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.
by The Canadian Press Source: The Winnipeg Free Press URL: [link] Date: February 21, 2012
[PHOTO: Mohamed Harkat is seen during a break at the Federal Court of Appeal on the first day of arguments on the constitutionality of security certificates in Ottawa Tuesday Feb.21, 2012. THE CANADIAN PRESS/Adrian Wyld]
OTTAWA - A lawyer for Mohamed Harkat says the security certificate process being used to deport the Algerian refugee is unconstitutional.
Harkat, a former Ottawa pizza delivery man, faces removal from Canada under a certificate that declares him a security threat due to alleged terrorist links.
He denies any involvement with political extremism.
Lawyer Norm Boxall is telling the Federal Court of Appeal the security certificate system is fundamentally unfair because Harkat doesn't know details of the allegations against him.
The Supreme Court of Canada struck down the system five years ago, saying it violated the Charter of Rights and Freedoms.
But the government revamped the process and reissued certificates against Harkat and others in early 2008.
A judge ruled in late 2010 that the retooled certificate system was constitutional. Harkat is challenging that ruling this week.
As public counsel of Mr Mahjoub and lawyers, we support the constitutional challenge of IRPA in Harkat which is necessary and in the interest of Justice.
The amendments that produced what is now Division 9 of the Immigration and Refugee Protection Act (IRPA) following the Supreme Court of Canada judgment in Charkaoui I (2007) were the Parliament’s attempt to find a “substantial substitute” for proper disclosure to the named person in information relied on by the Ministers against non-citizens like Mr. Harkat or Mr. Mahjoub.
However, this continuation of what is nothing more than secret trials against individuals in Canada still fails to respect the Canadian Charter of Rights and Freedoms (‘Charter’) and still fails to meet the requirements of the judgments rendered in Charkaoui I.
The case will have a significant impact on our client’s case, in which disclosure, the use of information gleaned from torture or otherwise illegally obtained, and the use of unfair/unethical practices in the investigation have also come to light.
In Mr. Mahjoub’s case, in February 19, 2010, the Federal Court indicated that a “substantial portion of the information in the SIR originates from foreign agencies” and that Mr. Mahjoub could not be informed as to which of these foreign agencies have received requests for waivers of the third party rule and what the replies to any such requests would have been. The Court also found that Mr. Mahjoub would not receive disclosure of a summary of the security intelligence information emanating from foreign agencies. In the same judgement, the Court reserved its decision as to whether this non-disclosure violates Mr. Mahjoub’s rights under section 7 of the Charter.
This alleged undisclosed information relates to “allegations that are critical to the Ministers’ case.” A CSIS witness recognized the importance of disclosure of the information in question, in light of its relation to the Ministers’ central allegations:
“ The SAs note that the information in question is on the alleged xxxxxxxxxxx and on Mr Mahjoub’s alleged xxxxxxxxxxxxxxxxxx. These allegations are critical to the Ministers’ case. The SAs point out that the Service’s witness, jfdkfjlsjfkd, recognized the important of disclosing such central allegations (…)” [emphasis added]
In light of this information and in light of other experiences with the Security Certificate process, even the Special Advocates have taken the position that the Special Advocate procedure is not an adequate substitute for Mr. Mahjoub’s ability to know the Ministers’ case; that they were not in a position to deal with these allegations or call evidence to rebut them; and that only Mr. Mahjoub and his public counsel could do so:
“ The SAs note that, pursuant to paragraph 83(1)(e) of the IRPA and section 7 of the Charter, Mr Mahjoub is entitled to be reasonably informed of the case against him. The SAs argue that this does not require that Mr. Mahjoub be provided with xxxxxxxxxxxxxx that supports the main allegations, but rather a summary which provides the “gist” of the information, as they proposed. The SAs further argue that with regards to the information on fgjgjgjgj the special advocate procedure is not an adequate substitute for Mr. Mahjoub’s ability to know the Ministers’ case. The SAs submit they would not be in a position to deal with these allegations or to call evidence to rebut these allegations. Only Mr. Mahjoub, with the assistance of his public counsel, could do this.” [emphasis added]
However, the motion filed more than a year ago to quash the certificate and to release Mr. Mahjoub on this basis was postponed by the Court to be heard only at the end of the process.
