Federal Court of Appeal Decision Has Been Released

posted on April 25, 2012 | in Category Mohamed Harkat | PermaLink

The Canadian Federal Court of Appeal has released its decision in the case of Mohamed Harkat vs. The Ministry of Citizenship and Immigration and The Ministry of Public Safety and Emergency Preparedness.

The decision was made by a panel of 3 judges.

You can download and read the Judgement below. English only. It consists of two documents: The Judgment, and The Reasons For Judgement,

The Judgement: (a 2-page summary of the decision )
PDF object

Reasons for Judgement:(The decision. 89 pages)
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Canada quietly shutters 'Gitmo North' detention facility for terror suspects

posted on April 23, 2012 | in Category Security Certificates | PermaLink

by Tobi Cohen
Source: The Ottawa Citizen
URL: [link]
Date: April 17, 2012

OTTAWA — The Kingston Immigration Holding Centre in Ontario, better known as Gitmo North, was quietly closed at the end of last year, saving the Canada Border Services Agency millions of dollars and bringing a sense of relief to the handful of men who were incarcerated there, Postmedia News has learned.

The costly facility, which opened in 2006 in the aftermath of 9/11 to detain just four terror suspects subject to controversial security certificates, often has been likened to the U.S.-run Guantanamo Bay detention centre in Cuba, where prisoners of the Iraq and Afghan wars were sent.

The Cuban facility is where Canadian war criminal and former child soldier Omar Khadr remains incarcerated and there's been speculation he could be held at Gitmo North should his request for transfer to Canada go through.

It's a prospect, however, that now seems unlikely.

"Following a review of the KIHC by the (Canada Border Services Agency) in 2009, it was decided that the facility should be permanently closed in order to allow the agency to better align its resources. Accordingly, KIHC was closed on December 31, 2011," CBSA spokeswoman Esme Bailey confirmed in an email.

"The CBSA has achieved approximately $2.5 million in annual savings by closing the KIHC."

Julie Carmichael, a spokeswoman for Public Safety Minister Vic Toews, added there are "no plans for the future" of the facility which is located on the grounds of Millhaven Institution, a maximum-security prison.
That's good news to Hassan Almrei who spent April 2006 to February 2009 detained at the facility where inmates were isolated from the general prison population, confined to tight quarters, subject to regular strip searches and absurd head counts given the number of them and denied conjugal visits, as well as lunch with their families.

Detainees complained the portable-like accommodations were sweltering in the summer and freezing in the winter, that they had no access to dental care, that they were harassed by the guards and that floodlights in a courtyard they could not access kept them up at night. The conditions even become the subject of litigation and Almrei staged a 155-day hunger strike while incarcerated alone at the institution.

"I am very very happy to hear that," Almrei said from Mississauga, Ont., adding it upset him when he heard Khadr might be sent there.

"I hope that unit in Kingston will be, I don't like to use the word destroyed, I'd just like to see it flat. No more likely trace of that holding. I don't wish anybody to be there."

The now-38-year-old Syrian refugee's security certificate was quashed in December 2009 after the Federal Court ruled he no longer posed a threat to national security.

While the court considered the fact he was involved in an illegal document forging ring, wasn't up front about the countries he visited, used a fake passport to enter the country and associated with suspected Islamic extremists, it found none of it justified branding him a terrorist, which was largely based on testimony deemed not credible.

Almrei is now trying to sue the federal government.

The other men detained at the facility include Egyptian-born Mahmoud Jaballah and Mohamed Zeki Mahjoub, as well as Algerian refugee Mohamed Harkat. While Mahjoub returned to the facility for about a year in March 2009 in a bid to protest the harsh conditions placed on his house arrest and the impact they had on his family, the other two were only there for a short period.

Harkat's wife Sophie Lamarche visited the facility when her husband was there and called the conditions "pretty horrible." She's happy to hear it's closing but maintains it should never have been there in the first place.

"That facility in my opinion, should never have existed because detaining people without charge, without accesses to evidence is unconstitutional," she said. "Guantanamo North should never have existed."

Harkat has been living at home in Ottawa under strict conditions, trying to avoid deportation to Algeria, where he's certain he'll face torture. He'll find out next week whether the Federal Court of Appeal agrees the security certificate against him was reasonable.

