A federal lawyer says an Ottawa man facing deportation under a federal security certificate had ample opportunity to defend himself from terrorism allegations under Canada's revamped security law, but chose not to use that opportunity.
David Tyndale told the Federal Court of Appeal Wednesday that Mohamed Harkat could have given a detailed defence against federal allegations he associated with terrorists but instead chose to be evasive and contradictory. Harkat's defence, Tyndale argued, was not limited to mere denials as his lawyers have suggested.
``That's not what Mr. Harkat was limited to: It's what he chose to do on a number of occasions,'' Tyndale told the appellate court.
Harkat's defence team has asked the Appeal Court to strike down the federal government's revamped security certificate law, introduced in 2008, as unconstitutional.
The previous version, used to detain and deport foreign-born terror suspects, was effectively struck down by the Supreme Court in February 2007. The high court said the process was so secretive it denied defendants the fundamental right to meet the case against them.
The Harkat case is the first to test whether the government's revised security certificate law can withstand a challenge under the Canadian Charter of Rights and Freedoms.
Harkat's lawyers say the process still does not allow defendants to meet the case against them since they're only given an outline of allegations due to national security concerns. The allegations, they say, lack critical details, such as the information's origin.
Harkat, an Algerian refugee, is appealing a December 2010 Federal Court decision by Judge Simon Noel, who upheld the government's case against Harkat, declaring him an active and dangerous member of the al-Qaida network.
Tyndale said that although Harkat was not allowed access to classified information, his legal proxies - lawyers known as special advocates - were.
Because the new security certificate process allows for legal proxies, Tyndale argued, it meets the Supreme Court's standard for a fair hearing as it offers a meaningful substitute for full disclosure.
Harkat was given written summaries of the classified information used against him and his special advocates were allowed to challenge that evidence in closed hearings, Tyndale said.
``The issue here isn't that Mr. Harkat didn't know the case he had to meet,'' Tyndale argued, ``but that his evidence was found to be evasive, contradictory and implausible.''
By way of example, Tyndale pointed to Harkat's defence against the government allegation that he ran a guest house in Peshawar, Pakistan, for jihadists, and also worked as a chauffeur for Chechen rebel leader Ibn Al-Khattab in 1994 and 1995.
Harkat admitted that he lost his job working for a Muslim charity in June 1994. But in his testimony, he offered little explanation of what he did between that time and September 1995, when he arrived in Canada, Tyndale said.
``Mr. Harkat gave a response, but his response was effectively, `I didn't do a lot at that time.' Judge Noel didn't believe it.''
Tyndale said that while Harkat had enough information to meet the case, ``his choices of responses didn't turn out well for him.''
The case against Harkat relied heavily on written summaries of telephone conversations recorded by CSIS between 1996 and 1998. In keeping with what was then internal policy, however, CSIS, Canada's spy agency, destroyed the original recordings.
Defence lawyers have asked the Appeal Court to overturn the finding that Harkat is a terrorist and throw out the summaries entered into evidence.
Harkat's lawyer Matthew Webber said the summaries were filtered for security information, not evidence, and cannot be trusted as an accurate reflection of what was said.
Webber said Harkat's ability to defend himself was unfairly restricted since he could not challenge the translation of the recordings, voice identification or other potential flaws.
After the previous security law was struck down in 2007, Parliament drafted a new law which gave terror suspects the right to be represented by special advocates and to receive written summaries of evidence heard in-camera.
