Contextual Content

Canadian Secret Trial: Man May Face Deportation and Torture

Mohamed Harkat, a refugee in Canada, was arrested in 2002 and
detained for four years without charge. He was then released under the
toughest bail conditions in Canada’s history. He was under an
immigration law know as a Security Certificate, meaning he could be held
indefinitely without charge, and all evidence against him can be kept
secret. A special detention center was built after 9/11 to house the men
accused under Security Certificates, earning the nickname "Guantanamo
North". Lia Tarachansky talks to Mohamed and his wife Sophie Harkat as
well as their lawyer Matthew Webber, about the recent concluding ruling
in their case and what it means if he will be deported.

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Story Transcript

LIA TARACHANSKY, JOURNALIST, TRNN: This is Lia Tarachansky with The Real News in Ottawa, Canada. On Friday, January 21, the Canadian government decided to deport Mohamed Harkat. January ended with devastating news for the Harkat family. After years of imprisonment, followed by the harshest bail conditions in Canada’s history and an eight-year legal battle that led all the way up to the Supreme Court, Mohamed Harkat was ruled inadmissible in Canada and ordered to be removed. His case is one of three high-profile security certificates cases in Canada, and on Friday, January 21, the federal court decided to deport him to Algeria, where he says he could be tortured. In between interviews speaking about their fight, I caught up with Mohamed and his wife Sophie at the CBC building in Ottawa.

~~~

TARACHANSKY: The initial arrest happened in 2002. We’re now in 2011 and you haven’t been charged with anything yet.

MOHAMED HARKAT, DETAINED BY SECURITY CERTIFICATE: Yes. I didn’t–I–never charged me or never have charged in Canada or outside Canada and never been on a–

SOPHIE HARKAT, SPOUSE TO MOHAMED: Charged anywhere in the world.

M. HARKAT: –charged anywhere in the world.

~~~

TARACHANSKY: If you’re a Canadian citizen and you’re suspected of terrorism-related charges, like the famous case of the Toronto 18, you’ll be arrested, charged, the evidence against you will be disclosed in a criminal court, and you’ll be prosecuted. But if you’re not a citizen, if you’re a permanent resident or a refugee, then you get issued a security certificate and you will probably be deported. Security certificates are a controversial immigration tool, because when they’re issued, the person can be imprisoned indefinitely without charge, the evidence against them is kept secret, and if they’re a refugee rather than a permanent resident, there is a greater risk they’ll be deported. When Harkat was finally released in 2006 after four years of imprisonment, including in the special wing of the Millhaven penitentiary known as "Guantanamo North", he was placed under the toughest bail conditions in Canada’s history.

~~~

M. HARKAT: The phone is tapped.

S. HARKAT: The mail is intercepted.

M. HARKAT: Yeah, the mail intercepted. There is a camera in the house. We can’t go without CBSA [Canadian Border Services Agency] approval for four hours outings. CBSA follow us for the outing.

S. HARKAT: We were only allowed three outings a week for four hours. And every outing, we had–two to six CBSA officers would wear bulletproof vests and weapons, following us around. Every individual entering our residence had to be preapproved in advance, including our newborn nephew and my 80-year-old grandmother. We couldn’t speak to anybody that wasn’t preapproved. No cell phones are allowed in the house. The computer is under lock. My husband cannot access any computer or have access to Internet. We cannot leave Ottawa without permission. He could not access a boat, a vessel, a train station, an airport. He doesn’t have any travel documents. He has large sums of money over his head as surety, he has over $150,000 in surety money, plus $35,000 in an account for the Crown.

M. HARKAT: Wearing a GPS.

S. HARKAT: Yes. And there are two surveillance cameras. There was one in a hallway, and one in the living room as well. That Mo could never be left alone for a 24 hour period. He would have to be watched inside or outside the residence. So we had a curfew on the property. And when he went to the backyard, he had to be supervised by one of the three court surety appointed by the court. When he was inside the residence, he had to be also supervised. For example, when he went to a public washroom, he couldn’t go by himself because he could never be left alone, or a change room or a doctor’s appointment. He could never be left alone. So one of us always had to accompany him, even including a public marshal.

TARACHANSKY: But if I understand correctly, you haven’t actually seen any of the evidence.

S. HARKAT: No. All we’ve been given is a report of allegation, which says, we assume, we believe that in the past, present, or future he may be involved in acts of terrorism. We haven’t [been] given any evidence whatsoever.

~~~

TARACHANSKY: The certificates were previously used against Nazi sympathizers and alleged spies, but since 9/11 they’ve been used against Muslim or Arab men alleged to have links to terrorist groups. In 2007, after years of legal struggle, the Harkat case, along with other security certificates cases, took the legality of the system to the Supreme Court. The Supreme Court unanimously voted 9-0 that the security certificates system was unconstitutional. The decision had little effect on any of the ongoing cases but led to the law being amended. Now the accused person’s lawyer reviews a selective summary of the evidence against their client.