Security certificates allow a foreign national to be detained for indeterminate periods and deported without charge. Fighting them in court has proven an uphill battle since those involved are denied full disclosure of the evidence against them.

The Supreme Court of Canada found them to be a violation of the Charter of Rights and Freedoms in 2007 for that reason, which prompted the government to amend the process by appointing lawyers who can act as "special advocates" to review the evidence.

Before Paul Copeland took on the role of special advocate for Harkat and Almrei he served as Harkat's lawyer and visited him in Gitmo North.

Noting it's "probably the most expensive facility created in Canada," he called it a "fairly useless" space that "provided nothing for the inmates and was a "nightmare place to stay."

"It was always a waste in (terms of) the cost of keeping them," he said. "They could have put them up at the Royal York (Hotel) for way less money."

While the government has since issued security certificates to deport a pair of suspected Russian spies and Holocaust denier Ernst Zundel, Copeland doesn't think the tool is a good one and he expects the government may stay clear of them in the future.

tcohen AT postmedia.com


© 2010 - 2012 Postmedia Network Inc. All rights reserved.

'Misguided zeal' followed 9/11: former CIA agent

posted on April 23, 2012 | in Category Mohamed Harkat | PermaLink

by Ian Macleod
Source: The Ottawa Citizen
URL: [link]
Date: April 8,2012

Information from the U.S. Central Intelligence Agency used by Canada to link accused Ottawa terrorist Mohamed Harkat to “al-Qaeda’s banker” was untrue, according to a former senior CIA case officer.

The man thought to be Osama bin Laden’s main financial fixer “wasn’t the senior member of al-Qaeda that we had assessed. He wasn’t even a member of al-Qaeda,” retired U.S. spy Glenn Carle, who interrogated the man at secret CIA black site prisons in 2002, told an Ottawa gathering to promote his blistering memoir about the case, The Interrogator: An Education.

Yet as recently as 2010, Canadian Security Intelligence Service (CSIS) evidence and testimony before the Federal Court of Canada continued to point to Harkat’s relationship with Haji Pacha Wazir as evidence of Harkat’s ties to the bin Laden terror network.

It is the second time the veracity of key prosecution evidence against Harkat has been questioned in the government’s decade-long campaign to have him declared a national security threat and deported to his native Algeria.

Another supposed high-level al-Qaeda player named Abu Zubaydah, whom federal prosecutors also linked to Harkat, has since been exposed by some U.S. al-Qaeda hunters as a small-time operative who was found to be “certifiably insane” after his 2002 capture.
Carle’s supposed al-Qaeda captive was kidnapped off the streets of Dubai in the fall of 2002 by a CIA rendition team and flown to clandestine CIA jails, reportedly in Morocco and Afghanistan.

Carle was dispatched from Washington to interrogate him and soon reported back that the man code-named CAPTUS was not the high-value detainee the CIA initially believed. Carle said he also complained bitterly to his superiors about the “torture” and other “enhanced interrogation techniques” prison staff used on the man.

But his assessment and concerns fell on deaf ears in Washington, where “misguided assessments and zeal” consumed the highest levels of government in the aftermath of 9/11, he said.

“I found that CAPTUS was not the critical member of al-Qaeda we had convinced ourselves he was, and I found something far more important: that the closer one looked at al-Qaeda, the further it receded and the smaller it was,” he writes in The Interrogator.

He said the highest levels of the U.S. government were consumed by a delusion in the aftermath of 9/11, with threat of jihadi terrorism wildly exaggerated and contrary information suppressed or ignored

“I found that we chose to sacrifice our own principles in the hunt for the few terrorists threatening us. This was a Faustian bargain; the Devil’s ways could not make us any safer than had we retained our soul,” he writes.

Carle retired in 2007 as deputy national intelligence officer for transnational threats, one of the three most-senior government advisers on terrorism for the U.S. intelligence community.

He is prohibited by U.S. law from identifying CAPTUS. But widespread reports, supported by intelligence experts, lawyers and others and which Carle has not contested, identify CAPTUS as Haji Pacha Wazir, who ran a series of Hawala banks in the Afghanistan and Pakistan. His nationality is variously reported as Pakistani, Afghani or Emirati.

In its Federal Court case against Harkat, CSIS disclosed a wiretap of a 1997 telephone call between Harkat and a man in Pakistan it said was Haji Pacha Wazir. It featured prominently with several other CSIS intercepts of Harkat’s calls to various individuals between 1996 and 1998.

