Supreme Court rules against Harkat; deportation proceedings imminent

posted on May 16, 2014 | in Category Mohamed Harkat | PermaLink

by Michelle Zilio Source: iPolitics URL: [link] Date: May 14, 2014 The Supreme Court of Canada has ruled the security certificate issued against accused al-Qaida sleeper agent and Ottawa resident Mohamed Harkat reasonable, making proceedings for his deporation imminent. In a ruling issued Wednesday morning, the Supreme Court upheld the constitutionality of the controversial security certificate process. The decision, issued by all eight Supreme Court judges, marks the end of the security certificate appeal process for Harkat, who has been fighting the government on this front for more than 12 years. It’s a worst-possible outcome for Harkat, who now faces deportation. “The ruling is difficult to describe in words. It’s more than disappointing. It’s devastating for Mr. and Mrs. Harkat,” said Boxall. “This does bring an end to the security certificate proceedings, but I’m sure it doesn’t bring an end to Mr. Harkat’s right to clear his name and maintain his right to live here.” Harkat and his wife Sophie first heard the news from Boxall Wednesday morning. While they were at the Supreme Court when the ruling was issued, they did not speak with reporters. Harkat was born in Algeria and moved to Canada as a refugee in September 1995. The former pizza delivery man was arrested outside his Ottawa home in 2002 on a national security certificate. The security certificate regime allows the federal government to detain and deport non-citizens deemed security threats without presenting all evidence against them.

The government has alleged Harkat is an al-Qaida sleeper agent and accused him of running a safe house in Pakistan in his late teens, communicating with senior al-Qaida members, and having links to Al Gama’a al-Islamiyya, an Islamic extremist group based in Egypt. Wednesday’s ruling answered six questions regarding the constitutionality of the general security certificate process and the reasonability of Harkat’s security certificate. The court unanimously ruled on five out of the six points. First, the court ruled that the Immigration and Refugee Protection Board’s security certificate regime does not violate the Charter of Rights. The ruling also found that Harkat’s security certificate is reasonable, and that the proceedings against him were fair. In 2010, Federal Court Judge Simon Noël ruled Harkat a member of al-Qaida. But the Federal Court of Appeal overturned Noël’s findings in April 2012, ruling that Harkat’s right to a fair trail had been compromised by the destruction of 13 intercepted communication recordings collected by the Canadian Security Intelligence Service (CSIS). Wednesday’s ruling upheld Noël’s 2010 decision. “In the present case, Mr. Harkat benefited from a fair process,” read Wednesday’s ruling. “Noel J.’s conclusion that the security certificate was reasonable is reinstated.” This means the government will begin the process to deport Harkat — and most likely soon. A new deportation order will not be issued, as the security certificate is essentially a deportation order in itself. According to Boxall, the government can’t execute the deportation order until a pre-removal risk assessment is complete. The assessment would determine if Harkat would face mistreatment or torture if deported back to his home country of Algeria. “In simple terms, you measure the risk to Canada if Mr. Harkat remains here, which I would submit is zero, and you would measure the risk to Mr. Harkat if he is deported to Algeria, which in my submission is significant. You balance those two and you come to a conclusion of whether it’s appropriate or not (to deport him),” said Boxall. Wednesday’s ruling acknowledged the risks Harkat potentially faces in Algeria. “He potentially faces deportation to a country where he may be at risk of torture or death, although the constitutionality of his deportation in such circumstances is not before us in the present appeal,” read the ruling. According to a case from the 2002, known as the Saresh case, generally speaking, the government cannot deport an individual to a country where they face risk of death, but there may be “exceptional circumstances” in which deportation to torture may be justified. Boxall said Harkat’s bail conditions will remain the same for the time being, unless there is a court order to change them. He said that if the government decides Harkat faces a significant risk in Algeria, he would stay here and there would likely be issues with respect to his bail conditions, which Boxall admits is “unchartered territory” for the Canadian legal system. Public Safety Minister Steven Blaney welcomed the Supreme Court decision, Wednesday. When asked by CBC if Harkat would be deported, the minister said “it’s up to the CBSA to abide and implement Canadian laws.” NDP Leader Thomas Mulcair said Wednesday his party is “cognizant” of the ruling, but still has some serious concerns with the government’s use of the security certificate process. “We still do think that in a free and democratic society, that there are valid questions that have to be asked as to how these certificates are being used,” said Mulcair. Liberal Leader Justin Trudeau also welcomed the decision, adding that the security certificate system has reached a point where there is a good balance between protecting an individual’s rights and ensuring the public’s safety. Speaking to reporters at the court, Secretary General of Amnesty International Canada Alex Neve said the government must comply with international agreements against torture when deciding Harkat’s fate. “There are also a set of international obligations that will apply if the government does move to try to deport Mr. Harkat. Obligations that are meant to protect individuals from torture and certainly it would be doubly troubling if … there’s not clear recognition of the international human rights obligations at stake,” said Neve. Wednesday’s ruling also found that the “designated judge” — Noël — did not err in 2010 by refusing to exclude intercepted communication recordings collected by CSIS in Harkat’s case. The ruling determined that the government followed its duty to candour and good faith in attempting to gather information for the court on Harkat. Wednesday’s ruling revealed the source of that information as “foreign intelligence agencies.” The only point the judges could not agree on was the protection of CSIS human sources. All the judges, except for Justice Abella and Justice Cromwell, agreed that CSIS human sources should not be protected by informer privilege. However, the ruling ensured that if CSIS informants are produced by the government during the course of a hearing, they would appear during a closed hearing, which only the accused’s special advocates — not personal lawyers — would be allowed to attend. Special advocates are lawyers with security clearance assigned to protect the interests of those named in a security certificate. In reaction to a 2007 Supreme Court ruling, Parliament revised the security certificate regime in 2008 to include “special advocates” in the process. Wednesday’s ruling brings an end to a long chapter for the Harkat family. Following his arrest in 2002, Harkat was jailed for three and an half years. In June 2006, he was released on $100,000 bail. He has since faced some of the strictest house arrest conditions in Canadian history, at times requiring 24-hour supervision by his wife Sophie or mother-in-law, surveillance cameras at each entrance to his home and the wearing of a GPS monitoring device at all times. Court orders in recent years have allowed Canada Border Services Agency (CBSA) officials to gradually ease Harkat’s release conditions. For instance, officials removed his GPS tracking bracelet last July, when he was also granted permission to travel outside the national capital region with five working days’ notice to CBSA. It is not clear what conditions he will live under now. The security certificate process was introduced in 1978, but didn’t garner much attention until after the 9/11 attacks, when the government highlighted it as part of its anti-terrorism strategy. Boxall will address the media again at a press conference tomorrow morning on Parliament Hill. He said Harkat and his family have not yet decided if they will attend the press conference.

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