While International Human Rights Day (December 10) is an opportunity for politicians to issue self-regarding boilerplate statements about respect, dignity and freedom, for one Ottawa couple, it always arrives with a nauseating sense of irony.
It was on December 10, 2002, when Sophie Harkat received a call at work that her husband, Mohamed (Moe), had been arrested on a secret hearing security certificate. He was being held in solitary confinement as an alleged threat to state security — without charge, without bail, and without being provided any tangible reasons why. As Kafka began his famous dystopian novel The Trial: “Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning.”
That was certainly the case for Moe Harkat, an Algerian refugee who was indefinitely detained based on the word of a secret informant who failed a lie detector test, and who was never subjected to examination either in an open court or a closed session. Another secret informant in the case had a particularly lustful motivation to keep coming up with allegations, because he had been carrying on an affair with an agent of the Canadian Security Intelligence Service (CSIS), the scandal-plagued agency that cooks up the unsubstantiated allegations in secret trial cases.
The onus in a security certificate case is on the named individual to prove that they are not the state security threat CSIS makes them out to be. How does one prove a negative when the heart of the case is heard in your absence? Whenever a lawyer trying to tackle the case asks questions, the government’s witnesses, if any are produced, can claim that answering them would endanger national security. It’s all done with the Federal Court of Canada’s shameful judicial seal of approval, one that has condemned dozens of individuals since it began providing legal cover to the star chamber process in 1991.
Even worse, the security certificate represents the lower rung of a two-tier justice that employs the lowest standards available, while anything not normally admissible in a court of law can be used in these cases (which means one is no longer in a court of law). It only applies to refugees and permanent residents, and ultimately can result in deportation to a country where the scarlet letter of “security threat” means an immediate booking in the nearest torture centre.
The process under which Harkat was arrested on Human Rights Day in 2002 was finally declared unconstitutional in 2007, but not before he spent a harrowing 3.5 years behind bars, including at the infamous Guantanamo North facility especially built for secret trial detainees on the grounds of Kingston’s Millhaven Penitentiary.
But “release” to house arrest did not end the misery faced by the Harkats, who then had to deal with the strictest house arrest conditions in Canadian history, with the installation of surveillance cameras at their house, a GPS tracking module strapped to Moe’s leg, endless rounds of permission-seeking to go into the backyard or to get groceries into the house, spy agency clearance required for any friends and supporters who wished to visit, vindictive raids on their apartment that sometimes caught one of them in the shower, and a lengthy litany of other humiliating conditions that would have produced an unimaginable level of stress in the best of marriages.
For Sophie, it meant having to become a jail guard in her own home. As a surety, she could never leave Moe out of her sight. If he wanted to fire up the barbecue, he would not go onto the back porch without Sophie going out first and monitoring his exit into the fresh air. If the couple were out on an approved visit to a shopping centre and one of them had to use the bathroom, the “never out of sight” responsibility placed on Sophie meant some socially awkward positioning at public conveniences. Anyone who wished to visit the Harkats at home had to be security-cleared by the government, which socially isolated them. The things most of us take for granted — cell phones, mail privacy, a home computer with internet access — became the subject of protracted court proceedings that opened up every last detail of their private lives.
Racist ‘Super Muslim’ myth
The degrading conditions were based on the racist notion of Super Muslim: that Moe, like his fellow detainees, was so desperate to communicate with terrorists or do something awful that he had to be monitored every second of every day, despite the fact that no allegation has ever been made that he has even considered being involved in an act of violence. Things that happen in the normal course of a day for most of us — driving through a yellow light or speeding up to pass someone on the roadway, for example — are attributed nefarious purposes and labeled “counter-surveillance techniques” by the cunning detainee and his wife.
In 2008, the Harper government, with the full and cooperative support of the Liberals, replaced the unconstitutional secret trial law with a slightly revised version that continued to violate every fundamental right known to humankind. Scores of civil society groups and individuals protested that the window-dressing provision — adding security-cleared special advocates who could ask some questions and see some of the secret case — would leave the detainee no closer to knowing the core of the case against them. All of the Muslim detainees — known collectively as The Secret Trial Five — had new security certificates issued against them, and the cases proceeded anew.
