[2012] 3 F.C.R. 432 DES-05-8 2010 FC 1242 IN THE MATTER OF a certificate signed pursuant to subsection 77(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27, as amended (the Act); IN THE MATTER OF the referral of that certificate to the Federal Court of Canada pursuant to subsection 77(1) of the Act ; AND IN THE MATTER OF Mohamed Harkat Indexed as: Harkat (Re) Federal Court, Noël J.—Ottawa, November 3, 4, 5, 6, 2008, January 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, February 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, March 8, 9, 10, 11, 30, 31, May 31, June 1 and 2, 2010; closed hearings, September 10, 11, 12, 15, 16, 17, 18 and 19, 2008, November 23, 24, 25, 26, December 1 and 2, 2009, March 30, May 26 and 27, December 9, 2010. * Editor’s Note: This decision has been affirmed on appeal (A-76-11, 2012 FCA 122 ).

The reasons for judgment, handed down April 25, 2012, will be published in the Federal Courts Reports . Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Security Certificate — Motion challenging constitutionality of Immigration and Refugee Protection Act (IRPA), ss. 77(2) , 78 , 83(1) (

c) to (e), (h), (i), 85.4(2) , 85.5 (b) — Certificate stating applicant inadmissible on security grounds under IRPA, ss. 34(1) (c), (d), (f), signed by Minister of Public Safety and Emergency Preparedness, Minister of Citizenship and Immigration, referred to Federal Court — Whether IRPA, ss. 77(2), 78, 83(1)(

c) to (e), (h), (i), 85.4(2), 85.5(b), violating Canadian Charter of Rights and Freedoms, s. 7 , on grounds not providing for fair trial standards, failing to grant named person right to know, answer case against him, making it impossible for Court to render sufficiently informed decision on basis of facts, law — Impugned provisions constitutional, establishing fair process where information communicated not posing risk of injury to national security — IRPA protecting named person’s rights, informing them of case to meet so as to be in position to answer it — Special advocate actively defending named person’s interests in closed hearings at all times, at same time national security protected — Court in position to render decision based on all relevant facts, law — Motion dismissed.

Constitutional law — Charter of Rights — Life, Liberty and Security — Whether Immigration and Refugee Protection Act ( IRPA ), ss. 77(2), 78, 83(1)(

c) to (e), (h), (i), 85.4(2), 85.5(

b) violating Charter, s. 7 on grounds not providing for fair trial standards, failing to grant named person right to know, answer case against him, making it impossible for Court to render sufficiently informed decision on basis of facts, law — Although present regime depriving applicant of his liberty, also possibly of his right to security of his person, impugned provisions constitutional, establishing fair process where information communicated not posing risk of injury to national security — IRPA protecting named person’s rights, informing them of case to meet so as to be in position to answer it — IRPA provisions imposing limits on rights protected by Charter, s. 7 demonstrably justified in free, democratic society under Charter, s. 1 .

This was a motion challenging the constitutionality of subsection 77(2) ,

section 78 , paragraphs 83(1) (

c) to ( e ), (

h) and ( i ), subsection 85.4(2) and paragraph 85.5 (

b) of the Immigration and Refugee Protection Act (IRPA). In 2008, after the coming into force of An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act (Bill C-3), a certificate stating that the applicant is inadmissible on security grounds under paragraphs 34(1) ( c ), (

d) and ( f ) 83(1) of the IRPA was signed by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration (ministers) and referred to the Federal Court. In Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350, the Supreme Court found that the former version of the IRPA violated

section 7 of the Canadian Charter of Rights and Freedoms in that it violated the named person’s right to know and answer the case against them and that it could not be saved by

section 1 because it did not minimally impair the rights in question. Bill C-3 made substantial modifications to the procedure governing the judicial review of certificates as well as to applications for detention release in that context. These amendments included a new national security information disclosure process with the addition of special advocates to represent the interests of the named persons in the closed hearings. The constitutional question in this case was whether the impugned provisions violate

section 7 of the Charter in that they do not provide for fair trial standards, fail to grant to the named person the right to know and answer the case made against them and make it impossible for the Court to render a sufficiently informed decision on the basis of the facts and the law. In order to address this issue, it had to be determined whether the IRPA violated the applicant’s liberty and security rights; if so, whether the new provisions of the IRPA are substantive, meaningful substitutes that satisfy the principles of fundamental justice while protecting national security information; in the alternative, whether

section 1 of the Charter could save the new provisions. Held , the motion should be dismissed. Under the present legislation, the applicant is deprived of his liberty and eventually, depending on future decisions, might be deprived of his right to security of his person as well. That said, the impugned provisions are constitutional in that they provide for a fair process where the information communicated does not pose a risk of injury to national security.

At the same time, the IRPA protects the named person’s rights (through the special advocates’ participation in closed hearings) and informs them of the case to meet so as to be in a position to answer it. The special advocate actively defends the interests of the named person in closed hearings at all times; at the same time, national security is protected. The end result is that the Court has the facts presented by both parties and is in a position to render a decision based on all the relevant facts and law.

The Charter distinguishes between citizens and non-citizens ( subsections 6(1) and (2) ). Canada has the right to accept or deny entry to immigration candidates based on legitimate grounds such as security and serious criminality. The IRPA provides norms and conditions for non-citizens to enter and remain in Canada.

Section 7 of the Charter applies with this contextual background in order to study the principles of fundamental justice when dealing with national security concerns, immigration policies and human rights issues. National security information requires protection from disclosure. This is a valid societal requirement recognized by the Supreme Court. Through the new provisions of the IRPA , Parliament ensures that proper substitutes are put in place.

The disclosure process established by the IRPA, together with the active role of the special advocates in questioning claims raised by the ministers, provide adequate protection. The principles of fundamental justice are safeguarded. These principles consist of (1) the right to a hearing that is (2) presided by an independent and impartial magistrate and requires (3) that the decision be based on the facts and the law, which includes a person’s right to know the case made against them and to answer it.

Under the current legislation, the right to a hearing is also provided since the named person as well as the Minister may make their respective case ( subsection 83(1) of the IRPA). The judicial role has been enlarged: the Court must issue summaries of information throughout the proceeding; it can require closed hearings; the judicial role related to the special advocate, the judicial review of detentions and the conditions thereof is new. The new version of the IRPA, like the former, meets the first two requirements of fundamental justice.

The third requirement was not met under the previous version since it did not provide for sufficient disclosure and adequate representation in closed hearings, which would allow the named person to be properly informed of the case made against them and to be in a position to respond to it. In order to satisfy this requirement, one must be certain that, at the end of the process, the Court has been apprised of all the facts.

Summaries of information made available when the certificate is filed and throughout the proceeding must enable the individual to be reasonably informed of the case made against them without breaching national security (subsection 77(2) and paragraph 83(1)( g )). In addition, the special advocate has a duty to challenge any claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person (paragraph 85.1(2)( a )).

