10/04/2013 05:45 EDT | Updated 01/23/2014 06:58 EST

Secret Supreme Court hearing focuses on security certificate

The Supreme Court of Canada has a well-earned reputation for being an open, public and transparent court.

Its hearings are televised and its rulings often reinforce the notion that courts function best when they are transparent. It once famously warned of "the mischief that flows from a presumption of secrecy."

So it is somewhat ironic that the Supreme Court will be holding a secret, in camera hearing later this week. It's a hearing so secret that the court will not even confirm where it is being held because of national security concerns.

At the centre of the hearing is a little-used immigration tool called a security certificate, which allows suspects to be detained for years without charge on national security grounds. The certificates have been issued against six people in the past 15 years.

"To find a precedent for this, you have to go back to early days of the Cold War, when you’re looking at allegations around the Gouzenko affair and spy rings operating in Ottawa," says Mike Larsen, a criminology instructor at Kwantlen Polytechnic University in Surrey, B.C.  

Larsen discusses security certificates with Michael Enright on CBC Radio's The Sunday Edition this weekend.  

Igor Gouzenko was a clerk at the Soviet Embassy in Ottawa who defected in 1945 with classified documents that revealed a Soviet spy ring operating in Canada. The defection, and the international fallout it created, is considered by many historians to be the opening salvo of the Cold War.

The current Supreme Court hearing is examining the case of Mohamed Harkat, an Algerian who came to Canada in 1997 and was eventually granted refugee status.

Harkat denies charges

Harkat was picked up on a security certificate in 2002, based on CSIS intelligence that allegedly linked him to known al-Qaeda sympathizers, including Ahmed Said Khadr, an Egyptian-born Canadian who had close ties to Osama bin Laden in the 1990s.

Harkat denies the charges and questioned the reliability of CSIS’s intelligence after it was revealed that one of its agents on his case was fired after having an affair with someone she was investigating.

Harkat was incarcerated without charge for 3½ years. When he was released, he was placed under some of the most restrictive bail conditions ever ordered in Canada, including house arrest, a GPS monitoring bracelet, 24-hour surveillance and no access to cellphones or computers.

Harkat’s bail restrictions were gradually relaxed over the past seven years, including the removal of his GPS ankle bracelet this summer. 

The Supreme Court hearing on Friday is being held in a secret location so the judges can examine the specific intelligence implicating Harkat while protecting CSIS informants who provided it. An open hearing is being held the day before to examine the legality of the entire system.

“This is secrecy run amok,” Larsen says. “The case is more about secrecy than the specifics around Mr. Harkat.”

Security certificates are a little-used mechanism under the Immigration and Refugee Protection Act, in which CSIS collects intelligence about a foreigner living in Canada who the agency alleges is a threat to national security. They cannot be used on Canadian citizens.

The intelligence is passed along to the ministers of immigration and public safety, who can then co-sign a security certificate ordering the suspect’s deportation.

Confidential intelligence

The intelligence on which that decision is made remains confidential. Besides a generic summary, the suspect has no right to know the specific allegations against him or to face his accuser.

But the certificates have repeatedly led to lengthy incarcerations and limbo over questions about the legality of deporting the men.

Canada is a signatory to the UN Convention against Torture, which prohibits a country from returning a person to a country where he or she may likely face torture. Harkat has argued he would face torture if he returns to Algerian.

The other two men currently on security certificates have made similar arguments about a return to their native Egypt.

But if the three men are national security threats, why don’t police simply charge them?

“Security certificates operate on the basis of intelligence as opposed to evidence. It’s a different evidentiary standard. The government would have to prove wrongdoing beyond a reasonable doubt,” says Larsen, noting that intelligence has a much lower legal threshold than evidence.

“All of the men who were subject to security certificates post-9/11 argued that they should be charged. It’s rare to see people saying 'Please charge me under terrorism law.' "

'Special advocates'

The legality of security certificates has been argued in the courts for years. The Supreme Court ruled they were unconstitutional six years ago, but the government reworked the system, introducing "special advocates" to act on an individual’s behalf.

Special advocates are security-cleared lawyers who have access to CSIS intelligence implicating the suspect, but are not allowed to share it with anyone, including the suspect.

Special advocates are also not allowed to question or cross-examine CSIS officers or informants about the intelligence.

While the security certificates are rarely used, Larsen says their underlying principles are beginning to creep into other areas of the Canadian legal system. He points to the secrecy surrounding the upcoming Supreme Court hearings as one example.