Meanwhile the Court found that CSIS used information derived from torture, and didn’t have a mechanism to filtered the information admissible under IRPA. Not only did CSIS deliberately decide not to exclude information obtained unlawfully and as the result of the use of torture or cruel, inhuman or degrading treatment or punishment, but also engaged in the interception and monitoring of all conversations between Mr. Mahjoub and his lawyers during the investigation and the Court proceedings from approximately 1996 to 2010.
As a result, a motion to the effect that the conduct of CSIS and the Ministers in the investigation, the issuance of the certificates, and the continuation of the proceedings against Mr. Mahjoub amounts to an abuse of process, is pending due to this unprecedented, negligent and unfair conduct.
Déclaration de Le Coalition pour la surveillance internationale des libertés civiles
Conférence de presse Jeudi, 16 février, 2012 Propos de Roch Tassé Coordonnateur national Coalition pour la surveillance internationale des libertés civiles
En 2007, la Cour Supreme concluait unanimement que les dispositions de la Loi sur l’immigration et la protection des réfugiés concernant les certificats de sécurité étaient anti-constitutionnels et incompatibles avec la Charte canadienne des droits et libertés. La Cour reconnaissait que la non-divulgation d’informations utilisées dans la décision de détenir ou de déporter une personne est une violation de l’article 7 de la Charte, qui guarantit “… le droit à la vie, liberté et sécurité de sa personne ; qu’il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale”. Le Parlement avait un an pour corriger la situation.
Un plus tard, le gouvernement modifiait les disposition avec l’introduction de “l’avocat special”, à qui on accordait des pouvoirs limités d’agir au nom des détenus, mais sans régler le problème de fonds.
Le nouveau mécanisme permet toujours l’utilisation d’informations secrètes qui demeurent innaccessibles à la personne visée et à la défense. Il rend encore possible de détenir ou de déporter un individu, non pas sur la base de preuves solides requises par une cour de justice, mais sur la base de rapports et de conclusions du SCRS et de ses partenaires. Les critères de preuve admissible sont les plus bas de tout le système judiciaire canadien. Certaines informations utilisées peuvent être le fruit de la torture. Bien que l’avocat spécial puisse contester les rapports et les conclusions des agences de renseignement, il ne peut contre-intéroger la source des renseignements utilisés, par exemple un détenu dans une prison étrangère, ou un agent d’un autre pays.
Ultimement, le nouveau régime qui menace de mener à la deportation de Mohamed Harkat ou qui continue de justifer la détention de Mohammad Mahjoub depuis bientôt 12 ans, ne répond pas aux exigences du jugement de la Cour Suprême. Il perpétue la menace de la déportation vers la torture, et faute de déportation, ne règle pas la question de la détention indéfinie.
Un tel abus de justice est inacceptable et nous sommes d’avis que le cas doit retourner devant la Cour Suprême.
La seule façon de respecter les exigences guaranties par la Charte, et en accord avec les principes de justice fondamentale, est une poursuite en vertue du code criminel, ou de nouvelles dispositions avec des critères de preuve équivalents. S’il existe des preuves contre eux, les individus visés doivent avoir la possibilité de se defendre lors d’un process public et equitable, incluant l’accès aux elements de preuves utilisés contre eux.
D’ici là, nous demandons au gouvernement de suspendre la déportation de Mohamed Harkat.
Statement of Support from The Canadian Civil Liberties Association
CCLA Concerned About Lack of Constitutional Safeguards in Security Certificate Process
The Canadian Civil Liberties Association (CCLA) continues to be concerned that Canada’s Security Certificate process unjustifiably impairs key constitutional rights, including due process and compliance with the principles of fundamental justice.
We are concerned that Named Individuals continue to be unaware of the full details of the case against them, and continue to be impaired in making full defence. We argue that the introduction of Special Advocates does not cure these concerns, because the Special Advocate is also constrained in communications with the Named I ndividual.
We are concerned that evidence obtained from torture has been found by Canadian courts to have formed the bases of some Certificates.
