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Mohamed Harkat, a former pizza delivery man, was arrested in December 2002 on the strength of a security certificate that accused him of being a sleeper agent for al-Qaida, which he denies. A Federal Court judge Wednesday slammed CSIS for failing to disclose evidence about a key source in the case against him.
OTTAWA — A Federal Court judge says two witnesses from Canada's spy agency may have lied to him about the reliability of a key informant in the Mohamed Harkat terrorism case.
Judge Simon Noel levelled the charge Wednesday in an order that slams the Canadian Security Intelligence Service and opens one of its top secret files to Harkat's special advocates.
Noel issued the order one day after being offered "new information" by CSIS.
That information is "significant," the judge said, and bears upon the weight to be given to evidence provided by the informant.
The existence of that information came to light in a top secret letter that government lawyers delivered Tuesday to the Federal Court.
The letter said information about the CSIS source, dating from 2002 and 2008, had not been presented to the court.
Noel has been hearing evidence in camera on the Harkat case since September 2008.
During that hearing, he had specifically requested information about the informant's reliability.
Harkat has been represented in the closed hearings by two lawyers, known as special advocates, who are not allowed to communicate with him.
Noel's order gives the lawyers access to the CSIS file, which contains information about the source, including the individual's name.
The special advocates had earlier been denied the right to view the file by the court.
Now, however, Noel said the court has no choice but to open the human source file to scrutiny by Harkat's lawyers.
"The rule of law requires no less," Noel wrote in his stinging judgment.
"Once the court has evidence that leads it to question the completeness of the information being provided to it by the ministers, in apparent violation of their obligation of utmost good faith, it must allow the special advocates access to all information which they have need to know.
"To do otherwise would bring the administration of justice into disrepute."
Harkat, 40, a former pizza delivery man in Ottawa, stands accused of being an al-Qaida sleeper agent.
The informant in question provided CSIS with evidence about Harkat that was presented to Noel behind closed doors.
The new disclosures raise questions about "possible prevarication" by two CSIS witnesses who testified about the reliability of the information provided by the source, Noel said. They also raise questions, he said, about CSIS's compliance with court orders to provide full disclosure of evidence.
In an interview Wednesday Harkat said he was shocked at the revelations.
"It's very important that the judge know the full case," said Harkat, who repeated his demand for an entirely public process that allows him the chance to clear his name.
His wife, Sophie, said she was disturbed by the fact her husband could have been deported to Algeria after he was ruled a terror threat in 2005 on an incomplete set of facts.
"He could have been sent to torture, or death, on that information," she said. The latest revelation, she added, raises the critical question as to whether the judge now has access to all the evidence in the case.
Noel announced that he will review the entire Harkat case to determine if other action is required to preserve the court's integrity.
Several CSIS witnesses will be recalled as part of that review, he said.
Meanwhile, the spy agency has launched an internal probe to determine why the information is only coming to light now, almost seven years after Harkat was first arrested. It will report its findings to the court.
Noel said the "troubling situation" may also raise questions about the conduct of CSIS during Harkat's first security certificate hearing.
In that hearing, which concluded in March 2005, Judge Eleanor Dawson found it was reasonable for the government to conclude Harkat was an al-Qaida terrorist.
That decision was overturned in 2007 by the Supreme Court of Canada, which ruled that the secretive security certificate process was unfair.
Special advocates and new rules about the disclosure of evidence have since been introduced to the process.
The latest developments deal a serious blow to the federal government's case against Harkat on what was supposed to the eve of the public phase of his security certificate hearing.
Judge Noel said next week's hearings on the reasonableness of the certificate will be temporarily adjourned.
Harkat's defence lawyer, Matthew Webber, called Wednesday's revelations a "significant, significant development."
"We're going to have to get to the root of it," he said in an interview. "It smells of abuse and you can't help but question the fairness of the entire proceeding. Fortunately, this judge is all over it."
Noel ordered government lawyers to present three unredacted copies of CSIS's file on the informant by June 1 at 4 p.m.
Harkat, who was first arrested on the strength of a security certificate in December 2002, has always denied any connection with terrorism.
© Copyright (c) Canwest News Service
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