Harkat
Continued From Page 1
the remaining two certificates).
On the other hand Harkat
and his spouse, Sophie, felt
“sheer and utter devastation”
after the Federal Court’s verdict, says Harkat’s lawyer Norm
Boxall of Ottawa’s Bayne, Sellar,
Boxall.
Boxall told The Lawyers
Weekly his client will seek to
certify questions for appeal to
the Federal Court of Appeal.
Notwithstanding Justice
Noel’s contrary view, the new
security certificate regime—
even with the addition of special
advocates—does not give the
person named in the certificate
sufficient disclosure of the government’s evidence to know the
case and properly defend himself, Boxall maintained.
He pointed out that the Federal Court also upheld the constitutionality of the predecessor
security certificate regime that
was eventually struck down by
the Supreme Court.
Boxall said the judge’s core
findings against his client — e.g.
that Harkat traveled to Afghanistan and that he ran a guesthouse for Islamic extremists in
Pakistan — were based largely
on secret government evidence
that Harkat’s lawyers could not
effectively probe or attack.
Harkat was thus reduced to
baldly denying key allegations—which in turn hurt his
credibility with the court.
“This is the real catch- 22 for
innocent persons,” Boxall suggested. “If there is an allegation
[for example] that you…said
something on the phone. And
you didn’t talk on the phone.
What more can you say except
that ‘I didn’t do it.’ You could do
more than a denial if they would
play the tape and you could say:
No abuse of process: Federal Court
Canada’s spy agency’s belated disclosure that a
source failed a polygraph; its destruction of evidence
and its interception of solicitor-client communications
do not cumulatively amount to an abuse of process,
the Federal Court has ruled.
On Dec. 9, Justice Simon Noel dismissed Mohammed
Harkat’s motion to stay security certificate proceedings
against him, or alternatively, to exclude from evidence
the summaries of conversations for which the Canadian
Security Intelligence Service (CSIS) had destroyed its
original audio recordings and operational notes under a
policy later kyboshed by the Supreme Court.
“The arguments put forward by the applicant are
remnants of past reproaches and alleged breaches,
most of which have been remedied by the court,”
Justice Noel wrote.
He said that although Harkat’s telephone was
monitored, CSIS analysts stopped listening as soon as
they determined the communications were of a
solicitor-client nature.
The judge also dismissed a motion for a stay of
proceedings by Harkat’s special advocates, which the
lawyers “based on their dissatisfaction with a number of
measures taken by the [government] to obtain
information in relation to Mr. Harkat.”
The CSIS summaries were reliable, the judge held.
“Substantial, important disclosure took place in the
interest of Mr. Harkat which in my opinion gave him good
knowledge of the case and he was able to respond to it.
Mr. Harkat did not show or suffer an actual prejudice in
his capacity to answer the case made against him.”
— By Cristin Schmitz
“In short, Mr. Harkat
has been informed of
the case made against
him. He has been
cognizant of all the
allegations made
against him…
‘That’s not my voice.’ Or you
could do more if they said: ‘John
Smith said this about you.’ And
you could say: ‘Well that John
Smith doesn’t like me, or he has
got credibility problems, or
something.’ [But] if an innocent
person is given an allegation,
and no evidence, they are left
with only one choice — a denial.”
Boxall, whose co-counsel is
Mathew Webber of Ottawa’s
Webber Schroeder, added “it’s
incredibly frustrating to deal, as
a lawyer, with a case where you
are challenging things on the
public record, and the court has
secret material, and your oppos-
ing counsel has access to the
secret material, and so you are
limited in that sense.”
“It doesn’t seem fair,” he con-
tinued. “You feel…like you’ve got
a hand tied behind your back,
and they put a blindfold on you,
because you don’t know where
to swing with the one hand
you’ve got.”
By email, federal spokes-
person Michael Patton quoted
Public Safety Minister Vic Toe-
ws’s comment on the Harkat
decision, inside the Commons,
that “our priority remains tak-
ing the action necessary to
ensure Canadians are safe.”
Harkat’s special advocates,
Paul Cavalluzzo and Paul Cope-
land of Toronto, declined com-
ment, citing the statutory gag
which bars special advocates
from talking about their security
certificate cases, without judi-
cial permission.
