Harkat was arrested on Dec. 10, 2002, in the heated aftermath of the 9/11 terrorist attacks.
Twenty-two years after the federal government first launched its bid to deport Ottawa’s Mohamed Harkat to his native Algeria as a terrorist, a court will once again convene to consider the case.
A Federal Court hearing in December will review the “minister’s opinion,” written by an unnamed senior official at Immigration, Refugee and Citizenship Canada, that concluded Harkat posed a serious threat to Canada as a member of the al-Qaida network and should be deported despite holding refugee status in this country.
The judicial review will decide if that opinion, issued in October 2018, was legally fair and reasonable.
Harkat, now 56, arrived in Canada in October 1995 and has been living in Ottawa, or jail, ever since.
He says he will be tortured or killed if returned to Algeria, a country he fled in 1990 as a university student opposed to its then military-backed government. After leaving Algeria, he spent five years in Pakistan.
The minister’s opinion said that although Harkat did not commit terrorist acts directly, he was “complicit” in the crimes of those he assisted.
The opinion also concluded it was unlikely Harkat would be mistreated in Algeria given how much time has passed since he left the country.
“After fully considering all facets of this case, including the humanitarian aspects, and an assessment of the possible risks that Mr. Harkat might face if returned to Algeria, and the need to protect Canadian society, I find that the latter outweighs the former,” the official said. “I am of the opinion that the nature and severity of acts weighs in favour of Mr. Harkat’s removal from Canada.”
Evening Update
Harkat has asked Federal Court Justice John Norris to quash the minister’s opinion and let him stay in Canada permanently.
In court documents filed as part of the hearing, defence lawyer Barbara Jackman said the idea that Harkat committed acts so grave that he should be deported to a country where he could be tortured is “irresponsible and perverse” and “makes a mockery of the process.”
Section 115 of the Immigration and Refugee Protection Act says Convention refugees cannot be deported to a country where they’re at risk of persecution, torture or cruel and unusual punishment, unless they pose a danger to the security of Canada.
Jackman contends Harkat is an ordinary refugee who has lived peacefully in Canada for decades and has never taken part in an act of violence or been directly connected to one.
He has built a family, home and community in Ottawa, she said, despite being mistreated by overzealous security officials.
Jackman alleged the Canada Border Services Agency (CBSA) and the Canadian Security Intelligence Service (CSIS) are trying to “salvage their own reputations” given that three of the five people detained under the security certificate regime have won their court cases.
“Mr. Harkat’s refoulement to Algeria would be the final chapter in the hyped narrative maintained by the CBSA and CSIS over the years,” she wrote.
Harkat was arrested on Dec. 10, 2002, in the heated aftermath of the 9/11 terrorist attacks, when North American security agencies were under intense pressure to identify and neutralize al-Qaida “sleeper cells.”
He was taken into custody on the strength of a security certificate, a powerful and rarely used instrument of Canada’s immigration law. It allows the government to detain foreign-born terror suspects indefinitely and to present evidence in secret against them.
Harkat spent more than three years in jail, including a year in solitary confinement, and was under strict house arrest years after that.
Before his arrest, he worked as a pizza delivery man and gas station attendant while also developing an expensive casino gambling habit. He married Sophie Lamarche, whom he met at the gas station, in January 2001.
Harkat has always maintained he had nothing to do with al-Qaida, and was never involved in terrorism.
In December 2010, Federal Court Judge Simon Noël deemed Harkat a member of the terrorist network and linked him to several Islamic extremists, including Canadian Ahmed Said Khadr, Saudi-born Ibn Khattab and Abu Zubaydah. He said Harkat operated a guest house for Khattab in Peshawar, Pakistan for at least 15 months.
Noël also found that Harkat offered assistance to two Islamic extremists who travelled to Canada.
The government’s case against Harkat was based on written summaries of 13 wiretapped phone conversations – the original tapes were destroyed – and at least two unnamed informants, one of whom failed a lie-detector test. Some parts of the government’s case remain secret to this day.
An appeal court later overturned Noël’s ruling due to what it regarded as procedural unfairness.
In May 2014, however, the Supreme Court upheld the government’s security certificate regime and reinstated Noël’s decision that found Harkat to be an active member of the al-Qaida network.
In the decade since then, Harkat has been living and working in Ottawa – he’s now a church janitor – while fighting his extradition in court.
In an affidavit filed in Federal Court, Harkat said he would be imperilled in Algeria by virtue of the media attention that has accompanied his case and by the terrorist label attached to him.
“I am not a terrorist, but the profile given me is that of a terrorist,” he wrote. “I cannot escape this profile, and it puts me very much in danger in Algeria.”
Harkat conceded that the Supreme Court has found him to be a member of a terrorist network, but insisted that he “cannot admit involvement in terrorist acts that I never committed.”
“I am not a threat to the security of any country, including Canada,” he insisted, “and I have not engaged in any acts of violence, much less a serious one, which would justify my return to Algeria.”
The Harkat case is one of Canada’s longest-running judicial matters.
