Judge slams CSIS actions in Harkat terror case

Posted by admin on May 28th, 2009

By Jim Brown, May 28, Canadian Press

OTTAWA — A Federal Court judge is raising questions about whether Canada’s spy agency has been withholding information and lying to the court in its effort to deport terrorist suspect Mohamed Harkat. In a toughly worded judgment released Wednesday, Justice Simon Noel said the “troubling situation” casts doubt on the good faith of the Canadian Security Intelligence Service.

The comments were sparked by a letter from government lawyers, delivered to Noel earlier this week along with a top-secret file that deals with the reliability of an informant CSIS used to help build its case against Harkat.

The letter, prepared by counsel for Public Safety Minister Peter Van Loan and Immigration Minister Jason Kenney, acknowledged that the material should have been turned over earlier and that “failure to do so is a serious matter.”

It added that CSIS was investigating to find out why the delay occurred and would provide further details to the court as soon as possible.

In his ruling, Noel wrote that the delay raises questions about the spy service’s compliance with past court orders and about “possible prevarication” by CSIS witnesses who have testified before him.

Norm Boxall, one of the lawyers for Harkat, said it’s too early to tell what impact the new developments will ultimately have on the case.

But he said it’s clear CSIS hasn’t been as forthcoming as it should have been.

“The integrity of the system is based on the integrity of the security service,” said Boxall.

“They’ve been given a huge amount of trust and it appears, based on this, they’ve breached the trust . . . . It appears that there’s been deliberate action not to supply the court with information.”

CSIS responded to the ruling with a terse statement saying it has “the utmost respect for the Federal Court of Canada and for the Canadian judicial system.”

The service sad it would be inappropriate to comment further because the case remains before the court.

Noel has postponed hearings that had been scheduled for next month in Harkat’s case while the matter is sorted out.

In the meantime, he ordered CSIS to hand over copies of the newly delivered file to special advocates Paul Copeland and Paul Cavalluzzo, two security-cleared lawyers appointed to ensure Harkat gets a fair hearing.

The judge made the order despite the fact that the file’s contents could help identify the CSIS informant, something that’s virtually never done.

In a previous ruling, in fact, Noel had rejected an effort by Copeland and Cavalluzzo to see similar material, upholding the “absolute bar” that normally protects an informant’s identity in the interests of national security.

There’s one exception to that rule, Noel said Wednesday – if failure to share the material would create a “fundamental breach” of fairness that could undermine public confidence in the justice system.

The new ruling doesn’t necessarily mean the name of the informant will be made public, but Noel said the file must at least be shared with the special advocates in confidence.

“The rule of law requires no less,” said the judge. “To do otherwise would bring the administration of justice into disrepute.”

Noel said he’ll be reviewing all the previous orders he’s made for production of information “to see if any further judicial action is required . . . . This review will require the recalling of several CSIS witnesses.”

Boxall said he doesn’t expect the identity of the CSIS informant will be disclosed to him and co-counsel Matt Webber, nor to the general public.

But he said there are theoretically several legal remedies available if the credibility of the CSIS source turns out to be shaky.

The security service could, for example, simply withdraw the evidence and continue with its case based on other information. Or if the source is so crucial the case can’t proceed without his information, the government could stay the proceedings.

CSIS contends the Algerian-born Harkat, a former Ottawa pizza delivery man, should be deported as a security risk because of alleged ties to al-Qaida.

Harkat denies any terrorist links and has been fighting for years to clear his name.


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