Harkat later confirmed in an interview with CSIS agents that he had befriended a banker named Haje Wazir in Pakistan. But his lawyer, Matthew Webber, said in an interview that federal prosecutors have failed to show that Haje Wazir and Haji Pacha Wazir are the same person.

Federal Court Judge Simon Noel seemed to agree, ruling in December 2010 that the government’s evidence was “inconclusive” in showing Haje Wazir and Haji Pacha Wazir to be the same person and that Haje Wazir was linked to bin Laden.

Still, he declared Harkat an active and dangerous member of al-Qaeda, a threat to national security and opened the door for his deportation to his native Algeria.

The 43-year-old now awaits word from the Federal Court of Appeal on his January appeal of Noel’s decision. In the meantime, he is free but under security-certificate control measures that began with his December 2002 arrest.

After about three months as the CAPTUS case officer, Carle asked to be reassigned. His successor later also agreed with Carle’s assessment that CAPTUS was not a terrorist.

CAPTUS was quietly released from U.S. custody in Afghanistan in February 2010 after a military review board concluded he was not an “enemy belligerent.”

© Copyright (c) The Ottawa Citizen

Human-rights group demands recall of federal torture directive to CSIS

posted on March 07, 2012 | in Category CSIS | PermaLink

by Jim Bronskill (CP)
Source: The Winnipeg Free Press
URL: [link]
Date: March 6, 2012

OTTAWA - A human-rights group wants the federal government to withdraw a directive permitting Canada's spy agency to share information even when there's a real risk it will lead to torture.

In a letter to the public safety minister and the head of the Canadian Security Intelligence Service, Amnesty International Canada says the policy "is in direct contravention" of Canada's international obligations to prevent brutalization of prisoners.

The government directive outlines instructions for deciding whether to share information when there is a "substantial risk" that doing so might result in someone in custody being abused.

It also entrenches an earlier policy dictating that protection of life and property be the key considerations when deciding on the use of information that may have been extracted through torture.

A copy of the July 2011 document was recently released under the Access to Information Act. Though unclassified, it had not been made public previously.

Inappropriate sharing of information by Canadian authorities contributed to the torture of Arab-Canadians in Syria in the period following 9-11, points out the letter signed by Amnesty Canada's secretary general, Alex Neve.

A resulting federal inquiry into the case of Ottawa engineer Maher Arar recommended that information never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture.

The fact the new federal policy on information sharing may be limited to exceptional circumstances involving public safety concerns "is no justification as international law does not allow or excuse the use of torture in any circumstances," says the letter.

"Governments are of course obligated to take action to respond to terrorist and other threats to public safety. But they must do so in ways that do not cause, contribute to or condone torture."

Opposition MPs have roundly denounced the directive, saying there can be no compromise on torture.

The provisions in the directive are "not acceptable to most Canadians," said NDP public safety critic Jasbir Sandhu.

"We don't use information from torture," Sandhu said Tuesday in an interview.

"I can tell you, Canadians didn't vote for this sort of hidden agenda."

The federal government says that although it stands by the directive, it does not condone torture and strongly opposes the mistreatment of any individual.

© 2012 Winnipeg Free Press. All Rights Reserved.

OPINION: Canada plays a dangerous game

posted on March 07, 2012 | in Category CSIS | PermaLink

by Kent Roach
Source: The Ottawa Citizen
URL: [link]
Date: March 7, 2012

It has recently been revealed that last summer, Minister of Public Safety Vic Toews authorized CSIS in “exceptional cases” to send information to foreign entities even if there was a substantial risk that it would result in torture. Have we learned nothing from the Arar and Iacobucci inquiries held into the torture of Canadians held abroad?

The directive — written in Ottawa’s Orwellian language where torture becomes mistreatment — pays lip service to some of the recommendations of the Arar Commission. The director of CSIS will now have to consider the views of the Department of Foreign Affairs (and any other agency) before sending information to Syria or some other country that uses torture.

There are references to Canada’s international and Criminal Code obligations not be complicit or participate in torture, but no substantive engagement with those obligations.

It is tempting to blame Canada’s descent from a leader on human rights to a nation associated with torture (even as the U.S. right repudiates it) on Toews and his government, but the story is more complex.

