The federal arguments, filed in advance of a high court hearing next month, are a staunch defence of the controversial security certificate process — a rarely used immigration tactic that critics say is tantamount to a secret trial.
The Supreme Court proceeding will decide just how open the process should be when the government wants to deport a non-citizen who is branded a threat to national security.
The high court agreed last year to hear a challenge of the security certificate system from Algerian refugee Mohamed Harkat.
It will also review key issues related to evidence in the case of Harkat, taken into custody under a certificate in December 2002 on suspicion of being an al-Qaida sleeper agent. Harkat, 45, denies any involvement in terrorist activities.
He resides in Ottawa with wife Sophie and was recently allowed to remove an electronic tracking bracelet from his ankle. However, Harkat must check in with authorities regularly.
Two other men — Mahmoud Jaballah and Mohamed Mahjoub, both originally from Egypt — face removal from Canada in long-running certificate cases.
The person named in a security certificate receives only a summary of the case against them, stripped of supporting details to protect sensitive security sources and methods.
In a submission to the Supreme Court, Harkat's lawyers argue the process is unconstitutional because it does not provide enough information about the allegations he faces.
More than a decade after his arrest, the former gas station attendant and pizza delivery man "is still unaware of the substance of these very serious allegations," says the filing.
The government contends the process is consistent with the guarantee of fundamental justice under the Charter of Rights and Freedoms.
"The security certificate scheme provides a substantial substitute for full disclosure and allows the named person to know and respond to the Ministers' case," says the federal submission.
"Mr. Harkat is not entitled to any particular process, only one that satisfies the principles of fundamental justice."
The government maintains that a 2007 retooling of the security certificate regime remedied flaws that led the Supreme Court to strike down an earlier incarnation of the process.
In particular, the government introduced special advocates — lawyers with access to secret material who serve as watchdogs and test federal evidence against the person singled out in the certificate.
"As a result of the efforts of Mr. Harkat's special advocates, he was provided with further disclosure," says the federal brief.
Harkat's counsel say the special advocates do not make up for shortcomings in the certificate process, noting the advocates are greatly restricted in what they can say about the case and cannot initiate their own investigations.
In April last year, the Federal Court of Appeal upheld the constitutionality of the security certificate system, but ruled that summaries of some 1990s conversations be excluded from evidence against Harkat because the Canadian Security Intelligence Service destroyed the original recordings.
The ruling left both sides dissatisfied and each asked for a hearing in the Supreme Court.Suggest a correction