Harkat appeal puts new security certificate law to a renewed test

posted on February 28, 2012 | in Category Mohamed Harkat | PermaLink

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.

Parliament drafted a new law that gave terror suspects the right to be represented in secret hearings by special advocates — defence lawyers with security clearance — and to receive written summaries of evidence heard in-camera. But Boxall said the measures did not afford Harkat the ability to defend himself against “bald allegations” of terrorist involvement. Harkat knew the general outline of the government’s case, but not the detail that would have allowed him to challenge information, counter false allegations or expose the lies of informants, he argued. “In order to challenge and meet a case, you have to know the foundation of it,” Boxall said. “Detail has to be met with detail.” In December 2010, Judge Simon Noel upheld the government’s case against Harkat, declaring him an active and dangerous member of the al-Qaeda network. Among other things, Noel concluded Harkat had ties to an Egyptian terrorist group, Al Gamaa Al Islamiya (AGAI). Boxall said the judge’s AGAI finding highlights the problem with the new legislation. There were only two publicly revealed pieces of evidence, he said, in support of the AGAI claim: à La Presse newspaper article which identified Harkat (through an alleged alias) as a member of the group; and a written summary of a wiretapped conversation between two unnamed targets, in which one characterized Harkat as a member of the AGAI who was “not tasked to do great things.” Boxall asked the appeal panel rhetorically: “How does one meet or challenge that?” Similarly, he said, Noel found that Harkat had been to Afghanistan. But there was no evidence heard in public that described where he went or what he did, Boxall said. Harkat in his own testimony denied ever being to Afghanistan. “You can’t meet or challenge it,” Boxall said. “Harkat can deny it, but the court can say, ‘Well, we don’t believe you.’” It means, he argued, that security certificate cases are still predominantly — and unfairly — decided in secret. Boxall said the introduction of special advocates has not overcome the law’s basic flaws. Special advocates, he told the appeal court, play a limited role since they cannot communicate with the terror suspect, nor can they independently investigate allegations or introduce new evidence into secret hearings. 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 its then internal policy. Harkat’s lawyers contend the missing tapes make it impossible to challenge the accuracy of voice identification, foreign language translations or to put the conversations into context. The government has been trying since December 2002 to deport Harkat to his native Algeria. A former pizza delivery man who has lived in Ottawa since September 1995, Harkat contends he will be tortured or killed if returned to the North African country. The appeal hearing is expected to conclude Thursday with an in-camera session before the three-judge panel. © Copyright (c) The Ottawa Citizen