by Tonda MacCharles Source: The Toronto Star URL: [link] Date: May 14, 2014 OTTAWA—The Supreme Court of Canada unanimously upheld revised security certificates laws Wednesday along with the use of secret evidence to deport foreign-born terrorism suspects as constitutional. In doing so, the 8-0 decision also concluded a security certificate — a kind of special immigration warrant — issued against Algerian-born Mohamed Harkat is reasonable. It is a major nod to the Conservative government’s 2008 redesign of the security certificates that brought in the use of security-cleared special advocates who have access to secret state evidence although they are not allowed to disclose that evidence to the defence. However, it may not be the end of a long battle for Harkat, pegged by Canada’s security agencies as a suspected Al Qaeda sleeper agent. For years, Ottawa has sought to deport Harkat insisting he is a threat. But Harkat’s lawyers say Canada cannot deport anyone to face a risk of torture as they argue he would be in Algeria, and are expected to fight further efforts to remove him.
Under immigration law, Ottawa must conduct a preremoval risk assessment to evaluate if Harkat’s fears of torture are well-grounded. Harkat last year had an electronic monitoring bracelet removed as his appeals ground on. He was expected at the high court to be briefed by his lawyers on the ruling’s release. In the past, the Supreme Court has ruled government should not remove individuals where there is a substantial risk of torture. However, it also said there may be undefined “exceptional circumstances” where removal is warranted. Chief Justice Beverley McLachlin wrote Wednesday’s decision which found the security certificate provisions in the Immigration and Refugee Protection Act do not violate a person’s “right to know and meet the case against him, or the right to have a decision made on the facts and the law.” In Harkat’s case, the court found he had sufficient information about the case against him, and upheld Federal Court judge Simon Noel’s conclusion the certificate against him was reasonable. Harkat is suspected of running guest houses for training Chechen terrorists in Pakistan on behalf of Al Qaeda-affiliated groups. He came to Canada in 1995, claiming refugee status. Arrested in 2002 on suspicions he was a “sleeper agent,” Harkat has long denied the allegations against him. His Canadian wife Sophie Lamarche and a wide group of supporters have vowed to continue the fight to prevent his deportation. The Supreme Court judges were unanimous on most key aspects of the case. Overall, the high court found the special advocate regime is constitutional, that CSIS informants do not have a special “class privilege” or blanket legal protection for their identities, like police informants. The majority said the informants’ tips are used in legal proceedings where the rules for hearsay evidence are more lax than in criminal courts, and said it would be up to Parliament to extend protection further. However two judges, Rosalie Abella and Thomas Cromwell, dissented and would have extended new protections to CSIS informants saying those who come forward with information about a potential terrorist threat often “risks his or her life” if their identity is disclosed. Despite upholding the regime, the Supreme Court majority said it was still “imperfect” and laid out guidelines for judges to ensure fairness of the proceedings. Though they upheld the use of redacted summaries of evidence even in cases like Harkat’s where original tapes were destroyed by CSIS, the court said CSIS informants may be called to testify in secret, even cross-examined “as a last resort.” The ruling said federal court judges who review security certificates have a duty to ensure the fairness of the process especially because so much may be held in secret; they must be “vigilant” in that duty and be “skeptical” of governments’ “overclaiming” national security in a bid to keep information secret. “Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld,” wrote McLachlin. The judge “must be vigilant and skeptical with respect to the claims of national security confidentiality and must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld,” she said. “Systematic overclaiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system.” That could require a judge to resort to excluding evidence or requiring disclosure to the defence. The ruling comes seven years after the country’s top court sent Parliament back to the drawing board after it threw out security certificates as unconstitutional violations of the right to a fair hearing. That regime — set out in the Immigration and Refugee Protection Act — was used by Liberal government used in several high profile post Sept. 11 terror cases. In 2007, the high court found it unconstitutional. The Conservatives rewrote the law and reintroduced a system modelled on the British regime in 2008. The high court judges had heard part of the historic case, including the national security evidence, behind closed doors, at a secret hearing in an undisclosed location. It was only the second known time the country’s top court moved arguments out of public view. The first, more than a decade ago, was a hearing into the use of investigative hearings in the Air India investigation. On Wednesday, it said written summaries prepared by CSIS of intercepted communications may be accepted as evidence even if the original tapes are destroyed, but said the government must provide as much evidence as possible to a person in order to justify its actions. The court also said the ministers of immigration and public safety who sign such certificates are not obligated to go back to foreign intelligence agencies to confirm information they present, but must make reasonable attempts to provide updated information to the judge and special advocates. Lawyer Barbara Jackman of the Canadian Council for Refugees intervened at the hearing last fall, and warned that courts were on a slippery slope. She said while there have been some 30 security certificate proceedings in the past 22 years, there is a huge upswing in the use of secret evidence and closed-door proceedings in a range of other civil proceedings, notably immigration matters. Since 2008 the Federal Court has conducted secret proceedings in more than 100 cases of judicial review of decisions such as sponsorship applications where the Ottawa cites national security as a reason to bar a public hearing, she said. © Copyright Toronto Star Newspapers Ltd. 1996-2014.