As public counsel of Mr Mahjoub and lawyers, we support the constitutional challenge of IRPA in Harkat which is necessary and in the interest of Justice.
The amendments that produced what is now Division 9 of the Immigration and Refugee Protection Act (IRPA) following the Supreme Court of Canada judgment in Charkaoui I (2007) were the Parliament’s attempt to find a “substantial substitute” for proper disclosure to the named person in information relied on by the Ministers against non-citizens like Mr. Harkat or Mr. Mahjoub.
However, this continuation of what is nothing more than secret trials against individuals in Canada still fails to respect the Canadian Charter of Rights and Freedoms (‘Charter’) and still fails to meet the requirements of the judgments rendered in Charkaoui I.
The case will have a significant impact on our client’s case, in which disclosure, the use of information gleaned from torture or otherwise illegally obtained, and the use of unfair/unethical practices in the investigation have also come to light.
In Mr. Mahjoub’s case, in February 19, 2010, the Federal Court indicated that a “substantial portion of the information in the SIR originates from foreign agencies” and that Mr. Mahjoub could not be informed as to which of these foreign agencies have received requests for waivers of the third party rule and what the replies to any such requests would have been. The Court also found that Mr. Mahjoub would not receive disclosure of a summary of the security intelligence information emanating from foreign agencies. In the same judgement, the Court reserved its decision as to whether this non-disclosure violates Mr. Mahjoub’s rights under section 7 of the Charter.
This alleged undisclosed information relates to “allegations that are critical to the Ministers’ case.” A CSIS witness recognized the importance of disclosure of the information in question, in light of its relation to the Ministers’ central allegations:
“ The SAs note that the information in question is on the alleged xxxxxxxxxxx and on Mr Mahjoub’s alleged xxxxxxxxxxxxxxxxxx. These allegations are critical to the Ministers’ case. The SAs point out that the Service’s witness, jfdkfjlsjfkd, recognized the important of disclosing such central allegations (…)” [emphasis added]
In light of this information and in light of other experiences with the Security Certificate process, even the Special Advocates have taken the position that the Special Advocate procedure is not an adequate substitute for Mr. Mahjoub’s ability to know the Ministers’ case; that they were not in a position to deal with these allegations or call evidence to rebut them; and that only Mr. Mahjoub and his public counsel could do so:
“ The SAs note that, pursuant to paragraph 83(1)(e) of the IRPA and section 7 of the Charter, Mr Mahjoub is entitled to be reasonably informed of the case against him. The SAs argue that this does not require that Mr. Mahjoub be provided with xxxxxxxxxxxxxx that supports the main allegations, but rather a summary which provides the “gist” of the information, as they proposed. The SAs further argue that with regards to the information on fgjgjgjgj the special advocate procedure is not an adequate substitute for Mr. Mahjoub’s ability to know the Ministers’ case. The SAs submit they would not be in a position to deal with these allegations or to call evidence to rebut these allegations. Only Mr. Mahjoub, with the assistance of his public counsel, could do this.” [emphasis added]
However, the motion filed more than a year ago to quash the certificate and to release Mr. Mahjoub on this basis was postponed by the Court to be heard only at the end of the process.
Meanwhile the Court found that CSIS used information derived from torture, and didn’t have a mechanism to filtered the information admissible under IRPA. Not only did CSIS deliberately decide not to exclude information obtained unlawfully and as the result of the use of torture or cruel, inhuman or degrading treatment or punishment, but also engaged in the interception and monitoring of all conversations between Mr. Mahjoub and his lawyers during the investigation and the Court proceedings from approximately 1996 to 2010.
As a result, a motion to the effect that the conduct of CSIS and the Ministers in the investigation, the issuance of the certificates, and the continuation of the proceedings against Mr. Mahjoub amounts to an abuse of process, is pending due to this unprecedented, negligent and unfair conduct.
Security certificate opponents rally around Harkat as he heads to court
Par: Rene Hardy
Date: 18 fév 2012
À quelques jours d'une nouvelle comparution devant la Cour fédérale d'appel, Mohamed Harkat soupconné d'activités terroristes, reçoit l'appui de deux députés de l'opposition et de groupes de défense des droits la personne. Ils demandent au gouvernement Harper d'abolir les certificats de sécurité.