The issue of disclosure therefore concerns not only the Minister (subsection 77(2)) but also the Court (paragraph 83(1)( e )) and the special advocate ( paragraph 85.1(2)( a )). Under the previous legislation, the disclosure issue rested solely with the Court. The current regime also provides that the special advocate must be apprised of all the evidence presented in the public and closed hearings, so that they are able to defend the interests of the named person (subsection 85.1(1)). This was not the case with the previous legislation.

The applicant has been cognizant of all the allegations made against him and of some valuable evidence in support of such allegations. In immigration cases that have espionage or subversion aspects, the disclosure of national security information may be problematic; its scope will vary depending on the circumstances of each case. The new version of the IRPA provides for judicial discretion in such situations to respond adequately to this reality.

Before making a determination that the disclosure of information would be injurious to national security or endanger the safety of any person, preliminary steps must be followed. Under the IRPA, the named person must be reasonably informed of the case to be met as long as it does not involve the disclosure of information that would be injurious to national security or endanger the safety of any person. There is a tension between those two requirements. The IRPA provides for the disclosure of information through summaries, which may avoid the risk of a disclosure that may be injurious.

If the ministers disagree with such disclosure, the legislation provides for a mechanism whereby they may decide to withdraw the information in question. The Court must ensure its confidentiality and may not use it in deciding the case. Two components interact in order to disclose information in certificate proceedings: the judge must reasonably inform the named person, but, at the same time, there must be no disclosure of national security information that would be injurious. This objective may be achieved by creating a proper

summary of the evidence. In this case, the disclosure that was made provided the applicant with sufficient information to know the “substance” of the allegations made against him and to be in a position to respond to them. The disclosure made contained national security information but did not contain any information that could be injurious to national security or the safety of any person. Unlike the IRPA, the Canada Evidence Act (CEA) does not provide for the participation of special advocates.

The interests of the named person are not defended as effectively by an amicus curiae under the CEA as by a special advocate under the IRPA. In closed hearings, special advocates have full knowledge of all the national security information presented, including elements that would be injurious if released. It is the duty of special advocates to assess it in the interest of the named person, and they may challenge the claims of non-disclosure made by the ministers. The right to know the case is not absolute.

It can be adapted to the circumstances as long as fairness prevails and the principles of fundamental justice are respected. Parliament was aware of the procedure established under the CEA when it chose the IRPA disclosure process. The CEA procedure was designed to receive application in different factual scenarios and involves numerous legal matters. The IRPA is more specific in that it provides for immigration inadmissibility matters based on grounds such as security, human or international rights violations and serious criminality.

It is only when it is determined that the information would be injurious to national security or endanger the safety of any person if released, and that no

summary of such information can be disclosed in such a way as to avoid this result, that the Court is deprived of all discretion to disclose the information. No balancing of interests can take place. This absence of discretion at this stage does not make paragraphs 83(1) (

c) to (

e) of the IRPA unconstitutional. These provisions strike a proper balance between the need for protection of confidential information and the rights of the named person. Subsection 85.4(2) and paragraph 85.5 (

b) of the IRPA (requiring the special advocates to seek judicial authorization prior to communicating with anyone) contribute to the fairness of the procedure and uphold the principles of fundamental justice. It was one of Parliament’s concerns that if the special advocates are not subject to judicial authorization prior to communicating with anyone, inadvertent disclosure of national security information might occur.

Parliament decided that the best practice to ensure confidentiality once access to the classified information has been granted to the special advocate was to allow communications subject to judicial authorization. In this case, the evidence is voluminous and involves sensitive material. The IRPA does not forbid communication between the special advocates, the named person and counsel. It only makes them subject to a judicial authorization. In the present case, the Court’s discretion was exercised fully, and the requests to communicate were denied only exceptionally.

The special advocates assumed their duties in the applicant’s interest during the closed hearings. Initially, they received their instructions before having access to the classified information. Sufficient time was given. As the information was disclosed during the proceeding, the special advocates had the option of seeking judicial authorization to communicate with the applicant for further instructions if necessary. The fact that the Court would have access to information that it would not have as evidence during a hearing is not out of the ordinary nor is it prejudicial or unfair to the named person.

Judges presiding over a voir dire will often hear evidence and receive information in the conduct of litigation. Furthermore, judges routinely rule on the admissibility of evidence and have the ability not to take into account information that they have heard before excluding it. The impugned provisions balance adequately the imperatives of both national security and the rights of the named person, particularly the communication provisions, which clearly exist in the interest and to the benefit of the named individual.

The Supreme Court in The Queen v. Oakes, (SCC), [1986] 1 S.C.R. 103, developed a test to determine if a violation canbe justified under

section 1 of the Charter. When pursuing an analysis under

section 1, one needs to decide whether or not the limit onlife, liberty or security imposed by the legislation is justifiable. Under

section 7, the Court must determine whether or not the limitsimposed satisfy the principles of fundamental justice. Under

section 1, the same facts are examined from a different angle. The IRPAprovisions that impose limits on the rights protected by the Charter in

section 7 are such that they are demonstrably justified in a free anddemocratic society. The protection of the safety of Canadians and of national security information in the IRPA is a valid, pressing andsubstantial objective. The legislative provisions are related to this objective; they minimally impair the rights in question and areproportional to the effects of the infringement and the importance of the objective sought. The provisions dealing with the disclosureprocess of national security information and the communication procedures for special advocates are saved by

section 1 of the Charter. STATUTES AND REGULATIONS CITED

An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendmentto another Act, S.C. 2008, c. 3. Canada Evidence Act, R.S.C., 1985, c. C-5, s. 38.06(2) (as enacted by S.C. 2001, c. 41, s. 43). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 6(1),(2), 7, 9, 10(c), 24(1). Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, s. 2 (as am. by S.C. 2001, c. 41, s. 89).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(h),(i), 19, 20, 27, 33, 34, 36 (as am. by S.C. 2008, c. 3, s. 3), 76 (asam. idem, s. 4), 77(2) (as am. idem), 78 (as am. idem), 79 (as am. idem), 80 (as am. idem), 81 (as am. idem), 82(1) (as am. idem), (2) (asam. idem), (4),(5)(a) (as am. idem), 82.1 (as enacted idem), 82.2 (as enacted idem), 82.3 (as enacted idem), 82.4 (as enacted idem), 83 (asam. idem), 85(1) (as am. idem), (3) (as am. idem), 85.1 (as enacted idem), 85.2 (as enacted idem), 85.4 (as enacted idem), 85.5 (asenacted idem). Indian Act, R.S.C., 1985, c. I-5.

Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function under Paragraph 38(

c) of the CanadianSecurity Intelligence Service Act, adopted March 9, 1985, rr. 48(2),(4), online: <http://www.sirc-csars.gc.ca/cmpplt/rulreg-eng.html>. CASES CITED applied: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, 276 D.L.R. (4th) 594, 54 Admin. L.R. (4th) 1;Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326, 294 D.L.R. (4th) 478, 58 C.R. (6th) 45; TheQueen v. Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321. considered: Harkat (Re), 2009 FC 167, 339 F.T.R. 92, 80 Imm.