MATTHEW WEBBER (VOICEOVER), BA, LLB, LAWYER REPRESENTING HARKAT: Well, the court didn’t really outline exactly what they said was constitutionally required. They just said that what preexisted, this system, was not constitutional. So, you know, the special advocates have been in place, and more information has been provided to the main person as a result of that decision. The question is whether or not what we have now and the manner in which Mr. Harkat’s case played out, whether or not that in fact does meet constitutional requirements. You know, our position, with the greatest of respect, is that it still doesn’t. The court, in Mr. Harkat’s case, did to some extent summarize materials in CSIS’s [Canadian Security Intelligence Service] files and make them available, but on numerous parts of the case did make findings of fact against Mr. Harkat in areas where no evidence was disclosed. So that’s still one of our complaints about the process is on numerous issues that formed part of the allegations no evidence was disclosed. Nevertheless, adverse findings were made against Mr. Harkat on those issues.

TARACHANSKY: CSIS and the Canadian Border Service Agency declined to give an interview on the issue, but the Ministry of Public Safety issued the following statement: "The government of Canada issues a certificate only in exceptional circumstances where the information to determine the case cannot be disclosed without endangering the safety of any person or national security." The federal court ordered CSIS to release some of the information, but the agency claimed it had destroyed the evidence.

WEBBER: The reputation of the administration of justice has been damaged by virtue of this conduct on the part of CSIS. As a result, numerous hearings took place in secret where CSIS people were called to testify and explain themselves to the court. You know, we had hoped at the end of the day that that would in some respect or the other [inaudible] to Mr. Harkat’s benefit, but at the end of the day, the court found that it was satisfied with their explanations for what they had done and nevertheless did rely on human source information, and given all of the circumstances and given that there were proceedings taking place in secret, that at a minimum these special advocates should have been given an opportunity to cross examine these people, as would be the case in a criminal trial [inaudible] brought into court in camera and cross examined by Mr. Harkat’s special advocates, but that didn’t happen.

~~~

S. HARKAT: And we know that if we had the original material and all that, it might have changed the outcome of the case. So that’s one of the problems that we’ve come across in our cases, that all original material has been destroyed. There’s also been four other things which have affected the processes, that CSIS is known to use information that comes from or derives from torture. They raid our home in May of last year, two weeks short of a hearing that was scheduled to start on the reasonableness.

M. HARKAT: At the same time, the informant himself, he failed a lie detector, and they never gave it to the judge.

S. HARKAT: What happened was when the CSIS failed to lie–they failed to tell the first judge, they also failed to tell the second judge that the informant had failed a lie detector test. That was discovered through a process. And the last thing they did was CSIS and CBSA listened to solicitor-client calls, which of course are prohibited, until they were caught by the federal court.

~~~

TARACHANSKY: CSIS alleged that Mohamed Harkat may have worked with an al-Qaeda operative named Ibn Khattab in Pakistan and may have traveled to Afghanistan for terrorist-related activities, something Harkat denies. In another security certificates case, federal judge Richard Mosley ruled that Ibn Khattab, who was linked to Chechen rebels, may have received funds from bin Laden but had not been quoted as calling for jihad between Islam and the West; his struggle was against Russia and its occupation of Muslim lands. Ibn Khattab was assassinated in 2002 in a killing widely attributed to the Russian spy agency FSB. The federal judge in the Harkat case, Simon Noel, contradicted this ruling. He did not reveal any link between Harkat and Ibn Khattab, nor any other suspect, but in declassified footnotes noted that there is a lot of information on Khattab and his link to Osama bin Laden. So was Mohamed Harkat or the other cases linked to potential terrorist operatives? Or was he wrongly accused and thrown into a deportation system with little transparency or accountability? Because neither Canada’s intelligence or border security agencies nor the Ministry of Public Safety agreed to an interview, The Real News couldn’t pose these questions to them. And with the original evidence undisclosed or allegedly destroyed by CSIS itself, it’s currently impossible to determine. But the way this process is going now, it’s very likely Harkat will be deported to Algeria, where expert witnesses claim he may be tortured, imprisoned, or killed.

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WEBBER: Our position is that if in fact they’re going to take place outside of the criminal law, that all of the Section 7 rights that are part and parcel of a fair trial need to be incorporated into the immigration process.

TARACHANSKY: Okay. Is there any way to appeal the judge’s decision that the security certificate is reasonable?

WEBBER: Well, we are in the midst now of launching an appeal. The appeal is not so much centered on the reasonableness conclusion, but it is centered on the constitutionality or fairness of the proceeding.

~~~

S. HARKAT: Legal experts, expert that testify, they were shock by the outcome of the decision. Shock. We were all–it was like we all got a big punch in the guts, a slap in the face. It was very, very difficult to take. And we’ve been devastated since then. And this just adds on to the devastation that we’ve been living. And the deportation Mo’s been facing since 2002, it’s been a cloud over our head for the past eight years. It just makes it look very serious now, because we have–if we don’t get an appeal, we don’t have any other outcomes right now.

~~~

TARACHANSKY: For The Real News, this is Lia Tarachansky in Ottawa.

End of Transcript

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