Mohamed Harkat avoids deportation again as Federal Court orders new review

A Federal Court judge ruled Ottawa's latest attempt to deport accused al-Qaeda sleeper agent Mohamed Harkat was unreasonable. The case has wound through Canadian courts since 2002.

Federal Court grants Harkat new review, blocking removal after 24-year legal fight

An accused al-Qaeda sleeper agent whom Canada has sought to deport for 24 years won another reprieve Thursday, after Federal Court Justice John Norris ruled Ottawa's latest removal effort was unreasonable and ordered the case sent to a different decision maker for reassessment.

National Post Crime reports that Mohamed Harkat, an Algerian citizen who arrived in Canada in 1995 claiming refugee protection, was accused following the September 11 attacks of being a sleeper agent in Osama bin Laden's global network. Before coming to Canada, the former pizza delivery driver and gas station attendant had run a guest house in Peshawar, Pakistan, for a known extremist, helped move mujahideen to and from training camps, and carried out various logistical tasks. Harkat has denied the allegations.

His arrest in 2002 set off a legal battle that has since reached Canada's highest courts on multiple occasions.

From refugee to security certificate

Harkat was formally granted refugee protection in 1997. Five years later, Canada issued a security certificate against him under laws enacted in the heightened security environment following the 9/11 attacks. The certificate was intended to speed his removal from the country by declaring him inadmissible on security grounds. It did not achieve that goal. The certificate was upheld in court in 2005, but the security certificate system was subsequently restructured following a constitutional challenge.

A second certificate was issued in 2008 after amendments to the law. It declared Harkat inadmissible for engaging in terrorism, posing a danger to the security of Canada, and being a member of the Bin Laden network — an organization the court found had engaged in acts of terrorism. Federal Court Justice Simon Noël upheld that second certificate as reasonable in 2010.

In his 2010 ruling, Noël found that while Harkat had been involved in the Islamist extremist movement before and after his arrival in Canada, there was no evidence he had personally carried out violent acts in Canada or elsewhere. His role, Noël wrote, "would have been largely one of logistics and facilitation." Noël also concluded that while Harkat's activities constituted a danger to Canadian security, that danger had lessened over time — owing to his public exposure as the target of a security investigation, his past detention, his release under strict conditions, and the severing of former ties.

That decision was appealed to the Federal Court of Appeal and then to the Supreme Court of Canada, which upheld it in 2014.

The non-refoulement barrier

A final removal order nonetheless faced an additional legal obstacle. Immigration law generally prohibits deporting someone to a country where they are likely to face persecution, torture, or cruel and unusual treatment — a principle known as non-refoulement. One of the narrow exceptions applies when a person is inadmissible on security grounds and the government concludes the severity of their acts or the danger they pose justifies removal. Ottawa sought to invoke that exception to trigger Harkat's deportation.

Canada Border Services Agency officials and Harkat's legal team exchanged arguments and submissions for years. It was not until 2018 that Ottawa determined he should not be permitted to remain in Canada under non-refoulement protections, citing "the nature and severity of acts committed."

Harkat challenged that determination through a judicial review application, arguing the decision was unreasonable and the process leading to it was procedurally unfair.

Justice Norris: a key finding was not reasonably supported

In Thursday's ruling, Norris dismissed the procedural fairness argument but found the substantive decision to be unreasonable. "I am not persuaded that the process followed by the decision maker breached the requirements of procedural fairness," he wrote.

On the merits, however, Norris concluded that the delegate's finding that Harkat should not be allowed to remain in Canada — based on the nature and severity of acts committed — rested on a key finding that was not adequately supported by the record. Specifically, Norris found that the delegate's conclusion that Harkat was complicit in acts of terrorism committed by Chechen extremists was "not reasonably supported by the delegate's analysis of the record, including Justice Noël's findings supporting the reasonableness of the security certificate."

Norris described the reliance on facts that deviated from the court record as a "fundamental flaw," warranting a new determination by a different decision maker rather than an immediate removal order.

The court also rejected requests from Harkat's lawyers to impose specific conditions on how the new determination should be conducted.

Next steps remain open

Under immigration law, any appeal of Thursday's ruling to the Federal Court of Appeal requires Norris to certify that a serious question of general importance is at stake. Norris left that question unresolved. The case therefore remains in a state of procedural uncertainty, with a new review process now set to begin.

Harkat's lawyer did not respond to a request for comment prior to deadline Thursday.

Source: National Post Crime