Montreal, Canada – It has been nearly two decades since Sophie Lamarche-Harkat’s husband was arrested outside their home in the Canadian capital, Ottawa. Since then, the circumstances surrounding Mohamed Harakat’s detention and restricted release have shifted, but the couple’s life together remains mired in uncertainty.
“I’m just exhausted. I’m burnt out from all this. This has taken a toll on both of us,” Sophie told Al Jazeera in a telephone interview last week. “It feels unreal [that] it’s been 17 years.”
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Harkat fled Algeria as civil war gripped the country in the mid-1990s. He eventually moved to Canada, where he obtained refugee status.
On December 10, 2002, however, he was arrested in Ottawa. Accused of being tied to al-Qaeda and associating with extremists, allegations he denies, he was detained under what is called a “security certificate”.
Used against a handful of people in Canada in the aftermath of the 9/11 attacks in the United States, the security certificate mechanism is an immigration tool that allows the Canadian government to detain and deport non-citizens on national security grounds.
With security certificates, the government does not have to charge the accused with a crime and it can rely on evidence it keeps secret for reasons of security. In Harkat’s case, he was detained for more than three years before being released with restrictions.
The 17-year anniversary of Harkat’s arrest has prompted renewed calls for the Canadian government to lift the security certificate and allow Harkat to remain in the country.
The case has also put the spotlight on Canadian immigration processes – and raised new questions about the government’s long-standing security certificates system, as well as fears Harkat would face torture in Algeria.
“Mo’s never been charged and everybody’s that’s met and loves him will tell you that he doesn’t have an ounce of hate in him. My husband is loving, hard-working, he’s funny,” Sophie said.
“It’s so shameful that in Canada – a Canada that’s known for human rights, has put my husband through hell. Not only him, me and my entire family.”
According to the Canadian government, 27 people have been issued security certificates since 1991.
Part of the country’s immigration system, security certificates give the government the power to detain and deport non-citizens it believes pose a threat to national security, have committed human rights violations, or who are involved in organised crime, among other things.
Due to the nature of the alleged offences and to protect national security, Ottawa keeps much of the evidence used in security certificate cases confidential.
Five men, including Harkat, were issued security certificates in the early 2000s after Canada passed an Anti-Terrorism Act in the aftermath of the September 11 attacks.
The cases of those men, known as the Secret Trial Five, led human rights groups to condemn Canada for using a tool they argued violates the right to due process and relies on secret evidence.
It feels absurd. It's really Kafkaesque.
It was later revealed that in Harkat’s case, the Canadian government used information it obtained from a Guantanamo Bay detainee known as Abu Zubaydah who was subjected to torture at the hands of US interrogators, including 83 rounds of waterboarding in a single month.
After his arrest, Harkat spent more than three years in Ontario’s Kingston Immigration Holding Centre, known as Canada’s Guantanamo North before being released in 2006 under what advocates said were some of the country’s strictest bail conditions, including 24-hour supervision and a GPS monitoring device.
Harkat has denied the government’s claim that he is associated with al-Qaeda. But he has struggled to defend himself without knowing all the charges against him.
Sophie said both she and her husband have struggled to find employment due to the stigma surrounding the case. He currently works as a custodian at a church in Ottawa, but ongoing restrictions on his mobile phone and computer use has made that work more difficult, she added.
“It feels absurd. It’s really Kafkaesque,” said Tim McSorley, national coordinator at the International Civil Liberties Monitoring Group, an advocacy organisation in Ottawa, about the security certificates system.
McSorley explained that security certificates are “applied as an anti-terrorism tool and because of that they are done in a large degree of secrecy”.
The accused in these cases are “not being charged with a crime, they’re not going to a criminal court, they don’t have the same rights to defend themselves”, he told Al Jazeera.
After mounting criticism and legal challenges to the system, the Supreme Court of Canada ruled in 2007 that security certificates were unconstitutional.
