Experts reflect on the reasonableness of reasonableness hearings
It is called "a reasonableness hearing" -- a chance for terror 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-Qaeda sleeper agent. After three-and-half years in detention, he was released on strict conditions. He has always denied any links to terrorism.
Since September 2008, Justice Simon Noël 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.
Noël 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 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 prize-fight 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 Noël say he'd heard something in secret that proved otherwise.
At one point, for example, a CSIS official acknowledged that the allegation in the public record that Harkat ran a guesthouse 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," Noël 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, Noël 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 Noël 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." Throughout the hearing the judge and defence lawyers jostled over the disclosure of information.
One day in February during a clash over decade-old conversations attributed to Harkat, a frustrated Webber complained about a "fairness deficit" in which he could not "challenge or verify" anything the government said about Harkat. In reply, Noël suggested it didn't take an expert to determine the information came from a telephone intercept.
"With the greatest of respect, it's a man's life," Webber snapped. "It's very important to us all. I shouldn't be in a position where I am unnecessarily guessing -- and I am guessing throughout this brief." Webber complained that the defence was learning details on the fly. "This is the type of information an accused person needs to know in assessing the case he is answering," he said. "I shouldn't have to guess or infer from the language used by some CSIS analyst as he is putting it on paper. I just should not be in that position." There's no question that a security certificate hearing places an enormous burden on the judge.
Noël had extraordinary knowledge of the evidence -- evidence the defence did not have -- and he had to be careful his interventions did not suggest he was taking sides or that he'd made up his mind.
Noël 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 Citizen 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. And no doubt they challenged evidence and cross-examined witnesses.
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 barebone information on the allegations. For example, in the Harkat case, one summary says, "from 1994 to 1995, Abu Muslim (Harkat's alias) was an active jihadist in Peshawar who was in the service of Ibn Al Khattab, not al-Qaeda, for whom he ran errands and worked as a chauffeur." Security certificate hearings highlight the tricky work of balancing the right to fundamental justice with the demands of public safety.
An exchange between Noël and Boxall underlined the point: "The principal argument is that the case should be disclosed to Mr. Harkat, and the case should not be decided substantially in secret," Boxall told the judge.
"What do I do about national security?" Noël asked in reply.
Copeland, one of Harkat's advocates, says the government has a right -- and needs a process -- to kick out undesirables and subversives.
But he says there's no place in Canada for a system that denies justice and fairness to the accused.
Roach, from the University of Toronto, acted as an adviser to both the Arar and Air India bombing inquiries. He says the system remains flawed despite the changes prompted by the Supreme Court.
The best solution is to try terror suspects in the criminal courts, which are capable of handling such cases, Roach says.
At the very least, others say, defence lawyers must be given security clearance to hear all the evidence and special advocates must be allowed to discuss cases with the accused.
As we wait for the ruling on Harkat, the betting is that it may all end up back with Canada's highest court.
With the government showing no inclination to make further changes, and two more cases to be decided, the Supreme Court is likely to step in again. Win or lose, one side will appeal.
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Harkat timeline
Dec. 10, 2002
Mohamed Harkat, 34, an Algerian refugee and suspected terrorist, is arrested by undercover police at his Ottawa apartment. Solicitor General Wayne Easter and Citizenship and Immigration Minister Denis Coderre had co-signed a special order authorizing the police action as a matter of "national security."
July 25, 2003
After a Federal Court ruling against him, Harkat's lawyer Bruce Engel says they will turn to the Supreme Court to argue that Harkat's rights were violated by a threatening letter written by Canadian Security Intelligence Service (CSIS) lawyers.
March 22, 2005
Based on secret evidence presented by government officials, Harkat faces deportation to his native Algeria. Stating that it's clear Harkat lied under oath, Federal Court judge Eleanor Dawson rules the federal cabinet ministers made a reasonable decision when they concluded Harkat was a member of al-Qaeda.
Sept. 6, 2005
The Federal Court of Appeal quickly dismisses a constitutional challenge to the security certificate process launched by Harkat, setting the stage for his case to join a similar one to be heard by Canada's top court.
Dec. 30, 2005
Federal Court Justice François Lemieux denies Harkat's bail application.
Jan. 19, 2006
The Supreme Court announces that Harkat has won the right to join a case against the security certificate process to be heard by the court.
May 23, 2006
Although Federal Court Judge Eleanor Dawson says Harkat is still a danger to national security, she rules he may return to his Ottawa home under strict bail conditions amounting to house arrest.
May 31, 2006
The federal government launches an appeal of the release order.
June 9, 2006
A Federal Court of Appeal judge dismisses a motion brought by the federal government to have Harkat's bail order stayed pending the outcome of the appeal of his release order. Justice Robert Decary relies heavily on the fact the Crown did not provide affidavits proving Harkat poses a threat to national security.
July 13, 2006
A three-judge Federal Court of Appeal panel rejects the federal government's bid to have Harkat returned to custody.