Canada went offside on torture immediately after 9/11. The Supreme Court accepted that while deportation to torture is never justified under international law, it might in “exceptional circumstances” be permissible under the Charter. In 2009, the Federal Court of Appeal refused to apply the Charter even as it assumed that Canadian Forces handed off Afghan detainees to torture. There are echoes of these regrettable decisions in the July, 2011 directive.
Canadian courts have so far refused to allow deportation to torture, but the government has held this argument in reserve in the security certificate cases. Courts have, however, deferred to dubious ministerial determinations that there is no substantial risk of torture. In one case, we deported a suspected Sikh terrorist to India when the UN Committee Against Torture was satisfied that he would be tortured.

To its credit, Canada appointed two inquiries into whether Canadian officials were complicit in the torture of Maher Arar and other Canadians held in Syria. The inquiries found disturbing practices of Canadian agencies sending questions to the torture chambers of Damascus. The Arar inquiry called on all Canadian agencies to re-evaluate their policies on information sharing.

Toews’ July, 2011, directive is not what reformers had in mind. Some may believe Canada should not ignore intelligence about a possible bombing in Canada because it was obtained by torture. The directive makes clear that in such situations, the priority will be security.

But the July 2011 directive goes beyond so-called protective uses of such intelligence and contemplates that CSIS can send information to foreign agencies even in the face of a substantial risk that those agencies will use the information to capture and torture terrorist suspects. The director of CSIS is required to balance Canada’s security interests against the risk of torture. But the government always has an incentive to prefer security over human rights, especially in cases where its citizens’ own rights will not be violated.

Toews is famous for his concern for law and order, but there is danger that the directive could result in Canadian officials aiding and abetting torture abroad, which is a crime in Canada. Information can be sent even if there is guilty knowledge that it will likely result in torture. Guilty intent is also required, but one can aid and abet torture without desiring it or even intending it will occur.

But Toews may not risk criminal liability should the director of CSIS exercise his discretion not to inform him. The directive also fails to require the director to notify the Security Intelligence Review Committee (SIRC) after the fact that the service has triggered its exceptional circumstances provisions in relation to intelligence and torture.

Remember SIRC? They are the watchdog of CSIS. They had better be on their toes given this directive. Alas the government has rejected the Arar Commission’s and SIRC’s own recommendation that the watchdog needs more powers to follow the information sharing trail in the post-9/11 environment. Moreover, SIRC has been without a permanent head since the resignation of Arthur Porter in November, 2011.

This is a dangerous game. We should all be concerned about the danger of complicity in the brutal practice of torture.

Kent Roach is a professor of law at the University of Toronto and a former member of the research advisory committee of the Arar Commission. He is the author of The 9/11 Effect: Comparative Counter-Terrorism.

© Copyright (c) The Ottawa Citizen

Statement of Support From The Law Union of Ontario

posted on March 01, 2012 | in Category Mohamed Harkat | PermaLink

Source: The Law Union of Ontario
URL: [link]
Date: February, 2012

In 2007 the Supreme Court unanimously struck down the existing security certificate regime, holding that the section 7 guarantee of a fair hearing required either that the secret case be disclosed to the named person, or that a substantial, meaningful substitute be found. Parliament responded by introducing special advocates - security-cleared counsel charged with representing the interests of the named person in closed hearings. This appeal calls into serious question the adequacy of the special advocate regime as a substitute for full disclosure to and participation of the named person, especially given the limits placed on the special advocates' ability to communicate about the proceedings and to cross-examine human sources.

It also comes in the wake of incredibly troubling revelations about the extent of CSIS' reliance on information obtained as a result of torture, both in these proceedings and more generally. First to come to light was a 2008 letter from Jim Judd, then the Director of CSIS, to the Minister of Public Safety, warning that the current security certificate proceedings - including the Harkat case - could be rendered unsustainable if the opposition succeeded in passing an amendment to exclude information believed on reasonable grounds to have been obtained as a result of torture or cruel, inhuman or degrading treatment. This was followed more recently by the release of a 2010 directive from Public Safety Minister Vic Toews instructing that where there is a serious risk to public safety, CSIS can use and share torture-tainted information in order to protect lives and property.

