’s a worst-possible outcome for Harkat, who now faces deportation.
“The ruling is difficult to describe in words. It’s more than disappointing. It’s devastating for Mr. and Mrs. Harkat,” said Boxall. “This does bring an end to the security certificate proceedings, but I’m sure it doesn’t bring an end to Mr. Harkat’s right to clear his name and maintain his right to live here.”
Harkat and his wife Sophie first heard the news from Boxall Wednesday morning. While they were at the Supreme Court when the ruling was issued, they did not speak with reporters.
Harkat was born in Algeria and moved to Canada as a refugee in September 1995. The former pizza delivery man was arrested outside his Ottawa home in 2002 on a national security certificate. The security certificate regime allows the federal government to detain and deport non-citizens deemed security threats without presenting all evidence against them.
The government has alleged Harkat is an al-Qaida sleeper agent and accused him of running a safe house in Pakistan in his late teens, communicating with senior al-Qaida members, and having links to Al Gama’a al-Islamiyya, an Islamic extremist group based in Egypt.
Wednesday’s ruling answered six questions regarding the constitutionality of the general security certificate process and the reasonability of Harkat’s security certificate. The court unanimously ruled on five out of the six points.
First, the court ruled that the Immigration and Refugee Protection Board’s security certificate regime does not violate the Charter of Rights.
The ruling also found that Harkat’s security certificate is reasonable, and that the proceedings against him were fair.
In 2010, Federal Court Judge Simon Noël ruled Harkat a member of al-Qaida. But the Federal Court of Appeal overturned Noël’s findings in April 2012, ruling that Harkat’s right to a fair trail had been compromised by the destruction of 13 intercepted communication recordings collected by the Canadian Security Intelligence Service (CSIS). Wednesday’s ruling upheld Noël’s 2010 decision.
“In the present case, Mr. Harkat benefited from a fair process,” read Wednesday’s ruling. “Noel J.’s conclusion that the security certificate was reasonable is reinstated.”
This means the government will begin the process to deport Harkat — and most likely soon. A new deportation order will not be issued, as the security certificate is essentially a deportation order in itself.
According to Boxall, the government can’t execute the deportation order until a pre-removal risk assessment is complete. The assessment would determine if Harkat would face mistreatment or torture if deported back to his home country of Algeria.
“In simple terms, you measure the risk to Canada if Mr. Harkat remains here, which I would submit is zero, and you would measure the risk to Mr. Harkat if he is deported to Algeria, which in my submission is significant. You balance those two and you come to a conclusion of whether it’s appropriate or not (to deport him),” said Boxall.
Wednesday’s ruling acknowledged the risks Harkat potentially faces in Algeria.
“He potentially faces deportation to a country where he may be at risk of torture or death, although the constitutionality of his deportation in such circumstances is not before us in the present appeal,” read the ruling.
According to a case from the 2002, known as the Saresh case, generally speaking, the government cannot deport an individual to a country where they face risk of death, but there may be “exceptional circumstances” in which deportation to torture may be justified.
Boxall said Harkat’s bail conditions will remain the same for the time being, unless there is a court order to change them. He said that if the government decides Harkat faces a significant risk in Algeria, he would stay here and there would likely be issues with respect to his bail conditions, which Boxall admits is “unchartered territory” for the Canadian legal system.
Public Safety Minister Steven Blaney welcomed the Supreme Court decision, Wednesday. When asked by CBC if Harkat would be deported, the minister said “it’s up to the CBSA to abide and implement Canadian laws.”
NDP Leader Thomas Mulcair said Wednesday his party is “cognizant” of the ruling, but still has some serious concerns with the government’s use of the security certificate process.
“We still do think that in a free and democratic society, that there are valid questions that have to be asked as to how these certificates are being used,” said Mulcair.
Liberal Leader Justin Trudeau also welcomed the decision, adding that the security certificate system has reached a point where there is a good balance between protecting an individual’s rights and ensuring the public’s safety.
Speaking to reporters at the court, Secretary General of Amnesty International Canada Alex Neve said the government must comply with international agreements against torture when deciding Harkat’s fate.
“There are also a set of international obligations that will apply if the government does move to try to deport Mr. Harkat. Obligations that are meant to protect individuals from torture and certainly it would be doubly troubling if … there’s not clear recognition of the international human rights obligations at stake,” said Neve.
Wednesday’s ruling also found that the “designated judge” — Noël — did not err in 2010 by refusing to exclude intercepted communication recordings collected by CSIS in Harkat’s case.
