Ottawa — The Globe and Mail Published on Tuesday, Oct. 20, 2009

The Federal Court is ordering Canada’s spy agency to disclose a second human source in the Mohamed Harket case, an exceptional decision taken after finding the Canadian Security Intelligence Service “filtered” evidence and failed to tell the court that a first key source had failed a polygraph test. The source will only be revealed to the court and special advocates, it will not be made public. It’s the latest in a series of body blows to the agency and its efforts to sanction non-citizens accused of associations with extremist groups.

In the decision released this morning, Mr. Justice Simon Noël of the Federal Court offered his conclusions after having heard secret testimony from three CSIS officials, who explained why a 2002 polygraph analysis was kept from the court. Judge Noël concluded that CSIS did not deliberately hide evidence from the court, but it should have been more aware of its legal duty to provide all relevant information when asked.

“Filtering evidence, even with the best of intentions, is unacceptable,” Judge Noël wrote. “Failing to properly fulfill undertakings made to a Court of law is equally unacceptable.”

In offering a way forward, the ruling states that the exceptional circumstances of the case require CSIS to reveal a source file. “It is necessary to repair the damage done to the administration of justice and to re-establish the necessary climate of trust and confidence which much be present in such an exceptional legal procedure,” the decision stated.

Mr. Harkat, an Algerian immigrant accused of being a sleeper agent for al-Qaeda, has been kept under scrutiny by authorities since 2002. He recently had his onerous house-arrest conditions lifted after seven years of constant surveillance as he awaited the outcome of his security certificate immigration case.

The court hearing into the reasonableness of that certificate will begin in mid-November and public proceedings are scheduled for January and February of 2010.

Manon Bérubé, a spokesperson for CSIS, provided a written statement to the Globe and Mail. There is no indication from the statement that the agency will not comply with the court order.

“The Service reacted promptly to this incident by informing the Court, and quickly implemented new processes, including enhanced training, to improve the accuracy and completeness of information that CSIS provides to the Court relating to the reliability of human sources,” Ms. Bérubé wrote. “The Court notes that CSIS has taken action to remedy this matter by improving its internal processes. The Court has agreed that the case against Mr. Harkat should proceed.”

Norman Boxall, a lawyer for Mr. Harkat, said he’s concerned that if CSIS filters information it gives to the court, it raises the possibility that the original CSIS files have also been filtered.

He also notes that the security certificate process remains unfair, because the new material will not be provided to Mr. Harkat, nor his defence team. The court-appointed special advocates will be allowed to see the material and ask questions about it in secret hearings, but they cannot discuss it with Mr. Harkat or his legal team.

Mr. Boxall also said the court’s finding that CSIS did not deliberately hide information makes no difference to his client.

“It doesn’t matter to Mr. Harkat whether it’s done intentionally or negligently, the consequence to him is the same,” Mr. Boxall said. “If you’re a person whose liberty has been taken away and you’ve had to live under the conditions that he’s had to live under, to hear ‘Sorry, I didn’t do it on purpose.’ No. That’s not good enough.”