Court orders chastened CSIS to hand over secret file
Published Wednesday, October 21, 2009 6:49AM EDT
OTTAWA - A federal judge says Canada's spy service "has seriously damaged confidence" in the court process and must help restore trust by handing over a secret file in the case of terror suspect Mohamed Harkat.
In a decision made public Tuesday, Federal Court Justice Simon Noel ordered the Canadian Security Intelligence Service to give him details of a confidential source the spy agency is using to support allegations against Harkat.
The government is trying to deport the Algerian-born Harkat using a national security certificate, a rarely employed immigration provision.
CSIS alleges Harkat, arrested almost seven years ago, has ties to the al-Qaida extremist network. The former gas station attendant and pizza delivery man denies involvement with terrorism. He lives in Ottawa with his wife under strict bail conditions and wears an electronic ankle bracelet so federal officials can track his movements.
In his ruling, Noel said CSIS "undermined the integrity" of the court's work by failing to disclose relevant details of a polygraph examination of another source in the Harkat affair. CSIS neglected to tell him a secret informant failed portions of the lie-detector test -- a lapse the service itself has called "inexcusable."
Further, Noel said he was unimpressed with evidence about the polygraph matter -- which first made headlines last spring -- from three CSIS witnesses, whose names are confidential.
On the contrary, the CSIS explanations led Noel to conclude information the government filed in support of the certificate against Harkat was "filtered" and that promises to the court had been broken.
"Filtering evidence, even with the best of intentions, is unacceptable," Noel wrote.
The judge said one CSIS witness provided answers to the court that were "incomplete and inaccurate" and another did not fulfil undertakings he made in February to provide information about the polygraph matter.
The judge said while it doesn't appear the three witnesses deliberately tried to mislead him, CSIS failed to give them "proper advice or support," amounting to an institutional failure.
"The rule of law cannot be set aside because of a lack of time, resources or institutional resistance to the evolving context of security certificate proceedings."
Noel gave CSIS five days to turn over copies of the file on the second covert source to the court and to two special advocates, appointees with clearance to see secret evidence who serve as watchdogs for Harkat.
Neither Harkat, his counsel, nor the public will be allowed to see the classified source file.
Norm Boxall, one of Harkat's lawyers, said it's "deeply disturbing" that CSIS filtered evidence it provided to the court.
Boxall said that raises fears the spy agency does similar kinds of filtering -- possibly erasing salient bits from the record -- when it gathers information from confidential sources in the first place. And that's worrisome because even the judge and the special advocates have no way of knowing CSIS has done that, he said.
In addition, the advocates cannot independently test the credibility of CSIS's sources because doing so, for instance by interviewing a source's associates, would violate strict court secrecy in security certificate cases, Boxall said.
"I have confidence in the ability and integrity of the special advocates and I have confidence in the court doing its absolute best," he said. "But where I lack confidence is with the regime that handcuffs the special advocate and limits the court."
In a statement Tuesday, CSIS stressed that the court found the shortcoming in disclosure was not an intentional effort to hide information.
"The service reacted promptly to this incident by informing the court, and quickly implemented new processes, including enhanced training, to improve the accuracy and completeness of information that CSIS provides to the court relating to the reliability of human sources," the intelligence service added.
Boxall said Noel has also asked counsel to make submissions concerning a trailblazing case before the courts in England, which also has a system of special advocates. The British are grappling with similar issues related to fair disclosure of evidence in security cases.