OTTAWA – The Supreme Court of Canada will decide just how open the process should be when the federal government wants to deport a suspected terrorist from abroad.
The high court agreed Thursday to hear a challenge of the national security certificate system, a rarely used means of removing non-citizens accused of being terrorists or spies.
It will also review crucial issues related to evidence in the case of Algerian refugee Mohamed Harkat, arrested 10 years ago next month in Ottawa under a security certificate.
The hearing, likely to take place in 2013, will come more than five years after the Conservative government retooled the certificate regime in an effort to make it consistent with the Charter of Rights and Freedoms.
The Supreme Court will rule whether those reforms went far enough.
Harkat, 44, was taken into custody in December 2002 on suspicion of being an al-Qaida sleeper agent. He denies any involvement in terrorist activities.
Harkat lives at home with wife Sophie, but wears an electronic tracking bracelet on his ankle, must check in with authorities regularly and cannot leave town without permission.
The person named in a security certificate receives only a summary of the case against them – stripped of supporting information – which critics say makes the process wholly unfair.
The validity of a certificate must be weighed by a Federal Court judge, who is allowed to see the secret evidence, and Harkat’s case has been tangled in various legal proceedings for almost a decade and counting.
In April, the Federal Court of Appeal upheld the constitutionality of the security certificate system, but ruled that summaries of some 1990s conversations be excluded from evidence against Harkat because the Canadian Security Intelligence Service destroyed the original recordings.
The ruling left both sides unhappy and each asked for a hearing in the Supreme Court – an uncommon turn of events. As usual, the high court gave no reasons Thursday for its decision to hear the appeals.
The court will delve into how information from intelligence agencies should be treated in certificate cases and when the general principle of an open court can give way to secret proceedings in the name of national security.
“These are major, major issues,” said Norm Boxall, a lawyer for Harkat. “So it probably isn’t a surprise that it’s going to return to the Supreme Court of Canada for interpretation, guidance.”
In an interview Thursday, Harkat said he puts “lots of hope and lots of faith” in the judiciary to ultimately declare the certificates incompatible with fundamental guarantees of fairness.
In refashioning the certificate system, the government introduced special advocates – lawyers who serve as watchdogs and test federal evidence against the person facing deportation.
Harkat’s counsel unsuccessfully argued in the appeal court that the presence of advocates did not ensure the constitutionality of the process.
They noted the advocates were permitted to work only with the information presented to them and could not initiate their own investigations – even when open source material was at odds with the federal case.
Sophie Harkat, who has waged a vigorous public campaign on her husband’s behalf, said Thursday that quashing the entire certificate process is the only solution.
“There’s no way of modifying a system that doesn’t work.”
The eventual Supreme Court ruling will almost certainly affect two other security certificate cases involving Mahmoud Jaballah and Mohamed Mahjoub, both originally from Egypt.
The government insists certificates are used only in “rare and exceptional cases.”
If the certificate system survives, the high court will better define the burden of evidence expected of the government in the three outstanding cases.
A key point in the Harkat case is whether secret CSIS sources are covered by a blanket privilege that prevents the special advocates from interviewing or cross-examining them.
On the issue of wiretap summaries, the government maintained that Harkat’s charter rights were not breached by destruction of the original tapes.
The appeal court disagreed, ordering that summaries of phone conversations in which Harkat was not a party be excluded from the case.
But the issue is complicated by the fact Harkat denies taking part in certain calls, and there are no longer any recordings to analyze since it was CSIS practice at the time to destroy such originals.
“If you had the tape, issues such as voice identification, translation, content, can be made clear,” Boxall said. “From our point of view, if it’s a call that he denies making, then it’s a call that we need the tape.”
As a result, Harkat’s lawyers say the appeal court should have ordered further exclusions or even halted proceedings altogether.
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