The ruling determined that the government followed its duty to candour and good faith in attempting to gather information for the court on Harkat. Wednesday’s ruling revealed the source of that information as “foreign intelligence agencies.”
The only point the judges could not agree on was the protection of CSIS human sources. All the judges, except for Justice Abella and Justice Cromwell, agreed that CSIS human sources should not be protected by informer privilege. However, the ruling ensured that if CSIS informants are produced by the government during the course of a hearing, they would appear during a closed hearing, which only the accused’s special advocates — not personal lawyers — would be allowed to attend.
Special advocates are lawyers with security clearance assigned to protect the interests of those named in a security certificate. In reaction to a 2007 Supreme Court ruling, Parliament revised the security certificate regime in 2008 to include “special advocates” in the process.
Wednesday’s ruling brings an end to a long chapter for the Harkat family. Following his arrest in 2002, Harkat was jailed for three and an half years. In June 2006, he was released on $100,000 bail. He has since faced some of the strictest house arrest conditions in Canadian history, at times requiring 24-hour supervision by his wife Sophie or mother-in-law, surveillance cameras at each entrance to his home and the wearing of a GPS monitoring device at all times.
Court orders in recent years have allowed Canada Border Services Agency (CBSA) officials to gradually ease Harkat’s release conditions. For instance, officials removed his GPS tracking bracelet last July, when he was also granted permission to travel outside the national capital region with five working days’ notice to CBSA. It is not clear what conditions he will live under now.
The security certificate process was introduced in 1978, but didn’t garner much attention until after the 9/11 attacks, when the government highlighted it as part of its anti-terrorism strategy.
Boxall will address the media again at a press conference tomorrow morning on Parliament Hill. He said Harkat and his family have not yet decided if they will attend the press conference.twitter.com/michellezilio
michellezilio AT ipolitics.ca
VIDEO: CBC's Power and Politics Talks With Mohamed and Sophieposted on May 16, 2014 | in Category Mohamed Harkat | PermaLink
Watch this 12 min. television interview on CBC News. Host Evan Solomon talks to Mohamed Harkat and wife Sophie Harkat about their reaction to the recent Supreme Court decision:
L'arrêt Harkat de la Cour suprême maintient un processus injuste pour les non-citoyensposted on May 15, 2014 | in Category Security Certificates | PermaLink
Source: ICLMG News Digest
Date: 14 mai, 2014Communiqué de presse: L'arrêt Harkat de la Cour suprême maintient un processus injuste pour les non-citoyens
14/05/2014 - La Coalition pour la surveillance internationale des libertés civiles (CSILC) et le Conseil canadien pour les réfugiés (CCR) sont déçus de la décision de la Cour suprême du Canada dans l'affaire Harkat qui maintient un processus fondamentalement injuste s'appuyant sur des preuves secrètes pour décider d'expulser un non-citoyen, potentiellement vers un risque de torture. Dans sa décision, la Cour suprême confirme la constitutionnalité du régime des certificats de sécurité, affirmant que les avocats spéciaux peuvent adéquatement compenser la non-divulgation aux personnes concernées de certaines preuves utilisées contre elles. La CSILC et le CCR regrettent que cette décision affirme l'inégalité de la protection des droits fondamentaux offerte aux non-citoyens. Lorsque ces droits sont en jeu pour les citoyens, comme dans les procédures pénales, nous ne tolérons pas l'utilisation de preuves secrètes. Les non-citoyens méritent une chance égale de connaître les preuves utilisées contre eux, et d'y répondre. La Cour ne s'est pas prononcée sur les aspects discriminatoires de ces dispositions. La Cour a également omis de se référer au droit international relatif aux droits humains, qui devrait servir de cadre essentiel pour le droit canadien.Lire plusPress release: Supreme Court Harkat decision maintains fundamentally unfair process for non-citizensLa Cour suprême maintient le certificat de sécurité contre HarkatMohamed Harkat says he'll be tortured, killed if sent back to AlgeriaHarkat «anéanti» par le jugement de la Cour suprêmeMohamed Harkat could remain in 'immigration limbo' for yearsGlobe editorial: Supreme Court comes close to squaring circle on security certificates
(c) International Civil Liberties Monitoring Group.
Supreme Court upholds security certificate law in Mohamed Harkat terror caseposted on May 14, 2014 | in Category Security Certificates | PermaLink
by Tonda MacCharles
Source: The Toronto Star
Date: May 14, 2014
OTTAWA—The Supreme Court of Canada unanimously upheld revised security certificates laws Wednesday along with the use of secret evidence to deport foreign-born terrorism suspects as constitutional.