L.R. (3d) 89; Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163, 355 F.T.R. 222, 86Imm. L.R. (3d) 212; Harkat (Re), 2005 FC 393, 261 F.T.R. 52, 45 Imm. L.R. (3d) 65; Almrei (Re), 2008 FC 1216, [2009] 3 F.C.R. 497,331 F.T.R. 301, 180 C.R.R. (2d) 338; R. v. Malik, 2005 BCSC 350; Canada (Attorney General) v. Canada (Commission of Inquiry intothe Actions of Canadian Officials in Relation to Maher Arar), 2007 FC 766, [2008] 3 F.C.R. 248, 72 Admin. L.R. (4th) 68, 316 F.T.R.279; Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R.(4th) 289, 2 Admin.

L.R. (2d) 125; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R.817, (1999), 174 D.L.R. (4th) 193, 14 Admin. L.R. (3d) 173; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486,(1985), 24 D.L.R. (4th) 536, [1986] 1 W.W.R. 481; Canada (Attorney General) v. Khawaja, 2007 FC 490, [2008] 1 F.C.R. 547, 219C.C.C. (3d) 305, 47 C.R. (6th) 346; Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, 219 D.L.R. (4th) 385, 49Admin. L.R. (3d) 1; Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v.

Canada (Minister of Citizenship andImmigration), 2005 SCC 51, [2005] 2 S.C.R. 539, 258 D.L.R. (4th) 193, 135 C.R.R. (2d) 1; R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154, (1991), 84 D.L.R. (4th) 161, 67 C.C.C. (3d) 193; Jaballah (Re), 2009 FC 279, 340 F.T.R. 43;Jaballah (Re), 2010 FC 79, [2011] 2 F.C.R. 145, 204 C.R.R. (2d) 262, 364 F.T.R. 72; Newfoundland (Treasury Board) v. N.A.P.E., 2004SCC 66, [2004] 3 S.C.R. 381, 242 Nfld. & P.E.I.R. 113, 244 D.L.R. (4th) 294; R. v.

Mills, (SCC), [1999] 3 S.C.R. 668,(1999), 244 A.R. 201, 180 D.L.R. (4th) 1. referred to: Harkat (Re), 2009 FC 203, 339 F.T.R. 60; Harkat (Re), 2009 FC 1050, [2010] 4 F.C.R. 149, 312 D.L.R. (4th) 464, 198 C.R.R. (2d) 275;Harkat (Re), 2009 FC 241, 339 F.T.R. 104; Harkat (Re), 2009 FC 659, [2010] 3 F.C.R. 169, 197 C.R.R. (2d) 286, 345 F.T.R. 179;Harkat (Re), 2009 FC 1008, 351 F.T.R. 313; Mahjoub (Re), 2010 FC 787, 373 F.T.R. 36, 90 Imm. L.R. (3d) 76; Harkat (Re), 2010 FC1241, [2012] 3 F.C.R. 251, 380 F.T.R. 61; Singh et al. v.

Minister of Employment and Immigration, (SCC), [1985] 1S.C.R. 177, (1985), 17 D.L.R. (4th) 422, 12 Admin. L.R. 137; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, (1995), 130D.L.R. (4th) 235, [1996] 2 W.W.R. 153; New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, (1999), 216 N.B.R. (2d) 25, 177 D.L.R. (4th) 124; Gosselin v. Québec (Attorney General), 2002 SCC 84,[2002] 4 S.C.R. 429, 221 D.L.R. (4th) 257, 100 C.R.R. (2d) 1; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1,[2002] 1 S.C.R. 3, 208 D.L.R. (4th) 1, 37 Admin. L.R. (3d) 159; R. v.

Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, 266 D.L.R. (4th) 101,207 C.C.C. (3d) 225; Idziak v. Canada (Minister of Justice), (SCC), [1992] 3 S.C.R. 631, (1992), 97 D.L.R. (4th) 577, 9Admin. L.R. (2d) 1; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, (1987), 44 D.L.R. (4th) 193, 37 C.C.C. (3d) 1; MountSinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, 200 D.L.R. (4th) 193, 36Admin. L.R. (3d) 71; R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, 233 D.L.R. (4th) 415, [2004] 4 W.W.R. 407;

Dehghani v. Canada (Minister of Employment and Immigration), (SCC), [1993] 1 S.C.R. 1053, (1993), 101 D.L.R.(4th) 654, 10 Admin. L.R. (2d) 1; R. v. La, (SCC), [1997] 2 S.C.R. 680, (1997), 200 A.R. 81, 148 D.L.R. (4th) 608;Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, 234 D.L.R.(4th) 257, 180 C.C.C. (3d) 353; United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77,268 D.L.R. (4th) 1, 209 C.C.C. (3d) 353; R. v.

Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, (1992),114 N.S.R. (2d) 91, 93 D.L.R. (4th) 36; Thomson v. Canada (Deputy Minister of Agriculture), (SCC), [1992] 1 S.C.R.385, (1992), 89 D.L.R. (4th) 218, 3 Admin. L.R. (2d) 242; Miller v. Canada (Solicitor General), 2006 FC 912, [2007] 3 F.C.R. 438, 297F.T.R. 203; Hampel v. Canada, amended order dated December 6, 2006; Lambert v. Canada, order dated June 5, 1996; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, (1988), 28 B.C.L.R. (2d) 145, 41 C.C.C. (3d) 385; R. v.

McClure, 2001 SCC 14, [2001] 1S.C.R. 445, 195 D.L.R. (4th) 513, 151 C.C.C. (3d) 321; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, 285D.L.R. (4th) 193, [2008] 1 W.W.R. 223; Harkat (Re), 2009 FC 204, [2004] 4 F.C.R. 370, 306 D.L.R. (4th) 269, 339 F.T.R. 65; R. v.Chaulk, (SCC), [1990] 3 S.C.R. 1303, [1991] 2 W.W.R. 385, (1990), 69 Man. R. (2d) 161. AUTHORS CITED Canada. Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and MuayyedNureddin (Honourable Frank Iacobucci, Q.C.

Commissioner). “Ruling on Terms of Reference and Procedure”, Ottawa: Public Worksand Government Services, May 31, 2007, online: <http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/internal_inquiry/2010-03-09/www.iacobucciinquiry.ca/en/rulings/index.htm> MOTION challenging the constitutionality of provisions 77(2), 78, 83(1)(

c) to (e), (h), (i), 85.4(2) and 85.5(

b) of the Immigration andRefugee Protection Act. Motion dismissed. APPEARANCES Matthew Webber, Norman Boxall and Leonardo Russomanno for applicant. André Séguin, David Tyndale, Bernard Assan, Amina Riaz and Gordon Lee for Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration. Paul J.J. Cavalluzzo and Paul D. Copeland as special advocates. SOLICITORS OF RECORD Webber Schroeder Goldstein Abergel, Ottawa, and Bayne Sellar Boxall, Ottawa, for applicant.

