Earlier in October 2013, the Supreme Court of Canada made the unprecedented decision to hold a closed hearing regarding Mohamed Harkat’s security certificate, in which Mr. Harkat applied for judicial review. Harkat was an Algerian refugee who was originally arrested in Ottawa, Canada on suspected grounds of links with al-Qaida.
Harkat was not present at the meeting — nor was his lawyer, according to Kent Roach of the University of Toronto, writing in the Ottawa Citizen this past fall.
During the closed hearings, two advocates were appointed to represent the applicant’s (Harkat’s) interests. The advocates met with Harkat’s lawyer briefly, under tightly controlled judicial oversight.
An important question in this complex case is whether secret intelligence gathered of Harkat can be used as reliable evidence. Confidential summaries of intelligence information was constructed by Canadian Security and Intelligence Service (CSIS) but the original documents had been destroyed. Not only were the original documents missing, which contained information being used against Harkat, but no adequate steps were taken demonstrating reliability of the summarized intelligence.
Of course, in a closed, secret meeting, the effective use of cross-examination is also lost. Kent Roach states:
“It [omission of cross-examination] will test the traditional view that cross-examination is the best way to determine truth.”
A plethora of information has been written on secret trials in Canada—the pitfalls, legal ramifications, widespread infringement of human rights and civil liberties, and the political efforts to stop the trials.
The issue of five muslim men held without charges back in December 2006 sparked much debate and controversy, leading the issue to be dubbed Canada’s Guantanamo Bay. None of the “secret” evidence being used against the men was accessible to the accused. Adil Charkaoui was released on bail on February 18, 2005; Mohamed Harkat on May 23, 2006. But concerns over the secret hearings remain. An interesting piece about abolishing secret trials was also written by Mike Larsen of York University.