OTTAWA — Lawyers for accused al-Qaida sleeper agent Mohamed Harkat presented their case to the Supreme Court Thursday, arguing their client has been denied the right to defend himself against secret evidence.
Harkat said the justices' questions left him feeling optimistic.
"Those questions we asked a long time ago — for the Crown to let us question, to give us the evidence against me to defend myself.
"They labelled me a terrorist — I have never been."
Harkat, 45, came to Canada as a refugee from Algeria in 1995. He was arrested outside his Ottawa home in 2002 on a national security certificate and jailed for four years. Until this past July, he wore an electronic monitoring anklet and still lives under bail conditions.
He's been accused of running a guest house for Chechen rebels in Pakistan and communicating with senior al-Qaida members.
But he can't challenge the case against him if he can't see the evidence and even the special advocate — a lawyer with security clearance — is hamstrung, Harkat's lawyers argued.
Evidence in the case has been destroyed and one informant, they later learned, was an "inveterate liar" who failed a polygraph.
"Challenging a case doesn't mean 'I didn't do it,'" lawyer Norm Boxall said. "It doesn't mean you're given an opportunity to deny. Meeting a case must be meaningful."
He admitted that "it may be just impossible" to come up with a system that balances the individual's rights and national security.
"This regime is fundamentally unfair and cannot be allowed to continue," Boxall concluded.
Government lawyers argued that a Federal Court judge believed many of the allegations against Harkat and found his testimony inconsistent, implausible and fabricated, including his inability to explain how he got the cash to come to Canada.
The justices have to consider society's interest in shielding national security information and the ways intelligence is gathered, the government lawyers argued.
If sources feared they'd be identified they wouldn't come forward and Canada's relationship with other countries who give us intelligence would be jeopardized.
Currently, the person who tells police their neighbour is growing pot is more protected than someone who tells CSIS their neighbour is setting up a terrorist training camp, one government lawyer argued.
Thursday's hearing was public but Friday's will be behind closed doors — with Harkat and his lawyers excluded — and will be held at a secret location in a first for Canada's top court.