It was ironic that on International Human Rights Day, Dec. 10, family, friends, and supporters of secret trial detainee Mohamed Harkat gathered with him and his wife, Sophie, to weep and reflect on three federal court decisions against him. The latest decision upheld the regime of secret hearings and judicially sanctioned rendition to torture; and Harkat’s supporter’s recommitted to ending what domestic and international critics have labelled a star chamber process.
Due to a system based on secret allegations that neither accused nor lawyers can contest, Harkat has, for eight years, been subject to a “security certificate,” a measure by which individuals can be detained, held indefinitely without charge, and ultimately be deported, despite the risk of torture.
The standard of proof in such hearings (which only apply to refugees and immigrants) is the lowest of any court in Canada, and a judge may accept as evidence anything not normally admissible in a court of law.
Despite a unanimous 2007 supreme court ruling that found the secret-trials process to be unconstitutional, parliament simply reintroduced new legislation that mirrored the old. Despite a limited (and many claimed a sham) process of consultation with parliamentarians, during which leading legal experts, academics, and human rights organizations showed in stark terms how the new law would not withstand a Charter of Rights and Freedoms challenge, the bill sailed through parliament and, in 2008, resulted in new certificates being issued against Harkat and four other Muslim men. Two of these certificates have since been quashed.
Last Friday, a day after the new security certificate against Harkat was found to be “reasonable,” the Algerian-born refugee and his wife spoke of their devastation. Harkat stated he felt as if he were “dying inside,” and Sophie declared “this is a punch in the guts that will leave marks for a very long time.” Holding aloft the thick judicial rulings, Sophie said “this document is a load of bull.”
At a packed press conference, Harkat’s lawyer Norm Boxall took reporters through a dozen of federal court judge Simon Noel’s inflammatory findings and noted that in each and every case, there was “absolutely no evidence” presented in public to support them, despite the legal team’s persistent requests for disclosure.
Summing up the frustration that lies at the heart of the secret trial detainees’ struggle, Boxall asked, “What can an innocent person do other than to say ‘I didn’t do it,’ and then to be told that they’re a liar based on material they can’t face?”
While his lawyers have promised to pursue every legal angle they can (limited as they are under the legislation), Harkat now faces the threat of deportation to possible torture in Algeria. He is currently under bail conditions that require him to wear a GPS tracking bracelet, to report once a week to an immigration office, and to seek permission should he wish to travel outside Ottawa. Compared to the brutal house arrest conditions that he faced when first transferred out of prison in 2006, his current relatively easier conditions, though certainly frustrating, serve as an ironic counterpoint to Judge Noel’s finding that Harkat suddenly poses a “danger” to Canadian security.
That finding is based on allegations that, among other things, Harkat allegedly operated a Peshawar guesthouse that “may be linked to Ibn Khattab” (a leader in the fight against Soviet occupation in Afghanistan who was later killed in Chechnya). Harkat denies this. Yet even if it were true, in a 2009 decision quashing the security certificate against Hassan Almrei, Federal Court Judge Richard Mosley found that the Almrei’s admitted “association with Khattab does not, in my opinion, support a finding that he is a danger to the security of Canada.” The fact that Noel would contradict his fellow judge in such a manner is, according to lawyer Norm Boxall, “at the very least embarrassing.”
In addition, Judge Noel curiously takes on geography “Sarah Palin style,” arguing that Harkat’s statement that he did not visit Afghanistan because it was a long 4.5-hour trip was “exaggerated” because when the judge looked at a map, it did not seem that far.
Noel also believes Harkat facilitated the entry to Canada of an individual who arrived with a “shopping list of munitions and weapons… and instructional documents on how to kill.” This does not sound like anything out of the ordinary for Ottawa, where weapons buyers from the likes of Lockheed Martin, L-3 Communications and other manufacturers of weapons of mass destruction regularly gather for trade shows that feature lowest-cost-per-kill machinery. However, Noel says the fact that this individual also had in his possession what appears to have been excerpts from an al-Qaeda instruction manual makes this all the more sinister. Harkat denied knowing and assisting this individual, yet Noel nevertheless goes on at length over several pages, reproducing the contents of the shopping list and manual. It’s a fairly blunt guilt-by-association maneuver that is all the more damaging to Harkat because he has no way of responding: the only information that allegedly links the two men was heard in secret. Where did this come from? Who was the informant and how well-paid? Was the informant truthful or viable?
