by Andrew Duffy
Source: The Ottawa Citizen
Date: May 11, 2014
[PHOTO: Mohamed Harkat speaks with his wife Sophie in front of the Supreme Court of Canada, Thursday, October 10, 2013 in Ottawa. Harkat is challenging the constitutionality of the security certificate provisions in the Immigration and Refugee Protection Act.]
The Supreme Court of Canada will decide Wednesday whether to strike down the federal government’s security certificate regime for the second time since the 9/11 terrorist attacks.
In making that ruling, the court will also decide the immediate fate of Ottawa’s Mohamed Harkat, an Algerian-born terrorism suspect who has been fighting against his deportation under terms of the law, and its predecessor, for more than a decade.
The government contends Harkat, 45, is a member of the al-Qaida network and has been trying to deport him since December 2002, when he was arrested outside his Ottawa apartment building.
“I have always kept my faith in the Supreme Court, but I am extremely anxious right now,” said Harkat’s wife, Sophie, when informed of the pending high court decision.
Harkat refused to speculate on how the court will rule. “We’ve been wrong every single time,” she said. “The ideal outcome for us is that it’s found unconstitutional for the second time and that we finally see an end to this. . . . But this will change our entire lives — one way or the other.”
The first version of the federal law to deport foreign-born terrorism suspects was struck down by the high court in 2007.
The law had been introduced in 1978 as a means to deport foreign nationals and permanent residents tied to terrorism but against whom the government did not have enough evidence to charge criminally. It attracted little attention until 9/11 when it suddenly became a central plank in the government’s anti-terrorism strategy.
The Supreme Court, however, said the legal process it created was so secretive that it denied terrorism suspects the constitutional right to defend themselves.
That ruling nullified a Federal Court judge’s finding that Harkat, a former pizza delivery man and gas station cashier, was a dangerous al-Qaida terrorist.
Harkat has lived in Ottawa as a refugee claimant since September 1995. He came to Canada from Pakistan, where he spent five years after fleeing Algeria. He has always maintained that he has no connection to al-Qaida and will be tortured or killed if deported to the country from which he fled as a university student.
In 2008, Parliament introduced a revised security certificate law that gave foreign-born terrorism suspects more information about the cases against them, and afforded them better legal representation during secret court hearings where national security information was presented.
In December 2010, using the new rules, Federal Court Judge Simon Noël declared Harkat an active and dangerous member of the al-Qaida network. He ruled that Harkat operated a guest house in Pakistan for Saudi-born terrorist Ibn Khattab, and had links to Al Gama’a al-Islamiyya, an Islamic extremist group in Egypt.
But in April 2012, the Federal Court of Appeal overturned the findings. It said Harkat’s right to a fair trial had been compromised by the destruction of 13 wiretap recordings made by the Canadian Security Intelligence Service between 1996 and 1998. Written summaries of those conversations offered critical evidence against Harkat, but without the full original recordings defence lawyers had no way to challenge their context or accuracy, the court said.
At the Supreme Court, government lawyers asked that Noël’s original judgment against Harkat be restored, while Harkat’s lawyers argued that the entire security certificate regime should be torn down again as unconstitutional.
When the government revised the security certificate law, it introduced “special advocates” — security-cleared lawyers assigned to protect the interests of the accused. The advocates attend the secret hearings and have access to some of the classified evidence. But Harkat is contending that restrictions placed on the advocates prevent them from mounting an adequate defence, and therefore that the regime is unconstitutional.
The advocates cannot communicate with a named person or their “public” lawyer about the evidence presented in secret or the advocate’s legal strategy. They are not allowed to know the identity of or cross-examine crucial government informants. They cannot call witnesses or gather their own information and are limited to working with only the information the government chooses to share with them and the court.
The government contends, for its part, that protection of national security secrets needs to be given priority.
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