by Mohammed Adam
Source: The Ottawa Citizen
URL: [link]
Date: March 30, 2010

OTTAWA — The lawyers for Mohamed Harkat asked a Federal Court Tuesday to throw out the case against him, saying the security certificate law under which he was declared an al-Qaeda sleeper agent is unconstitutional.

Lawyer Norm Boxall's main argument was that much of the hearing is being held in secret without Harkat knowing the case against him.

The challenge goes back to a three-year-old Supreme Court of Canada decision that declared the original security certificate regime unconstitutional because the accused were not able to know the case against them. The court gave the federal government one year to fix the law, which it did by bringing in the special advocate.

But Boxall said the new law remains fundamentally flawed. Harkat still doesn't know the case against him in order to mount a proper defence and the special advocates who are supposed to represent his interests in the closed hearings are restricted in what they can do, Boxall said.

Crucially, he added, the special advocates cannot talk to Harkat and get instructions from him and they cannot talk to his open-court lawyers.

"The case should not be decided substantially in secret," he said.

The government alleges Harkat, a pizza delivery man in Ottawa, came to Canada in 1995 from Pakistan as a sleeper agent. In 2002, he was declared a national security threat and detained under the security certificate process. The hearing is to determine whether the government was right to detain him. He faces deportation to his native Algeria if the judge rules against him. Harkat has denied he was a sleeper agent or that he had any contact with Osama bin Laden's terrorist network, as the government contends.

The hearing was to continue Tuesday afternoon.

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