Harkats head back to Supreme Court after 10 years of secret trial nightmare

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Most couples sitting in courtrooms are there for separation and divorce proceedings. Not so Sophie and Mohamed (Moe) Harkat, who have spent years in court because they desperately wish to stay together. The Ottawa couple have spent the past decade resisting with all their might the attempt to make their marriage a threesome by a secretive party who, in a manner that most relationship counsellors would mark as a major red flag moment, refuses to be open and honest, all the while it questions the authenticity of the Harkats' love for one another.

While the Harkats would agree with the late Prime Minister Pierre Trudeau that the state should stay out of the bedrooms of the nation, it is the secret trial security certificate legislation introduced by Trudeau that has resulted in Ottawa's perverse attempts to record, analyze and cross-examine the couple's most intimate moments. Under the secret trial provisions, the federal government can declare any refugee or permanent resident a threat to national security and then refuse to explain why. This relic of the Spanish Inquisition, which bears striking resemblances to the security laws under apartheid South Africa and Pinochet's Chile, continues to be pursued at the Federal Court of Canada, almost six years after it was found unconstitutional by the Supreme Court.

December 10, International Human Rights Day, marked the 10th anniversary of this relationship between the Harkats and the secretive party, resulting in cameras at entrances to the Harkat home, phone taps on their line, a prohibition on cell phone and Internet use, being followed by armed men everywhere they go, having to find housing that will accommodate a parking spot for those who would surveil them, house raids by police with sniffer dogs, and dozens of other indignities.

The ultimate insult is that whenever Moe moves in bed or goes to the refrigerator for a glass of juice, the government knows because of the GPS monitoring device permanently strapped to his leg.

The Harkats' story is eerily reminiscent of the stalker movie Fatal Attraction, but in this case, the Glenn Close character is played by agents of the Canadian Security Intelligence Service (CSIS), the scandal-plagued, inept spy agency whose profoundly single-minded obsession with Moe and a series of allegations that they refuse to make public have resulted in the Kafkaesque nightmare that the Harkats continue to live daily. CSIS has yet to boil a cute bunny rabbit in the Harkat kitchen, but the ultimate goal of their efforts is equally gruesome: they seek to deport Moe to Algeria, where he would face torture.

This is not a case for mediation. It's equally unsuitable for a proper legal proceeding, given that security certificates by legislation are based on information not normally admissible in a court of law. Hearsay, guilt by alleged association, and the lowest standards of proof in any court in Canada make for a dysfunctional show trial in the Federal Court, which for 21 years has provided judicial cover for thinly veiled renditions to torture.

To mark their 10th anniversary, the Harkats received a rather peculiar but hopeful gift: a 2013 invitation to argue their case at the Supreme Court of Canada, which for the third time since 2006 will consider the draconian legislation that's been condemned by Amnesty International, Human Rights Watch, and various United Nations bodies, in addition to thousands of people across the country.

During the 2006 hearing, five Muslim men were subject to the draconian process, four of them detained without charge at the Guantanamo North facility in Kingston, one under house arrest. When the court unanimously found the process unconstitutional because it denied the named individual the right to know the case against them, the issue went back to the government. The detainees themselves called on Ottawa to treat them as they would any Canadian citizen under similar circumstances: if evidence actually did exist, charge them in a fair and open criminal proceeding, with the attendant procedural safeguards and protections, or let them go free.

But the government, along with a clearly biased Federal Court, chose to return to their old ways with some window dressing changes. Indeed, one Federal Court judge showed her preferential option for the powerful when she declared, "I do not believe that the Supreme Court intended the previous rulings are to be revisited or that current proceedings necessarily are to be altered as a result of its determination." In addition, the Federal Court played partisan when it funded a study on continuing this process with the addition of special advocates, security-cleared lawyers who could see some of the secret case. That was the change introduced by the Harper minority government and passed with the shameful complicity of the Ignatieff Liberals. The secret trial process began anew for five Muslim men in February, 2008.

Shortly afterwards, the case against Montrealer Adil Charkaoui was withdrawn, and in 2009, Hassan Almrei became the first of the five to win a case on its merits when it was discovered CSIS agents "were in breach of their duty of candour to the Court."

