Mohamad Harkat: Appeal Yields Partial Victory For Accused Terrorist

CP  |  By Posted: 04/25/2012 1:15 pm Updated: 04/25/2012 6:28 pm

OTTAWA - A man the federal government wants to deport over alleged ties to al-Qaida has won a partial victory at the Federal Court of Appeal.

In a complex ruling Wednesday, the court upheld the constitutionality of Canada's security certificate process in the case of Mohamed Harkat. But it also found that some evidence against him must be excluded from a new court hearing.

The former Ottawa pizza-delivery man faces removal from Canada under a certificate that declares him a security threat because of alleged terrorist links. He denies any terror connection.

Harkat and his lawyers greeted the ruling as good news because it gives him another chance to clear his name at a new Federal Court hearing at a later date.

He lives under house arrest with his wife, Sophie, under a strict set of conditions that includes wearing an electronic tracking bracelet on his ankle, weekly reporting to authorities and a ban on leaving town without permission.

The court ruled that the use of so-called special advocates — lawyers appointed as watchdogs for the accused during closed-door hearings — is constitutional.

But it also said that because the originals of certain conversations were destroyed by Canada's spy agency, any remnants of that material must be excluded from a re-hearing of Harkat's bid to quash the security certificate against him.

Harkat's lawyers said the exclusion of that pivotal evidence means that their client has a good chance of succeeding when the Federal Court reconsiders the case.

"We believe this will have a profound effect for the good of our client," said lawyer Matt Webber.

Lawyer Norm Boxall said he is happy for Harkat but "we remain solidly of the belief this (security certificate) regime is unconstitutional," he said.

Public Safety Minister Vic Toews said he was pleased with the ruling because it upheld the constitutionality of the security certificate system.

Toews called the security certificate "an important tool in an array of tools."

The minister declined to comment further, saying the case is still before the courts.

Harkat, 43, was arrested more than nine years ago on suspicion of being an al-Qaida sleeper agent, although he denies any involvement in terrorism.

If Harkat is successful in his next legal challenge, the federal government could continue to appeal the case, possibly to the Supreme Court of Canada.

Boxall said it would be "disappointing and unfair" for the government to pursue the case, given that the bulk of the evidence against Harkat has now been excluded.

Wednesday's ruling "solves the issue" for Harkat, said Boxall.

"But the issue for the process itself and continued proceedings with secret evidence that remains for another day with a final word on it," said Boxall.

Harkat appeared emotional at times at a news conference after his lawyers obtained a copy of the ruling.

"It gives me another day to breathe on this earth," he said.

"It's not over but at least one day I'm going to see the light at the end of the tunnel."

The Supreme Court of Canada struck down the security certificate system five years ago, saying it violated the Charter of Rights and Freedoms.

In 2008, the government revamped the process and reissued certificates against Harkat and others.

A major change was the addition of the special advocates.

A judge ruled in late 2010 that the retooled system was constitutional, a ruling that was upheld Wednesday.

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