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 )

Federal-Court-of-Appeal-Apr-25-2012-Judgment.pdf

Reasons for Judgement:(The decision. 89 pages)

Federal-Court-of-Appeal-Apr-25-2012-Reasons.pdf

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.

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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.

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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.

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.

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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.

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.

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.

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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.



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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

@DBellReporting Copyright © 2011 The Ottawa Sun. All rights reserved.