It is a matter of public record that Harkat’s case has been burdened by numerous instances of CSIS malfeasance. One of the potential informers, it was learned last year, was carrying on an affair with a CSIS officer investigating the case. CSIS also withheld information indicating an informer had failed a polygraph test. Under such instances, Noel, in a previous decision, wrote “it was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding.”
Despite such clear efforts by CSIS to manipulate the court process, Noel saves all his rancour for Harkat, and not the scandal plagued spy agency which was also found last month to have brazenly defied for two years a court order to stop listening in on solicitor-client calls in a separate security certificate case.
Many of the allegations against Harkat appear to arise from summaries of alleged phone calls that took place a dozen years ago. Noel says that the public summaries “do not specifically mention where they originate from. This was deliberate.” Harkat argued they should not be admitted as evidence, since the original recordings have been destroyed, and all that remain are skeletal summaries of notes. Harkat is unable to determine which voices were on the phone (if in fact those calls did exist); who did the translation, and whether that translation was accurate; why his phone was apparently being intercepted; who actually wrote the summaries.
The summaries themselves are boilerplate CSIS, and read very much like those in related cases in which certain keywords are inserted and repeated to make it sound like Harkat is being deceptive or hiding something. Hence, we learn that Harkat “revealed” he would register for an ESL course, as if this were a decision bathed in mystery.
Noel comes to the startling conclusion that although Harkat disagrees with the existence and summarized content of specific calls, the fact that Harkat does allow that a couple of summaries of conversations with family members appear to ring true “can only demonstrate that the summaries of the conversations produced by CSIS are more reliable than not.” Noel then goes on to quote “John,” a CSIS witness who did concede “that errors can occur, but CSIS followed various methods to minimize them.”
Much of Noel’s rulings carry on in such a manner, at times reading in a contradictory, sloppy, and incredulous fashion that borders on a personal attack against Harkat. On the one hand, Noel slams Harkat for sounding as if he had “memorized a story,” a fabrication he allegedly took great pains to prepare, yet on the other, he criticizes him for making mistakes in recalling certain dates (condemning him for the fact that as a non-English speaker, Harkat wrote something in his 1995 refugee application that did not exactly match his 2010 testimony, being off by a couple of months in relation to something that happened in 1989). To Noel, if Harkat is consistent, it is a story; if he is inconsistent, he is a liar. In such a manner Harkat was deemed to be untruthful as opposed to merely human.
Ironically, the rulings take on an almost desperate tone to justify and salvage the secret trial system. The reasons also appear to reflect Noel’s own feelings about Harkat, whom he alleges is not credible and who has, in the judge’s words, “surrounded himself in layers of clouds in which he does not let any light come through.”
In his ruling on constitutional issues, Noel does acknowledge that Harkat’s Charter rights have been violated by the current process, stating that Harkat “is deprived of his liberty and eventually, depending on future decisions, of his right to the security of the person as well.”
That being said, Noel reassures us that all is well and, in comments that echo his earlier 2005 finding that secret hearings were constitutional — a decision overturned by the supreme court — he sets out again to show says that the procedure designed to ensure disclosure “has worked well,” and that the limits imposed on Harkat’s Charter rights are “demonstrably justifiable.”
In a separate ruling dismissing an abuse of process motion, Noel rejects the idea that an accumulation of abuses of process should amount to the conclusion that a stay of proceedings would have been warranted.
At the end of International Human Rights Day, the Harkat family were joined by some 75 supporters in a bone-chilling snowfall at the Human Rights Monument in Ottawa, where they held candles and spoke of their hopes for justice one day prevailing in their case, as well as for the two remaining detainees, Mahmoud Jaballah and Mohammad Mahjoub.
Matthew Behrens is an Ontario social justice advocate and freelance writer.
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