On this #InternationalHumanRightsDay, the Liberal government must end the deportation to torture of Mohamed Harkat. Read the open letter sent to @BillBlair, from us, @AmnestyNow, @nccm and 19 others, calling for him & his govt to act immediately: https://t.co/0NkDfqIEo0 #cdnpoli
— ICLMG (@ICLMG) December 10, 2019
But the court gave the government time to draft new legislation that would better address concerns about the rights of people held under the certificates. Ottawa passed a law a year later that instituted a few changes to the system, including the creation of a “special advocate” whose job it is “to protect the interests” of the accused.
But McSorley said the special advocate is not a defence lawyer, and he or she cannot share much of the government’s secret evidence with the accused.
“Once the special advocate goes into the confidential hearings, they’re not allowed to communicate any more with the defence,” he said.
After those changes were made, the Supreme Court in 2014 upheld both the revised security certificate system, and said the one issued against Harkat was “reasonable”. After that decision, the government moved forward with plans to send Harkat back to Algeria.
“It’s really frustrating and infuriating to see that 17 years in the government is making no move to provide any more clarity as to what he’s supposedly done and to allow him to defend himself,” McSorley said.
The federal government defends its decision to place Harkat under a security certificate, however.
“The Supreme Court of Canada has upheld the constitutionality of the security certificates regime and the reasonableness of the security certificate issued against Mr Harkat,” said Tim Warmington, a spokesman for Public Safety Canada, told Al Jazeera in an email.
Although Warmington said the government ministry could not comment on specific removal orders, he stressed that “Canada has a robust assessment process and safeguards to ensure that no one is removed to risk of persecution.”
When people who hold refugee status are issued a deportation order, they can only be removed from Canada after a “Danger Opinion” is issued by a senior official at Immigration, Refugees and Citizenship Canada, another government branch, said Warmington.
In such cases, the official “must balance the risk of mistreatment in returning the person against the danger the person poses to the public if they remain in Canada”, he explained.
The UN’s Refugee Convention protects refugees against forced returns to places they could face persecution, a process known as refoulement. But exceptions can be made if a refugee is deemed to pose a threat to the country in which he or she resettled, the convention states.
In Canada, refugees who fail to pass the “Danger Opinion” and are subject to deportation from Canada may apply for judicial review and ask that their removal be suspended pending the court’s decision.
Harkat’s lawyer, Barbara Jackman, told Al Jazeera she filed for a judicial review of his deportation order in November 2018. But the federal court still has not received all the information on which the government based its removal decision, she said, and without the complete record, it is unclear when the case will proceed.
Jackman described the government’s behaviour in Harkat’s case as “perverse”.
“I think it’s just face-saving,” she said, about why she believes the government has not dropped the case.
“I think that they spent so much money and invested so much in it that they can’t be seen as saying, ‘OK, this isn’t well founded’ … I think it’s perverse in terms of what they’re doing and how long they’ve been doing it.”
Risk of torture
Harkat’s supporters have raised serious concerns that he could be tortured in Algeria should Canada follow through with his deportation.
On December 10, human rights groups, unions and concerned Canadians sent a letter to the new public safety minister, Bill Blair, to ask for him to intervene to prevent Harkat’s removal from the country.
They said Canada would be putting Harkat’s life in danger should it deport him to Algeria, which has a poor human rights record and where anti-government protests have been held regularly over the last year.
Mo lives with that cloud every day over his head - constant. And he still has nightmares about it. I'm somewhat in denial; I don't want to discuss this. If the government sends him back, they'll have blood on their hands.
Justin Mohamed, human rights law and policy campaigner at Amnesty International Canada, said the group is concerned Harkat would not have access to a fair trial and could be tortured in Algeria.
“The nature of the Canadian allegations against him would render him subject to an unfair trial in Algeria,” Mohamed told Al Jazeera.
“Amnesty International is very concerned that the Algerian authorities don’t comply with the international legal obligations concerning the prohibition of torture.”
For her part, Harkat’s wife, Sophie, said it has been “extremely frustrating because the minister just has to sign a piece of paper and we can just move on with our lives”.
She said she prefers not to think about the possibility that her husband could be sent to Algeria.
“Mo lives with that cloud every day over his head – constant. And he still has nightmares about it. I’m somewhat in denial; I don’t want to discuss this,” she told Al Jazeera. “If the government sends him back, they’ll have blood on their hands.”