by Andrew Duffy Source: The Ottawa Citizen URL: [link] Date: November 22, 2012 OTTAWA — Ten years after Mohamed Harkat was arrested in Ottawa as a terrorist suspect, his deportation case is headed back to the Supreme Court of Canada. The country’s highest court announced Thursday that it will hear an appeal in his case. It means the Harkat case will become the first to test the constitutionality of the federal government’s revised security certificate law. The first edition of that law, used to deport foreign-born terror suspects, was struck down by the high court in February 2007 as fundamentally unjust. That ruling overturned a judge’s finding that Harkat was a terrorist threat. Parliament rewrote the law to ensure defendants have more information about the case against them, and better legal representation during secret hearings. But Harkat’s lawyers contend Parliament did not do enough. Harkat, they say, remains in the dark about key details of the case due to the still secretive legal process. The government has been trying to deport the Algerian-born Harkat since December 2002, when he was arrested and jailed on the strength of a security certificate.

Harkat, 44, has always maintained that he has no connection to al-Qaida and will be tortured or killed if returned to Algeria. For a decade, the case has bounced between the Federal Court, the Federal Court of Appeal and Supreme Court. Federal 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 ordered Judge Simon Noël to reconsider his conclusion that Harkat was a terrorist threat. In December 2010, Noël had upheld the government’s case against Harkat, declaring him an active and dangerous member of al-Qaida. The appeal court, however, 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. The original recordings were destroyed in keeping with what was then CSIS policy. Written summaries of those conversations offered critical evidence against Harkat, but without the full recordings, defence lawyers said they had no way to challenge their context or accuracy. The appeal court agreed and ordered the case to be reconsidered without the benefit of some of those conversations. The same appeal court decision upheld the constitutionality of the government’s revised security certificate regime, while striking down a blanket legal protection that allowed CSIS to always shield the name of its informants. The same issues were put before the Supreme Court in leave applications by both Harkat and federal lawyers filed earlier this year. The country’s highest court has now decided to weigh in on them. Government lawyers contend the destroyed recordings had only a modest impact on the trial’s fairness. They’ll argue that their loss should not result in a new hearing for Harkat. Harkat’s lawyers, meanwhile, will ask the Supreme Court to throw out all of the summarized recordings. They’ll also ask the court to again declare the security certificate regime unconstitutional. 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. The Supreme Court’s decision on leave means Harkat will not be deported anytime soon: his case will launch its second decade before the country’s highest court. © Copyright (c) The Ottawa Citizen