by Andrew Duffy
Source: The Ottawa Citizen
URL: [link]
Date: December 10, 2012

[PHOTO: Sophie and Mohamed Harkat are marking the tenth anniversary of his initial arrest, on Dec. 10, 2002.]

OTTAWA — Ten years ago, on Dec. 10, 2002, Mohamed Harkat had a few errands to run before starting his 3 p.m. shift as a Petro-Canada gas station cashier.

First, he had to throw out the garbage at his Vanier townhouse complex, then he had to drop off an application to renew his work permit at a federal immigration office. He was hoping to find work as a short-haul truck driver.

After depositing his trash, however, Harkat was stopped in his tracks by a team of border agents and police officers.

One of the agents put his hand on Harkat’s arm and showed him a picture. Harkat stared into his own face.

“You are Mohamed Harkat?” the agent demanded.

“Yes,” Harkat said.

Harkat had been living in Ottawa for seven years, ever since making a refugee claim in 1995. But his English was still a work in progress. He didn’t understand everything the agent then told him; he knew only that he was under arrest.

“In my head, a thousand questions came to my brain,” remembers Harkat of the moment that would mark the start of his 10-year legal odyssey.

“But I never, ever thought I’d be arrested: there is no reason. There’s nothing I did wrong.”With his case now before the Supreme Court of Canada, the question of whether Harkat did anything wrong remains unanswered one decade after his arrest. For all that time, Harkat has lived with the accusation that he participated in the worst possible crime: terrorism. Yet Harkat was not being charged as a criminal. He would not face a trial governed by conventional rules. As a foreign-born refugee, he had been arrested on a federal security certificate, a powerful and rarely used instrument of Canada’s immigration law. It gave the federal government the power to detain Harkat indefinitely; to use secret evidence to brand him a terrorist; and to send him back to a country where he could be tortured. The law was created in 1978 to swiftly deport those the government suspected of being involved in terrorism, but against whom there was insufficient evidence for a criminal prosecution. Since 9/11, however, the security certificate process has proved anything but swift. Three accused terrorists, including Harkat, have been before the courts for more than a decade. Indeed, Harkat remains the subject of a legal process that will not be resolved for at least another year, and likely longer. What cannot be debated, however, is the strangeness of Harkat’s decade. He has spent three and a half years in jail, including one full year in solitary confinement. He has lived under the strictest house arrest ever imposed in Canada. He has twice been declared a terrorist by Federal Court judges only to have those decisions overturned by higher courts. His face has become so well known that people recognize him on the street and in the grocery store. In an exclusive interview to mark the anniversary of his arrest, Harkat relived the peaks and troughs of his turbulent decade. In the days that followed his arrest, Harkat was convinced he would be released. But days turned into weeks and weeks into months as lawyers and judges grappled with a security certificate process little defined by case law. For Harkat, the wait was painful since he was being treated by the Ottawa-Carleton Detention Centre as its most dangerous inmate. He spent one full year in solitary confinement. “The first year in the cell alone, it was a nightmare,” he says. “I was crying most of the time. I had no ideas what was going on in the world.” In solitary, Harkat had no access to newspapers or television and his visits were strictly limited. He spent 20 minutes a day in the exercise yard in handcuffs and chains. Other prisoners were sent to solitary — “the hole” — as a punishment for fighting or rule infractions. They would often express their frustration by banging on cell doors. “They won’t let you sleep: they bang the doors all night,” Harkat says. “They don’t give a damn who’s living beside them. They drive people crazy there.” Forty-three months after he was first jailed, Harkat was flown to Ottawa on a government jet after being released from a Kingston prison built for security certificate detainees. It was June 21, 2006. Harkat was about to be released on the strictest set of bail conditions ever seen in Canada. The conditions required that he never be home alone; that he wear an electronic tracking bracelet and be accompanied by a surety whenever he left the house. In addition, Harkat had to agree to have his mail searched, his phone tapped and be followed by border agents anytime he left the house. None of that mattered, though, when he arrived at the door of his Ottawa home. Walking through the front door, he says, was the best moment since his arrest. “The air smells different, it even feels different,” he says. “You appreciate the things around you when it’s gone for awhile.” Harkat, his wife and extended family celebrated with a halal roast beef dinner. Months later, in February 2007, they had reason to celebrate again when the Supreme Court ruled the country’s security certificate regime was unconstitutional. The court found the secretive process denied defendants the fundamental right to meet the case against them, and ordered the government to rewrite it. Harkat felt vindicated: he had been telling anyone who would listen the