Information derived from torture has no place in Canadian society, much less in Canadian courtrooms. The Law Union of Ontario calls on the Federal Court of Appeal to vindicate Mr. Harkat's constitutional right to natural justice and a fair hearing, and to affirm Canada's commitment to the abolition of torture throughout the world.

Les certificats de sécurité : porteurs de graves violations des droits humains

posted on February 28, 2012 | in Category Security Certificates | PermaLink

Source: News Release
Date: 16 fevrier 2012

Les certificats de sécurité : porteurs de graves violations des droits humains

Déclaration de la Ligue des droits et libertés
16 février 2012

La Ligue des droits et libertés s’oppose de longue date aux certificats de sécurité. Elle s’est également opposée au projet de loi C-3 qui visait à réformer les certificats de sécurité, dont la mécanique avait été déclarée inconstitutionnelle par la Cour suprême du Canada le 23 février 2007, dans le jugement Charkaoui.

La Ligue estime en effet que les modifications proposées, dont l’introduction d’un avocat spécial, n’avaient aucunement pour effet de régler les problèmes fondamentaux posés par le régime de certificat de sécurité, problèmes que nous trouvons important de rappeler :

a) L’utilisation des certificats de sécurité donne lieu, dans la réalité, à une détention de durée indéterminée ou à la perte, pour une durée indéterminée, de la liberté et du droit à la vie privée en vertu de régimes d’assignation à résidence surveillée et d’ordonnances de contrôle – ce qui constitue une violation de la justice naturelle et des obligations internationales du Canada en vertu du Pacte international relatif aux droits civils et politiques;

b) L’utilisation des certificats de sécurité mène à la déportation, à la détention, à l’assignation à résidence surveillée et aux ordonnances de contrôle sur la foi d’allégations vagues et générales fondées sur des renseignements secrets qui n’ont pas été prouvés hors de tout doute raisonnable ;

c) L’utilisation des certificats de sécurité fait en sorte que des personnes désignées vivent pour une période indéterminée sous la menace de la déportation vers la torture, ou sont effectivement déportées vers la torture – ce qui constitue une violation des obligations internationales du Canada en vertu de la Convention contre la torture et les traitements cruels, inhumains et dégradants ;

d) Le régime des certificats de sécurité est discriminatoire puisqu’il s’applique uniquement aux non-citoyens, créant ainsi un système de justice à deux vitesses, et ce, contrairement aux garanties d’égalité devant la loi et de justice fondamentale enchâssées dans la Charte canadienne des droits et libertés.

Pour la Ligue des droits et libertés, la possibilité de priver quelqu’un de sa liberté et de l’expulser du Canada en recourant à des preuves secrètes et possiblement obtenues sous la torture (d’autant plus que le gouvernement a tout récemment confirmé avoir donné l'ordre au SCRS de ne pas écarter des informations obtenues sous la torture lorsque "la vie humaine ou la sécurité publique ou la propriété est menacée") est tout simplement inacceptable et ne peut trouver de justification compte tenu des obligations qu’impose le plein respect des droits humains.

Harkat's evidence `evasive . . . implausible,' federal government lawyer argues

posted on February 27, 2012 | in Category Mohamed Harkat | PermaLink

By Andrew Duffy
Source: The Ottawa Citizen
URL: [link]
Date: February 23, 2012

OTTAWA - A federal lawyer says an Ottawa man facing deportation under a federal security certificate had ample opportunity to defend himself from terrorism allegations under Canada's revamped security law, but chose not to use that opportunity.

David Tyndale told the Federal Court of Appeal Wednesday that Mohamed Harkat could have given a detailed defence against federal allegations he associated with terrorists but instead chose to be evasive and contradictory. Harkat's defence, Tyndale argued, was not limited to mere denials as his lawyers have suggested.

``That's not what Mr. Harkat was limited to: It's what he chose to do on a number of occasions,'' Tyndale told the appellate court.

Harkat's defence team has asked the Appeal Court to strike down the federal government's revamped security certificate law, introduced in 2008, as unconstitutional.

The previous version, used to detain and deport foreign-born terror suspects, was effectively struck down by the Supreme Court in February 2007. The high court said the process was so secretive it denied defendants the fundamental right to meet the case against them.

The Harkat case is the first to test whether the government's revised security certificate law can withstand a challenge under the Canadian Charter of Rights and Freedoms.