But even with some of Canada’s top lawyers on the special advocate roster, Moe was no closer to having someone cross-examine his secret and clearly unreliable informants, because the judge in his case, the recently retired Simon Noel, refused to allow it. Even though the special advocates were security cleared and could not violate their oath of secrecy (upon pain of 14 years in prison), Noel did not trust them to question the secret informants in the Harkat case. Instead, Noel took it upon himself to take the lying informants at their word and, when Harkat’s public testimony did not square with the dishonest informants, Noel chose to believe the bald, unsubstantiated, and dishonest statements of those who would never be properly questioned about what they alleged.
And so, on Human Rights Day, December 10, 2010, a date no doubt picked for the extra sting it would evoke, Noel released his decision upholding the new secret certificate against Harkat. Despite having earlier found that the CSIS malfeasance referenced above had made it “necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding,” Noel chose not to condemn CSIS in his decision, holding all of his fire for Harkat.
At a press conference that morning, 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 ruling, Sophie said “this document is a load of bull.” Anyone familiar with the case could easily have come to the same conclusion. Noel’s decision read like a personal attack coloured by a thinly veiled Islamophobia: if Harkat’s testimony in certain circumstances was consistent, he must have concocted a story; if he was inconsistent (not unusual for someone experiencing PTSD), he must be a liar. In such a manner Harkat was deemed to be untruthful as opposed to merely human.
Harkat’s case eventually made it to the Supreme Court in 2013. One day of hearings was held in public, with the other in some secret bunker somewhere in the national capital region in the absence of Harkat and his lawyers. It was a shameful day in the top court’s history, but one which was inevitable in the development of the parallel secret trial system in which we are asked to trust what goes on behind closed doors.
Secrets at the Supreme Court
When the Supreme Court upheld Harkat’s certificate in a poorly written, illogical ruling in 2014, it opened the door to the next phase of his Kafkaesque odyssey: proceedings began to deport him to torture in Algeria. Unfortunately, a change in government did not bring about a change in policy. Indeed, then opposition Liberal leader Justin Trudeau praised the Supreme Court decision, and while he more recently declared in that solemn, tear duct-opening manner he likes to employ that “No one, ever, deserves to be tortured,” his government is twisting itself into a pretzel to try and produce the logic that will justify deporting Harkat to the dungeons of Algeria.
Despite all of this, the Harkats have remained together as a couple, occasionally enjoying a lessening of the brutal house arrest conditions and trying to develop a life outside of state control. But doing so has been difficult. Their plans to have a family have been scuttled thanks to the stress of the security certificate regime. When they finally did try to start a family, Sophie had a miscarriage. Moe suffers from chronic depression and PTSD. They live a precarious low-income life, with Sophie working as a crossing guard and Moe as a part-time janitor.
Opportunities to find better work for Moe have been rejected because of his list of conditions. Because he is not allowed to use the internet outside of his home, he cannot work as a cashier or stock receiver at a box store. Because he is not allowed to use a cell phone that is not strictly monitored by the Canadian Border Services Agency (CBSA) and he is not allowed to leave Ottawa without advance notice, he had to turn down a well-paying job with benefits as a courier driver.
Even approved leisure time is humiliating. A trip to a cottage in Quebec is met with armed, bullet-proof wearing border agents waiting outside their home in eerie-looking, tinted-window vehicles. Because Moe has to call in every day he is away from a landline, he has had to drive into town to find the nearest pay phone — which are harder to access in a cellular age — and call the agent who is sitting in a car right outside of the cottage (earning, needless to say, a pile of overtime pay).
The Harkats question why the CBSA continues to follow them to family birthdays and funerals. After all, the role of a court-approved surety is to monitor the individual who has been released on conditions. The CBSA behavior is a clear sign that they do not trust the Harkats, even though the court seems to, and even though the last security assessment of Moe, produced by CSIS, ranked his threat-level as low. The Harkats say many of their neighbours are new immigrants, and when they see the CBSA officers outside the Harkat home, they are fearful of becoming friends because it looks like police officers are constantly at their abode.
Despite these overwhelming challenges, the couple is well-loved by their extended family, friends, and some neighbours, especially the little kids who line up outside of their door when they want their bikes fixed by the avuncular Moe.
But beneath their warm smiles and community spirit, the toll it has taken on them has been significant. The clinical director of the Integrated Forensic Program at the Royal Ottawa Health Group — who happens to be one of this country’s leading mental health specialists — recently produced a report on Moe based on 112 evaluation sessions going back to 2009, as well as additional interviews dating back to 2005. It is a heartbreaking account of the human cost of state surveillance and repression.
