Supreme Court upholds security certificate law in Mohamed Harkat terror case

posted on May 14, 2014 | in Category Security Certificates | PermaLink

by Tonda MacCharles Source: The Toronto Star URL: [link] 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.


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Supreme Court upholds terror law in Harkat case

posted on May 14, 2014 | in Category Mohamed Harkat | PermaLink

by Andrew Duffy Source: The Ottawa Citizen URL: [link] 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.


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Supreme Court to decide the fate of Harkat, federal terrorism law

posted on May 14, 2014 | in Category Mohamed Harkat | PermaLink

by Andrew Duffy Source: The Ottawa Citizen URL: [link] Date: May 11, 2014 [PHOTO: Mohamed Harkat speaks with his wife Sophie in front of the Supreme Court of Canada, Thursday, October 10, 2013 in Ottawa. Harkat is challenging the constitutionality of the security certificate provisions in the Immigration and Refugee Protection Act.] The Supreme Court of Canada will decide Wednesday whether to strike down the federal government’s security certificate regime for the second time since the 9/11 terrorist attacks. In making that ruling, the court will also decide the immediate fate of Ottawa’s Mohamed Harkat, an Algerian-born terrorism suspect who has been fighting against his deportation under terms of the law, and its predecessor, for more than a decade. The government contends Harkat, 45, is a member of the al-Qaida network and has been trying to deport him since December 2002, when he was arrested outside his Ottawa apartment building. “I have always kept my faith in the Supreme Court, but I am extremely anxious right now,” said Harkat’s wife, Sophie, when informed of the pending high court decision. Harkat refused to speculate on how the court will rule. “We’ve been wrong every single time,” she said. “The ideal outcome for us is that it’s found unconstitutional for the second time and that we finally see an end to this. . . . But this will change our entire lives — one way or the other.” The first version of the federal law to deport foreign-born terrorism suspects was struck down by the high court in 2007. The law had been introduced in 1978 as a means to deport foreign nationals and permanent residents tied to terrorism but against whom the government did not have enough evidence to charge criminally. It attracted little attention until 9/11 when it suddenly became a central plank in the government’s anti-terrorism strategy. The Supreme Court, however, said the legal process it created was so secretive that it denied terrorism suspects the constitutional right to defend themselves. That ruling nullified a Federal Court judge’s finding that Harkat, a former pizza delivery man and gas station cashier, was a dangerous al-Qaida terrorist. Harkat has lived in Ottawa as a refugee claimant since September 1995. He came to Canada from Pakistan, where he spent five years after fleeing Algeria. He has always maintained that he has no connection to al-Qaida and will be tortured or killed if deported to the country from which he fled as a university student. 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, Federal Court Judge Simon Noël declared Harkat an active and dangerous member of the al-Qaida network. He ruled that Harkat operated a guest house in Pakistan for Saudi-born terrorist Ibn Khattab, and had links to Al Gama’a al-Islamiyya, an Islamic extremist group in Egypt. 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 the destruction of 13 wiretap recordings made by the Canadian Security Intelligence Service between 1996 and 1998. 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. At the Supreme Court, government lawyers asked that Noël’s original judgment against Harkat be restored, while Harkat’s lawyers argued that the entire security certificate regime should be torn down again as unconstitutional. When the government revised the security certificate law, it introduced “special advocates” — security-cleared lawyers assigned to protect the interests of the accused. The advocates attend the secret hearings and have access to some of the classified evidence. But Harkat is contending that restrictions placed on the advocates prevent them from mounting an adequate defence, and therefore that the regime is unconstitutional. The advocates cannot communicate with a named person or their “public” lawyer about the evidence presented in secret or the advocate’s legal strategy. They are not allowed to know the identity of or cross-examine crucial government informants. They cannot call witnesses or gather their own information and are limited to working with only the information the government chooses to share with them and the court. The government contends, for its part, that protection of national security secrets needs to be given priority. © Copyright (c) The Ottawa Citizen