Harkat's lawyers say the process still does not allow defendants to meet the case against them since they're only given an outline of allegations due to national security concerns. The allegations, they say, lack critical details, such as the information's origin.

Harkat, an Algerian refugee, is appealing a December 2010 Federal Court decision by Judge Simon Noel, who upheld the government's case against Harkat, declaring him an active and dangerous member of the al-Qaida network.

Tyndale said that although Harkat was not allowed access to classified information, his legal proxies - lawyers known as special advocates - were.
Because the new security certificate process allows for legal proxies, Tyndale argued, it meets the Supreme Court's standard for a fair hearing as it offers a meaningful substitute for full disclosure.

Harkat was given written summaries of the classified information used against him and his special advocates were allowed to challenge that evidence in closed hearings, Tyndale said.

``The issue here isn't that Mr. Harkat didn't know the case he had to meet,'' Tyndale argued, ``but that his evidence was found to be evasive, contradictory and implausible.''

By way of example, Tyndale pointed to Harkat's defence against the government allegation that he ran a guest house in Peshawar, Pakistan, for jihadists, and also worked as a chauffeur for Chechen rebel leader Ibn Al-Khattab in 1994 and 1995.

Harkat admitted that he lost his job working for a Muslim charity in June 1994. But in his testimony, he offered little explanation of what he did between that time and September 1995, when he arrived in Canada, Tyndale said.

``Mr. Harkat gave a response, but his response was effectively, `I didn't do a lot at that time.' Judge Noel didn't believe it.''

Tyndale said that while Harkat had enough information to meet the case, ``his choices of responses didn't turn out well for him.''

The case against Harkat relied heavily on written summaries of telephone conversations recorded by CSIS between 1996 and 1998. In keeping with what was then internal policy, however, CSIS, Canada's spy agency, destroyed the original recordings.

Defence lawyers have asked the Appeal Court to overturn the finding that Harkat is a terrorist and throw out the summaries entered into evidence.

Harkat's lawyer Matthew Webber said the summaries were filtered for security information, not evidence, and cannot be trusted as an accurate reflection of what was said.

Webber said Harkat's ability to defend himself was unfairly restricted since he could not challenge the translation of the recordings, voice identification or other potential flaws.

After the previous security law was struck down in 2007, Parliament drafted a new law which gave terror suspects the right to be represented by special advocates and to receive written summaries of evidence heard in-camera.

© Copyright (c) Postmedia News

Harkat appeal puts new security certificate law to a renewed test

posted on February 27, 2012 | in Category Mohamed Harkat | PermaLink

by Andrew Duffy
Source: The Ottawa Citizen
URL: [link]
Date: February 21, 2012

[PHOTO: Mohamed Harkat’s case is the first to test the revised law used to deport foreign-born terror suspects with a challenge under the Canadian Charter of Rights and Freedoms. The previous version was effectively struck down by the Supreme Court in February 2007. Parliament drafted the new law in 2008.
Photograph by: Jean Levac, Ottawa Citizen]

OTTAWA — Canada’s new and improved security certificate law continues to deny terror suspects the detailed information they need to defend themselves, the Federal Court of Appeal has heard.

Norm Boxall, a lawyer for Ottawa’s Mohamed Harkat, told the appeal court Tuesday that the government introduced important safeguards when the law was remade in 2008 but did not go far enough.

“This scheme is admittedly better, but it falls short,” Boxall said in arguing that the law should again be declared unconstitutional.

The Harkat case is the first to test the revised law with a challenge under the Canadian Charter of Rights and Freedoms.

The previous version, used to deport foreign-born terror suspects, was effectively struck down by the Supreme Court in February 2007. The high court said the process was so secretive it denied defendants the fundamental right to meet the case against them.

Parliament drafted a new law that gave terror suspects the right to be represented in secret hearings by special advocates — defence lawyers with security clearance — and to receive written summaries of evidence heard in-camera.

But Boxall said the measures did not afford Harkat the ability to defend himself against “bald allegations” of terrorist involvement.

Harkat knew the general outline of the government’s case, but not the detail that would have allowed him to challenge information, counter false allegations or expose the lies of informants, he argued.

“In order to challenge and meet a case, you have to know the foundation of it,” Boxall said. “Detail has to be met with detail.”

