The court will issue its ruling this morning at 9:45 a.m. ET on whether security certificates, the means by which Harkat was detained and threatened with deportation, violate his constitutional rights. It will also rule about whether he was given enough disclosure about evidence against him obtained from informants.
Harkat, born in Algeria, came to Canada in 1995 and was granted refugee status in 1997. He married Canadian citizen Sophie Lamarche, who has become an advocate for his cause.
He was arrested in 2002 and detained without a trial under the provisions of a security certificate that was issued against him.
Security certificates have been in place since the '70s, but after the Sept. 11 attacks the government beefed them up, using them to detain or deport non-citizens or foreign nationals on suspicion of being involved with terrorism.
Harkat was released from custody in 2006, but until 2013 he was under house arrest and had to wear an electronic tracking bracelet. When those constraints were lifted he was allowed to use a cellphone and computer.
Allegations against Harkat
The government's allegations against Harkat are lengthy.
Harkat is accused of being part of what the government calls the Bin Laden network. He is accused of operating a safe house in Peshawar, Pakistan, for 15 months for agents who were moving in and out of Afghanistan. He is also alleged to have been in contact with suspected terrorists when he first came to Canada.
A Federal Court judge who initially ruled against Harkat found he lacked credibility, saying his behaviour was consistent with the theory that he had come to Canada to be a sleeper agent.
At the Federal Court of Appeal, the constitutionality of security certificates was upheld, but judges ruled that the identity of sources who provided information about Harkat is not privileged, that is, it must be disclosed to the judge and Harkat's lawyers at a closed hearing.
The government is appealing that decision, arguing it is sufficient to provide summaries of some of the intercepted conversations with Harkat, or about him, rather than the recordings themselves. Many of the tapes or transcripts of those conversations were destroyed by the Canadian Security Intelligence Service.
If the Supreme Court strikes down security certificates, it will be for the second time.
In 2007, in a case that involved Adil Charkaoui, a Moroccan-born permanent resident in Canada, the court found that Charkaoui's security certificate was contrary to the concepts of fundamental justice. That court also found the secrecy around the certificates violated the principle that a person whose liberty is in jeopardy must be able to fully address his or her case.
The government redrew the legislation in 2008, this time setting up a system of special advocates to represent the interest of security certificate holders in closed court hearings.
Special advocates are described by the Department of Justice as "top-secret, security-cleared, private lawyers who are independent of government."
They are allowed to view information involving national security about their clients. However, once that information has been inspected, the advocates cannot communicate it to their clients without a judge’s authorization.
5 questions about Harkat's case
On Wednesday the top court will address five questions about Harkat:- Are security certificates, even with the rules that permit special advocates, constitutional?
- Did the Federal Court judge err in concluding that Harkat's security certificate was reasonable?
- Can undercover informants used by CSIS be cross-examined in a closed court, or, as in Harkat's case, are they protected by a special exemption to shield their identity?
- Did the Federal Court judge err when he ruled that intercepted conversations, consisting often of phone taps of conversations with Harkat, or about him, be excluded from the evidence?
- Was Harkat treated fairly?
If the Supreme Court rules the entire regime of security certificates is unconstitutional, it will be the sixth time the highest court has ruled against the Harper government. Previously it has found two of the government's tough-on-crime bills, as well as prostitution laws, violate charter rights.
It also nixed the government's appointment of Justice Marc Nadon to fill a vacancy on the top court and decided the government could not unilaterally reform the Senate.
If the court upholds security certificates, Harkat could be deported, after more than a dozen years in Canada. He has argued he would face torture or death if he were forced to return to Algeria.