Terror suspect Mohamed Harkat awaits crucial Supreme Court ruling

posted on May 14, 2014 | in Category Mohamed Harkat | PermaLink

by: Jim Bronskill (CP) Source: CTV News Website URL: [link] Date: May 13, 2014 [PHOTO: Mohamed Harkat pauses during a press conference on Parliament Hill marking the 10th anniversary of his arrest and detention on a security certificate in Ottawa, Monday, Dec. 10, 2012. ] OTTAWA -- The fate of terror suspect Mohamed Harkat -- and the controversial security certificate system being used to deport him -- will become clearer Wednesday when the Supreme Court of Canada issues a long-awaited ruling. But the Ottawa man's case has taken so many twists and turns over the last dozen years that the end of the road may still be some way off. The high court will rule on the constitutionality of the certificate regime, a rarely used means of removing non-citizens suspected of involvement in extremism or espionage. It is also slated to decide crucial issues related to evidence in the certificate case of Harkat, an Algerian refugee accused of terrorist ties. As a result, the ruling could have implications that reach far beyond the world of security certificates, said Norm Boxall, a lawyer for Harkat. "There's a tremendous number of issues involved in the case," Boxall said Tuesday. "It's very complex." Harkat, 45, was taken into custody in December 2002 on suspicion of being an al-Qaida sleeper agent. The former gas station attendant and pizza delivery man lives quietly in the national capital with wife Sophie. Last year border agents removed an electronic tracking bracelet from his ankle. Harkat was also given more freedom to travel but he can't leave the country and must check in with authorities regularly. The person named in a security certificate receives only a summary of the case against them, stripped of supporting details to protect sensitive intelligence sources and methods. The federal government issued a revised certificate against Harkat in 2008 after the secretive process was struck down by the courts and subsequently overhauled to make it more fair. The Supreme Court will decide Wednesday whether those reforms went far enough. In revamping the system, the government introduced special advocates -- lawyers with access to secret material who serve as watchdogs and test federal evidence against the person singled out in the certificate. Harkat's counsel argued during a Supreme Court hearing last year that the special advocates do not make up for weaknesses in the certificate process, noting these lawyers are greatly restricted in what they can say about the case and cannot initiate their own investigations. Federal lawyers told the high court the certificate process was fair, meeting the guarantee of fundamental justice under the Charter of Rights and Freedoms. In April 2012, the Federal Court of Appeal upheld the constitutionality of the security certificate system, but ruled that summaries of some 1990s conversations be excluded from evidence against Harkat because the Canadian Security Intelligence Service destroyed the original recordings. The appeal court also said that human sources recruited by CSIS do not have the sort of blanket protection that shields the identities of police informants, even from the judge. In the case of CSIS, the issue is instead decided on a case-by-case basis. Neither side was pleased with the ruling, and each asked for a hearing in the Supreme Court. One of three scenarios is likely: The court upholds both the security certificate system and rules the certificate against Harkat reasonable, opening the door to the next step in deporting him. The judges find the security certificate regime constitutional but rule that the case against Harkat must be re-examined or even tossed out. The court rules the security certificate system unconstitutional, making the certificate against Harkat invalid as well. Two other men -- Mahmoud Jaballah and Mohamed Mahjoub, both originally from Egypt -- could face removal from Canada in long-running certificate cases. © 2014 Bell Media All rights reserved.