In December 2010, Judge Simon Noel upheld the government’s case against Harkat, declaring him an active and dangerous member of the al-Qaeda network. Among other things, Noel concluded Harkat had ties to an Egyptian terrorist group, Al Gamaa Al Islamiya (AGAI).

Boxall said the judge’s AGAI finding highlights the problem with the new legislation.

There were only two publicly revealed pieces of evidence, he said, in support of the AGAI claim: à La Presse newspaper article which identified Harkat (through an alleged alias) as a member of the group; and a written summary of a wiretapped conversation between two unnamed targets, in which one characterized Harkat as a member of the AGAI who was “not tasked to do great things.”

Boxall asked the appeal panel rhetorically: “How does one meet or challenge that?”

Similarly, he said, Noel found that Harkat had been to Afghanistan. But there was no evidence heard in public that described where he went or what he did, Boxall said.

Harkat in his own testimony denied ever being to Afghanistan.

“You can’t meet or challenge it,” Boxall said. “Harkat can deny it, but the court can say, ‘Well, we don’t believe you.’”

It means, he argued, that security certificate cases are still predominantly — and unfairly — decided in secret.

Boxall said the introduction of special advocates has not overcome the law’s basic flaws. Special advocates, he told the appeal court, play a limited role since they cannot communicate with the terror suspect, nor can they independently investigate allegations or introduce new evidence into secret hearings.

The government’s case against Harkat relied heavily on wiretap evidence.

But Harkat was provided only written summaries of those conversations since the original recordings, made between 1996 and 1998, were destroyed by CSIS in keeping with its then internal policy. Harkat’s lawyers contend the missing tapes make it impossible to challenge the accuracy of voice identification, foreign language translations or to put the conversations into context.

The government has been trying since December 2002 to deport Harkat to his native Algeria.

A former pizza delivery man who has lived in Ottawa since September 1995, Harkat contends he will be tortured or killed if returned to the North African country.

The appeal hearing is expected to conclude Thursday with an in-camera session before the three-judge panel.

© Copyright (c) The Ottawa Citizen

Harkat federal appeals case begins

posted on February 22, 2012 | in Category Mohamed Harkat | PermaLink

by Danielle Bell
Source: The Ottawa Sun
URL: [link]
Date: February 21, 2012

Accused terrorist Mohamed Harkat has nearly exhausted legal avenues but refuses to consider what will happen if he loses his latest battle.

Lawyers for Harkat at the Federal Court of Appeal on Tuesday argued secret proceedings, the destruction of original material by CSIS, and limitations of special advocates were among reasons why he cannot effectively challenge or meet his case, which violates the Canadian Charter of Rights and Freedoms.

Harkat, who is alleged to have ties to al-Qaida and an Egyptian terrorist organization linked to the 9/11 attacks, has been fighting for nearly a decade to stay in Canada, since he was arrested on a federal security certificate.

“It creates a situation where the public has to be taking it on faith,” said Norm Boxall, one of Harkat’s lawyers. “It creates potential damage to the administration of justice and the reputation of the court that’s dealing with it.”

Harkat faces deportation and what he contends would be torture or death if he is sent back to Algeria.

In 2007, the Supreme Court of Canada ruled the security certificate unconstitutional because it relied on secret evidence, which denied his right to a fair trial. Tuesday marked the first day of appeal arguments about the constitutionality of the security certificate since the government introduced special advocates in 2008.

While the scheme has improved, said Boxall, it remains less than adequate since special advocates, who do not have the same powers as public counsel, are so limited. Harkat’s certificate was upheld in 2010 by a federal court judge.

Being denied the basis to challenge the credibility of informants or refute allegations is unfair, said Boxall, and the case is then essentially being decided in secret.

“The principle of fundamental justice is not met simply by saying Mr. Harkat had the opportunity to respond,” said Boxall. “It’s not enough to respond. You have to be given the opportunity to challenge the information.”

Outside court, Harkat, who maintains his innocence and denies links to terrorism, said simply he will wait for the decision.

“I hope the judge understands all the problems with this legislation and that I don’t have a fair trial,” Harkat. “It just goes on and on and on. I don’t want to jump steps ahead. I’ll see what the judge decides.”

Depending on the ruling, there could be a new hearing, according to Boxall outside court.

The appeal proceeding is expected to conclude on Thursday.

danielle.bell AT sunmedia.ca


Copyright © 2011 The Ottawa Sun. All rights reserved.

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