Canada: CSIS probe will affect Crown’s terrorist case against Harkat

Andrew Duffy
Ottawa Citizen, 6 June 2009 

A government lawyer conceded Tuesday that the terrorism case against Mohamed Harkat could be narrowed by a Federal Court probe into the mishandling of evidence by Canada’s spy agency. 

That process begins Thursday when Justice Simon Noël will hear arguments in camera about how to conduct his inquiry. 

Noël said he wants to “get to the bottom” of how and why the Canadian Security Intelligence Service failed to disclose “significant evidence” about a key informant in the Harkat case. 

The public phase of Harkat’s terrorism case was supposed to begin this week, but is now on hold pending the outcome of Noël’s secret inquiry. 

Government lawyer David Tyndale said expert witnesses, scheduled as part of the public phase, could go ahead with their testimony. But he cautioned that their evidence could be influenced by the findings of Noël’s inquiry. 

“It may be the allegations against Mr. Harkat look a little different after we’re finished with the closed hearing,” Tyndale told court. 

Harkat lawyer Norm Boxall said he wants to know more about what’s at stake in the secret hearing, but he believes some allegations may be withdrawn against his client because of CSIS’s conduct. “This is going to help Mr. Harkat for sure,” he said. 

Last week, in a written order, Noël slammed the agency for failing to disclose evidence about the reliability of an informant in the case. That evidence, some of which dates to 2002, had not been presented to the judge, even though he had asked specifically about the source’s reliability. 

Noël began hearing secret evidence in the Harkat case last September. 

CSIS is conducting an internal review to determine how the incident occurred. 

Noël, meanwhile, has said he will recall several CSIS witnesses as part of a full review of the Harkat case to determine if other steps have to be taken to preserve the court’s integrity. 

“The integrity of the process, that is a deep concern of mine,” Noël said Tuesday, “not only for the case that is proceeding in front of us but also for the institutions at play: the judicial system and CSIS.” 

The judge said he does not have the power to review the conduct of CSIS during Harkat’s first security-certificate hearing. 

In that case, Justice Eleanor Dawson found it reasonable for the government to conclude Harkat was an al-Qaeda sleeper agent. But the 2005 finding was later overturned by a Supreme Court ruling that deemed the process unfair. 

Noël invited lawyers to suggest other ways to probe the spy agency’s conduct before Dawson. He noted that both the Security Intelligence Review Committee or CSIS’s Inspector-General could be asked to examine the matter. 

“I just don’t want to leave this aside,” the judge said. 

CSIS lawyer André Seguin suggested that Noël include the matter as part of his own legal inquiry. He said CSIS would “co-operate fully” in that process. 

Noël also heard evidence Tuesday related to last month’s Canada Border Services Agency raid on the Harkats’ home. 

In that raid, the agency used 13 border agents, three police officers and three sniffer dogs to search for evidence that Harkat violated his bail. One dog was capable of detecting explosives, another was sensitive to firearms and another was able to sniff out caches of money. 

Agents seized 12 boxes of material, including a home computer, more than 200 floppy disks, 29 videotapes, a family photo album, a newspaper article, a birth certificate and three of Sophie Harkat’s personal agendas. 

The raid was launched, court heard, with Sophie Harkat still in the shower. 

“Mr. Harkat was very co-operative,” Jasmine Richard, a supervisor with the border agency, testified. “Sophie Harkat, at the beginning, had to be calmed down.” 

Richard said she used 16 officers in order to conduct a thorough and efficient search. It lasted almost six hours. 

The search was launched, she said, to test whether Harkat was abiding by bail conditions, which among other things, prohibit him from using a computer, communicating with jihadists, or possessing weapons or explosives. 

Outside court, Harkat defence lawyer Matthew Webber said he believes the search was illegal. 

Under terms of Harkat’s original bail order, border agents had the right to enter and search his home without notice. Webber said such a widespread search should have been authorized by a judge. 

The hearing continues today. 

UPDATE – June 5 

Canada’s spy agency failed to tell a Federal Court judge that a key informant in the Mohamed Harkat terrorism case flunked a lie detector test in 2002. 

That revelation is contained in a top secret letter made public Friday by Federal Court Judge Simon Noel, who is conducting a closed-door inquiry into the Canadian Security Intelligence Service’s handling of the matter. 

The letter, written by CSIS lawyer André Seguin, was delivered to Noel last week. In it, Seguin revealed that the CSIS informant underwent an agency-ordered polygraph because of concerns that he was “involved” with other intelligence agencies and militant organziations. 

The source told the truth when he denied working for anyone else – information that was conveyed to the Federal Court. But the source was asked other “relevant questions and the polygraph examiner determined that (redacted) had been untruthful on these questions.” 

CSIS sent the same polygraph results for a second assessment in 2008. None of that information was conveyed to the court, even though Noel asked a CSIS witnesses direct questions about the source’s credibility. 

Noel has been hearing evidence in camera since last September in the Harkat security certificate case. 

The federal government alleges the Algerian-born Harkat is a member of al-Qaeda. Noel announced Friday that he will be recalling three CSIS witnesses who have previously testified as he investigates the spy agency’s conduct. 

Meanwhile, CSIS announced the agency is conducting an “exhaustive review” of all of the court material it has filed about its informants in Canada’s five security certificate cases. 

The spy agency must file a matrix about each informant it relies upon during in-camera court hearings. Each matrix is supposed to include all relevant information about the source so that a judge can determine whether the individual’s evidence is reliable. 

“The failure to include relevant information in the source matrix was inexcusable and is a matter of profound concern to the service,” CSIS lawyer Michael Duffy wrote in a letter to the chief justice of the federal court. 

Duffy said CSIS recognizes the omission in the Harkat case “may give rise to concern about the integrity of other source matrices” filed in the other security certificate cases. 

Harkat’s lawyer, Norm Boxall, said the latest revelation “puts the integrity of the whole process in serious doubt.” 

Harkat’s defence team is now considering a motion to stay the proceedings against their client.