Attorney General of Canada for Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration. Paul J.J. Cavalluzzo and Paul D. Copeland as special advocates. The following are the reasons for order and order rendered in English by Noël J.: 1. Introduction [1] Parliament has designed a security certificate regime that provides a named person such as the applicant, Mohamed Harkat, witha fair hearing. That regime also protects information which, if disclosed, would harm Canada’s national security or the safety of anyperson.

While national security considerations may preclude the disclosure of information, the procedure set out in the Immigration andRefugee Protection Act [S.C. 2001, c. 27] (IRPA) requires the provision of summaries throughout the proceeding to the named person toensure that he is reasonably informed of the case made by the ministers against him. To compensate for the absence of Mr. Harkat andhis counsel during the in camera proceeding (closed hearings), special advocates are appointed to protect his interests. Mr.

Harkat takesthe position that such a scheme is unfair and does not enable the named person to be informed of the case that he has to meet, as there isa failure to disclose relevant evidence. It is further submitted that allowing inadmissible evidence and permitting a decision renderedbased on evidence not provided to the named person breaches the principles of fundamental justice. He also submits that the use ofspecial advocates and an improper balance of interests for disclosure purposes under the IRPA are not consistent with the principles offundamental justice and

section 7 of the Canadian Charter of Rights and Freedoms [being

Part I of the Constitution Act, 1982, ScheduleB, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter). Mr. Harkat further argues that suchinfringement of

section 7 cannot be justified under

section 1. On the other hand, the ministers argue that the legislation strikes anappropriate balance between the protection of confidential information and the protection of the rights of the named person, which is notinconsistent with the principles of fundamental justice. In the alternative, the ministers submit that the provisions at play are saved bysection 1 of the Charter. As it will be seen, the security certificate regime is ruled to be in accordance with the principles of fundamentaljustice and

section 7 of the Charter, and, in the alternative, is saved by

section 1. The motion challenging the constitutionality of therelevant provisions of the IRPA is dismissed. Table of Contents Paragraphs 1. Introduction 1 2. The constitutional question 2–4 3. Brief history of the proceedings 5–21

4. Brief review of the reasonableness hearing—summaries, communications and orders 22– 24 5. Factual allegations made against Mr. Harkat and disclosure of evidence 25– 34 6. Parties’ positions

Summary of the submissions made by Mr. Harkat 35– 42

Summary of the submissions made by the ministers 43– 48 7. Overview of the new legislative IRPA provisions 49– 68 The new detention review provisions 69– 72 The appeal provisions under the new legislation 73 8. The IRPA special advocate system compared to other systems 74– 80

Section 7 of the Charter and the principles of fundamental justice 81– 83 10. What are the relevant principles of fundamental justice? 84– 91 11. If required, can

section 1 of the Charter receive application in such a case? 92– 96 12. The issues 97– 98 13. What is national security information? 99– 105 14. Have the liberty and security rights of Mr. Harkat been deprived by the effects of the legislation? 106– 113 15. Is it acceptable under

section 7 of the Charter that national security information requires legal protection? 114– 126 16. Are the protections found in the new IRPA substantive and meaningful substitutes to ensure the safeguard of the principles of fundamental justice while protecting national security information? 127– 143 16.1 Are the disclosure provisions in the IRPA ( paragraphs 83(1) (

c) to 83(1)( e )) unconstitutional because they do not strike a balance with the public interest as in subsection 38.06(2) of the Canada Evidence Act ? 144– 162 16.2 Are the IRPA provisions requiring the special advocates to seek judicial authorization prior to communicating with anyone too broad? 163– 184 17. Other issues 185– 188 The standard of proof 189– 191 The admissibility of the evidence 192– 195 The decision on the reasonableness of the certificate may be based on information unknown to the named person or included in summaries of information 196– 202 18. Conclusion in response to the first question 203– 204

Section 1 205– 208 19.1 The Oakes test 209 19.1.1 A pressing and substantial objective 210– 217 19.1.2 Are the legislative provisions in issue rationally connected to this pressing and substantial objective? 218– 221 19.1.3 Is there a minimal impairment of the rights? 222– 227 19.1.4 Are the effects of the infringement proportional to the importance of the objective? 228– 232 19.1.5 Conclusion on

section 1 233 20. Conclusion 234– 235 21. Certified questions 236 22. The order 237 Appendix A Latest conditions of release of Mr. Harkat

Appendix B List of judgments, orders, communications and summaries issued 2. The constitutional question [ 2 ] Do subsection 77(2),

section 78, paragraphs 83(1)(

c) to ( e ), 83(1)( h ), 83(1)( i ), subsection 85.4(2) and paragraph 85.5(

b) of the IRPA [as am. by S.C. 2008, c. 3, s. 4 ] violate

section 7 of the Charter in that they do not provide for fair trial standards, fail to grant to the named person the right to know and answer the case made against him and make it impossible for the Court to render a sufficiently informed decision on the basis of the facts and the law? [ 3 ] Sections 1 and 7 of the Charter provisions read as follows: Rights and freedoms in Canada 1.

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. … Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 4 ] The relevant IRPA provisions read as follows: 77. … Filing of evidence and

summary

(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the certificate is based, and a

summary of information and other evidence that enables the person who is named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed. … Determination 78. The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not. … Protection of information 83.

(1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2: … (

c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person; (

d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person; (

e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a

summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed; … (

h) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence; (

i) the judge may base a decision on information or other evidence even if a

summary of that information or other evidence is not provided to the permanent resident or foreign national; and … 85.4 … Restrictions on communications — special advocate

(2) After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate. … Disclosure and communication prohibited 85.5 … (

b) communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel. 3. Brief history of the proceedings [ 5 ] A certificate stating that Mr. Harkat is inadmissible on security grounds (the 2008 certificate) was signed by the Minister of

Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration and referred to the Federal Court under the new Immigration and Refugee Protection Act (the new IRPA or IRPA) legislation [ sections 76 to 87.2 (as am. by S.C. 2008, c. 3, s. 4 )] on February 22, 2008. It is alleged that Mr. Harkat is inadmissible on security grounds for engaging in terrorism, being a danger to the security of Canada, being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism (see paragraphs 34(1) ( c ), (

d) and (

f) of the IRPA). [ 6 ] On February 22, 2008, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act [S.C. 2008, c. 3] (Bill C-3 or the new IRPA ), came into force in response to the rulings of unconstitutionality of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 ( Charkaoui No. 1). The Court held that the former legislation [S.C. 2001, c. 27] violated

section 7 of the Charter in that it violated the named person’s right to know and answer the case against him and that it could not be saved by

section 1 of the Charter because it did not minimally impair the rights in question. It also declared that the former subsection 84(2) governing the application for judicial release violated

section 9 and paragraph 10(

c) of the Charter by not providing timely detention review for foreign nationals. Bill C-3 made substantial modifications to the procedure governing the judicial review of certificates as well as to the applications for detention release in that context. These amendments included a new national security information disclosure process with the addition of special advocates to represent the interests of the named persons in the closed hearings. Bill C-3 also eliminated the distinction between permanent residents and foreign nationals for the purposes of the judicial interim release. Mr.