July 17, 2006
Harkat is ordered deported to Algeria by the federal government, despite concerns he will be tortured.
Dec. 22, 2006
In Federal Court, Harkat wins the right to challenge the government's decision to deport him.
Feb. 23, 2007
The Supreme Court rules that the legal process that found Harkat to be an al-Qaeda terrorist, was fundamentally unjust. The ruling gives the federal government one year to craft a new security certificate process, affording defendants the ability to better respond to the case against them.
April 20, 2007
In a decision by Federal Court Judge Simon Noel, Harkat loses his bid to significantly ease the bail conditions that keep him largely confined to his Ottawa home.
May 11, 2007
Federal Court Justice Lemieux orders a permanent stay on the process leading to Harkat's removal to Algeria. The government was trying to deport Harkat before Parliament put in place a security certificate law that conforms to the Constitution.
Jan. 29, 2008
Harkat is taken into custody after agents from the Canada Border Services Agency (CBSA) raid his home. He will appear before a federal court judge to answer charges that he broke the strict conditions of his bail.
Feb. 1, 2008
Harkat is released from jail. He remains at home until a hearing into his compliance with the conditions of his bail continues.
Feb. 18, 2008
A judge rules that despite a "serious" breach of his bail conditions, Harkat will not be returned to jail.
April 14, 2008
A Federal Court judge, Justice Edmond Blanchard, clears the way for lawyers for Harkat and three other terror suspects to act as special advocates for their clients in secret evidentiary hearings.
Aug. 29, 2008
The Federal Court schedules five security certificate cases for November and December as part of the federal government's legal campaign to deport five high profile terror suspects, including Harkat. The federal judges will be asked to determine the "reasonableness" of the security certificates based largely upon CSIS evidence heard in secret.
Sept. 24, 2008
After an eight-day secret hearing, Federal Court Justice Simon Noël rules the federal government must disclose to
Harkat's special advocates, "drafts, diagrams, recordings and photographs" that have been collected by CSIS during their investigation. CSIS insists it will take six months to assemble the material.
Oct. 7, 2008
Harkat learns that Crown prosecutors will allow him to see more of the previously secret evidence that national security agents have collected.
Oct. 8, 2008
Harkat wins the right to move with his wife, Sophie, from his current basement apartment to a new townhouse.
Jan. 22, 2009
Federal Court Judge Noël rules that lawyers representing Harkat in secret hearings will be granted the right to talk to other special advocates about common legal issues, with strict rules limiting them to issues of law and procedure.
Feb. 27, 2009
Noël rules that special advocates who act for Harkat in secret hearings cannot question covert intelligence sources in the case -- even though they would be testifying in-camera.
March 6, 2009
Noël decides that some of Harkat's security conditions can be relaxed as part of a softened bail package approved by the Federal Court.
May 9, 2009
Accused al-Qaeda agent Mohamed Harkat speaks in public for the first time in seven years at a rally condemning the government's refusal to reveal and prosecute the case against him in an open court of law.
May 12, 2009
More than a dozen CBSA officers, aided by several members of the Ottawa police and three sniffer dogs, raid Harkat's home. The search takes almost six hours, and a dozen boxes worth of items are removed from the home.
May 14, 2009
A Federal Court judge amends Harkat's bail conditions to require the CBSA to obtain the equivalent of a warrant before searching his home after a raid that his lawyer calls "illegal."
May 27, 2009
Noël says two witnesses from CSIS may have lied to him about the reliability of a key informant in the Harkat case. His order opens one of its top-secret files to Harkat's special advocates.
June 3, 2009
In Federal Court, the CBSA official in charge of monitoring Harkat's bail order says she has not read her own agency's assessments of his threat level.
June 5, 2009
A top secret letter made public reveals that CSIS failed to inform Noël that that a key source in the Harkat terrorism case failed a lie-detector test, a revelation that brings the service's credibility under fire.
June 23, 2009
Noël rules that the CBSA engaged in an unauthorized intelligence-gathering exercise, rather than a legitimate search, when it raided Harkat's home, in a violation of his Charter rights.
July 2009
In an unusual move, CSIS officials write to a number of foreign spy agencies, asking them to release new information in the case of Harkat, at the request of his special advocates.
Sept. 21, 2009
Government lawyers deliver the shock announcement that they will not object to the dramatic lifting of Harkat's bail conditions, including travelling alone within the capital region and lifting of 24-hour surveillance by CBSA officials.
Oct. 7, 2009
A public summary of a top secret "threat assessment" prepared by the CSIS says that Mohamed Harkat played a mostly logistical role for international jihadists and did not engage in violent acts.
Dec. 11, 2009
Noël rejects an attempt by Harkat to find out more information from CSIS about the people who secretly implicated him in alleged al-Qaeda activities on the grounds that doing so could harm both national security, and the individuals involved.
Compiled by Liisa Tuominen
