Harkat case: Supreme Court decision is unjust, anti-democratic and anti-Canadian

justiceforharkatTHE Supreme Court of Canada unanimously upheld revised security certificates laws Wednesday along with the use of secret evidence to deport foreign-born terrorism suspects as constitutional.

In doing so, the 8-0 decision also concluded a security certificate – a kind of special immigration warrant – issued against Algerian-born Mohamed Harkat is reasonable.

Security certificates allow the government, on the basis of secret evidence, to deport non-citizens who it deems a security threat. The person named in a security certificate receives only a summary of the case against them, stripped of supporting details to protect allegedly sensitive intelligence sources and methods. The regime also allows for detention – with no statutory limitations on the length – so long as the detention is “reasonable.” Furthermore, the disclosure of secret evidence in the security certificate proceedings does not require the judge to balance the interests of the named person for disclosure against the interests of national security for non-disclosure, as is required in the Canada Evidence Act.

The decision is not commensurate with modern requirements of due process and constitutes a major capitulation by the court to the Harper dictatorship and its 2008 cosmetic redesign of the security certificates that brought in the use of security-cleared special advocates who have access to secret state evidence – although they are not allowed to disclose that evidence to the defence. Mr Harkat  contended that restrictions placed on the advocates prevent them from mounting an adequate defence, and therefore that the regime is unconstitutional.

“The advocates cannot communicate with a named person or their “public” lawyer about the evidence presented in secret or the advocate’s legal strategy,” the Ottawa Citizen reports. “They are not allowed to know the identity of or cross-examine crucial government informants. They cannot call witnesses or gather their own information and are limited to working with only the information the government chooses to share with them and the court.”

In April 2012, the Federal Court of Appeal had overturned the findings of a 2010 decision declaring Mr Harkat an active and dangerous member of the al-Qaida network. It said Mr Harkat’s right to a fair trial had been compromised by the destruction of 13 wiretap recordings made by the Canadian Security Intelligence Service between 1996 and 1998. The Harper government challenged the 2012 ruling and the Supreme Court has upheld its appeal.

For years, Ottawa has sought to deport Mr Harkat, 45, insisting he is a threat. The Harkat’s have been fighting for justice for 12 years, and Mr Harkat has been a resident for 19 years. Two other men – Mahmoud Jaballah and Mohamed Mahjoub, both originally from Egypt could face removal from Canada in long-running certificate cases.

“I think it’s pretty important to note that Mr. Harkat has been in the country since 1995. He never committed a criminal offence,” said Norm Boxall, one of his lawyers. Harkat spent nearly four years behind bars after his arrest.

Mohamed and Sophie Harkat are assets to Canada and have made a contribution to society.

The Halifax rally on October 31 against secret trials was held at CSIS offices in the downtown at rush hour and viewed by thousands | Photos by Mark Rushton

One of innumerable protests across Canada: the Halifax rally on October 31, 2003 against secret trials was held at CSIS offices in the downtown at rush hour and viewed by thousands | Photo by Mark Rushton

Thomas Mulcair of the NDP, who says the Supreme Court Decision upholding security certificates “now needs to be enforced,” although the NDP “has concerns,” and Justin Trudeau f the Liberals, with his twaddle about “striking a balance between individual liberties and collective security” shame Canada. CBC-TV even noted that Mulcair “went very quickly,” when he came to the issue after a caucus meeting, as it was back to business as usual.

It is under the liberal theory of “balance” that the anti-terrorist laws were imposed and through which any assault on democratic rights are justified. Together with the Harper government, they abandoned their social responsibilities and left the task to Mohammed Harkat, Adil Charkaoui and those who protested across Canada over the past decade against the system of secret trials and certificates.

Their righteous belief that rights are negotiable in the “Canadian system” has blinded them to the fact that it was precisely Mohamed Harkat and Adil Charkaoui of Montreal, who brought the unconstitutionality of the security certificate legislation to the attention of the Supreme Court. Rather than baring their chauvinist soul, they would have done well to congratulate them for defending the fundamental democratic rights of all Canadians and pledged that this struggle will continue!

The Harkats and others are collateral damage in the Liberal-initiated “war on terror,” which has been eagerly continued by the Conservative governments which followed.

The certificate system and use of secret “evidence,” which is a denial of the rule of law, due process and civil liberties, will ultimately be used against native born Canadians, not merely immigrants, unless the Harper government is defeated. This in part is what the Harkats have been fighting against.

In 2007 Mohamed Harkat submitted a brief on Harper’s anti-terrorism law in which he suggested a real need is evident to have full discussion on why security certificates and secret trials should be abolished. In a commentary, Sandra L. Smith questioned as to

Why is this not done? More importantly, why is there no public discussion on how Canada’s security should be protected? The entire discourse carried out by the government, the political parties of the establishment and the mass media is pragmatic, premised as it is on the need to find the “right balance” between security and rights. This contrived discussion acts as a block to sorting out the profound problem why the system is defending itself by overthrowing civil rights. The attack on civil rights, premised on the need to find the “right balance,” occurs even though the system is said to be based on the defence of civil rights and therefore worthy of defending.

The following example further illustrates in negative terms how democratic or civil rights are one and indivisible, and underlines the truth that an attack on one is an attack on all:

According to a May 5 open letter to the Canadian Labour Congress  (CLC) issued by the Justice for Mohamed Harkat Committee, Denis Coderre, former Liberal Member of Parliament and current Mayor of Montreal, was a speaker at its 2014 Convention in Montreal. Pointing out that this was despite the fact CLC had supported the campaign against Security Certificates since its convention in Montreal in 2005, they objected to Coderre’s presence, pointing out a significant chronology:

“While serving as Minister of Immigration from 2002-2004, Denis Coderre signed the original security certificate against Mohamed Harkat. He did so within a regime that, difficult as it may be to believe, was even worse than today’s Security Certificate regime. He signed at least two such certificates: those against Mr. Harkat and against Adil Charkaoui. Those certificates were so flawed that the Supreme Court of Canada ruled them unconstitutional. New certificates were issued, and one of those was subsequently struck down.

“Many of today’s attacks on public service workers date to Coderre’s tenure as Privy Council President under that monument of labour rights, Paul Martin.

“Since his mayoralty began, he has done nothing to reverse the attacks on freedom of speech and freedom of assembly begun during the Quebec Students’ Strike of 2012. Bylaw P-6, which criminalizes dissent, continues unabated.”

How can collective security be achieved if the powers-to-be and the legal means to do so deprives the members of the collective of their security? This is why our security lies in the defence of the rights of all.


You can read the Supreme Court of Canada’s ruling here: http://ow.ly/wPQ8k

The Justice for Mohamed Harkat Committee may be found here: http://www.justiceforharkat.com/news.php

Maritimers rally against secret trails


Sandra L. Smith, “The Relationship Between the Means and the End – ‘A Real Testament to the Canadian System’,” TML Daily, December 11, 2007 – No. 203


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