D-day for Harkat as Supreme Court rules on security certificates

posted on May 13, 2014 | in Category Mohamed Harkat | PermaLink

by Kelly Roche Source: The Ottawa Citizen URL: [link] Date: May 12, 2014 The fate of alleged al-Qaida sleeper agent Mohamed Harkat will be decided by the Supreme Court of Canada on Wednesday following a 12-year legal battle. “This day’s going to change our lives, so it’s do-or-die,” said his wife, Sophie Harkat. A former pizza delivery man, Harkat, 45, has been contesting the federal government – maintaining innocence – after being arrested outside his Ottawa home in 2002 on a national security certificate. He’s accused of running a safe house in Pakistan when he was 19, and communicating with senior al-Qaida members. The issue at hand in this ruling is whether security certificates, which allow non-citizens deemed security threats to be detained and deported without seeing all evidence against them, are constitutional. Public and private hearings, excluding Harkat and his lawyers, took place last October. If the Supreme Court decides in Harkat’s favour, “he would be a free man,” said Norm Boxall, one of Harkat’s lawyers. “Mixed success” means there could be a new hearing, Boxall continued, while a government victory would move the process to a pre-removal risk assessment, with Harkat facing deportation to Algeria. Harkat has said he will be tortured or killed if sent back. Appeals have been filed by the feds and Harkat’s legal team regarding constitutionality in this case. In 2007, the Supreme Court ruled the security certificate unconstitutional because it relied on secret evidence, denying a right to a fair trial. The feds introduced special advocates in 2008 — essentially lawyers with security clearance who could attend secret hearings and partially access secret evidence. Harkat wants to see the proof and challenge its sources. Other concerns with the Harkat file include determining if Canadian Security Intelligence Service informants have the same protection privilege as police sources, Boxall said, as well as the destruction of evidence. “I think it’s pretty important to note that Mr. Harkat has been in the country since 1995. He never committed a criminal offence,” said Boxall. Harkat spent nearly four years behind bars after his arrest. “We think the security certificate process, as it exists, violates international human rights standards with respect to fair trials, and it needs to be struck. It needs to be overturned,” said Amnesty International Canada Secretary General Alex Neve. Sophie Harkat said family and close supporters will be in court for the decision. Copyright © 2014 All rights reserved The Ottawa Sun is a member of Canoe Sun Media Urban Newspapers.


TRAILER: The Secret Trial 5

posted on May 06, 2014 | in Category Security Certificates | PermaLink

The documentary The Secret Trial Five, long in the making, has now been released. It screened recently at the Toronto HotDocs Documentary Film Festival and was well received there. HotDocs audiences voted it 8th best out of a total 200 films that were shown during the 11-day festival. Watch the trailer:


Ottawa lawyers Matt Webber and Robert Wadden named to bench

posted on April 08, 2014 | in Category Mohamed Harkat | PermaLink

by Andrew Duffy Source: The Ottawa Citizen URL: [link] Date: April 8, 2014 Matt Webber

OTTAWA — A prominent Ottawa defence lawyer and motorcycle enthusiast, Matt Webber, has been appointed to the bench of the Ontario Court of Justice. Webber’s judicial appointment, which is to be made official this week, was welcomed Monday by the city’s legal community. “He can think quickly and make sound decisions, which are great attributes for a trial lawyer — and also for a judge,” said defence lawyer Norm Boxall, past president of the Criminal Lawyers’ Association. Boxall called Webber, his co-counsel on the Mohamed Harkat security certificate case, a hard-working, thoughtful lawyer. “He understood that his role was to be an advocate for his clients and he advanced their positions fearlessly and forcefully,” he said. Longtime Crown attorney Robert Wadden has also been appointed as a judge. Wadden, who has been working as a prosecutor since 1993, most recently served as coroner’s counsel in the inquiry that examined the death of high school student Eric Leighton. The 18-year-old Barrhaven student was killed when he cut into a sealed metal barrel in May 2011, igniting the explosive gases inside. Webber’s decision to seek a judicial appointment caught many by surprise given his star status among the city’s defence bar. Webber became a founding partner of Webber Schroeder Goldstein Abergel in 2004 and has since built a reputation as a gruff and effective defence counsel while helping to establish his firm as the largest criminal practice in the city. Webber, who looks equal part biker and lawyer with shoulder-length hair and a full beard, has acted for a parade of high-profile clients, including Harkat, Father Joseph LeClair, and an Ottawa woman strip-searched in a police lock-up after being arrested for public drunkenness. He has been counsel on two epic court cases. The Harkat case has been before the Federal Court since 2002 and has twice gone to the Supreme Court of Canada. Webber was also involved in a case that came to be known simply as “the Cumberland murders.” Webber’s client, Richard Trudel, spent 15 years in prison for the shotgun slaying of a Cumberland couple before Superior Court Judge Colin McKinnon freed him in January 2007, ruling that his conviction could not stand given long trial delays, lost evidence and unreliable testimony from Crown witnesses. In an interview Monday, Mohamed Harkat said Webber became “like a family member” during the past decade. “I’m so attached to the guy. After 10 years, he’s not just a lawyer: If I want to cry, I cry on his shoulder.” Harkat’s wife, Sophie, said Webber has guided them through a roller-coaster decade of court defeats and victories. “Matt has seen me at my worst: kicking, screaming, yelling. But I know he will make a terrific judge. He has given us 10 years and two Supreme Court challenges. We couldn’t ask for more.” Webber, a graduate of Osgoode Hall law school, was called to the bar in 1992 and moved to Ottawa eight years later. He is an occasional member of the Illegals Motorcycle Club, a group of bike enthusiasts drawn from the ranks of Ontario lawyers. © Copyright (c) The Ottawa Citizen



