OTTAWA—The Supreme Court of Canada unanimously upheld revised security certificates laws Wednesday as constitutional, along with the use of secret evidence to deport foreign-born terrorism suspects.

In doing so, the 8-0 decision also concluded a security certificate — a kind of special deportation warrant — issued against Algerian-born Mohamed Harkat is reasonable.

It is a major nod to the Conservative government’s 2008 redesign of the security certificates that brought in the use of security-cleared special advocates who have access to secret state evidence although they are not allowed to disclose that evidence to the defence.

However, it may not be the end of the battle by Harkat, pegged by Canada’s security agencies as a suspected Al Qaeda sleeper agent, to remain in Canada.

Since 2002, Ottawa has sought to deport Harkat, who came as a refugee in 1995, insisting post-Sept. 11 he is a threat.

Harkat’s lawyer Norm Boxall said Wednesday Harkat poses “zero” risk to the country he’s lived in for 19 years, yet faces “significant” risk of torture were he to be deported to his native Algeria with the label of terrorism suspect hanging over his head.

Boxall said “it was devastating” news to convey to Harkat and wife Sophie Wednesday morning. “It was like telling someone a member of their family died.” He said they will continue their legal fight. As the couple got into a car to leave the court, Harkat’s wife Sophie said only, “We will fight them all the way.”

Harkat is suspected of running guest houses for training Chechen terrorists in Pakistan on behalf of Al Qaeda-affiliated groups.

Arrested in 2002 on suspicions he was a “sleeper agent,” Harkat has long denied the allegations against him. His lawyer said if he’s a sleeper agent, he’s the “Rip Van Winkle” of sleeper cells.

But the high court accepted a lower court’s findings that the government had made its case, and Harkat was not a credible witness in his own defence.

Harkat, currently released on strict bail conditions, was not taken into custody Wednesday. Boxall said federal authorities would be bound to go to a judge to change those conditions in order to detain him before removal.

Public Safety Minister Steven Blaney said the government is “pleased” with the ruling which it is still reviewing.

Under immigration law, Ottawa must conduct a pre-removal risk assessment to evaluate if Harkat’s fears of torture are well-grounded. Harkat last year had an electronic monitoring bracelet removed as his case ground on.

In the past, the Supreme Court has ruled government should not remove individuals where there is a substantial risk of torture. However, it also said there may be undefined “exceptional circumstances” where removal is warranted.

Chief Justice Beverley McLachlin wrote Wednesday’s decision which found the security certificate provisions in the Immigration and Refugee Protection Act do not violate a person’s “right to know and meet the case against him, or the right to have a decision made on the facts and the law.”

Alex Neve of Amnesty International said the decision was “surprising and very troubling” in that it did not set out “guarantees” that individuals will get to know the information against them, and didn’t even reference the international treaties on human rights that Canada must adhere to.

He and Boxall agreed that by saying each case must be assessed for fairness separately, the high court has set out an unworkable scheme that will now require individuals to fight long battles to get a fair hearing. Others among the 10 civil liberties, human rights and criminal defence lawyers’ groups who intervened in the case on Harkat’s side agreed.

The Canadian Council for Refugees and the International Civil Liberties Monitoring Group said it “leaves in place a fundamentally unfair process that relies on secret evidence in deciding whether to deport a non-citizen, potentially to a risk of torture.”

They said it places a tremendous burden on judges and potentially on members of the Immigration and Refugee Board, as similar proceedings involving secret evidence are heard there.

In Harkat’s case, the high court found Harkat’s lawyers had sufficient information about the case against him with the safeguard of special advocates weighing in behind closed doors, and upheld Federal Court judge Simon Noel’s conclusion the certificate against him was reasonable.

The Supreme Court judges were unanimous on most key aspects of the case.

Overall, the high court found the special advocate regime is constitutional, and that CSIS informants do not have a special “class privilege” or blanket legal protection for their identities, like police informants.

The majority said the informants’ tips are used in legal proceedings where the rules for hearsay evidence are more lax than in criminal courts, and said it would be up to Parliament to extend protection further.

However two judges, Rosalie Abella and Thomas Cromwell, dissented and would have extended new protections to CSIS informants saying those who come forward with information about a potential terrorist threat often “risks his or her life” if their identity is disclosed.

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Despite upholding the regime, the Supreme Court majority said it was still “imperfect” and laid out guidelines for judges to ensure fairness of the proceedings. Though they upheld the use of redacted summaries of evidence even in cases such as Harkat’s where original tapes were destroyed by CSIS, the court said CSIS informants may be called to testify in secret, even cross-examined “as a last resort.”

The ruling said federal court judges must be “vigilant” and “skeptical” of governments’ “overclaiming” national security in a bid to keep information secret.

“Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld,” wrote McLachlin. The judge “must be vigilant and skeptical with respect to the claims of national security confidentiality and must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld,” she said. “Systematic overclaiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system.” That could require a judge to resort to excluding evidence or requiring disclosure to the defence.

The ruling comes seven years after the country’s top court sent Parliament back to the drawing board after it threw out security certificates as unconstitutional violations of the right to a fair hearing.

That regime — set out in the Immigration and Refugee Protection Act — was used by the Liberal government in several high-profile post Sept. 11 terror cases. In 2007, the high court found it unconstitutional. The Conservatives rewrote the law and reintroduced a system modelled on the British regime in 2008.

Outside court, a dedicated group of supporters stood with signs saying “No secret trials in Canada.”

Supporters like Larry Rousseau were dismayed, saying security certificates “are policies that were started by George Bush’s war on terror. Why can’t we deal with threats to Canada in the context of the Canadian Charter of Rights and Freedoms . . . while respecting the rights of people no matter what their status in Canada.”

The high court judges had heard part of the historic case, including the national security evidence, behind closed doors, at a secret hearing in an undisclosed location.

On Wednesday, McLachlin said it had been unnecessary, unhelpful and “served only to foster an appearance of opacity of these proceedings, which runs contrary to the fundamental principles of transparency and accountability.”

The court turned down a request the federal government made to review the Harkat decision before it was released to Harkat and the public release. “The information contained within these reasons has already been publicly disclosed in the reasons of the courts below; it poses no risk to national security,” said McLachlin.

It was only the second known time the country’s top court moved arguments out of public view. The first, more than a decade ago, was a hearing into the use of investigative hearings in the Air India investigation.

On Wednesday, it said written summaries prepared by CSIS of intercepted communications may be accepted as evidence even if the original tapes are destroyed, but said the government must provide as much evidence as possible to a person in order to justify its actions.

The court also said the ministers of immigration and public safety who sign such certificates are not obligated to go back to foreign intelligence agencies to confirm information they present, but must make reasonable attempts to provide updated information to the judge and special advocates.

Lawyer Barbara Jackman of the Canadian Council for Refugees intervened at the hearing last fall, and warned that courts were on a slippery slope.

She said while there have been some 30 security certificate proceedings in the past 22 years, there is a huge upswing in the use of secret evidence and closed-door proceedings in a range of other civil proceedings, notably immigration matters.

Since 2008, the Federal Court has conducted secret proceedings in more than 100 cases of judicial review of decisions such as sponsorship applications where the Ottawa cites national security as a reason to bar a public hearing, she said.

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