Jun 30, 2009 04:30 AM

Michelle Shephard (external - login to view)
Tonda MacCharles

Canada's spy agency mishandled evidence in a second high-profile terrorism case, the Star has learned, prompting calls for an independent investigation.

The Canadian Security Intelligence Service admitted it failed to disclose evidence that a confidential informant was "deceptive" in answering questions and that a second source was not subjected to a lie-detector test as the agency had claimed.
The disclosures were made in two letters written by Federal Court Justice Richard Mosley to lawyers for Syrian refugee Hassan Almrei. They come just weeks after another Federal Court judge slammed CSIS for omitting evidence.

Almrei, who was detained in October 2001, was the first person arrested in Canada on a national security certificate. He was accused of belonging to a forgery ring that provided documents to terrorists.

The federal government alleges that Almrei and four other men are threats to national security, and is using extraordinary immigration warrants that permit secret evidence to be used against them in deportation proceedings.

His Toronto lawyer, Lorne Waldman, said yesterday he will ask for Almrei's case to be thrown out, arguing that the process can work only if the spy agency is "scrupulous."

"CSIS has an absolute duty to be candid. It's essential because we're using this extraordinary mechanism, which denies Mr. Almrei to know the case against him," Waldman said.

Last month, CSIS was found to have withheld the results of a polygraph test in another case, that of Mohamed Harkat, an Ottawa pizza delivery man who was arrested in 2002. The results cast doubt on a key source and the government's hearings against Harkat have been suspended indefinitely.

"Clearly there's a role for a judicial inquiry by the judges in question because they have to control their own process. But I think there also needs to be an independent investigation," said lawyer Norman Boxall, who acts for Harkat.

"This goes to the very integrity of the whole process. This isn't technical stuff at all."
Almrei, 35, was released on bail earlier this year after a judge ruled that seven years without trial was too long to be detained.

In 2006, he had been transferred from Toronto's West Detention Centre to a specially built prison near Kingston, dubbed Guantanamo North by critics.
He now lives under house arrest in a Mississauga townhome with surveillance and electronic monitoring equipment that will cost taxpayers about $575,000 annually.
Public records of the case allege that he supports an extremist ideology, which began when he was a teenager fighting the Soviet occupation of Afghanistan. He has admitted to procuring a false passport for a Syrian friend who was later associated with illicit money transfers and was deported by the United States. He denied the CSIS allegation that he belonged to a forgery ring.

Almrei sat in Waldman's office yesterday reviewing the latest court documents and lamenting the fact that for almost eight years it has been his credibility that has been attacked, while the spy agency's testimony had not been rigorously challenged until recently.

"I'm grateful (for the disclosure) and the judge who released this information," Almrei said in an interview. "However, having said that, I'm still worried about what we do not know."

A CSIS spokeswoman said she was unable to comment while the case is before the courts.

After CSIS was found this month to have withheld the polygraph results in the Harkat case, the spy agency called the mistake "inexcusable" and ordered an investigation into all five national security certificate cases. Besides Almrei and Harkat, the cases involve Egyptians Mahmoud Jaballah and Mohamed Mahjoub, as well as Adil Charkaoui, a Montreal resident from Morocco.

The agency also said it is taking steps to allay any doubts about the "integrity" of its evidence or its employees.

"The Federal Court has traditionally had a reputation of being a bit too deferential to the federal government so here they're really striking out in a rather different way," said Patrick Monahan, dean of Osgoode Hall Law School.

"It's good to see that court standing up in that way. I think it's a sign that court at least is willing to take on the government even on these controversial issues."
In 2007, the Supreme Court struck down the national security certificate provision of Canada's immigration law as unconstitutional, ruling that holding a secret hearing was unfair to the accused.

Parliament amended the law last year to introduce the role of "special advocates" to challenge the government's evidence in secret hearings, which in the cases of Harkat and Almrei have prompted the recent public revelations.

Some critics argue that the questions raised in Almrei's case show the problems at the spy agency are systemic.

"Evidence is based on facts, whereas intelligence is based on probabilities. One has to be sympathetic to the intelligence community because they're sometimes dealing in grey areas," said Tom Quiggin, a court-appointed expert on terrorism and an intelligence consultant from Ottawa, who testified as a defence witness in Almrei's case.

"But the reality is if you're going to testify in court ... then your greatest single weapon is your personal credibility or your institutional credibility."