The risk of Mohamed Harkat being deported and tortured in his home country of Algeria could keep the terror suspect in Canada for years, and possibly indefinitely, despite a Supreme Court of Canada decision upholding a national security certificate against him, legal experts say.
“We have a number of people who are in kind of limbo in that way. People who have been determined to be risks, or dangerous to the security of Canada, yet they’re not deportable,” said Sharry Aiken, an associate law professor at Queen’s University. “So they end up in a kind of immigration limbo where they’re allowed to remain, but they don’t have permanent resident status."
The Supreme Court ruled on Wednesday that the legal process used to detain Harkat for years was fair and reasonable, paving the way for the government to deport the Algerian refugee.
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A security certificate is issued in "exceptional circumstances" to deport non-Canadians who are considered to pose a serious threat to Canada.
But Harkat, who was arrested in 2002 and accused of being an al-Qaeda sleeper agent, has claimed that he faces torture or death if returned to Algeria. Chief Justice Beverly McLachlin also noted in Wednesday’s ruling that Harkat "potentially faces deportation to a country where he may be at risk for torture or death.”
In 2002, the Supreme Court faced a similar case also involving an individual who had been issued a security certificate and who faced deportation. The court ruled that returning an individual to where they faced torture or death was unconstitutional and a violation of international human rights obligations, save “exceptional circumstances." (What those exceptional circumstances are was left undefined.)
This means that despite the Supreme Court upholding the security certificate against Harkat, which makes him inadmissible in Canada, the government may not be able to deport him.
Before the government could try to take any action against Harkat, his case would be subject to a pre-removal risk assessment, in which immigration officials would determine whether he faced persecution in his home country.
If the officials deemed Harkat as being at risk for torture and death, the application would then be forwarded and assessed by an analyst at National Security Division who would determine whether Harkat is a danger to Canada’s security.
The minister of immigration’s delegate would then review both assessments and determine, based on the reports, whether Harkat should be allowed to stay or be deported.
With a politically charged case such as Harkat’s, it’s conceivable the minister’s delegate could ignore the advice of officers who believed Harkat should be permitted to stay and refuse the application, Toronto immigration lawyer Michael Niren said.
“They shouldn’t make a decision based on political considerations,” he said. “Usually the minister’s delegate will defer to the assessments.”
If Harkat’s application to stay in Canada was approved, he could not apply for permanent residency, owing to the security certificate.
He would most likely apply for a temporary resident permit that would allow him to remain in Canada, despite his inadmissibility, Niren said.
Could stay in Canada indefinitely
“[The temporary resident permit] always has an expiry date," Niren said. "Meaning that depending on the duration he gets, he will likely have to have to apply for extensions indefinitely.”
Conceivably, Harkat could stay in Canada indefinitely, Niren added.
If Harkat’s application to stay is rejected, he could challenge the decision by way of judicial review in Federal Court. But he would have to allege there was some kind of procedural irregularity in the decision.
“It’s very hard to actually challenge the merits," Aiken said.
If the judge believed a procedural error had occurred, the case could be bounced back and forth between the Federal Court and the Immigration Department for an extended period of time, Aiken said.
From there, it's possible the case could make its way to the Federal Court of Appeal and finally the Supreme Court of Canada.
But Aiken, who was counsel for the Canadian Council for Refugees and International Civil Liberties Monitoring Group, which intervened in the Harkat case, said Harkat will not have endless routes of redress.
"The entire architecture of redress within the scheme of immigration has been overhauled dramatically under former [immigration minister Jason Kenney's] watch with several rounds of reform that took away appeal rights specifically in relation to people who posed criminal or security risks."
Meanwhile, Harkat will most likely remain in Ottawa with his Canadian wife, Sophie Lamarche, still facing certain restrictions on his movements, including being prohibited from leaving the country and having to check in with authorities regularly.
His restrictions have been relaxed since last year, including one that forced him to wear an electronic tracking bracelet.