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Accused al-Qaeda sleeper agent Mohamed Harkat wins another chance at staying in Canada
An accused sleeper agent for al-Qaeda’s terror network who Canada has been trying to deport for 24 years won another reprieve Thursday when a Federal Court judge granted him a new review instead of deportation.
Mohamed Harkat, an Algerian citizen, came to Canada in 1995 claiming refugee protection, but in the wake of the 9/11 terror attacks on the United States the former pizza delivery driver and gas station attendant was accused of being a sleeper agent in Osama bin Laden’s global network.
His arrest in 2002 sparked an enormous legal fight that has been running up and down in Canada’s highest courts ever since.
On Thursday, Federal Court Justice John Norris said that Ottawa’s latest effort to remove him was unreasonable. He sent the decision to be reassessed and redetermined by a different decision maker.
Harkat was formally granted refugee protection in 1997. Five years later, Canada issued a security certificate against him under new laws enacted amid heightened attention and concern of Islamic terrorism after the Sept. 11, 2001, attacks.
Harkat has denied the allegations.
Ottawa using a security certificate to make him inadmissible to Canada on security grounds was supposed to speed his removal from the country. It didn’t. The certificate was argued in court and upheld in 2005, but the security certificate system was reworked after a constitutional challenge.
In 2008, after amendments to the law, a second security certificate was issued against him. This declared him inadmissible to Canada on security grounds for engaging in terrorism, being a danger to the security of Canada, and being a member of the Bin Laden network, an organization reasonably believed has engaged in acts of terrorism.
This second certificate also had to be accessed by the Federal Court, which Justice Simon Noël upheld as reasonable in 2010.
Noël found in his 2010 decision that, while Harkat had been involved in the Islamist extremist movement before and after coming to Canada, there was no evidence he personally engaged in violent acts in Canada or elsewhere.
His role, Noël said, “would have been largely one of logistics and facilitation.” Before Harkat came to Canada, he ran a guest house in Peshawar, Pakistan, for a known extremist, helped move mujahideen to and from training camps and ran errands, court heard. The groups involved, Noël found, had material and ideological links to bin Laden, meaning they were part of the Bin Laden Network — making Harkat part of it as well.
Noël also found that while Harkat’s activities constituted a danger to the security of Canada, that danger has lessened by time his public exposure as the target of a security investigation, by his past detention, by his release on stringent conditions, and by the severing of past ties.
Noël’s decision was appealed to the Federal Court of Appeal and then to the Supreme Court of Canada, which upheld the decision in 2014. That was supposed to be “conclusive proof that the person named in it is inadmissible,” meaning that a deportation (or technically a “removal order”) can move forward without a further admissibility hearing.
However, immigration law generally prevents deporting someone to somewhere they are likely to face persecution or risk of torture or cruel and unusual treatment. It’s called “non-refoulement.” There are a few exceptions — one of them is when someone is inadmissible on grounds of security, and the government believes it is justified by the severity of acts or danger to Canada. Ottawa leaned on that to try to trigger Harkat’s removal.
That process takes time, too. Canada Border Services Agency officials and Harkat’s lawyers went back forth with arguments and submissions for years.
It wasn’t until 2018 that Ottawa determined Harkat should not be allowed to remain in Canada even under non-refoulement risk “based on the nature and severity of acts committed.”
Harkat applied for a judicial review of that decision by the Federal Court as well. Harkat argued the decision was unreasonable and the process leading to it was unfair.
A decision on that application was released late Thursday and Norris, the Federal Court judge, granted Harkat’s request for a judicial review.
“I am not persuaded that the process followed by the decision maker breached the requirements of procedural fairness,” Norris wrote in his decision.
“On the other hand, I have concluded that the delegate’s determination that the applicant should not be allowed to remain in Canada on the basis of the nature and severity of acts committed is unreasonable because a key finding by the delegate — that the applicant was complicit in acts of terrorism committed by Chechen extremists — is not reasonably supported by the delegate’s analysis of the record, including Justice Noël’s findings supporting the reasonableness of the security certificate.”
Norris said that given the focus on facts deviating from the court record, to order his removal was a “fundamental flaw.”
Norris also rejected requests by Harkat’s lawyers that the court order special conditions the new determination should follow.
The hearing raised constitutional issues but did not formally elicit a notice of constitutional question.
Under immigration law, an appeal of the decision to the Federal Court of Appeal can only be made if Norris certifies a serious question of general importance is involved. Norris left a decision on that issue open.
Harkat’s lawyer did not respond to a request for comment late Thursday prior to deadline.
• Email: ahumphreys@postmedia.com | Twitter: AD_Humphreys
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