OTTAWA -- Matthew Webber, the lawyer for an Ottawa man held on a national security certificate as an alleged terrorist, says fighting for his client is like "living in Wonderland."
Webber, a partner in the Ottawa criminal law firm Webber Schroeder, represents Mohamed Harkat, who was held in jail for nearly 31 months without trial. He is accused by the federal government of being an agent for al-Qaeda.
Harkat was granted tightly supervised bail May 23 by a Federal Court judge. His case goes to the Supreme Court of Canada June 15, yet Webber has never seen the Crown's file on his client.
"It's interesting to me to be litigating a case in this Wonderland environment," Webber said at a recent meeting of Harkat's supporters. "[Criminal lawyers] pride ourselves on knowing everything about a client's case and we challenge every aspect of it. Most clearly, that's been a right that's been completely and utterly denied Mr. Harkat in the course of these proceedings."
Before he was granted bail, Harkat was one of four men held at a new six-person terrorist suspect containment unit opened at Millhaven Peniten-tiary in April to accommodate terrorism suspects held on security certificates.
The Canadian government is trying to deport five Arab nationals to their homelands. The Supreme Court will hear a constitutional challenge of the security certificate system on behalf of three of these men, Harkat, Adil Charkaoui, and Hassan Almrei. They claim they will be tortured and killed if they are deported to their countries of origin.
Last year, Federal Court Justice Eleanor Dawson upheld the security certificate against Harkat, saying it was reasonable for the federal cabinet to hold him. She based many of the reasons for her decisions on evidence that is kept secret from Harkat, his lawyers, and the public. Even the fact that he speaks French is considered a national security secret, Webber says.
The lawyer says he has seen no evidence that his client is guilty of being an al-Qaeda sleeper agent. The government, along with U.S. officials, claims Harkat trained in al-Qaeda camps in Afghanistan and has worked under several assumed names as an operative for Osama bin Laden.
Harkat says he did work in northern Pakistan, but argues he's a legitimate refugee. He is married to an Ottawa woman and has been living in this city since 1995.
"We were deprived of even a syllable of evidence that would have supported the [government's] claim. Who knows what she [the judge] founded it on? That is as clear and cogent an example as I can think of just how absurd the process is. We have no clue of what evidence she used to make the finding," says Webber.
"I consider myself in a position of fighting for a man who may be returned to death. I consider myself to be in a position of fighting for a man who hasn't seen a single piece of inculpatory evidence that I find in any respect compelling. From my perspective as a criminal lawyer, this is an innocent man. The consequences are dire, to say the least, if the state is allowed to have its way.
"My client's life is on the line. I have a client that has been subjected to an unconstitutional and unfair process, and we are met repeatedly with simple process, not with people who are willing to deal with the issues head-on," he says.
Webber, who is co-counsel in the case with Toronto lawyer Paul Copeland of Copeland Duncan, says Crown lawyers have shown no sign of wanting to hear the defence side of the case or to give Harkat's lawyers a fair shot at proving he's innocent.
Webber claims they've hidden behind procedural rules. As well, he says, he was given Crown submissions for bail hearings on the day of, or the night before, the hearings, "to cut our knees out."
"The state has played procedures and tactics with a man's life, " he says.
"There are two issues here: the continuing detention of our client is unacceptable and as far as I'm concerned is an affront to the Charter of this country and the inability to know the case that you have to meet just simply deprives you of any sense of fair proceedings."
Webber argues the courts should appoint an amicus curae, someone who knows the entire Crown case but will fight on behalf of Harkat to test the evidence. He says he plans to make that pitch to the Supreme Court.
"We brought this application to the Federal Court that we have to have somebody on the inside. Someone has to know the evidence. Somebody has to be able to fight for Mr. Harkat. We were denied.
"I don't think that's ideal, I don't think it's perfect, but I think it's a winnable issue. I think it's right for the court to impose it. I think it's the right time for the Supreme Court to strike this legislation as unconstitutional without at least this sort of remedy.
"CSIS [the Canadian Security Intelligence Service] and the CBSA [Canadian Border Services Agency] are allowed to get away with answering a question like, 'Is it alleged my client speaks French?' with an answer, 'National security.' I don't see how, if there was a lawyer in that courtroom arguing the issues, that an answer like that would ever be allowed to survive the inquiry, so how many of those questions that were not answered would we have got answers to, and how well would we be able to defend Mr. Harkat if we had them?"