In doing so, the 8-0 decision also concluded a security certificate — a kind of special immigration warrant — issued against Algerian-born Mohamed Harkat is reasonable.
It is a major nod to the Conservative government’s 2008 redesign of the security certificates that brought in the use of security-cleared special advocates who have access to secret state evidence although they are not allowed to disclose that evidence to the defence.
However, it may not be the end of a long battle for Harkat, pegged by Canada’s security agencies as a suspected Al Qaeda sleeper agent.
For years, Ottawa has sought to deport Harkat insisting he is a threat.
But Harkat’s lawyers say Canada cannot deport anyone to face a risk of torture as they argue he would be in Algeria, and are expected to fight further efforts to remove him.
Under immigration law, Ottawa must conduct a preremoval risk assessment to evaluate if Harkat’s fears of torture are well-grounded. Harkat last year had an electronic monitoring bracelet removed as his appeals ground on. He was expected at the high court to be briefed by his lawyers on the ruling’s release.
In the past, the Supreme Court has ruled government should not remove individuals where there is a substantial risk of torture. However, it also said there may be undefined “exceptional circumstances” where removal is warranted.
Chief Justice Beverley McLachlin wrote Wednesday’s decision which found the security certificate provisions in the Immigration and Refugee Protection Act do not violate a person’s “right to know and meet the case against him, or the right to have a decision made on the facts and the law.”
In Harkat’s case, the court found he had sufficient information about the case against him, and upheld Federal Court judge Simon Noel’s conclusion the certificate against him was reasonable.
Harkat is suspected of running guest houses for training Chechen terrorists in Pakistan on behalf of Al Qaeda-affiliated groups. He 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. His Canadian wife Sophie Lamarche and a wide group of supporters have vowed to continue the fight to prevent his deportation.
The Supreme Court judges were unanimous on most key aspects of the case.
Overall, the high court found the special advocate regime is constitutional, that CSIS informants do not have a special “class privilege” or blanket legal protection for their identities, like police informants.
The majority said the informants’ tips are used in legal proceedings where the rules for hearsay evidence are more lax than in criminal courts, and said it would be up to Parliament to extend protection further.
However two judges, Rosalie Abella and Thomas Cromwell, dissented and would have extended new protections to CSIS informants saying those who come forward with information about a potential terrorist threat often “risks his or her life” if their identity is disclosed.
Despite upholding the regime, the Supreme Court majority said it was still “imperfect” and laid out guidelines for judges to ensure fairness of the proceedings. Though they upheld the use of redacted summaries of evidence even in cases like Harkat’s where original tapes were destroyed by CSIS, the court said CSIS informants may be called to testify in secret, even cross-examined “as a last resort.”
The ruling said federal court judges who review security certificates have a duty to ensure the fairness of the process especially because so much may be held in secret; they must be “vigilant” in that duty and be “skeptical” of governments’ “overclaiming” national security in a bid to keep information secret.
“Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld,” wrote McLachlin. The judge “must be vigilant and skeptical with respect to the claims of national security confidentiality and must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld,” she said. “Systematic overclaiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system.” That could require a judge to resort to excluding evidence or requiring disclosure to the defence.
The ruling comes seven years after the country’s top court sent Parliament back to the drawing board after it threw out security certificates as unconstitutional violations of the right to a fair hearing.
That regime — set out in the Immigration and Refugee Protection Act — was used by Liberal government used in several high profile post Sept. 11 terror cases. In 2007, the high court found it unconstitutional. The Conservatives rewrote the law and reintroduced a system modelled on the British regime in 2008.
The high court judges had heard part of the historic case, including the national security evidence, behind closed doors, at a secret hearing in an undisclosed location.
It was only the second known time the country’s top court moved arguments out of public view. The first, more than a decade ago, was a hearing into the use of investigative hearings in the Air India investigation.
On Wednesday, it said written summaries prepared by CSIS of intercepted communications may be accepted as evidence even if the original tapes are destroyed, but said the government must provide as much evidence as possible to a person in order to justify its actions.
The court also said the ministers of immigration and public safety who sign such certificates are not obligated to go back to foreign intelligence agencies to confirm information they present, but must make reasonable attempts to provide updated information to the judge and special advocates.
Lawyer Barbara Jackman of the Canadian Council for Refugees intervened at the hearing last fall, and warned that courts were on a slippery slope.
She 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.
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, she said.
© Copyright Toronto Star Newspapers Ltd. 1996-2014.
