Mohamed Harkat’s hearing last week at the Supreme Court of Canada wasn’t just held behind closed doors, but was, for the first time in the 138 year history of the Court, held in a secret location known only to those directly involved to the proceedings. The reason given for this unprecedented, undemocratic and arguably unconstitutional measure: national security!
Harkat is the latest refugee to be subjected to the security certificate system introduced by the Liberal government and used extensively by the Harper regime since they came to power in 2006. He has been under house arrest for over 11 years now, fighting the government’s attempts to deport him in court.
The crown alleges that he was a member of an Al-Qaeda sleeper cell and that the evidence against him is very strong. The trouble is, in the security certificate process, CISIS, other intelligence agencies and the Minister of Immigration are not obliged to reveal the details of their case, only a summary of it. As Mr. Harkat’s lawyers argue, this violates Mr. Harkat’s rights under the Charter (specifically the right to fair trial in section 11(d) and section 6).
What’s at stake here is much greater than the fate of one man, however tragic that fate might be. At issue are fundamental questions of Canadian justice and common law.
According to the crown’s position, there is a different and lower standard of proof being applied against Mr. Harkat than the normal one applied to Canadian citizens. As a result, what would typically be inadmissible evidence in court because it was obtained illegally (say by torture) is acceptable in these security certificate trials. In 2007, the Supreme Court actually ruled against this type of evidence in the Charkaoui case.
Harper’s amendments to the system are hardly reassuring. The so called “Special Advocates” who will be appointed by the State to test the quality of evidence against the accused are constrained by the rules surrounding this type of hearing which prevent them from even sharing what they have seen with their clients.
If the tragic case of Maher Arar has taught us anything, it is that government ministers cannot be trusted to make the right decision in cases involving deportations and Security Certificates. It is absolutely imperative that precautions be taken to ensure that their judgments be made accountable to Parliament and the public by eliminating secret trials.
The Harper government must comply with the recommendations of Amnesty International and the Special Senate Committee on the Anti-Terrorism Act and repeal the provisions in Immigration Refugee Protection Act that enable ministers to deport non-citizens to countries where they run the risk of being tortured on the basis of obscure evidence.