OPINION: Right to a Fair Trial is not just for Canadian Citizens

posted on October 23, 2013 | in Category Security Certificates | PermaLink

by Hayley Pitcher Source: Pro Bono Students Canada / CCLA Rights Watch Blog URL: [link] Date: October 10, 2013 The opinions expressed here are those of the author's. They do not necessarily represent CCLA or PBSC policy. Please visit CCLA’s website, www.ccla.org, for official CCLA publications and policies. Today, the SCC hears an important case regarding the constitutional rights of immigrants in Canada. Mohamed Harkat will challenge the constitutionality of security certificates. Harkat is an Algerian who came to Canada in 1997. He has been subject to a security certificate since 2002. He was detained until 2006 and has since been under strict bail conditions. While his conditions have relaxed over time, they have included: a GPS monitoring device, curfew, surveillance cameras at the front of his house, interception of mail and phone calls, and no internet access. Security certificates allow the Canadian government, on the basis of secret evidence, to deport non-citizens who are deemed a security threat to Canada. The regime also allows for detention – with no statutory limitations on the length – so long as the detention is reasonable. Because it is not a criminal proceeding, the standard of proof is much lower than beyond a reasonable doubt. The standard applied is whether there are reasonable grounds to believe that the named person is a security threat.


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Harkat ‘optimistic’ of second appeal of security certificate at high court

posted on October 16, 2013 | in Category Security Certificates | PermaLink

by Joe Lofaro Source: Metro News Ottawa URL: [link] Date: October 10, 2013
Mohamed Harkat speaks to reporters in the foyer of the Supreme Court of Canada on Oct. 10, 2013. Photo by Joe Lofaro.

An Algerian-born Ottawa man accused of being an Al Qaeda “sleeper cell” agent was at the Supreme Court of Canada Thursday as federal lawyers argued for the court to uphold laws that would deport terrorist suspects. Mohamed Harkat, a former gas station attendant and pizza deliveryman, was arrested in 2002 under a security certificate. The tool gives Canada permission to deport foreigners without charging them on the basis of national security. He was placed on house arrest after spending 43 months in prison. It was only this past July the Ottawa man was permitted to remove his GPS tracking bracelet from his ankle. On Thursday he was appealing for the second time the constitutionality of the security certificate provisions in the Immigration and Refugee Protection Act. “I hope for the best and I’m still optimistic what’s going on so far,” said Harkat in the court foyer during a break in the hearing. In his argument to Canada’s highest court, federal lawyer Robert Frater called for government informants to be kept under a veil of secrecy, otherwise “the informants will close up like a clam.” Federal lawyer Urszula Kaczmarczyk also argued for those named in a security certificate to only receive a summary of the case against them, without divulging sensitive intelligence information. But what defence counsel is left with is a summary of “bald” allegations, argued Harkat’s lawyer, Norm Boxall. “You must have information and other evidence and it’s not just being told the allegation,” said Boxall. “For example, there’s an allegation that he went to Afghanistan. When? Where? How? Why?” Matthew Webber, Harkat’s other lawyer, also asked for an exclusion of the original Canadian Security Intelligence Service (CSIS) wiretaps used in building a case against Harkat, which were destroyed in 2009. The destruction of that evidence is “prejudicial” to his client, said Webber. Outside the courtroom the foyer was bustling with supporters who came to observe the rare proceeding. Harkat also had the support of his wife, Sophie, during the hearing. “I’m hoping one day I’m going to clear my name,” Harkat told reporters. “I’m telling the Canadian people and the world I’m not part of bin Laden, what they’re saying. It will prove itself.” The hearing will continue Friday behind closed doors. Copyright 2001-2013, Free Daily News Group Inc.