Harkat’s 2008 certificate was signed after the enactment of Bill C-3. The ministers also sought the status quo of his conditions of release. [ 7 ] On June 26, 2008, the Supreme Court of Canada rendered a second decision on the security certificate process in Charkaoui v. Canada (Citizenship and Immigration) , 2008 SCC 38 , [2008] 2 S.C.R. 326 ( Charkaoui No. 2) . In that appeal, Mr. Charkaoui sought a stay of proceeding given the destruction of original notes taken by the Canadian Security Intelligence Service (CSIS) during interviews with him . The Supreme Court allowed Mr. Charkaoui’s appeal in part.

While a stay of proceedings was found to be premature, the Court held that the destruction of operational notes was a serious breach of CSIS’s duty to retain and disclose information. Justices LeBel and Fish wrote on behalf of the Court at paragraph 53: But whether or not the constitutional guarantees of s. 7 of the Charter apply does not turn on a formal distinction between the different areas of law. Rather, it depends on the severity of the consequences of the state’s actions for the individual’s fundamental interests of liberty and security and, in some cases, the right to life.

By its very nature, the security certificate procedure can place these rights in serious jeopardy, as the Court recognized in Charkaoui . To protect them, it becomes necessary to recognize a duty to disclose evidence based on s. 7 . [ 8 ] In conformity with this judgment, this Court ordered the ministers and CSIS on September 24, 2008, to “file all information and Intelligence related to Mohamed Harkat including, but not limited to, drafts, diagrams, recordings and photographs in CSIS’s possession or holdings with the designated proceedings

section of the Court”. [ 9 ] The special advocates, with ministers’ counsel and the designated Judge, reviewed the Charkaoui No. 2 disclosure and identified the information which they felt was pertinent to the proceeding. As a result of the Charkaoui No. 2 review, informative documents were entered as exhibits (see exhibits M13, M15, M17, M18, M25 and M26). [ 10 ] In the fall of 2008, closed hearings were held concerning the Charkaoui No. 2 disclosure issue. Also, evidence was presented through a ministerial witness in support of the allegations made against Mr. Harkat and the reasonableness of the certificate.

Since the Charkaoui No. 2 disclosure was ongoing, the cross-examination of the witness by the special advocates was limited to the issue of the danger associated with Mr. Harkat in relations to the review of his conditions of release. The cross-examination concerning the reasonableness of the certificate was postponed to November 23, 2009. During those closed hearings, the Court dealt with other matters initiated by the special advocates, such as their request to access a CSIS employee file and human sources files.

This resulted in the issuance of reasons for judgment in both cases (see Harkat (Re) , 2009 FC 203 , 339 F.T.R. 60 and Harkat (Re) , 2009 FC 1050 , [2010] 4 F.C.R. 149). [ 11 ] In October 2008, the ministers consented to a change of residence, and to the removal of a condition that required Mr. Harkat to reside with two supervising sureties. The ministers’ consent was conditional on Mr. Harkat’s agreement to a number of conditions, such as the instalment of surveillance cameras by the Canada Border Services Agency (CBSA).

The ministers also agreed to the removal of a supervising surety. [ 12 ] In March 2009, this Court conducted a review of conditions of Mr. Harkat in public. Closed hearings were also held to deal with the classified information on danger. It concluded that his release without conditions would be injurious to national security, but confirmed his release under more appropriate conditions. For instance, Mr.

Harkat could stay home alone between 8 a.m. and 9 p.m., provided he gave the CBSA a 36-hour notice and called them every hour on the hour (see Harkat (Re) , 2009 FC 241 , 339 F.T.R. 104). [ 13 ] On April 23, 2009, as a result of the ongoing closed hearings, the ministers disclosed facts publicly that had not been previously disclosed and on which they relied upon, as well as a

summary and further disclosure of Charkaoui No. 2 documents (see Exhibit M15). This was tendered as an exhibit although counsel agreed that only the information dealt with during examination or cross-examination of witnesses could be relied upon by the designated Judge. This document remains part of the public record insofar only as it shows the extent of the information disclosed to Mr. Harkat as a consequence of Charkaoui No. 2. [ 14 ] On May 12, 2009, a search of Mr. Harkat’s residence took place. The search was reviewed by the Court and was held to be unjustified. All items seized were returned to Mr.

Harkat by order of this Court (see Harkat (Re) , 2009 FC 659 , [2010] 3 F.C.R. 169). [ 15 ] On May 26, 2009, a ministers’ letter was delivered to the Court providing new information in relation to the reliability of a human source that had provided information on Mr. Harkat (the polygraph issue). As a result, the Court ordered the ministers to file, on a confidential basis, the human source file, as the Court had evidence that led it to question the completeness of the information provided by the ministers.

In addition, on June 16, 2009, the Court issued a public direction offering three CSIS witnesses the opportunity to explain their testimony and their failure to provide relevant information to the Court. They accepted the Court’s invitation.

[ 16 ] In their submissions, the special advocates sought the exclusion of all information provided by the human source in question as a remedy pursuant to subsection 24(1) of the Charter . On October 15, 2009, the Court issued public reasons for order and order ( Harkat (Re) , 2009 FC 1050 , [2010] 4 F.C.R. 149). The Court found that there were no intent to filter or conceal the information concerning the human source on the part of the CSIS employees and that there were insufficient grounds to rule that Mr. Harkat’s rights as guaranteed by the Charter had been violated.

However, the Court ordered that another human source file relied upon by the ministers be made available to the special advocates and to the Court, setting aside the human source privilege, to ensure that there were no further concerns in relation to the special advocates’ ability to fully test the evidence. This was found to be necessary to remedy the damage brought to the administration of justice and to re-establish a climate of trust and confidence in the proceeding.

A new exhibit was filed by the ministers which properly reflected the content of the human source file related to the polygraph test. [ 17 ] On September 21, 2009, Mr. Harkat filed an application for an order reviewing his conditions of release. In light of a new threat assessment issued by the ministers, an important number of restrictions were removed. Among others, Mr. Harkat could now go on outings without the presence of his sureties and was allowed to travel outside the Ottawa region under certain conditions ( Harkat (Re) , 2009 FC 1008 , 351 F.T.R. 313).

Some restrictions remain, which can be found in Appendix A of the present reasons. [ 18 ] During the closed hearing prior to the beginning of the public hearing on the reasonableness of the certificate, an issue arose as to third-party information that the special advocates considered necessary to be transmitted to Mr. Harkat. This information is protected from disclosure by a caveat in the intelligence world, to the effect that permission must be obtained for disclosure. This sensitive issue was addressed extensively during closed hearings.

The special advocates agreed that some of the information was such that permission should be sought from those specific sources of information. A process was established by the ministers to seek such permission in specific cases. Some of this information was eventually disclosed to Mr. Harkat through summaries or communications. [ 19 ] The special advocates and public counsel sought to obtain updated information on Zubaydah and Wazir, two individuals alleged to have links with Mr. Harkat. Closed hearings were held and the matter was reviewed at length.

