Crown suffers partial defeat in Harkat case

After nearly ten years, Mohamed Harkat has won another partial victory from the crown in his security certificate case. While the Federal Court of Appeal (FCA) did not rule in favour of his appeal of the constitutionality of the Security Certificate process, it did rule that he was treated unfairly and that the judge made his ruling that the security certificate on Harkat was reasonable based on faulty information.

Security certificates result in non-citizens of Canada being detained for indefinite periods of time without charge, and without access to information used against them to allege a possible association with terrorist groups based on hearsay and intelligence whose source is very doubtful.

The court has ruled that the reasonableness of Harkat’s certificate, upheld in a Federal Court in December 2010, is set aside, and that a new hearing must be held to make its decision without taking into account the faulty material.

That material included summaries only of original transcripts of telephone calls supposedly recording conversations with Harkat. But CSIS destroyed the original tapes and transcripts, so there is no way of knowing what other, possibly exonerating, information might have been contained within them.

The FCA also ruled that the judge in the case, Justice Simon Noël, erred in creating a “class privilege” to protect human sources of information used against Harkat. That ruling may open the door to cross-examination of human sources, at least behind closed doors during secret proceedings.

The ruling is another blow against the feds’ security certificate process after two other security certificates were quashed in 2009, for Hassan Almrei of Toronto and Adil Charkaoui of Montreal, and after news last week that the notorious “Guantanamo North” prison was closed late last year in Kingston. And in late April Mohammed Mahjoub asked a court to throw out his certificate after crown counsel inappropriately took privileged materials belonging to Mr. Mahjoub and his lawyers, viewed and copied them and mixed them with their own.

Enough is enough. Abolish the security certificate process.