Supreme Court urged to accept revamped national security certificate rules

posted on October 16, 2013 | in Category Mohamed Harkat | PermaLink

by Tonda MacCharles Source: The Toronto Star URL: [link] Date: October 10, 2013 OTTAWA —As the Supreme Court of Canada prepared to take the rare step of going behind closed doors Friday to hear secret government evidence in an anti-terror case, it was warned secrecy is becoming the alarming trend in federal courts. The Canadian public is unaware that secret evidence is being invoked in lot more than anti-terror cases, said lawyer Barbara Jackman of the Canadian Council for Refugees. Jackman said while there have been some 30 security certificate proceedings in the past 22 years, there is a huge upswing in the use of secret evidence and closed-door proceedings in a range of other civil proceedings, notably immigration matters. Jackman told the Supreme Court that since 2008 the Federal Court has conducted secret proceedings in more than 100 cases of judicial review of decisions such as sponsorship applications where the Ottawa cites national security as a reason to bar a public hearing. The number could not be confirmed immediately with federal court officials “Secrecy is becoming the norm,” Jackman said, intervening in a crucial test case of the federal government’s power to deport non-citizens who are suspected of terrorist ties or spying. The federal Conservative government is urging the Supreme Court of Canada to uphold the country’s second attempt at crafting special immigration warrants — known as security certificates — to deport terror suspects, and to go further: to grant a “class privilege” or blanket protection to the identity of secret informants. Mohamed Harkat, an Algerian-born man suspected of running guest houses for training Chechen terrorists in Pakistan on behalf of Al Qaeda-affiliated groups, came to Canada in 1995, claiming refugee status. Arrested in 2002 on suspicions he was a “sleeper agent,” Harkat has long denied the allegations against him and challenged the latest version of security certificates as unconstitutional. The high court already struck down in 2007 the first security certificate regime as drafted under Liberal governments. The Conservative government re-tooled the law and modelled it on the British regime, which drew inspiration from Canada’s watchdog agency’s powers over CSIS. It named “special advocates” — lawyers cleared by the Justice Department — to hear the secret government evidence in a closed courtroom along with the judge. But it does not allow those advocates to disclose the evidence or even talk to the defence without clearing it with the judge. Intervening for the Canadian Bar Association, lawyer Lorne Waldman, who often acts as a top-secret-cleared special advocate, told the high court it’s a far from ideal system that does not adequately protect a suspect’s rights. The appeal took a bizarre turn Thursday when federal lawyers argued most of the evidence justifying the deportation of Harkat is already public and known to Harkat. Ottawa nevertheless wants the high court to affirm the rules that allow the person named in the security certificate to receive only a summary of the case against them without access to original material or supporting details to protect sensitive intelligence information. It says the special advocates provide enough protection to Harkat’s rights. In fact, Ottawa wants the high court to back the regime and go further — to grant government informants a “class privilege” or blanket protection against revelation of their identity. former gas station attendant and pizza delivery man, argues the regime remains a violation of Charter guarantees of due process and fundamental justice. Federal lawyer Urszula Kaczmarczyk urged the judges not to decide whether the whole regime is unconstitutional based on Harkat’s challenge, because most of the evidence against him is already known. Kaczmarczyk said Harkat, who came to Canada on a false passport claiming refugee status, has received summaries of 14 allegations against him, which amounted to enough information to allow him to defend himself. Original CSIS tapes and notes about the wiretaps used against Harkat have been destroyed, but Federal Court trial Judge Simon Noel concluded the evidence supported the security certificate issued against him, and declared it “reasonable,” she said. Noel dismissed Harkat’s story that denied any knowledge or involvement with terrorists training in Peshawar as “meticulously fabricated” but not at all credible. Chief Justice Beverley McLachlin told Kaczmarczyk the constitutionality of the whole regime has been challenged and “you have to answer that or face the consequences.” Harkat’s lawyer Norm Boxall said the new system “is better than nothing,” but it does not allow the defence to make any substantive challenge of the Crown’s case in the portion that is held in open courtrooms. Justice department lawyer Robert Frater said the court should grant a blanket protection to informants, not decide on a case-by-case basis, because otherwise “the informants will close up like a clam.” © Copyright Toronto Star Newspapers Ltd. 1996-2013


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