When possible, public communications of the information were provided (see for example communication dated May 12, 2010). At the end of the public hearings, the Court informed the parties that any new information concerning these two individuals could be filed with the Court until August 31, 2010, although the matter was under reserve since June 2, 2010. A

summary of information was forwarded to Mr. Harkat and public counsel as a result of an exchange of correspondence between the ministers’ counsel, special advocates and the Court (see oral communication dated September 1, 2010). [ 20 ] In accordance with the legislation and Charkaoui No. 2, full access to the bank of information in the hands of CSIS with regard to Mr. Harkat and other intelligence information has been given to those involved in the closed hearings.

It gave them access to targets, individuals of concern, methodologies and methods of operation, exchanges of information with foreign agencies, investigative reports, potential names of human sources, etc. It also gave a view of how the Canadian Security Intelligence Service operates internally when gathering and assessing information. This type of information is very sensitive. [ 21 ] During this proceeding, Mr. Harkat was represented by three public counsel and two special advocates. Five counsels acted on behalf of the ministers; only three of them were involved in closed hearings.

The special advocates were present during all the public hearings and did intervene occasionally on a number of public matters. 4. Brief review of the reasonableness hearing—summaries, communications and orders [ 22 ] The public hearings on the reasonableness of the certificate of Mr. Harkat were held on November 4, 2008, from January 18 to February 12, 2010 and from March 8 to March 11, 2010. Public and closed oral submissions were heard between May 25 and June 1, 2010 . Closed hearings were held on and off from September 2008 to May 2010.

Two witnesses testified publicly on behalf of the ministers in the public hearings. One of them was recognized as an expert witness. [ 23 ] The respondent, Mr. Harkat, testified. In addition, seven witnesses testified on his behalf, out of which five were given standing as expert witnesses on a variety of subject-matters.

Another expert witness did not testify but his report was entered as an exhibit. [ 24 ] Close to 20 witnesses have been cross-examined in closed hearings on a number of subject-matters, such as the reasonableness of the certificate, the polygraph issue, the assessment of danger, Charkaoui No. 2 disclosure issues, human sources, etc. As a result, communications and directives have been disclosed to Mr. Harkat in order to inform him of what was discussed in camera , without disclosing information that could be injurious.

As well, the special advocates requested to communicate with public counsel and other people on 18 occasions. Such requests were granted on more than 12 occasions. A compilation of all the judgments, orders, communications, directives and summaries is included at Appendix B. 5. Factual allegations made against Mr. Harkat and disclosure of evidence [ 25 ] The security certificate is supported by a Confidential Security Intelligence Report (CSIR or TS SIR) from which a Public Security Intelligence Report (PSIR—Exhibit M5) was filed on February 22, 2008, and provided to Mr. Harkat.

This document was available at the time the two special advocates were appointed and a period of at least one month was available to allow discussion with Mr. Harkat and his public counsel prior to the period they became privy to the classified information. From then on, the special advocates needed to secure judicial authorization to communicate since they had access to the TS SIR.

A Revised Public Security Intelligence Report (RPSIR—Exhibit M7), the result of an ongoing process of reviewing the classified information in closed hearing with all involved, which brought the disclosure of additional information, was provided on February 6, 2009. Generally, the RPSIR alleges that prior to and after arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activity as a member of the terrorist entity known as the bin Laden network (BLN). The allegations and evidence disclosed by the ministers are as follows: (

a) Prior to arriving in Canada in October 1995, Harkat was an active member of the Bin Laden Network and was linked to individuals believed to be in this Network. He was untruthful about his occupation in Pakistan as he had concealed from Canadian authorities his activities in support of Islamist extremist organizations; (

b) In Algeria, Harkat was a member of the Front Islamique du Salut (“FIS”), a legal political party at the time. Harkat acknowledged

his support for the FIS from 1989. After being outlawed in 1992, the FIS created a military wing, the Armée islamique du salut, which supported a doctrine of political violence, and was linked with the Group[e] islamique armé (“GIA”). The GIA supported a doctrine of depraved and indiscriminate violence, including against civilians. When the FIS severed its links with the Group[e] islamique armé (“GIA”), Harkat indicated that his loyalties were with the GIA. Harkat’s decision to align himself with the GIA is an indication of support for the use of terrorist violence; (

c) Harkat was associated with Ibn Khattab; (

d) The Algerian Mohammad Adnani (a.k.a. Harkat), a former soldier in Afghanistan, was a member of the Egyptian terrorist organization [Al-Gama’a al-islamiyya] (“AGAI”); (

e) After arriving in Canada, Harkat engaged in activities on behalf of the Bin Laden Network using methodologies typical of sleepers; (

f) In support of clandestine activities, members of the Bin Laden Network use false documents. When Harkat arrived in Canada he was in possession of two passports, a Saudi Arabian passport and an Algerian passport. The Saudi Arabian passport bearing the name Mohammed S. Al Qahtani was declared and was verified as fraudulent. Saudi passports were determined to be the passports of choice for Muslim extremists entering Canada because prior to 2002, Saudi passport holders did not require a visa to travel to Canada; (

g) Harkat used aliases such as Mohammed M. Mohammed S. Al Qahtani, Abu Muslim, Abu Muslima, Mohammad Adnani, Mohamed Adnani, Abu [ sic ] Muslim, Mohammed Harkat, and Mohamed – the Tiarti, and concealed them in order to hide his identity and his real activities on behalf of the Bin Laden Network; (

h) Harkat kept a low profile as he needed status in Canada following which he would be “ready”. He was a sleeper who entered Canada to establish himself within the community to conduct covert activities in support of Islamist extremism; (

i) Harkat used security techniques and displayed a high level of security consciousness to avoid detection; (

j) Harkat concealed his previous whereabouts, including the period that he spent in Afghanistan. Harkat also concealed his links with Islamist extremists, including his relationship with persons in Canada, in part to disassociate himself from individuals or groups who may have supported terrorism; (

k) Harkat maintained links to the financial structure of the Bin Laden Network and concealed these links. He had access to and received, held or invested money in Canada originating from the Bin Laden Network. He also had a relationship with Hadje Wazir, a banker Harkat knew from Pakistan, who is believed to be the same individual as Pacha Wazir – an individual involved in terrorist financing through financial transactions for Ibn Khattab and the Bin Laden Network; (

l) Harkat assisted Islamist extremists in Canada and their entry into Canada, and concealed these activities. Harkat counselled Wael (a.k.a. Mohammed Aissa Triki) on his processing through Canadian immigration including denying knowledge of anyone living in Canada, and contacting Harkat once cleared through immigration. Harkat spoke to Abu Messab Al Shehre while he was in London, U.K.

