From Thursday’s Globe and Mail, Thursday, May. 28, 2009 04:14AM EDT
The credibility of Canada’s spy agency took a major hit Wednesday when a Federal Court of Canada judge suggested that officials may have lied and intentionally concealed vital information for years in a case targeting terrorism suspect Mohamed Harkat.
Mr. Justice Simon Noel also ordered the Canadian Security Intelligence Service to give the name of a key source in the Harkat case and an uncensored file on him to special advocates charged with safeguarding Mr. Harkat’s interests.
“This court will be reviewing all orders, issues and evidence provided to date in this proceeding to see if any further judicial action is required to preserve the integrity of the administration of justice,” Judge Noel warned in his ruling. “This review will require the recalling of several CSIS witnesses.”
Judge Noel’s ruling came just two days after lawyers for CSIS gave him a “top secret letter” providing new information about the reliability of the source and conceding that it probably should have been disclosed earlier.
The judge said in his ruling that the information disclosed on Tuesday “raises questions in relation to possible prevarication by CSIS witnesses called to testify concerning the reliability of the information provided by the human source.”
He went on to list five occasions on which the CSIS officials would have been expected to provide the court or the special advocates with the information about the reliability of the source, but did not.
Besides creating a cloud of doubt around CSIS, the development threw the Harkat case into disarray, derailing a hearing set to commence on Monday into whether Mr. Harkat’s security certificate is reasonable. No new date has been set.
“It is really quite dramatic for this to be disclosed on the eve of the special hearing,” said Norman Boxall, a lawyer for Mr. Harkat. “I would say that it is an enormous development. This is a man who was held in custody in some of the tightest bail conditions, in a case that has been going on for years. It is very, very troubling.”
Judge Noel scolded the government Wednesday for not supplying the information much earlier. He stressed that any government figure who has shown even the slightest disregard for fair process “must be held to account.”
The judge stated that he has repeatedly reminded government lawyers that they have a strict duty to act in the utmost good faith. “In particular … the court commented on the duty of the ministers to provide all information which would tend to weaken their case against Mr. Harkat,” he said.
CSIS spokesman Manon Bérubé said Wednesday that the agency cannot comment other than to state that it “has the utmost respect for the Federal Court of Canada and for the Canadian judicial system.”
Mr. Harkat was held in a Canadian prison from 2002 to 2006 on a security certificate alleging that he was an al-Qaeda sleeper agent with ties to Osama bin Laden. He has never been charged with a crime, but has been under strict bail conditions at home since his release.
Mr. Boxall said Wednesday that if CSIS sources lied or abused the legal process the case against Mr. Harkat may collapse.
“If CSIS is going to have the type of powers they have, they just have to be scrupulous; beyond reproach,” he said. “The reputation of a national service like CSIS requires constant care and attention. That reputation can be lost. If they let us down once, how can we trust them on the rest? The requirement for good faith is so high.”
Mr. Boxall said the timing of events indicates that the government was afraid of losing a Federal Court motion made recently by the special advocates for access to the Harkat sources file. (The decision is under reserve.)
“The special advocates were closing in on it,” Mr. Boxall said. “It may only be that it came out because they were cornered.”
University of Toronto law professor Kent Roach said in an interview Wednesday that Canada’s international allies will likely be displeased that the identity of a CSIS top-secret informant is about to be revealed, even though it will not be publicly available.
“Intelligence agencies generally are not going to be happy about anyone seeing information about human sources,” he said.
Prof. Roach said that Wednesday’s development bears out criticisms that were levelled at anti-terrorism provisions that came into being after the Sept. 11, 2001, terrorist attacks.
“Had the special advocates not been there, would this have ever seen the light of day?” he said.
Judge Noel also said Wednesday that a hearing will take place on June 2 to determine the legality of a major police search of Mr. Harkat’s home on May 12.