OTTAWA (Reuters) - The Canadian government was within its rights to order the deportation of Algerian Mohamed Harkat, the Supreme Court of Canada ruled on Wednesday, upholding a lower court’s finding that Harkat was a liar and likely a sleeper agent for terrorist organizations linked to Osama bin Laden.
In making the decision, the high court also unanimously upheld the constitutionality of Canada’s revised security certificate system. The system allows the government to designate foreign residents of Canada who are suspected of terrorism as inadmissible and can allow for their detention.
The court did, however, allow for the possibility of a fresh court challenge if Harkat, 45, can demonstrate he would be at risk of torture or death if deported, presumably to Algeria in his case.
Harkat’s lawyer, Norman Boxall, said his client was devastated by the ruling and would keep fighting to prevent his deportation and to clear his name.
“Sending a person with essentially a stamp saying we believe they’re a terrorist or a member of al Qaeda to countries that don’t have the sorts of protections that we have in our country ... can create a risk, or if not a risk, a certainty, of unimaginable horror,” Boxall told reporters.
Harkat had come to Canada as a refugee claimant in 1995 and was taken into custody in 2002 under a security certificate. He has since been allowed to go free on bail.
The Supreme Court had struck down the security certificate system in 2007 on the grounds that suspects did not have a chance to see the government’s case against them.
The Conservative government then amended the law to provide for British-style special advocates for the suspects, who would be sworn to secrecy and could look at the evidence. In its decision on Wednesday the court said this was constitutional.
Specifically on Harkat’s case, Chief Justice Beverley McLachlin wrote that she could not find any overriding error in Federal Court Justice Simon Noel’s weighing of the evidence against Harkat or in Noel’s assessment of him.
She said Noel had “found that the evidence provided reasonable grounds to believe that Mr. Harkat had been involved with terrorist organizations. He held that Mr. Harkat’s behavior and lies were consistent with the theory that he had come to Canada as a ‘sleeper’ agent for terrorist organizations.”
Among the conclusions that Noel made in his 2010 ruling were that Harkat was a member of bin Laden’s network and that he had links to the Egyptian Islamic extremist group Gamaa Islamiya, and that the security certificate was reasonable.
The Federal Court of Appeals overturned his decision in part, but the Supreme Court reinstated his conclusion.
Boxall said the next step for the government if it wants to proceed with a deportation, would have to be a “pre-removal risk assessment”, which would weigh the risks to Harkat of deportation and the risk to Canada of his staying.
Harkat has never committed a criminal offense in Canada or been charged with one elsewhere, and the risk to Canada of him staying in the country is zero, Boxall said. He added that after nearly 20 years Harkat is too well known to operate as a sleeper agent. “If he’s alleged to be a sleeper cell, he’s the Rip van Winkle of it,” he said.
The name of the case is Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37.
Additional reporting by Alastair Sharp in Toronto; Editing by James Dalgleish, Peter Galloway and Jeffrey Hodgson