Al Shehre was searched upon arrival in Canada and found to be in possession of various documents (i.e. a shopping list of munitions and weapons) and paraphernalia (i.e. weapons or parts thereof), including a head banner usually worn by Islamist extremists when in combat, and believed to be covered with written Koranic verses. Al Shehre was detained and Harkat visited him in jail, but denied any previous contact; and (

m) Harkat had contacts with many international Islamist extremists, including those within the Bin Laden Network, and other numerous Islamist extremists, including Ahmed Said Khadr and Abu Zubaydah. [ 26 ] As part of the RPSIR, the appendices contain a brief description of organizations or individuals such as Al-Qaida, the Groupe islamique armé (GIA), Ibn Khattab and Ahmed Said Khadr. It also includes 6 CSIS

summary interviews with Mr. Harkat from May 1, 1997 to September 14, 2001, as well as 13 summaries of conversations (the K conversations). These summaries relate to Mr. Harkat, either as a participant or as the subject of the conversation, from September 1996 to September 1998. They are offered by the ministers as evidence in support of the allegations. The disclosure of such evidentiary information had never been done before. Through careful editing, the content of these conversations was extracted from CSIS’s book of information and was set out as exhibits.

All counsel involved in the closed hearings made that possible. Finally, the RPSIR also has public information relied upon and immigration documents concerning Mr. Harkat. That type of evidence explains the ministers’ view of Mr. Harkat’s situation. [ 27 ] As a result of the ongoing review of the classified information during the closed hearings, more detailed factual allegations and evidence were provided to Mr. Harkat and filed publicly on April 23, 2009 (see Exhibit M10): (

a) Harkat operated a “guesthouse” in a suburb of Peshawar, Pakistan. There is information to suggest that the guesthouse may be linked to Ibn Khattab, and was used by mujahideen who were on their way to or from training camps in Afghanistan with the facilitation of Harkat; (

b) There is information that demonstrates that Harkat had access to sums of money when he required it. After he arrived in Canada, Harkat received money from contacts abroad; and (

c) There is information to the effect that Harkat worked for the same organization (Human Concern International) as Ahmed Said Khadr and was acquainted with Khadr before Harkat came to Canada. Also, there is information to suggest that Harkat was entrusted with specific tasks on behalf of Khadr. [ 28 ] The special advocates took the position that such information had to be disclosed in order to properly inform Mr. Harkat. Documents properly prepared on the basis of sensitive information made that possible. On February 10, 2009, the ministers filed a Supplementary classified SIR, from which a Supplementary Public SIR (Exhibit M11) was extracted, alleging that:

(

a) From 1994 to 1995 Abu Muslim (a.k.a. Harkat) was an active jihadist in Peshawar who was in the service of Ibn Al Khattab, not Al-Qaeda, for whom he ran errands and worked as a chauffeur; (

b) From 1994 to 1995 one of HARKAT’s friend’s was Dahhak. In February 1997, HARKAT contacted an individual in Pakistan whom he addressed as Hadje Wazir. Identifying himself as Muslim from Canada, HARKAT asked Wazir whether he knew Al Dahhak. Wazir advised in the negative. It is believed that Dahhak, Al Dahhak and Abu Dahhak (aka Ali Saleh Husain) are the same person, and that this person is associated to Al Qaeda; and (

c) While in Pakistan, HARKAT was known to have had shoulder length hair and a noticeable limp. [ 29 ] This information became public as a result of numerous requests made by the special advocates and eventually with the collaboration of the ministers’ counsel. As a result of the review of the intelligence files as dictated by Charkaoui No. 2, more detailed information was disclosed to Mr.

Harkat: 1996 Contacts with Mohammed Aissa Triki: In September 1996 , Harkat discussed with acquaintances the upcoming visit to Canada of his Tunisian friend, Wael who used the name of Mohamed Issa for his visit to Canada. (Wael is believed identical to Mohammed Aissa Triki). Harkat counselled “Wael” on his processing through Canadian Immigration. Harkat advised Triki to tell his story as it is and not to lie. Then, Harkat advised Triki to deny knowledge of anyone in Canada and instructed Triki to contact Harkat once he had cleared Canadian immigration .

Triki, who claimed to have $45,000.00 dollars when he arrived in Montreal in September 1996, travelled directly to Ottawa, and took up residence with Harkat. Triki left Toronto on October 23, 1996 , carrying a false Saudi passport bearing the name Mohamed Sayer Alotaibi. Later, in November 1996, it was learned that Harkat would reimburse an individual for any out standing telephone call bills made by Triki while in Canada. Immigration process: In October 1996, it was learned that Harkat did not want to be associated with anybody until he had finished with his Immigration process.

Finance: In November 1996, during a conversation between Harkat and an individual, the latter asked how much Harkat was willing to pay to purchase a car. Harkat advised that money was not an issue for him. He furthered that he would pay up to $8,000.00 dollars for a car in good shape. In December 1996, Harkat advised an individual that he would pay $7,650.00 for the car. When asked if he had the money ready, Harkat replied that his friend at the school where he learns English had guaranteed the money for him. Harkat furthered that the money was in the States, and he would be transferring the money.

Contacts with Abu Messab Al Shehre: In November 1996, Abu Messab Al Shehre spoke to Harkat from London, United Kingdom. Al Shehre addressed Harkat as “Abu Muslim” and asked how the “brothers” were doing. When Al Shehre said that Harkat might remember him as “Abu Messab Al Shehre of Babi”, Harkat, who identified himself as Mohamed, quickly said that Abu Muslim was not there. When asked, Harkat told Al Shehre that he did not know where Abu Muslin was, and said he did not know when Abu Muslim would be returning. In concluding, Al Shehre said sorry to bother you, Sheikh Mohamed.

Later, in November 1996, Harkat received an apology on behalf of Abu Messab Al Shehre for the use of Harkat’s alias, Abu Muslim. Harkat tried to avoid being called Abu Muslim. In December 1996, Harkat revealed to an individual that he knew Al Shehre very well and that Al Shehre was his friend. On his arrival in Canada in December 1996, Al Shehre’s effects were searched by officials of Revenue Canada Customs and Excise (RCCE), now known as the Canada Border Services Agency (CBSA).

In his possession were various documents and paraphernalia, including a shopping list of munitions and weapons (for example, Kalashnikov rifle, RPG (rocket propelled grenade)) and instructional documents on how to kill. Among the weapons seized by RCCE during their search were a nanchuk (a prohibited weapon under the Criminal Code (of Canada)), a garrotte, and a samurai sword (Wazi). Also found were a shoulder holster (reported to be for a Russian- made gun), a balaclava and a head banner usually worn by Islamist extremists when in combat, believed to be covered with written Koranic verses.

As a result, Al Shehre was detained by RCCE. Throughout this period, Harkat was regularly in contact with certain acquaintances in order to keep abreast of Al Shehre’s situation. Harkat urged one of them to find money to pay Al Shehre’s lawyer, and suggested that that person contact Al Shrehre’s brother abroad and ask him for money.

Harkat kept himself abreast of Al Shehre’s situation until the latter’s deportation on May 29, 1997, to Saudi Arabia, where he was arrested on May 30, 1997. 1997 Immigration process: In February 1997, Harkat informed some acquaintances that he had been accepted as a refugee, and that he was now able to apply for landed immigrant status. Contact with Hadje Wazir: In February 1997, Harkat contacted an individual in Pakistan whom he addressed as Hadje Wazir. Identified himself as “Muslim” from Canada. Harkat proceeded to inquire about “Khattab” (believed to be identical to Ibn Khattab) or any of his “people”.