“Mr. Harkat has a history of chronic depression, anxiety and post-traumatic stress related to having been incarcerated on a Security Certificate in maximum security for 43 months, including one year in solitary confinement followed by many years of living under very strict bail conditions and facing deportation to Algeria, where he believes he will be arrested, tortured and at risk of death,” the report declares.
“There are times when Mr. Harkat has experienced recurrent visions on a virtually daily basis over several months of being arrested, incarcerated, deported and tortured. Sometimes he has visions of being shot by CBSA due to a misunderstanding, minor misstep or accidental violation of his bail conditions. Often, he has been troubled by insomnia and recurrent nightmares with the same themes as his daytime visions. Energy has been chronically low and concentration impaired such that reading is limited to no more than five minutes at a time. Appetite is chronically poor to a point where he has to force himself to eat even one meal a day.”
The report also notes that Harkat remains frustrated all these years later at his state of legal limbo, one in which he has never been charged with, much less convicted of, a crime. It states: “Particularly he is frustrated around secret sources of information being used against him, including of an informant who failed a lie detector test. He has been frustrated that phone-tap evidence was used against him even though the recordings were destroyed and only summaries of the transcripts presented, including of conversations that he was supposedly involved with for which the details are not remotely familiar to him.”
Harkat is also left befuddled because he is accused of association with an individual, Ibn Khattab, who, in another security certificate case, was declared not to have been a security theat. But Judge Noel, based on the exact same evidence that allowed another judge to declare Khattab was not a threat, decided otherwise, adding guilt-by-association to Harkat, who says he never met Khattab.
The health risks of limbo
Despite this maddening cascade of Kafkaesque obfuscation, the report finds that “Harkat has continued to express a belief in Canadian democracy and the judicial system in spite of his complaints about the flaws of the government’s case against him and the unfairness of the process. My experience is that ironically Mr. Harkat’s level of confidence in Canadian democracy and judicial system surpasses that of most Canadian-born citizens.”
The report goes on to find that Harkat has “a complete absence of psychopathic traits” and scored at the low end of risk on a wide battery of tests designed to test for rigidity of thought or propensity to violence.
“It cannot be overemphasized how stressful Mr. Harkat’s present situation is, and how the present situation is anything but benign,” the reported concluded.
The Harkats were back in court in mid-November to try and relax their conditions, which continue to cause major health issues. As the mental health evaluation noted, “The risk of continuing with the present situation is further permanent neurobiological changes that will be more refractory to treatment and recovery the longer they continue. This risk is not only to his mental health, but his physical health as well. Chronic stress is associated with increased risk for cardiovascular events (heart attacks and strokes), and suppressed immunity, including susceptibility to infections and cancer. There are also costs to his wife and family, financial costs, including to the Canadian taxpayer, and loss of Mr. Harkat’s potential contributions through work.”
The hearings were typical of those that have marked the public portion of the secret trials over the past two decades. Government lawyers, who are playing with all the cards, complained that they were somehow at a disadvantage. They produced witnesses from government surveillance agencies that were incompetent at best. Indeed, when CBSA manager Michel Renaud, in charge of Harkat’s surveillance, was asked if had ever seen pictures of or knew anything about a series of individuals with whom Harkat is not allowed to associate, he replied that he had not. Harkat’s lawyer, Barbara Jackman, then asked how it was that CBSA agents can do their job if they don’t know anything about the alleged threat they are supposed to be preventing. Renaud shrugged and said such matters were not his bailiwick, but could be referred to the group’s national security section.
Renaud was also asked if he had ever read any of the Federal Court decisions on Harkat’s case or the threat assessments produced by CSIS (the last was in 2009, and though based completely on dated allegations from the 1990s, found that the alleged risk he posed was at the low end of the scale). Renaud again said no. How then, Jackman asked, could the CBSA say it was containing an alleged threat if it had no clue what the alleged threat was? The question, he replied again, should be referred to the group’s national security section.
As the Harkats await word from the judge, they are also hoping to hear back from Public Safety Minister Ralph Goodale. They applied for Moe to stay in Canada as a permanent resident by asking Goodale to find that Moe’s living here would not be contrary to Canada’s national interest. Over 700 letters of support were attached to that application. Finally, they are awaiting word from Trudeau’s immigration bureaucracy, which is currently considering submissions on whether Harkat should be deported to torture. Just another week in Kafka’s Canada.
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