Since then, the Harkats learned one of the potential informers in their case was carrying on an affair with a CSIS officer investigating them. CSIS also withheld information indicating an informer had failed a polygraph test. The Federal Court refused to throw out the case, but did declare "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."

Meanwhile, most of the draconian conditions against Harkat were lifted, and the couple suddenly had hope that the end was near. But the security certificate against Harkat was upheld in 2010 based solely on secret allegations Harkat was still not allowed to see and challenge. At the time, Harkat lawyer Norm 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?"

In 2013, the core issue, unremarkably, boils down to the same problem that the Supreme Court identified in its 2007 decision: how can one meet a case that one does not know? How the court decides the issue will impact not only Toronto's Mohammad Mahjoub and Mahmoud Jaballah, both of whom are still waging a defence against allegations that date back to the mid 1990s, but also a whole class of refugees who are increasingly being deemed "inadmissible" to Canada based on secretive allegations.

In their appeal to the Supreme Court, Harkat lawyers Boxall and Matt Webber note Harkat is not alleged to be a danger to Canada, and that the two main witnesses in the public portion of the secret hearing had no personal or direct knowledge of the case against Harkat. Much of the case was also based on summaries of alleged phone intercepts, the originals of which had been destroyed, as well as secret informants, none of whom were allowed to be cross-examined by the special advocates in a secret session.

Harkat's lawyers call the public proceedings "more a façade than a constitutionally compliant opportunity to know and challenge" the allegations. In 2007, the Supreme Court found that that secrecy and non-disclosure, "coupled with the grave intrusions imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures" that would satisfy an individual's Charter rights. The country's highest court also declared "fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case."

Clearly, the role of the special advocates -- who have taken on the tricky and problematic position of playing a restricted role in a secret proceeding while at the same time ferreting out significant details and the release of materials that no judge would be capable of doing on his own -- has made some difference in these cases. But it has not been enough, for they cannot be an adequate substitute to the detainee knowing the true nature of the case against them. The fact that two cases have been thrown out does not mean the system works or is compliant with fundamental rights. In Harkat's case, his lawyers note, Moe remains a "non-participant in the vast majority of the proceeding. The evidence that truly matters to him remains unknown."

Throw into the mix memos released last December in which CSIS acknowledged to the Public Safety Minister that none of these cases could stand if torture-gleaned evidence had to be removed, coupled with the major findings of CSIS malfeasance in two federal torture inquiries, and one can see that the house of cards is about to fall.

Significantly, with one bizarre exception, CSIS, after initiating 1-3 certificates a year from 1991 to 2003, has not issued a new certificate since May, 2003, a remarkable restraining of state power by grassroots organizing initiated and led by the Campaign to Stop Secret Trials in Canada since August, 2001. But the human damage left behind remains all too real, from the devastating physical consequences of 100-day hunger strikes, years in solitary confinement, the psychological torture of limbo and the threat of deportation to torture, to government-sponsored home invasions, the ripple effects on families and communities, and the scarlet letter of always being a "suspected terrorist" in Google searches.

But while security certificates appear headed for the dustbin of history, some of their more pernicious attributes remain in place under the Orwellian-named Immigration and Refugee Protection Act.

Barb Jackman, a lawyer who likely has more experience with such cases than anyone else in Canada (dating back to the 1980s), notes that security certificate proceedings represent the tip of a rapidly growing iceberg, stating that  "hundreds and hundreds of people [are] accused of being terrorists in the other secret process before the immigration division members. Those people are equally wallowing in the same kind of mistreatment [as the secret trial detainees]. It's just not on the public radar because it's not in the press. You might say the [security certificate] cases may end and that's the end of the problem. But it's not. They've created an octopus. I have an office full -- dozens of people -- who are facing secret hearings in another context before people who aren't even judges and certainly are not fair in the way that they handle the cases."

While advocates rally around the three remaining secret trial detainees at the Supreme Court, they recognize that their work is far from over as repressive measures continue to grow against increasing numbers of asylum seekers in Canada.

Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. 'national security' profiling for many years.

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