Supreme Court upholds terror law in Harkat case

posted on May 14, 2014 | in Category Mohamed Harkat | PermaLink

by Andrew Duffy Source: The Ottawa Citizen URL: [link] Date: May 14, 2014 Ottawa’s Mohamed Harkat once again faces deportation to his native Algeria after the Supreme Court of Canada on Wednesday declared the federal government’s security certificate regime constitutional. In a unanimous ruling, the high court said the security certificate regime crafted by Parliament in 2008 – although an “imperfect process” — offers a fundamentally fair process that also protects national security information. The Supreme Court ruling provides a detailed roadmap for trial judges to ensure that future security-certificate cases are conducted fairly. In upholding a key element of the government’s anti-terrorism strategy, the Supreme Court decided that Harkat’s lawyers had failed to show that his security certificate hearing was unfair or had undermined the integrity of the justice system. “In the present case, Mr. Harkat benefited from a fair process,” the court declared in a ruling that puts Harkat back on the legal road to deportation. The high court reinstated the December 2010 judgment of Federal Court Judge Simon Noël, who deemed Harkat a terrorist threat to national security. Noël said Harkat was a member of the al-Qaida network and linked him to a number of Islamic extremists, including Saudi-born Ibn Khattab, Canadian Ahmed Said Khadr, a key al-Qaida figure, and Abu Zubaydah, a facilitator in the Osama bin Laden network. The ruling represents a much-needed victory for the government at the Supreme Court and a devastating loss for Harkat, who had been hoping the court would put an end to his almost 12-year legal odyssey.
Instead, he will now begin a new legal process to determine whether or not he can be deported to Algeria, a country where he says he will be killed or tortured. Canadian law prohibits deportation to torture except in “exceptional circumstances.” But the nature of those exceptions have not been defined by the Supreme Court, which means the Harkat case could conceivably end up back before the nation’s high court to decide that issue in the years to come. It’s not known whether Harkat will be taken into custody to await his deportation. He was scheduled to hold a news conference Wednesday morning. In its judgment Wednesday, the Supreme Court also ruled that Canadian Security Intelligence Service informants do not require the same kind of blanket protection that’s offered to police informants. CSIS informants, the court said, do not require the same level of protection since CSIS is primarily concerned with obtaining security intelligence, which is largely meant for preventative measures, rather than criminal prosecutions. Harkat has been fighting his deportation since his arrest on a national security certificate in December 2002. He spent more than three years in jail, including a year in solitary confinement, and then was under strict house arrest for years. He had a tracking bracelet removed last year. He had been living in Ottawa since 1995 when he claimed refugee status in Canada. Before his arrest, he worked long hours as a pizza delivery man and gas station attendant while also developing an expensive casino gambling habit. He married an Ottawa woman, Sophie Lamarche, in January 2001. CSIS built a case against him based on 13 wiretapped phone conversations recorded between 1996 and 1998, and at least two unnamed informants. Harkat, however, has always maintained that he had nothing to do with al-Qaida. He has told court that he fled his native Algeria to escape the country’s military-backed government, then spent four years working in Pakistan for an aid agency. CSIS contends that Harkat operated a guest house in Peshawar, Pakistan, for Khattab, who was then funnelling mujahedeen fighters to Chechnya. The Harkat case has also been marked by some sensational revelations. In May 2009, for instance, the court belatedly learned that one of the informants who had supplied CSIS with information about Harkat had failed a lie detector test in 2002. Harkat also learned that the federal agents tasked with monitoring his bail conditions listened to phone conversations he had with his lawyer. The first version of the federal law to deport foreign-born terrorism suspects was struck down by the high court in 2007 as fundamentally unjust. 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, a Federal Court judge declared Harkat an active and dangerous member of the al-Qaida network. 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 CSIS’s destruction of the 13 wiretap recordings. 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. In its decision Wednesday, the Supreme Court said the summaries provided by CSIS were “sufficient to prevent significant prejudice to Mr. Harkat’s ability to know and meet the case against him.” aduffy AT © Copyright (c) The Ottawa Citizen