Sophie and Mohamed Harkat were at home preparing for their pre-approved outing when an officer from the Canada Border Services Agency (CBSA) knocked on their door. It was 5:00 p.m. on Friday, February 22 - seven hours until the old security certificate for Mr. Harkat would be quashed. As the CBSA officer handed over the new certificate and allegation report claiming Mr. Harkat was a terrorist threat to Canada, it became official. The Ottawa couple had lost their first battle. Security certificate law is an immigration proceeding housed in the Immigration and Refugee Protection Act. It allows the Government of Canada to detain any refugee, permanent resident or other non-citizen that the Canadian Security Intelligence Service (CSIS) consider a national security threat for an indefinite period of time. This includes anyone suspected of violating human or international rights, or of participating in organized crime or terrorist activities. If CSIS can prove its allegations, the person is deported to their country of origin. Closed proceedings ensure the subject of a security certificate can never see or hear the evidence against them. On February 23, 2007 the Supreme Court ruled that security certificates were unconstitutional because they didn’t provide sufficient protection for security certificate detainees. The government was given one year to rewrite the legislation before it was permanently struck down. A new bill was passed a year later, introducing the use of special advocates who get access to the evidence, but cannot share it with their clients without approval from a judge.There are currently five men caught up in the security certificate process, all of whom CSIS claim have terrorist ties. Four of the five men have been released on bail, while the other remains at the Kingston Immigration Holding Centre. They are Hassan Almrei, Mahmoud Jaballah, Mohammad Mahjoub, Adil Charkaoui, and Mohamed Harkat, an Algerian refugee who was released on bail in 2006.

The Harkats continue to fight security certificate legislation – a law that has controlled their life since Mr. Harkat’s arrest in 2002. A recent ruling by Federal Court Justice Simon Noël provided a ray of hope for the couple, who continue to live under Canada’s strictest bail conditions. The 23 conditions allow Mr. Harkat to live at home with his wife, but the couple is not allowed to leave the house without approval from CBSA.

Justice Noël revealed in early October that CSIS must disclose its evidence to the judge within six months. He will then decide whether the information, dating back to 1995 when Mr. Harkat arrived in Canada, can be shared with Mr. Harkat and his lawyers. As of now, the Harkats and their lawyers are trying to prove Mr. Harkat’s innocence using a summary of allegations and a court representative who can’t reveal details of the case.

Mr. Harkat, a pizza delivery driver and gas station attendant before his arrest, has been jailed, tried without access to the evidence, and faces deportation to Algeria where he fears he will be tortured or killed. Is it fair to detain a non-citizen, without charge and without access to the evidence, because they face allegations of terrorism or other crimes? Or should permanent residents and refugees be given the same rights as Canadian citizens when facing deportation?

Human rights activists argue that security certificates are unjust because the evidence is kept secret. However, the government justifies its use of security certificates by saying the legislation protects national security and is used only in extreme cases where a person poses a high level of risk to Canada.

“I do not trust the state to just claim somebody’s a threat,” said Bill Skidmore, a professor of human rights at Carleton University. “In terms of domestic law, the police can’t just arrest somebody and say: trust us, they’re guilty. And I don’t think we should do it now,” he said.

Security certificates are a way to ensure Canada's immigration laws are not abused by people who pose a threat, according to Public Safety Canada’s website.

“The Government of Canada takes its obligation to safeguard public safety and national security very seriously and will take all necessary measures to ensure that the Canadian public is protected,” said said Patrizia Giolti, a spokesperson for CBSA.

A CSIS allegation report claims that Mr. Harkat, who gained refugee status in 1996, is an al-Qaida operative who ran a hostel for Islamic extremists in Pakistan. CSIS also claims he belongs to the Armed Islamic Group. Mr. Harkat denies any terrorist ties, but acknowledges belonging to Algeria's Islamic Salvation Front, an outlawed political party, in the late 1980s. Despite his cries of innocence, Mr. Harkat was arrested on December 10, 2002. He was detained, mostly in solitary confinement, for 3 ½ years at the Ottawa-Carleton Detention Centre before being transferred to the Kingston Immigration Holding Centre for a year in 2005.

Now Mrs. Harkat and the Justice for Mohamed Harkat Committee she founded are fighting for the abolishment of security certificate legislation and the immediate release of the five men caught up in the process.

“My husband - it doesn’t matter if he’s a refugee immigrant or whatever - he’s a human being and he deserves justice,” said Mrs. Harkat.

After much criticism of the law, the Supreme Court of Canada decided security certificates were in violation of sections 7, 9 and 10 of the Canadian Charter of Rights and Freedoms, which give any person in Canada the legal right to know why they are arrested. Special advocates are meant to represent the interests of the security certificate detainee, according to Public Safety Canada. When Minister Stockwell Day announced the new bill, he said it would protect Canadians while respecting individual rights and freedoms.

