In the case of Mohamed Harkat, the Supreme Court has come close to squaring the circle in the difficult matter of "security certificates," but it could not have done so if the government had not already modified this drastic deportation procedure.
The essential allegation against Mr. Harkat is that he is a terrorist "sleeper agent."
Non-citizens – whether tourists or terrorists – do not have an absolute right to live in Canada. The government can imprison a non-Canadian who is believed to be a threat to national security. He is then held under a security certificate, with a view to deportation. But what if he can't be deported?
In the case of Mr. Harkat, an Algerian granted refugee status in 1997, Canada does not want to repeat its mistake in letting the United States deport Maher Arar to Syria, where he was tortured. Mr. Harkat might be in grave danger in his home country.
The security certificate is a conspicuous exception to the general rule that courts and tribunals should be open to the public, and that accused persons should know the allegations and evidence against them.
And while the law recognizes a protection for confidential informants, in cases like Mr. Harkat's, the trouble is that the bulk of the evidence comes from just such informants, who are not available for cross-examination.
People held under security certificates get only a summary – without elements the government believes would harm national security or the informants.
Since the numerous court hearings concerning Mr. Harkat and others, Canada has adopted the British practice of "special advocates" for the suspects, who scrutinize the evidence in the closed hearings, without being able to tell much to their clients.
In a 6-2 split, the majority of the Supreme Court differed with the minority only on how much confidential sources should be protected. All eight judges upheld the constitutionality of security certificates.
Mr. Harkat and several other men in much the same shoes remain in various versions of intrusive house arrest; none are still in jail. They may never leave Canada.
Security certificates, and suspected terrorists who cannot be deported but cannot be fully released, are probably all here to stay.