Judge orders CSIS to hand over file: Withholding a 2002 polygraph analysis in Mohamed Harkat case undermined integrity of the court, judge rules in latest blow to Canada’s spy agency
By Bill Curry
Ottawa — The Federal Court is ordering Canada’s spy agency to disclose a second human source in the Mohamed Harket case, an exceptional decision taken after finding the Canadian Security Intelligence Service “filtered” evidence and failed to tell the court that a first key source had failed a polygraph test.
The source will only be revealed to the court and special advocates, it will not be made public.
It’s the latest in a series of body blows to the agency and its efforts to sanction non-citizens accused of associations with extremist groups.
In the decision released this morning, Mr. Justice Simon Noël of the Federal Court offered his conclusions after having heard secret testimony from three CSIS officials, who explained why a 2002 polygraph analysis was kept from the court. Judge Noël concluded that CSIS did not deliberately hide evidence from the court, but it should have been more aware of its legal duty to provide all relevant information when asked.
“Filtering evidence, even with the best of intentions, is unacceptable,” Judge Noël wrote. “Failing to properly fulfill undertakings made to a Court of law is equally unacceptable.”
In offering a way forward, the ruling states that the exceptional circumstances of the case require CSIS to reveal a source file. “It is necessary to repair the damage done to the administration of justice and to re-establish the necessary climate of trust and confidence which much be present in such an exceptional legal procedure,” the decision stated.
Mr. Harkat, an Algerian immigrant accused of being a sleeper agent for al-Qaeda, has been kept under scrutiny by authorities since 2002. He recently had his onerous house-arrest conditions lifted after seven years of constant surveillance as he awaited the outcome of his security certificate immigration case.
The court hearing into the reasonableness of that certificate will begin in mid-November and public proceedings are scheduled for January and February of 2010.
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