“I think it’s a very poor substitute for real justice,” Skidmore said. “I don’t think the balance is there at all.”

Christian Legeais, a member of the Justice for Mohamed Harkat Committee, argued that special advocates are not representative because they are not allowed to speak to their clients once they are given access to the secret evidence, unless they get approval from a judge.

“They’re more or less useless,” Legeais said. “It’s a facade of justice.”

Public Safety Canada defends the use of special advocates, saying the brief period of communication allows the representative to prepare for a closed hearing.

Mr. Harkat’s special advocates, Paul Copeland and Paul Cavalluzzo, met with a judge and CSIS officials last month. Norman Boxall, one of Mr. Harkat’s lawyers, said he and his client have no idea what happened at that time.

Legeais said lawyers are forced to go on fishing expeditions when representing their clients in court. “The worst part is trying to defend yourself against allegations you don’t know the source of,” he said. The client is forced to think of any person they’ve met or place they’ve been that might cause suspicion in the eyes of CSIS, he explained.

“It’s a fishing expedition where we’re not allowed to use any hooks,” said Boxall. Lawyers are given a summary of allegations, not a summary of evidence, he said. CSIS claims Mr. Harkat went to Afghanistan, but they can’t say when, where, or what he supposedly did there.

“It would be like me saying, I’m alleging you committed murder,” he said. Only I wouldn’t tell you who you killed or how and when you did it. CSIS can tell you what they believe you’ve done, but they can’t tell you why they believe that’s the case, he explained.

Skidmore believes the problem with security certificates is that they apply a different standard of justice to non-citizens.

“This isn’t like applying a different standard to somebody who’s accused of robbing a 7-Eleven and they might get a month in jail,” he said. “This is about somebody who could be deported to torture or death. You need to ensure the strictest standards of justice because of the potential danger posed.”

Security certificate cases are treated differently because they are immigration proceedings not criminal proceedings, said Boxall. “They could never do this under criminal law,” he said.

“People should not be arrested and detained without charge. Although in an immigration context, it’s understandable that when people show up at the border, they’re not just allowed to walk through. We have immigration rules for a reason. The difficulty in this case is how [they are] being used,” he said. “It’s more problematic when they’ve been here for years [...] and they have jobs and wives and children and so on.”

Proponents of security certificate law argue that a detainee’s problem is not with Canada. Instead, it’s with the country that person is a citizen of. Public Safety Canada and CSIS refused to comment on security certificates, but CBSA spokesperson, Giolti, said these people are choosing to remain in prison or under house arrest by opting to stay in Canada.

“These individuals are free to leave Canada at any time,” said Giolti. “Individuals subject to security certificates are inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality.”

“While it is our intention to remove these individuals from Canada, they have, as is their right, chosen to exhaust all legal avenues of recourse,” she said referring to the five men who continue to fight the allegations against them.

However, the Harkats argue that is not an option for Mr. Harkat, who has built a family in Canada over the past 13 years and may face persecution if deported to Algeria.

“Mohamed Harkat belongs to Canada,” said Legeais. “Why should a Canadian woman accept that her husband be deported?” he asked.

Boxall said the Harkats will begin at square one and challenge the constitutionality of the new legislation on several grounds. For one, they will argue that the provisions restricting communication between special advocates and the security certificate detainee still prevent the client from knowing why they are facing allegations, he said. They will also challenge the standard of evidence and push for full disclosure of information relating to the case. Boxall said there is no set date for these challenges, but the struggle is ongoing.

“We’re going to fight it as hard as we can on every front,” he said. “It’s been a long fight and hopefully the truth will prevail and the certificate will be struck down and that will end it.”

“We want Mr. Harkat to be able to live a normal life. Enough’s enough,” he said. The security certificate process has been in place for twenty years. Since 1991 there have been 27 security certificate cases with different allegations, but each foreign national has been deported to their country of origin.

The Harkats hope their case will be the first to go against the trend. The couple continues to live in a house they describe as a prison. Although they and other human rights activists couldn’t convince the Supreme Court that the law is unnecessary the first time around, they said they will continue to challenge security certificates until they are abolished.

When the CBSA officer delivered the new certificate for Mr. Harkat in February, the name on the cover sheet was not his, Mrs. Harkat recalled. It was the name of another detainee: Hassan Almrei. The CBSA officer apologized, took a pen, scratched out the name, wrote Mohamed Harkat on top, and handed it over to the couple. If a mistake this small can be made in public, Mrs. Harkat questioned how many more are made in secret.

© Deyra Fontaine. All rights reserved.