The Supreme Court of Canada has upheld the national security certificate against terror suspect Mohamed Harkat, rejecting his constitutional challenge.
The top court decision released Wednesday says the legal process used to detain the Ottawa resident for years was fair and reasonable.
The decision means the government can move to deport Harkat, who has argued he faces torture or even death if he returns to Algeria. The matter of his deportation will be handled by immigration and public security officials.
Harkat, a former pizza delivery man, was born in Algeria, came to Canada in 1995 and was granted refugee status in 1997. He married a Canadian citizen, Sophie Lamarche, who has become an advocate for his cause.
Harkat was arrested in 2002 and accused of being an al-Qaeda sleeper agent. He spent four years in custody, and seven more years under house arrest. Harkat was detained without a trial under the provisions of a security certificate.
Security certificates have been in place since the 1970s, but after the Sept. 11, 2001, attacks, the government beefed them up, using them to detain or deport non-citizens or foreign nationals on suspicion of being involved with terrorism.
Chief Justice Beverley McLachlin, who wrote the decision, noted Harkat "potentially faces deportation to a country where he may be at risk for torture or death, although the constitutionality of his deportation in such circumstances is not before us in the present appeal."
Other court rulings and international conventions hold that a refugee should not be deported if he or she faces a substantial risk of torture, even if national security is at stake, so Harkat may still end up before a court fighting any attempt to deport him.
Just after she received news of the court's decision, Sophie Harkat told reporters, "We will fight this all the way." But other than that comment, she and Harkat declined to do interviews.
Norman Boxall, Harkat's lawyer, said, "The ruling is difficult to describe in words, it is more than disappointing. It's devastating for Mr. and Mrs. Harkat. That he is not going to get the opportunity to have the evidence presented in an open and public way so he can meet it."
Court says Harkat a sleeper agent
The top court has agreed with a Federal Court judge who found Harkat had entered Canada to be a sleeper agent for a terrorist organization.
Boxall commented, "If he's alleged to be a sleeper cell, he's the Rip Van Winkle of it."
Boxall, speaking to reporters in the foyer of the Supreme Court building, said his client presents absolutely no risk to Canada. "He's been here for 19 years," he said, adding Harkat has never committed a crime.
However, Boxall said, in many countries where Harkat could be deported he would be labelled as a terrorist, "even though he's never had a trial on the merits of that." He added the risk of torture and death in Algeria for Harkat would be "significant."
Harkat intends to fight back, Boxall said, describing a security certificate as "akin to a deportation order." He explained the first step is a pre-removal risk assessment. If Harkat ends up staying in Canada, Boxall said he wasn't sure what status he would have. "It's uncharted territory."
For Harkat, it has been a 12-year journey though the legal system since he was first detained on suspicion he was part of what the government called the Bin Laden Network, and had associated with suspected terrorists when he first came to Canada in 1995.
Harkat has also been accused of running a safe house in Pakistan for agents coming in and out of Afghanstan.
The top court’s unanimous decision means the government’s second attempt to legitimize the security certificate legislation is constitutionally sound, and the court has given the status of the law finality.
The court said security certificates "do not violate the named person's [Harkat's] right to know and meet the case against him, or the right to have a decision made on the facts and the law."
Harkat’s security certificate means he is not admissible to Canada, even though he is already here. Restrictions placed on him several years ago were eased last year, including one that forced him to wear an electronic tracking bracelet.
CSIS informants can be questioned
Security certificates, issued in the wake of the 9/11 attacks on the U.S. in 2001, were struck down by the court in 2007. The government’s response was to appoint special advocates to represent the interests of the security certificate holder. The special advocates are independent lawyers with high-level security clearance.
The judges also said Wednesday that CSIS informants are not privileged: that is, they may, at times, be cross-examined in a closed court by special advocates assigned to the security-certificate holder. This provision is the only instance where the eight Supreme Court justices were not unanimous. Judges Thomas Cromwell and Rosalie Abella disagreed, but the majority ruled the informants can be questioned in special circumstances. The court allowed for the identities and testimony of the informants to be kept secret from the security certificate holder.
The court also found it is acceptable to use summaries of informants’ recorded conversations as evidence rather than the actual tapes of the intercepted phone calls. CSIS had destroyed some of the tapes in Harkat's case in order to protect the identity of the informants. Harkat’s lawyers had argued the summaries were not reliable.
The court, while upholding security certificates, puts an onus on the trial judge who hears the case against anyone issued with one. It is up to the trial judge to play a "gatekeeper role" in the closed proceedings to ensure the overall process is fair and take into account "considerations of fairness and natural justice."
The "named person," the security certificate holder, must always be kept reasonably informed and have enough information to instruct his or her own lawyers and special advocates.
Government welcomes court's decision
Public Safety Minister Steven Blaney said the government welcomes the decision. "Our government is pleased with the decision made by the Supreme Court in regard of Mr. Harkat."
Asked in the foyer of the House of Commons whether Harkat would be deported, Blaney said, "It's up to the CBSA [Canada Border Services Agency] to abide and implement Canadian laws."
However, the Canadian Council for Refugees and the International Civil Liberties Monitoring Group, joint interveners in the case, issued a news release saying they are disappointed with the Supreme Court's decision.
"It leaves in place a fundamentally unfair process that relies on secret evidence in deciding whether to deport a non-citizen, potentially to a risk of torture."