Experts debate Harkat hearing

OTTAWA – It is called "a reasonableness hearing" – a chance for terrorism suspects facing deportation to make their case – but it seemed more like something out of a Kafka novel when Mohamed Harkat tried to do so in an Ottawa courtroom earlier this year.

Harkat, 42, an Algerian immigrant who arrived in Canada as a refugee in 1995, was arrested on a security certificate in 2002 on suspicion of being an al-Qaida sleeper agent.

After 3 1/2 years in detention, he was released on strict conditions.

He has always denied any links to terrorism. Since September 2008, Justice Simon Noel has heard much of the evidence in secret. Although government lawyers attended the closed hearings, Harkat and his lawyers were excluded because the information against him is classified.

And while the Ottawa man was represented at these sessions by special advocates, they were not allowed to discuss evidence with him or his lawyers because it might breach national security.

Noel is expected to deliver his verdict in the fall.

In the meantime, the debate continues about the legitimacy of the proceedings.

Many lawyers and legal scholars say security-certificate hearings are a travesty since much of the evidence is heard in secret, which makes it virtually impossible for defendants to mount a proper defence.

A federal judge once complained that the secrecy made him feel like a "fig leaf."

Many agree.

"Security certificates, as they have been used, do not accord with the basics of a fair trial or hearing," says Kent Roach, Prichard-Wilson chair of law and public policy at the University of Toronto and an expert in anti-terrorism law.

McGill University law professor Evan Fox-Decent agrees that people detained under security certificates are not getting anything close to a fair hearing.

"Since King John, 800 years ago, we’ve said that if you are going to put somebody in jail, you have to give this person a fair trial."

Observers in Federal Courtroom No. 1 would have to agree there were moments when the Harkat proceedings seemed like a prizefight starring a boxer forced to fight with one hand.

In this corner? The accused, who could be deported to torture based on evidence that he’s not allowed to see.

"I am obviously in a state of lack of knowledge," Harkat lawyer Norm Boxall protested at one point. "I could do a better job if I knew more."

Many times during the hearing, Harkat’s lawyers delivered what they thought was a telling point only to have the judge say he’d heard something in secret that proved otherwise.

At one point, for example, an official with CSIS, Canada’s spy agency, acknowledged the allegation in the public record that Harkat ran a guest house in Pakistan for alleged terrorist Ibn Khattab lacked certainty, but not the judge.

"Evidence we heard in closed hearing is that he (Harkat) was operating a guest house," the judge interjected.

"There is information that he was in the service of the individual in question. It is all there."

On another occasion when defence lawyer Matt Webber complained that CSIS had destroyed evidentiary documents, the judge noted that he’d seen other original evidence during the closed sessions.

Time and again, the defence lawyers were ambushed by evidence that they knew nothing about.

Yet the judge was unmoved when Webber complained about the "very real and tangible unfairness" of the hearing.

"(Harkat) knows what the evidence, or the spirit – more than the spirit – the summary of the evidence is all about," the judge said. "I don’t think it is a question of not having everything. A lot is on the table to eat if he wants to."

There’s no question that a security-certificate hearing places an enormous burden on the judge.

Noel had extraordinary knowledge of the evidence, which the defence did not have, and he had to be careful that his interventions did not suggest he was taking sides or that he’d made up his mind.

Noel seemed keenly aware of the circumstances and tried to assure the defence lawyers from time to time.

"I am not saying that you are not in a very tough position. I sympathize with all of you. It is a tough situation to be in," he once said. "The truth will come out."

Despite the best efforts of a judge to be fair, the security-certificate hearings raise many questions: How can someone answer his accusers if he doesn’t know them and can’t face them?

How can he or his lawyers clear his name when they can’t see much of the evidence?

Government lawyers acknowledge the unusual nature of the proceedings, but say the process strikes a proper balance between an accused’s right to a fair hearing and the security interests of the country.

"The Supreme Court recognized that one of the most fundamental responsibilities of government is to ensure the security of its citizens," the Justice Department noted in a written response to media questions.

"The court also recognized that the right to know the case to be met is not absolute, and that national security considerations can limit the extent of disclosure of information to the affected individual."

Government lawyers say public summaries provide Harkat and his lawyers enough information to mount an effective defence. "To say Harkat doesn’t know the case against him makes a mockery of what has happened here," said lawyer Bernard Assan.

He noted that Harkat has two top lawyers as his special advocates – Paul Cavalluzzo, who was lead counsel to the Arar Inquiry, and Paul Copeland, a leading human rights lawyer – to vigorously defend his rights in the closed sessions.

Security certificates have been part of Canada’s immigration law for 30 years.

They’ve been used to remove non-Canadians suspected of being security threats, human-rights abusers or organized-crime figures. However, critics say that in the wake of 9/11 the certificates have been used essentially like anti-terrorism law to rid the country of immigrants suspected of being terrorists.

Montreal’s Adil Charkaoui and Hassan Almrei of Toronto have had their certificates quashed by the courts. The cases of two others, Egyptian immigrants Mahmoud Jaballah and Mohammad Mahjoub are pending.

The current security-certificate program was established by Parliament after a 2007 Supreme Court ruling declared the old system unconstitutional.

The court said the secret evidence heard by a lone judge denied accused individuals the fundamental right to defend themselves.

The government revamped the system and introduced special advocates to represent accused persons during closed hearings. The new system also allows unclassified summaries of allegations to be made available to the accused.

Culled from intelligence reports, the summaries provide bare-bones information on the allegations.