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Vol. 78/No. 22      June 9, 2014

 
Canada court backs deportations
based on secret evidence
 
BY JOHN STEELE  
MONTREAL — Algerian refugee Mohamed Harkat once again faces deportation to his native country, where he says he would face possible torture and death. The Canadian Supreme Court unanimously ruled May 14 that the federal government can deport permanent residents and other noncitizens suspected of organizing crimes or declared a threat to “national security” without a trial on the basis of secret evidence.

Harkat, who came to Canada in 1995 and lives in Ottawa, was granted refugee status in 1997. He worked as a pizza delivery driver and gas station attendant. Under Canada’s security certificate laws Harkat was arrested in 2002 and spent four years in jail after the Canadian Security Intelligence Service accused him of being an al-Qaeda “sleeper agent.” Harkat, who denies the charges, has been living under various forms of house arrest since 2006.

Harkat and four others issued security certificates, commonly referred to as the “Secret Trial Five,” have been fighting arbitrary detentions and deportations threats for many years.

Security certificates, which have been imbedded in federal immigration law for decades, are used to detain and deport noncitizens without trial. The decision to issue one is based on secret evidence that neither the accused nor their lawyers can see or challenge. In 2008 the federal government revised the security certificate laws after the Supreme Court a year earlier ruled them unconstitutional. To meet the court’s objections, the accused can now assign “special advocates” to review evidence, but they are not allowed to divulge what they see.

Under the revised law, a federal judge in 2010 once again ruled Harkat a threat to national security. This decision was overturned in 2012 by the Federal Court of Appeal after it was revealed that the Canadian Security Intelligence Service had destroyed the 13 wiretap recordings on which much of the secret evidence was based. But the May 14 Supreme Court ruling overturned that decision.

“We were shocked and devastated,” Sophie Harkat-Lamarche, Harkat’s wife, said in a phone interview. “The court gave us absolutely nothing. Mohamed never got a chance to clear his name from being labeled a terrorist. The decision opens a dangerous precedent for using secret trials against other people.”

We “regret that this decision leaves in place unequal protections for noncitizens’ basic rights,” declared a May 14 press release by the International Civil Liberties Monitoring Group and the Canadian Council for Refugees. “When these rights are at stake for citizens, such as in criminal proceedings, we do not tolerate the use of secret evidence.”

Over the past 22 years there have been 30 security certificate proceedings, according to Canadian Council for Refugees lawyer Barbara Jackman. Now the use of secret evidence and closed-door proceedings is on the rise in other civil and immigration cases. Since 2008, according to Jackman, the federal court has conducted secret proceedings in more than 100 cases of judicial review of decisions where Ottawa claims national security reasons to bar public hearings.

More than 6,000 people have signed a statement against the government’s use of security certificates, which can be viewed online at: www.harkatstatement.com.
 
 
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