Supreme Court upholds terror law in Harkat caseposted on May 14, 2014 | in Category Mohamed Harkat | PermaLink
by Andrew Duffy
Source: The Ottawa Citizen
Date: May 14, 2014
Ottawa’s Mohamed Harkat once again faces deportation to his native Algeria after the Supreme Court of Canada on Wednesday declared the federal government’s security certificate regime constitutional.
In a unanimous ruling, the high court said the security certificate regime crafted by Parliament in 2008 – although an “imperfect process” — offers a fundamentally fair process that also protects national security information.
The Supreme Court ruling provides a detailed roadmap for trial judges to ensure that future security-certificate cases are conducted fairly.
In upholding a key element of the government’s anti-terrorism strategy, the Supreme Court decided that Harkat’s lawyers had failed to show that his security certificate hearing was unfair or had undermined the integrity of the justice system.
“In the present case, Mr. Harkat benefited from a fair process,” the court declared in a ruling that puts Harkat back on the legal road to deportation.
The high court reinstated the December 2010 judgment of Federal Court Judge Simon Noël, who deemed Harkat a terrorist threat to national security.
Noël said Harkat was a member of the al-Qaida network and linked him to a number of Islamic extremists, including Saudi-born Ibn Khattab, Canadian Ahmed Said Khadr, a key al-Qaida figure, and Abu Zubaydah, a facilitator in the Osama bin Laden network.
The ruling represents a much-needed victory for the government at the Supreme Court and a devastating loss for Harkat, who had been hoping the court would put an end to his almost 12-year legal odyssey.
Instead, he will now begin a new legal process to determine whether or not he can be deported to Algeria, a country where he says he will be killed or tortured.
Canadian law prohibits deportation to torture except in “exceptional circumstances.” But the nature of those exceptions have not been defined by the Supreme Court, which means the Harkat case could conceivably end up back before the nation’s high court to decide that issue in the years to come.
It’s not known whether Harkat will be taken into custody to await his deportation. He was scheduled to hold a news conference Wednesday morning.
In its judgment Wednesday, the Supreme Court also ruled that Canadian Security Intelligence Service informants do not require the same kind of blanket protection that’s offered to police informants. CSIS informants, the court said, do not require the same level of protection since CSIS is primarily concerned with obtaining security intelligence, which is largely meant for preventative measures, rather than criminal prosecutions.
Harkat has been fighting his deportation since his arrest on a national security certificate in December 2002. He spent more than three years in jail, including a year in solitary confinement, and then was under strict house arrest for years. He had a tracking bracelet removed last year.
He had been living in Ottawa since 1995 when he claimed refugee status in Canada. Before his arrest, he worked long hours as a pizza delivery man and gas station attendant while also developing an expensive casino gambling habit. He married an Ottawa woman, Sophie Lamarche, in January 2001.
CSIS built a case against him based on 13 wiretapped phone conversations recorded between 1996 and 1998, and at least two unnamed informants.
Harkat, however, has always maintained that he had nothing to do with al-Qaida. He has told court that he fled his native Algeria to escape the country’s military-backed government, then spent four years working in Pakistan for an aid agency.
CSIS contends that Harkat operated a guest house in Peshawar, Pakistan, for Khattab, who was then funnelling mujahedeen fighters to Chechnya.
The Harkat case has also been marked by some sensational revelations. In May 2009, for instance, the court belatedly learned that one of the informants who had supplied CSIS with information about Harkat had failed a lie detector test in 2002. Harkat also learned that the federal agents tasked with monitoring his bail conditions listened to phone conversations he had with his lawyer.
The first version of the federal law to deport foreign-born terrorism suspects was struck down by the high court in 2007 as fundamentally unjust.
In 2008, Parliament introduced a revised security certificate law that gave foreign-born terrorism suspects more information about the cases against them, and afforded them better legal representation during secret court hearings where national security information was presented.
In December 2010, using the new rules, a Federal Court judge declared Harkat an active and dangerous member of the al-Qaida network.
But in April 2012, the Federal Court of Appeal overturned the findings. It said Harkat’s right to a fair trial had been compromised by CSIS’s destruction of the 13 wiretap recordings. Written summaries of those conversations offered critical evidence against Harkat, but without the full original recordings defence lawyers had no way to challenge their context or accuracy, the court said.
In its decision Wednesday, the Supreme Court said the summaries provided by CSIS were “sufficient to prevent significant prejudice to Mr. Harkat’s ability to know and meet the case against him.”
aduffy AT ottawacitizen.com
© Copyright (c) The Ottawa Citizen