Harkat awaits key high court ruling
By Jim Bronskill, The Canadian Press
OTTAWA - The fate of terror suspect Mohamed Harkat — and the controversial security certificate system being used to deport him — will become clearer Wednesday when the Supreme Court of Canada issues a long-awaited ruling.
But the Ottawa man's case has taken so many twists and turns over the last dozen years that the end of the road may still be some way off.
The high court will rule on the constitutionality of the certificate regime, a rarely used means of removing non-citizens suspected of involvement in extremism or espionage.
It is also slated to decide crucial issues related to evidence in the certificate case of Harkat, an Algerian refugee accused of terrorist ties.
As a result, the ruling could have implications that reach far beyond the world of security certificates, said Norm Boxall, a lawyer for Harkat.
"There's a tremendous number of issues involved in the case," Boxall said Tuesday. "It's very complex."
Harkat, 45, was taken into custody in December 2002 on suspicion of being an al-Qaida sleeper agent.
The former gas station attendant and pizza delivery man lives quietly in the national capital with wife Sophie. Last year border agents removed an electronic tracking bracelet from his ankle. Harkat was also given more freedom to travel but he can't leave the country and must check in with authorities regularly.
The person named in a security certificate receives only a summary of the case against them, stripped of supporting details to protect sensitive intelligence sources and methods.
The federal government issued a revised certificate against Harkat in 2008 after the secretive process was struck down by the courts and subsequently overhauled to make it more fair.
The Supreme Court will decide Wednesday whether those reforms went far enough.
In revamping the system, the government introduced special advocates — lawyers with access to secret material who serve as watchdogs and test federal evidence against the person singled out in the certificate.
Harkat's counsel argued during a Supreme Court hearing last year that the special advocates do not make up for weaknesses in the certificate process, noting these lawyers are greatly restricted in what they can say about the case and cannot initiate their own investigations.
Federal lawyers told the high court the certificate process was fair, meeting the guarantee of fundamental justice under the Charter of Rights and Freedoms.
In April 2012, 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 appeal court also said that human sources recruited by CSIS do not have the sort of blanket protection that shields the identities of police informants, even from the judge. In the case of CSIS, the issue is instead decided on a case-by-case basis.
Neither side was pleased with the ruling, and each asked for a hearing in the Supreme Court.
One of three scenarios is likely:
— The court upholds both the security certificate system and rules the certificate against Harkat reasonable, opening the door to the next step in deporting him.
— The judges find the security certificate regime constitutional but rule that the case against Harkat must be re-examined or even tossed out.
— The court rules the security certificate system unconstitutional, making the certificate against Harkat invalid as well.
Two other men — Mahmoud Jaballah and Mohamed Mahjoub, both originally from Egypt — could face removal from Canada in long-running certificate cases.
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