Wednesday, January 19, 2011

Harkat Ruling Concludes Government Need Not Tell the Truth in Secret Hearings in Canada,

Harkat Ruling Concludes Government Need Not Tell the Truth in Secret Hearings in Canada, and a Federal Court Judge, Through his Quiet Acquiescence, Agrees!

Latest Revelations in Secret Trial Detainee Mohamed Harkat’s Case Reveal New Levels of Lawlessness in Security Certificate Regime

(report from Matthew Behrens of the Campaign to Stop Secret Trials in Canada )

January 18, 2011 – Mohamed Harkat, an Algerian refugee detained in Canada on secret allegations he is not allowed to see since December 10, 2002, got bad news last month when a Federal Court judge, Simon Noel, kickstarted the process of deporting him to torture.

In a shockingly poor decision, Noel upheld the security certificate against Harkat on the basis of unsubstantiated secret allegations as well as CSIS-created “summaries” of alleged phone conversations from over a decade ago, the originals of which, if they ever existed, have long since been destroyed. (Security certificates allow the government, using the lowest standards of proof, to indefinitely detain immigrants and refugees on the basis of secret allegations as well as secret information not normally admissable in a court of law, with the ultimate aim of deporting them – usually to torture). Noel also made an adverse finding against Harkat that completely contradicted a fellow Federal Court judge’s ruling on the same issue in a separate security case last year. (See more at )

As if to justify the secrecy that has condemned Harkat, Noel has since issued a new, redacted set of formerly “Top Secret” footnotes to that ruling which, government lawyers had argued, would imperil national security if released. Their recent public availability has not brought the sky crashing down on us, but anyone interested in reading them will find that the most dangerous thing about them is the amount of toner ink that will be used up in printing page after page of large, solid black blocks keeping secret what lies underneath, punctuated only occasionally by a word or two. Page 7, for example, is incredibly useful. Under the section labeled “Weapons,” not a word is released, just lots of black ink. Under “Afghanistan,” all we see is “Harkat denies having gone to Afghanistan,” followed by a one-third page of black ink. Under “Financial Resources” is another large block of black ink, at the bottom of which, helpfully, is Noel stating “Based on this information, the Court concludes that Harkat did have other financial resources available to him while in Pakistan.” Pages 13-14 are completely blacked out.

But things only get worse in a separate, redacted version of a formerly top secret annex to that decision.

The latter proves quite troubling since it deals with a motion by security-cleared lawyers, known as special advocates, who argued that the government Ministers bringing the certificate “had breached their duty of candour and utmost good faith as they did not bring their best efforts to gather the information for the Court in order for it to reach an informed decision.” (For those unfamiliar with the term, “candour” means “the quality of being open and honest; frankness; fairness; impartiality.”

That the special advocates would bring such a motion is not surprising. CSIS, the spy agency behind the certificates, has a long history of not sharing its complete file in the secret chambers where these hearings are held. This includes withholding information that would paint the detainee in a positive light, not telling judges that their informants had failed lie detector tests, and using information gleaned from torture.

Indeed, Judge Noel wrote in a separate decision related to the Harkat case in 2010 that such behaviour, and the “failure of CSIS, and of its witnesses, to act in accordance with the obligation of utmost good faith…has undermined the integrity of this Court’s process….Evidence of a failure to disclose relevant evidence which may negatively affect the Court’s determination of the reliability of a human source has been put before the Court….information filed in support of the certificate by the Ministers has been ‘filtered’ and that undertakings made to the Court have not been fulfilled.”

With someone’s life and liberty at stake, the government tried to pull a fast one, and got caught. What’s remarkable is how Noel was willing to give them another try and believe them the second time around, even though he had no way of knowing whether CSIS and the Ministers were really telling the truth this time. After all, as we learned from a Federal Court decision that came out last December in a related security certificate case, CSIS, which had been ordered to stop listening in on solicitor-client calls in these proceedings, continued to do so for an additional two years in clear defiance of a court order. How on earth could Noel have concluded that CSIS and its minions were not simply pulling another fast one, continuing to act in an illegal and dishonest manner?

A number of years ago, the Supreme Court of Canada held that a duty of candour and utmost good faith was especially important in secret hearings (excuse the oxymoron), because the individual who was not in the room could not defend her/himself. But according to the released Annex in the Harkat case, when faced with a special advocate motion that such honesty was clearly lacking, “The Ministers replied that the duty of utmost good faith does not apply to security certificate proceedings.”

Noel says that regardless, in his opinion, the ministers provided him with enough information to nail Harkat in absentia. Therefore, he finds that he does not wish to “pronounce myself as to the scope of the duty of good faith” in secret hearings, a statement that seems to imply there is wiggle room to justify, say, 50%, or even 30% good faith, as opposed to the 100% one would hope for. His particularly harsh approach to Harkat, especially after the government’s malfeasance, speaks once again to the inherent unfairness and danger of secret hearings: the lack of transparency means it is impossible for us to know exactly what went on, and Mr. Harkat, as a result, faces a one-way ticket to torture unless people across this continent speak up and intervene.

That first intervention may well be adding your name to those opposed to secret trials in Canada at

There is plenty you can do to say no to secret trials and the broader agenda of political repression
1. Immediately sign on to the statement against secret trials located at

2. Learn more about the manner in which “national security” is increasingly used as a means of repressing First Nations, refugees and immigrants, political activists, and so many more, and how we can resist that agenda, at the Whose Security? Our Security gathering in Montreal February 4-6. More information at At the close of that forum there will be a solidarity dinner with Sophie and Moe Harkat, with proceeds going to the campaign to support Justice for Mohamed Harkat.

3. Read the story of resistance to secret trials by Sophie Harkat at
Campaign to Stop Secret Trials in Canada, PO Box 2020, 57 Foster Street, Perth, ON K7H 1R0