Harkat's lawyer calls law unjust, launches constitutional challengeposted on December 06, 2004 | in Category Mohamed Harkat | PermaLink
The lawyer for Ottawa's Mohamed Harkat has launched a constitutional challenge to what he calls the "fundamentally unjust" process the government is using in an effort to brand his client a terrorist threat. Paul Copeland says the security certificate process is so secretive that it denies Mr. Harkat a basic right: to respond in a meaningful way to the terrorist allegations levelled against him. In doing so, he argues, the law that gives rise to the process -- the Immigration and Refugee Protection Act -- offends the Canadian Charter of Rights and Freedoms, which says an individual's liberty or security can only be deprived in keeping with the principles of fundamental justice."The process isn't fair because you don't know what the case is," Mr. Copeland said in an interview yesterday.
Lawyers for the federal government contend the security certificate process has already been examined by the Supreme Court of Canada and has met the test of fundamental justice.
The new Charter challenge will be launched this week as Mr. Harkat's case resumes in Federal Court.
Justice Eleanor Dawson must decide if two federal cabinet ministers made a reasonable decision in December 2002 by issuing a security certificate against Mr. Harkat that alleges he is an al-Qaeda operative.
Mr. Harkat, 36, has been held in the Ottawa-Carleton Detention Centre since his arrest almost two years ago. He can be deported to his native Algeria if the judge upholds the certificate.
In late October, Mr. Harkat testified in his own defence and denied any connection to al-Qaeda.
He also denied allegations made by the Canadian Security Intelligence Service that he travelled to Afghanistan in the early 1990s and met Abu Zubayda, a top lieutenant of Osama bin Laden.
Mr. Harkat maintained he remained in Pakistan during the early 1990s, working as a warehouse manager for the Muslim World League.
He produced documents that affirmed his employment with the Saudi-based charity. (The Muslim World League is suspected by some western security agencies of financing terrorism.)
Mr. Copeland says Mr. Harkat can do nothing more to reasonably defend himself since he cannot respond to more specific accusations.
He doesn't know, for instance, exactly when it is alleged he travelled to Afghanistan.
"I don't know how they (CSIS agents) place him in Afghanistan, which is one of the problems, because he says he simply wasn't in Afghanis-tan," Mr. Copeland said yesterday.
That kind of information -- along with an unknown quantity of other material drawn from the CSIS file on Mr. Harkat -- has been presented to Judge Dawson in a secret court hearing.
Neither Mr. Harkat nor Mr. Copeland was in the courtroom when that information was presented to the judge by federal lawyers.
Mr. Harkat has no way of knowing whether Judge Dawson thoroughly challenged the evidence that was presented, or whether she tested the knowledge and competence of the CSIS agents who collected it.
"The issue in this case," Mr. Copeland writes in documents filed with the Federal Court, "is the appropriate balance to be made between the state's need for secrecy in matters of so-called national security, and the interest of Mr. Harkat in being able to respond to a meaningful way to the allegations made against him."
A similar Charter challenge to the security certificate process was heard last month by the Federal Court of Appeal in the case of Montrealer Adil Charkaoui, a Moroccan accused of being an al-Qaeda sleeper agent.
In that case, federal lawyers argued the secret portion of the security certificate process is needed to protect the identify of the spy agency's sources and the methods it uses to collect information.
The Federal Court's appeal panel has yet to issue its judgment in the Charkaoui case.
Historically, Mr. Copeland contends, courts have unnecessarily deferred to governments whenever they've claimed the need to secrecy in defence of national security.
"The reality is that national security claims and privilege claims have been made to shield government or government officials from appropriate and necessary oversight," he says in a written submission to the Federal Court.
© The Ottawa Citizen 2004