Lawyers for Harkat argue revised security certificate law still leaves defendants in the dark

posted on January 21, 2012 | in Category Mohamed Harkat | PermaLink

by Andrew Duffy
Source: The Ottawa Citizen
URL: [link]
Date: January 20, 2012

OTTAWA — Lawyers for Ottawa’s Mohamed Harkat have asked the Federal Court of Appeal to strike down the country’s security certificate law for a second time.

The Harkat case will be the first to test whether the government’s revised security certificate law can withstand a challenge under the Canadian Charter of Rights and Freedoms.

The previous version of the law, used to deport foreign-born terror suspects, was ruled unconstitutional by the Supreme Court in February 2007.

In that ruling, Canada’s high court said the security certificate process was so secretive that it denied defendants the fundamental right to meet the case against them.

The government subsequently introduced a new law, which gave terror suspects the right to be represented in secret hearings by “special advocates” — defence lawyers with security clearance. Special advocates are allowed only limited contact with the accused.

Harkat’s legal team contends the new law still leaves defendants too much in the dark.

“The only evidence that truly matters is unknown to him (Harkat),” wrote lawyers Matthew Webber and Norm Boxall in a court brief.

“It is apparent that public proceedings are little more than a façade, with little to no direct evidence shown to Harkat.”

For example, they said, the federal government publicly alleged that Harkat spent time in Afghanistan. But the Algerian-born Harkat was told nothing about the timing, duration, purpose or destination of the alleged sojourn, which made it next to impossible to refute.

It is not enough, the lawyers argued, for the government to offer the “veneer of public disclosure” when it is only through detail that Harkat can attack the validity of such allegations.In December 2010, Federal Court Judge Simon Noël upheld the government’s case against Harkat, declaring him an active and dangerous member of the al-Qaeda network. Noël found that Harkat operated a guest house in Pakistan for Saudi-born terrorist Ibn Khattab in the early 1990s; that he had links to Al Gamaa Al Islamiya, an Islamic extremist group in Egypt; and that he maintained contact with Islamic extremists while in Ottawa. The government’s case against Harkat relied heavily on wiretap evidence. But Harkat was provided only written summaries of those conversations since the original recordings, made between 1996 and 1998, were destroyed by CSIS in keeping with what was then internal policy. Harkat’s defence team said the missing tapes make it impossible to challenge the accuracy of translations or to put conversations into context. The government wants to deport Harkat to his native Algeria. Harkat, a former pizza delivery man who has lived in Ottawa since September 1995, contends he will be tortured or killed if returned to the North African country. Harkat’s appeal, to be heard next month, will add one more chapter to a legal saga now in its tenth year. Harkat was first arrested on the strength of a security certificate in December 2002. That certificate, upheld as reasonable by a Federal Court judge in March 2005, was effectively quashed when the Supreme Court two years later struck down the process as fundamentally unjust. The government reissued a security certificate against Harkat in February 2008. © Copyright (c) The Ottawa Citizen