same thing for more than four years. “The Supreme Court said the system doesn’t work. That’s what I was waiting for,” he says. “That was a good day. It gave us hope.” The high court decision overturned a Federal Court judge’s finding — based largely on secret evidence — that Harkat was a terrorist. Mohamed Harkat was in the shower when Canadian border agents came to arrest him for a second time. An agent walked into the bathroom on Jan. 29, 2008 and hauled him out of the shower. “He gave me a towel and said, ‘Get dressed,’” Harkat remembers. “I thought, ‘What is going on?’” The agent accused Harkat of violating his bail, which required him to live with his wife, Sophie, and mother-in-law, Pierrette Brunette. A sad, strange story would later emerge in court. Brunette, it turned out, had split with her former partner, Alois Weidemann, in whose Heron Gate home the Harkats lived. The failed romance poisoned the home and left Weidemann with the Harkats as unwelcome tenants. Harkat, who was released from jail after four days, felt the arrest was particularly unfair since he had been so careful to abide by his bail conditions. “We were following every single order,” he says. Border agents would again appear at Harkat’s door little more than one year later, in May 2009. The Canada Border Services Agency had been given the right to conduct unannounced searches of the home as part of Harkat’s bail order. Sixteen agents and police officers with three dog teams swept the house for six hours. They left with 12 boxes of material, including a home computer and a family photo album. A judge later ruled the search was an intelligence-gathering exercise that breached the Harkats’ privacy rights. “I was like a dog on a chain and they could pull my chain anytime they wanted,” Harkat says. “They could walk in anytime they wanted; that was what we lived with.” By the middle of 2009, almost seven years after his arrest, Mohamed Harkat thought he could see light through the storm. The government’s case against him was in trouble. It had just been revealed that a key CSIS informant in the case had failed a lie-detector test — a fact not previously disclosed to the court. For Harkat, the finding went to the heart of the problem with security certificates. He believes the process affords dubious informants too much protection. In his case, Canadian Security Intelligence Service (CSIS) informants testified only in secret, and even then were not subject to cross-examination by Harkat’s lawyers. “I’m thinking the informant is scared from 9/11 — and they (CSIS) showered him with lots of money,” says Harkat. Then, in September 2009, the court unexpectedly lifted the most difficult terms of Harkat’s bail. It meant he could stay home alone and go outside without a surety as long as he wore his tracking bracelet. CSIS even downgraded the threat posed by Harkat. In a report to the court, it described him as a someone who played a mostly logistical role for international jihadists and did not engage in violent acts. At the time, Harkat firmly believed his legal odyssey was coming to end. The Harkats began to plan for their future. They talked about starting a family; Mohamed Harkat decided to go to college to pursue accreditation as an electrician or plumber. That’s how confident they were that Federal Court Justice Simon Noël would quash the security certificate. The cases against two other security certificate detainees had already crumbled and the Harkats were certain that theirs would be next. They could not have been more wrong. In December 2010, Noël ruled that the government had made a reasonable decision in concluding that Harkat was a terrorist threat to national security. Noël dismissed Harkat’s testimony as simplistic, dishonest and misleading, and upheld almost all of the government’s allegations against him. The Harkats heard the news in their lawyer’s office. “It felt like someone put a nail in my heart,” says Harkat, who regards it as one of the worst days of his epic decade. The Supreme Court will consider the Harkat case next year as it examines the constitutionality of the federal government’s security certificate regime. Among other things, Harkat will argue that the current regime puts too much emphasis on secret evidence and affords too much protection to CSIS informants. He points to the case of Mubin Shaikh, a CSIS and RCMP informant, who testified publicly against members of a terrorist cell, known as the Toronto 18, and continues to live in the city without incident. “Why can’t the same thing happen in my case? Why should it be so different?” asks Harkat, who continues to press his demand for a fair and open trial. “I still have hope in the system,” he says. Harkat’s wife, Sophie, says the fight to clear her husband’s name has become intensely personal. During the past decade, she has become a lighting rod for critics who accuse her of wilful blindness. Some have insisted hers is a marriage of convenience. “I’ve got nothing to win by staying in this relationship: there’s nothing convenient about it,” she says. “If I wanted to go 10 years ago, I could have left 10 years ago. “But I believe in his innocence and I believe in due process. People should stop attacking me. I’m just fighting for human rights here.” Still, she admits to being worn down by the decade and the fight that still looms. “In 10 years, other people move on, other people graduate, other people have kids. We don’t.” © Copyright The Ottawa Citizen 2012