Mohamed Harkat case likely to head to Supreme Court, stretch into second decade

posted on November 10, 2012 | in Category Mohamed Harkat | PermaLink

by Andrew Duffy Source: The Ottawa Citizen URL: [link] Date: June 26, 2012 OTTAWA — Mohamed Harkat’s legal odyssey will move into its second decade this year as the Supreme Court considers whether to hear the latest appeals in his terrorism case. Both sides have now appealed elements of an April decision that struck down a judge’s finding that Harkat was a member of the al-Qaeda network. The government has been trying to deport the Algerian-born Harkat using the country’s security certificate law since December 2002 when he was arrested outside his Ottawa apartment building. Harkat, 43, has always maintained that he has no connection to al-Qaeda and will be tortured or killed if returned to Algeria. For 10 years, the case has bounced between the Federal Court, the Federal Court of Appeal and Supreme Court. Judges have twice deemed Harkat a terrorist and ordered him deported only to have their findings overturned by higher courts that found the legal process wanting. In April, the Federal Court of Appeal said Harkat’s right to fair trial had been compromised by the destruction of 13 wiretap recordings made by the Canadian Security Intelligence Service (CSIS) between 1996 and 1998. Written summaries of those conversations offered critical evidence against Harkat, but without the full, original recordings, defence lawyers said they had no way to challenge their context or accuracy. The appeal court agreed and ordered Judge Simon Noël to reconsider the case without the benefit of conversations in which Harkat did not take part. Noël had declared Harkat an active and dangerous member of al-Qaeda in December 2010. The same appeal court decision upheld the constitutionality of the government’s revised security certificate regime.

That split-decision left neither government lawyers nor Harkat’s legal team satisfied and both sides have now filed appeals with the Supreme Court. Federal lawyers say the appeal court was wrong to overrule Noël’s assessment of the modest impact of the destroyed recordings on the trial’s fairness. Harkat’s lawyers, meanwhile, want the Supreme Court to throw out all of the summarized recordings. They’re also asking the court to again declare the security certificate regime unconstitutional. If the country’s top judges agree to hear one or both of the appeals, as seems likely, the case will mark its 10th anniversary before Canada’s highest court. In an interview Monday, Harkat said the deportation case is a storm that never ends. “We are waiting for this storm to pass by — but this one keeps rotating over our heads and never goes anywhere,” he said. “I live day by day.” Harkat, who worked as a gas station attendant and pizza delivery man before his arrest, has been unable to hold a job during the past decade, most of which he has spent either in jail or under house arrest. He must wear a GPS tracking bracelet whenever he leaves his house. Harkat’s lawyer, Norm Boxall, said his client has lived too long with the label of terrorist. “It’s an excessive amount of time. It’s excessive and it’s unfair.” The Harkat case could become the first to test whether the government’s new security certificate law can withstand a Charter challenge. The previous version of the law, used to deport foreign-born terror suspects, was struck down by the high court in February 2007, then rewritten by Parliament. © Copyright (c) The Ottawa Citizen