Ten years after an Ottawa pizza delivery man was jailed as a suspected al-Qaeda sleeper agent, Mohamed Harkat's wild roller coaster of a case reaches the Supreme Court this week, in a major test of secrecy provisions in national security matters.
The case will provide a measure of how tough the Supreme Court, with a majority of its members now appointed by Prime Minister Stephen Harper, is prepared to be on terrorism, as the attacks of Sept. 11, 2001, recede in time.
The Canadian government argues that any loosening of the current rules would threaten national security. A lower-court ruling that sided with Mr. Harkat "weakens the protection of informers and places Canada's intelligence gathering capabilities at risk," the government said in a brief to the Supreme Court. On the other side, a wide array of interveners – including the Canadian Bar Association, the Canadian Council of Criminal Defence Lawyers and Amnesty International – say that the current system doesn't give Mr. Harkat a fair chance at defending himself.
The first day of hearings on Thursday will be in open court but the second, on Friday, will be closed to the public and, for the first time in the Supreme Court's 138-year history, held at a secret location.
Mr. Harkat came to Canada as a refugee claimant from Algeria in 1995. CSIS, Canada's civilian spy agency, says he once ran a guesthouse for Chechen rebels in Pakistan, and kept in touch with Ahmed Khadr and Abu Zubaydah, senior al-Qaeda members. In 2002, the Canadian government detained him indefinitely on a national security certificate, before he was set free in 2006 on conditions such as wearing a tracking bracelet on his ankle – a condition dropped this summer.
The case has featured audiotapes destroyed by CSIS, a failed lie-detector test by an informant that CSIS kept from Mr. Harkat's lawyers for years and a judge who called Mr. Harkat a liar but set him free under the watch of his wife and mother-in-law. The Canadian government won in Federal Court; Mr. Harkat won at the Federal Court of Appeal.
In 2007, the Supreme Court, then mostly appointed by Liberal prime ministers, struck down the security-certificate system under which Mr. Harkat and a handful of others have been detained because lawyers for suspected terrorists were not allowed to look at the government's secret evidence. (The system applies to foreigners and permanent residents, and is intended to lead to deportation.) The court suggested Canada adopt Britain's system of special advocates with security clearances. The Harper government accepted the suggestion.
But Mr. Harkat's lawyer, Norm Boxall, will argue the security advocates are handcuffed by secrecy. They cannot reveal anything they learn from the secret evidence to their client. Nor can they investigate it independently. "Fundamentally, the issue is the right of the person to know and be able to challenge the case against them," he said in an interview.
Lorne Waldman a lawyer who has served as a special advocate, is representing the Canadian Bar Association in the case. "The special advocate has to be able to say, 'Okay, Harkat, the government says you were in Afghanistan, what evidence can we adduce to prove that you weren't there, or that this informant is a liar?' You need to speak to Harkat. Creating a system where the special advocates know the evidence but can't communicate doesn't solve the problem."
The court will be missing its newest member, Justice Marc Nadon, who stepped aside this week after the legality of his appointment was challenged.