A lawyer for terrorism suspect Mohamed Harkat told a Federal Court judge Tuesday the Algerian-born refugee has been linked to extremists through speculation, not hard evidence.
Harkat, 56, was arrested in Ottawa in December 2002 on suspicion of being an al-Qaida sleeper agent.
Harkat says he fled strife-ridden Algeria and worked with an aid agency in Pakistan before he arrived in Canada in 1995 using a false Saudi passport. He denies any involvement in terrorism.
The federal government has long been trying to deport the former gas-station attendant using a security certificate — a legal tool for removing non-citizens suspected of ties to extremism or espionage.
A Federal Court judge who reviewed the certificate ruled in 2010 there were grounds to believe Harkat is a security threat who maintained ties to Osama bin Laden's terror network after coming to Canada.
The judge found Harkat operated a guesthouse for Ibn Khattab and his organization for at least 15 months in Pakistan, demonstrating active membership in an organization involved in terrorist activities.
Harkat is back in Federal Court challenging a 2018 decision by a federal delegate that he should not be allowed to remain in Canada. He argues he faces a risk of torture if returned to Algeria.
In a written submission to the court, federal lawyers note the delegate found that Harkat’s role as the operator of Khattab's guesthouse made the recruitment, vetting, preparation and training of jihadists and terrorists possible.
This allowed the Khattab organization, and the broader bin Laden network with which it was linked, to commit various terrorist acts, the submission adds.
In their own submission, counsel for Harkat question the evidence that Khattab was indeed a terrorist.
Lawyer Barbara Jackman, representing Harkat, told the hearing Tuesday the federal conclusions were not only unreasonable, but "also it's taking facts and speculating to fill in the blanks."
Jackman said operating a guesthouse is not a crime.
"Doesn't it depend on the knowledge and intent of the person who's operating the guesthouse?" asked Justice John Norris.
The judge suggested the government would need to establish that Harkat knew the purpose of the place.
Jackman said Harkat denies even working at the guesthouse.
Even so, she took issue with the evidentiary reasoning. "You have to show a connection to the crime or the criminal organization in some kind of real way," she said. "He's a passive actor running a hotel that people come in and out of."
At the end of the hearing, Norris said he would make a ruling on Harkat's challenge at a later date.
Civil libertarians have criticized the security certificate process as fundamentally unjust because the detainee sees only a summary of the accusations, making them difficult to challenge.
In a 2014 ruling, the Supreme Court of Canada said the security certificate regime does not violate the person's right to know and contest the allegations they face.
The Supreme Court also concluded Harkat "benefited from a fair process" when Noel reviewed his case.
