The Harkat press conference in Ottawa today was eye-opening.
Today is International Human Rights Day. It is also the eighth anniversary of the arrest of Mohamed Harkat, a former Algerian citizen who came to Canada in 1995 and has never been in trouble with the law. It was only in the wake of the 9/11 hysteria (and I choose that word advisedly) that he was rounded up and imprisoned for four years under a notorious “security certificate.”
This inverts everything Canadians understand about natural justice. The accused have to prove themselves innocent. The evidence (or, as lawyer Norm Boxall corrected us, “information”—hearsay and anecdotes don’t amount to “evidence”) is largely withheld from the defence. And the “special advocates” who were permitted to attend the closed sessions of the hearing, even though they faced 14 years in jail for disclosing anything in the secret sessions of the hearing, were not, as we learned today, allowed even under those circumstances full access to the “evidence” against Harkat.
Justice Simon Noël ruled some time ago that the then-legal security certificate legislation was perfectly constitutional. Four years ago, the Supreme Court of Canada disagreed. The Conservative government rammed through a new law that differed from the old one only in cosmetic respects. It remains untested before the Supreme Court—but, I suspect, not for much longer. This was Noël’s second kick at the cat, and, judging from the devastated looks of Harkat and his spouse Sophie today, there’s not much life left in the beast.
The issue here, at least for me, is process. Are we as Canadians satisfied with a judicial hearing that denies the right of an accused to face his accusers in court, or even know what the case against him is? Where CSIS has destroyed evidence and withheld other, exculpatory, evidence? Not to mention the over-reliance on a now-discredited source (Abu Zubaydah)? This might make a good plotline for a latter-day Kafka, but it has no place in a Canadian court.
My question to readers is this. Obviously the current system for determining the guilt or innocence of a person accused by CSIS and held on a security certificate falls woefully below the most minimum standards of natural justice. In that context, the ruling against Harkat, to quote another Ottawa judge under different circumstances, is nothing more than a “travesty.” What other system would preserve national security while also protecting individual rights under the Charter?
The floor is open.