OTTAWA — The Supreme Court of Canada has upheld the national security certificate against terror suspect Mohamed Harkat, opening the door to the next step in deporting him.
The high court also rejected Harkat’s constitutional challenge of the security certificate regime, unanimously ruling that the process — while not perfect — is consistent with the Charter of Rights and Freedoms.
“It’s difficult to put it in words,” Harkat’s lawyer Norm Boxall said Wednesday after the decision was released. “I can’t think of another word to say, other than it was devastating.”
Added Harkat’s wife, Sophie, as she and her husband were getting into a car to leave: “We will fight them all the way.”
Harkat, 45, has said he could face torture if returned to his native Algeria, raising questions about how, when or even if he will be removed from Canada.
The former pizza delivery man was taken into custody in Ottawa in December 2002 on suspicion of being an al-Qaida sleeper agent. He denies any involvement with terrorism.
The federal government is trying to deport the Algerian refugee on a security certificate — a seldom-used tool in immigration law for removing non-citizens suspected of extremism or espionage.
Harkat’s lawyers argued the process was unfair because the person named in a certificate doesn’t see the full case against them.
In its ruling, the Supreme Court said the security certificate regime does not violate the person’s right to know and challenge the allegations they face. However, the high court provided detailed guidance on applying the process to ensure it is fair.
Federal Court Justice Simon Noel ruled in 2010 that there were grounds to believe Harkat is a security threat who maintained ties to Osama bin Laden’s terror network after coming to Canada.
On Wednesday, the Supreme Court concluded Harkat “benefited from a fair process” when Noel reviewed his case, meaning the certificate against him stands.
Two other men — Mahmoud Jaballah and Mohamed Mahjoub, both originally from Egypt — could face removal from Canada in long-running certificate cases.
Last year, federal border agents removed an electronic tracking bracelet from Harkat’s ankle. He was also given more freedom to travel, but was prohibited from leaving the country and told to check in with authorities regularly.
Boxall said he hopes Harkat will never be deported, citing the risks to him in Algeria and arguing that Canadians have nothing to fear.
“Any risk here, even on the findings of the court, are minimal,” Boxall said. “I mean it’s hard to identify what risk he presents.”
There have been numerous legal twists and turns in the path-breaking case.
In 2007, the Supreme Court struck down the security certificate regime, declaring it unconstitutional.
The federal government issued a revised certificate in Harkat’s case in 2008 after the secretive process was overhauled to bring it in line with constitutional guarantees.
In revamping the security certificate system, the government introduced special advocates — lawyers with access to secret material who serve as watchdogs and test federal evidence against the person singled out in the certificate.
Harkat’s counsel argued during a Supreme Court hearing last year that the special advocates do not make up for weaknesses in the certificate process, noting these lawyers are greatly restricted in what they can say about the case and cannot initiate their own investigations.
However, the court ruled that while the special advocates must abide by significant limitations on their ability to discuss a case, the restrictions “do not render the scheme unconstitutional.”
In April 2012, the Federal Court of Appeal ruled that summaries of some 1990s conversations be excluded from evidence against Harkat because the Canadian Security Intelligence Service destroyed the original recordings.
In its ruling, the Supreme Court unanimously disagreed, saying disclosure of the summaries in abridged form to Harkat and in their entirety to his special advocates “was sufficient to prevent significant prejudice to Mr. Harkat’s ability to know and meet the case against him.”
“Mr. Harkat’s position was to deny the very occurrence of most of those conversations rather than to challenge their specifics,” the court ruled.
The appeal court also said in 2012 that human sources recruited by CSIS did not have the sort of blanket protection that shields the identities of police informants, even from the judge. In the case of CSIS, this is instead decided on a case-by-case basis.
The Supreme Court agreed Wednesday that there should be no overarching privilege for CSIS sources, saying the security certificate generally ensures that their identities remain “within the confines of the closed circle” formed by the reviewing judge, the security-cleared special advocates and federal lawyers.
The high court noted the judge reviewing a certificate has discretion to allow the special advocates to interview and cross-examine such informants in a closed hearing, but said this should be “a last resort.”
Making it standard practice to cross-examine CSIS sources, even behind closed doors, could “have a chilling effect on potential sources” and hinder the spy service’s ability to recruit new ones, the court ruled.
Two judges — Rosalie Abella and Thomas Cromwell — dissented on the issue, saying CSIS informants are entitled to an assurance that the promise of confidentiality will be protected. “This can only be guaranteed by a class privilege, as is done in criminal law cases.”
— With files from Terry Pedwell and Adrian Wyld