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December 16, 2010

Harkat security certificate upheld

Reuel S. Amdur

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On December 10, Judge Simon Noël ruled against Mohamed Harkat, for whom a security certificate is in effect. This decision could open the door for his deportation.

Noël held that the security certificate is reasonable and is not a violation of the Charter of Rights and Freedoms. Previously Noël had upheld the provisions of security certificate legislation which the Supreme Court then threw out.  However, the replacement legislation followed a procedure suggested by the Supreme Court, the appointment of special advocates in such cases.

Lawyers for Harkat are frustrated by the fact that they cannot know what is going on in the work of the special advocates in this case.  They will appeal Noël’s decision.

Harkat is a landed immigrant who fled Algeria because of fear of arrest for his oppositional political activities. 

He went to Saudi Arabia with the intention of pursuing higher education but was not permitted to do so.  Then he took a job with a charity in Pakistan. 

In Canada, he held a variety of jobs, as a store clerk, a person delivering pizzas, and a gas station attendant.  He was arrested on security charges and for some time was in custody till released under tight bail restrictions, which were later modified. 

The appeal of the case will deal with the constitutionality of the new security certificate legislation.  Also at issue is the fact that the Canadian Security Intelligence Service (CSIS) destroyed some of the evidence on the basis of which the certificate was issued.  Among the allegations are that Harkat was in contact with al-Qaeda supporters in Canada.  The evidence involved wire taps, and the taps have apparently been destroyed. 

One would think that the wire taps would serve to show whether the government has a valid case, and it would seem that at least some of these could be made public without violating national security. However, if the wiretap recordings were destroyed, we are permanently in the dark, as are his lawyers.  It also appears that even the special advocates may not have had access to all of the secret evidence.

Harkat has been in Canada since 1995 and has had no criminal charges brought against him during that time. 

He married a Catholic woman who has shown that she can exercise restraint on him.  While he was locked up in the special holding facility in Kingston with other Muslim men with security certificates, at one point they went on hunger strike.  He did not.  “I told him not to,” his wife Sophie Lamarche told me at the time.

The case presents unique challenges.  How does one defend against secret evidence, evidence which has been destroyed?  In any case, it does not appear that currently Harkat is a danger, whatever his past history may be. 

Well, should we not trust CSIS? 

Perhaps we should ask Maher Arar that question.  As to Harkat’s possible deportation to Algeria, Canada has an obligation to be convinced that he would not be subject to torture on his return.  That may be a tough hurdle to overcome, considering evidence as to what is happening in Algeria. 

According to Human Rights Watch in a 2010 report, “The authorities failed to investigate allegations of torture and other ill treatment of detainees.”  Alkarama for Human Rights, an Arab non-governmental human rights organization, issued a report in 2007 in which they detailed cases of pre-trial torture. It appears that torture was especially used against people suspected of connection with al-Qaeda and with the Islamic Salvation Front.  His deportation would be on grounds of the alleged al-Qaeda connection, thus making him a potential candidate for such treatment.  As well, Harkat was active with the Islamic Salvation Front prior to its taking its extremist position.  When it moved to its explicitly Islamist position, he had already fled the country, but his past affiliation did exist.  The Canadian government also charges that he was affiliated with the Armed Islamic Group (GIA, its French initials), a group that came into existence after the extremist turn by the Front, another reason that he might be subjected to mistreatment in Algeria. 

In short, the ruling of the court against Harkat is based on secret evidence, some of which has been destroyed.  An appeal of the decision is being made, based on provisions of the Charter of Rights and Freedoms.

The court decision opens the possibility of his eventual deportation back to Algeria.  Such deportation could be challenged on the basis of evidence of torture against persons suspected of the kinds of behavior in which the Canadian government alleges that he has been engaged.

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