“I know it’s a published judgment [but] this is what the law
is,” Cavalluzzo told The Lawyers
Weekly.
Justice Noel’s decision is the
Federal Court’s first pronouncement on the constitutionality of
Bill C- 3’s 2008 amendments to
the Immigration and Refugee
Protection Act (IRPA).
Bill C- 3 reformed the old
security certificate regime
struck down in 2007 by adding
special advocates (SAs) to the
process. SAs are senior, secur-ity-cleared lawyers who work
behind closed doors to promote
and defend the security certificate detainee’s interests during
in camera court proceedings.
They urge the court to order
disclosure to the named person
of evidence for which the government claims national security privilege, and also challenge
the credibility and reliability of
the government’s confidential
sources and evidence.
Justice Noel upholds Canada’s new security certificate
scheme which he said is superior
to its predecessor legislation,
and to the U.K. special advocate
system (which inspired Bill C- 3)
because it gives more disclosure
and gives the special advocates
more responsibilities, powers
and opportunities to defend
and protect the rights of the
named person.
He held that the IRPA’s security certificate provisions safeguard, rather than violate, the
Charter’s s. 7 guarantee not to
be deprived of life, liberty or
security of person except in
accordance with the principles
of fundamental justice.
He agreed with the govern-
ment’s assertion that the law
strikes an appropriate and fair
balance between protecting
confidential information that
implicates national security
and/or a person’s safety and
protecting the named person’s
right to be informed of the case
he has to meet.
Reasons: Harkat (Re), [2010] F.C.J. No.
1426, [2010] F.C.J. No. 1427 and [2010]
F.C.J. No. 1428.
Equality rights are all very well, but not in my suburban back yard
Miller
Continued From Page 5
course they don’t ‘know’ it’s
Christmas!” Mr. Keyner exclaimed
during argument, with no little
passion. “Over a third of them are
Muslims! Most of the rest don’t
celebrate Christmas when we do,
and certainly not in the way we
do!” After a pause, he added,
more quietly, “And heavenly grace
and light seem to desert them, no
matter what time of the year we
think it is in Ottawa. ... ”
“... where we patriated our
constitution nearly 30 years ago,
in the era of the global village.”
Mr. Keyner became excited
again. “‘Persons’ now include
women. Dominion Day has
become Canada Day. We no
longer sing ‘God Save the Queen’
at the cinema and hockey games.
It’s time that the Judaeo-Chris-
tian traditions rejoin hands and
sing, Walkin’ in a Winter Won-
derland. Okay, or maybe Do
They Know It’s Chanumas.”
As to the application against
the CBC, Mr. Keyner says that
broadcasting the impugned song
(composed in 1934 by Felix Ber-
nard and Richard B. Smith) con-
stitutes a feeble attempt at inclu-
siveness, “particularly as it’s
virtually the only purportedly
non-denominational winter holi-
day song they play, five, six, or ten
times a day, if not an hour.” What’s
more, the notion of snowfall cre-
ating a “wonderland” rather pales,
Mr. Keyner submits, “when you
have to reconfigure several tons of
it geographically, from your drive-
way to your frozen dead garden,
one shovelful at a time. And then
there’s getting to work and school
in all that festive slush.”
Mr. Keyner claims that the
incessant holiday-time repetition
of said music—and the total
absence on the taxpayers’ net-
works of the single mitigating ver-
sion, entitled (he advises) “Walkin’
’Round in Women’s Underwear”
(Rivers, Bob, “I Am Santa Claus,”
1993, Atlantic/ WEA) — has
driven him mad. To which the
Crown replies, “Well that explains
everything, doesn’t it?”
(At this point, the applicant’s
eyes rolled back in his head and
he collapsed into his chair, such
that the court called a brief
adjournment. Mr. Keyner has
requested that said interruption
be made a matter of record, so
that he might tender it as evi-
dence in his pending “mental
suffering action” in the Ontario
Superior Court of Justice.)
Jeffrey Miller is a writer, freelance translator (
French-Eng-lish), and adjunct professor of
law and literature in the faculty
of law at the University of
Western Ontario. His latest book
is the comic novel, Murder on
the Rebound.