We are concerned that Named Individuals face possible deportation to countries, where these Individuals fear they risk being tortured.
Finally we are concerned that by using Security Certificates against non- Canadians, we are creating a second tier of justice for non - Canadians or permanent residents.
CCLA believes that the Security Certificate process is not compliant with the Canadian Charter of Rights and Freedoms, does not demonstrably enhance national security, and fails to comply with Canada’s international law commitment to the absolute prohibition against torture.
by Jim Bronskill (CP) Source: Global TV News - Regina URL: [link] Date: February 16, 2012
OTTAWA - Opponents of Canada's security certificate regime are rallying around Mohamed Harkat as he heads to court to try to scuttle the controversial deportation tool.
Harkat, a former pizza delivery man in Ottawa, faces removal to his native Algeria under a security certificate that declares him a threat to Canada due to alleged terrorist links. He denies any involvement with political extremism.
Opponents say the security certificate system is fundamentally unfair because detainees are not given full details of the allegations against them.
The Supreme Court of Canada struck down the system five years ago, saying it violated the Charter of Rights and Freedoms. But the government revamped the process and reissued certificates against Harkat and others in early 2008.
A judge ruled in late 2010 that the retooled certificate system was constitutional — a decision Harkat will challenge next week in the Federal Court of Appeal.
Alex Neve of Amnesty International Canada argued at a news conference Thursday the federal government failed to do a proper overhaul to ensure fairness.
"Instead they tinkered," he said. "And the tinkering did not address the serious shortcomings."
Green Party Leader Elizabeth May said the certificates represent an affront to all Canadians, not just Harkat.
"Today it's him, tomorrow it could be you."
Harkat was arrested more than nine years ago on suspicion of being an al-Qaida sleeper agent.
Though allowed to live at home with his wife, he continues to wear an electronic tracking bracelet on his ankle, must check in with authorities weekly and cannot leave town without permission.
Don Davies, Official Opposition Citizenship and Immigration Critic, regrets that he cannot be here to reiterate New Democrats’ longstanding opposition to the security certificate process and renew our call to end it.
While it is important that our courts have the tools to address legitimate security threats, detaining individuals without charge, without trial, and without conviction for years is not an acceptable answer.
Security certificates introduce a fundamentally unjust element into our justice and immigration systems. This is why many courts have raised serious concerns. Attempts to remedy these concerns, such as the introduction of special advocates, have not eliminated the inherent injustices surrounding the system.
These cases must be dealt with through a fair and open due process, not arbitrary, secretive measures. We cannot allow fear to usurp fundamental principles of our justice system.
The Canadian Council on American-Islamic Relations (CAIR-CAN) today reiterates its opposition to the flawed Security Certificates process which fails to account for transparency and respect for due process.
The highly criticized process allows for secret evidence to be used to detain and deport non-citizens if they are deemed a threat to national security. If any security certificate detainee is guilty of wrong-doing, then they must be afforded the basic human right to due process; they should be able to hear and challenge the evidence against them. Deeming a detainee to be a terrorist, based on secret intelligence whose sources may be questionable, and then deporting him to face possible torture is not only inhumane, it is counter-intuitive.
We, once again, call on the federal government to report in detail on the implementation of the extensive recommendations made by Justice Dennis O’Connor in the two Arar Inquiry reports. Those recommendations call for sufficient oversight resources and mechanisms to protect essential rights and liberties and check the powers given to and wielded by our security agencies.
Ihsaan Gardee | Acting Executive Director
CAIR-CAN - Canadian Council on American-Islamic Relations igardee@caircan. ca | [link]
Click on the photo of Mohamed to see all items related to him. DEC 9, 2010: A federal court judge today ruled to uphold the 2nd security certificate against Mohamed Harkat, finding it "reasonable." Justice Simon Noel found against Mr. Harkat and upheld the regime of secret hearings and judicially sanctioned rendition to torture.
This fight is not over. The Justice for Mohamed Harkat Committee will re-double its efforts to see that justice is done for Mohamed Harkat and that the odious security certificate system of injustice is abolished once and for all.
Here is the contact information for Sophie Harkat.