La chef du parti Vert, Elizabeth May, et le député néo-démocrate, Don Davies, estiment que la procédure va à l'encontre des valeurs canadiennes et souhaitent que la Cour fédérale d'appel la déclare inconstitutionnelle.
Le coordonnateur de la Coalition pour la surveillance internationale des libertés civiles demande lui aussi l'annulation de ce système qui permet d'utiliser des informations secrètes inaccessibles à l'accusé et à la défense.
Une procédure inacceptable
Roch Tassé juge inacceptable le fait que des personnes puissent être détenues et déportées sur la base de rapports du Service canadien du renseignement de sécurité plutôt que sur des preuves présentées en cour.
Depuis sa libération en 2006, Mohamed Harkat demeure soumis à une série de mesures dont le port d'un bracelet électronique.
Mohamed Harkat n'a jamais cessé de clamer son innocence et de tenter de blanchir son nom. Il fait face à la déportation vers l'Algérie, son pays d'origine.
Lawyers for Harkat argue revised security certificate law still leaves defendants in the dark
by Andrew Duffy Source: The Ottawa Citizen URL: [link] Date: January 20, 2012
OTTAWA — Lawyers for Ottawa’s Mohamed Harkat have asked the Federal Court of Appeal to strike down the country’s security certificate law for a second time.
The Harkat case will be the first to test whether the government’s revised security certificate law can withstand a challenge under the Canadian Charter of Rights and Freedoms.
The previous version of the law, used to deport foreign-born terror suspects, was ruled unconstitutional by the Supreme Court in February 2007.
In that ruling, Canada’s high court said the security certificate process was so secretive that it denied defendants the fundamental right to meet the case against them.
The government subsequently introduced a new law, which gave terror suspects the right to be represented in secret hearings by “special advocates” — defence lawyers with security clearance. Special advocates are allowed only limited contact with the accused.
Harkat’s legal team contends the new law still leaves defendants too much in the dark.
“The only evidence that truly matters is unknown to him (Harkat),” wrote lawyers Matthew Webber and Norm Boxall in a court brief.
“It is apparent that public proceedings are little more than a façade, with little to no direct evidence shown to Harkat.”
For example, they said, the federal government publicly alleged that Harkat spent time in Afghanistan. But the Algerian-born Harkat was told nothing about the timing, duration, purpose or destination of the alleged sojourn, which made it next to impossible to refute.
It is not enough, the lawyers argued, for the government to offer the “veneer of public disclosure” when it is only through detail that Harkat can attack the validity of such allegations.
by Justice For Mohamed Harkat Committee Source: Rabble.ca URL: [link] Date: December 9, 2011
Think back to December 10, 2002 -- nine years ago this weekend, International Human Rights Day.
Perhaps on that day you were aware of the human rights significance, and perhaps not. But more importantly, what were you doing with your life back then? Were you in a different job? A different city? Perhaps in the interim you earned a post-secondary degree or diploma, or possibly more than one. How many job interviews did you attend in those nine years? How much money have you earned? Did you have children? Did you visit relatives in another province? Perhaps take a honeymoon? Travel abroad?
None of these things have been possible for Mohamed Harkat. This weekend -- International Human Rights Day -- marks the ninth anniversary of the detention of Mohamed Harkat under a security certificate -- a draconian detention under the so-called Immigrant and Refugee Protection Act for which no charge is laid, and the information on which the allegation is based is kept secret from the detainee and their lawyers.
Click on the photo to see all the photos from our December 10th rally marking Moe's 9th anniversary of his security certificate:
Mohamed Harkat speaking to supporters in Ottawa, December 10, 2011. Photo by Gabrielle Brunette Poirier.
Click on the photo of Mohamed to see all items related to him. JUNE 2017: Mohamed Harkat once again faces deportation to his native Algeria after the Supreme Court of Canada declared the federal government’s security certificate regime constitutional.
This fight is not over. The Justice for Mohamed Harkat Committee will re-double its efforts to see that justice is done for Mohamed Harkat and that the odious security certificate system of injustice is abolished once and for all.