Wazir replied that

Khattab had not shown up for a long time but his people had. At this point, Harkat asked if Wael (believed to be identical to Mohammed Aissa Triki) was visiting Wazir on a regular basis. Wazir advised in the positive. Harkat furnished his telephone number and asked to be contacted by Wael. Harkat further asked that his telephone number be provided either to Wael or any brother who showed at Wazir’s Centre to do transactions. Harkat went on to explain that he also used to do transactions at Wazir’s Centre.

In August 1997, Harkat said that he intended to travel to where Hadje Wazir was residing and ask him for money. Harkat added that he could easily get money from Hadje Wazir. Contacts with Ahmed Said Khadr: In March 1997, Harkat said he had met Ahmed Said Khadr at the Islamic Information and Education Centre (IIEC) in Ottawa and would meet him again shortly. Links with Abu Zubaydah: In March 1997, Harkat discussed financial arrangements with an acquaintance in Ottawa who stated that he contacted Abu Zubaydah, at the “place” where Harkat “used to be”.

Abu Zubaydah wanted Harkat to help pay Abu Messab Al Shehre’s legal fees, and Harkat was asked if he could come up with $1,000.00 dollars. Harkat replied that he was ready to pay that amount if he was contacted by Abu Zubaydah. When asked, Harkat said he did not fear being contacted at home by Abu Zubaydah, and that he knew Abu Zubaydah personally. At one point during the discussion, the acquaintance referred to Abu Zubaydah as Addahak / Aldahak Employment In March 1997, Harkat discussed with a potential business partner the possibility of getting into a business venture together.

Harkat revealed that he would travel and get funds from a mutual friend. Harkat explained that he would open a franchise for their mutual friend’s business in Canada. Harkat further said that he would travel to Saudi Arabia to get the money if his future partner was serious about getting into a partnership business. The partner stated that the best business he and Harkat could do was to run a gas station. This business would require $45,000.00 dollars from each partner. Harkat replied that money was not an issue for him.

In October 1997, Harkat began working as a delivery person for a pizzeria in Orleans but quit two days later. Attending school: In September 1997, Harkat registered as a full time student at an adult high school located in Ottawa. Harkat wanted to continue his studies in English, physics and chemistry.

Past activities: In October 1997, Harkat indicated to an acquaintance that CSIS interviewed Mohamed Elbarseigy for six hours, and the latter told CSIS every thing he knew about him, including that he worked in Amanat. 1998 to 1999 Contact with Abu Messab Al Shehre: In February 1998, in a conversation with Abu Messab Al Shehre, in Saudi Arabia at that time , Al Shehre, who addressed Harkat as our Sheikh, asked Harkat how he viewed his friendship with him. Harkat described it as a kind of brotherhood. Al Shehre replied that it is more than brotherhood.

Harkat stated that since he needed status in Canada, he tried to keep a low profile during Al Shehre’s detention, but he managed to send an acquaintance of his to prison and provide Al Shehre with all kinds of help. Harkat asked Al Shehre to send $1,500.00 to cover Al Shehre’s legal fees. Harkat advised Al Shehre to acquire the funds from the “group” if he could not get it on his own. Harkat openly stated that he had to keep a “low profile” as he needed status in Canada. Further, Harkat told Al Shehre that as soon as he received his “status” he would be “ready”.

Plans to get married: In June 1998, Harkat indicated to an acquaintance that he feared being expelled by Canadian authorities, so he decided to marry a Muslim Canadian woman to avoid deportation. In February 1999, Harkat advised his girlfriend in Ottawa that he would be coming over to her place the following day to seek her hand in marriage. In July 1999, Harkat revealed to an acquaintance that his parents had also found him a bride in Algeria. When it was suggested that Harkat bring the bride to Canada, Harkat stated that his current girlfriend in Ottawa would not accept that.

Employment In 1998 and 1999, Harkat held jobs at various gas stations and at a pizzeria. In October 1998, Harkat revealed to an acquaintance that he planned to purchase the lease of a gas station if he was granted status. Harkat revealed that he had no problem finding the money. He only needed $25,000.00 dollars deposit. In August 1999, Harkat made an appointment with Canada Trust to discuss a potential loan of $30,000.00 dollars to invest in a gas station. Plans to Visit Algeria and Tunisia:

In December 1998, Harkat revealed that he would be visiting his family in Algeria in the summer of 2001. In August 1999, Harkat told an acquaintance that his family had advised him against returning to Algeria and suggested they meet them in Tunisia. Harkat revealed that if he went to Algeria, he risked being arrested simply because he was someone of importance within the Front. Taking courses: In August 1999, Harkat revealed that he would register at an adult high school to take an English as a second language course. In December 1999, Harkat was looking for someone to pass his taxi driver’s test on his behalf.

In February 2000, an acquaintance of Harkat told him that he had found someone to pass Harkat’s taxi driver’s test on his behalf. Finance: In October 1999, Harkat confided to his girlfriend that he had made a mistake in quitting his other job. He added that he could not afford to not have two jobs because he had large bills to pay. He further revealed that he had argued with the owner of the pizza store over a pay increase and over his

schedule and the man had let him go. With two jobs, Harkat related, he used to make $2,500.00 dollars a month and now with only one job at the gas station and working seven days a week, he was making $1,5000.00 [ sic ] dollars a month. Harkat further concluded that his situation would be better if he could pass the taxi driver test in November 1999. However, by the end of the same month he was back working at the pizza store doing the same shift as before.

He justified his return to work at the pizza store by noting that he had to pay his debts. 2000 to 2002 Immigration process: From 2000 to 2002, Harkat was very preoccupied with the status of his permanent resident application and often discussed his predicament with his friends. Moreover, during this period, Harkat was in regular contact with Citizenship and Immigration Canada (CIC) to find out the status of his application. Getting married: In March 2000, Harkat believed that the only solution to his problems with immigration was to get married. In April 2000, Harkat found a new girlfriend, Sophie Lamarche.

Harkat did not want to put pressure on her in order to get married, however, he was thinking of keeping her as an alternative. In April 2000, Harkat revealed that he talked to Sophie about his situation who in turn told him that she promised to help him at the appropriate time. Harkat revealed that if something happened, he would marry her. In May 2001, it was learned that Harkat had married Sophie in January 2001. Later in May 2001, Harkat revealed that his marriage with Sophie was not serious and he could leave her at any time.

Plans to travel to Algeria: In March 2000, Harkat was planning to travel to Algeria in August 2000. In May 2001, Harkat said that once he received his permanent resident status, he would go to Algeria. In June 2001, Harkat indicated that he would like to receive his permanent resident status soon so he could travel to Algeria. In July 2001, Harkat indicated that he was planning to go to Algeria in January 2002. Taking a course: In July 2001, Harkat began a truck driving course. Gambling at the casino: In December 2001, Harkat revealed that he had been going to the casinos for five years and was still going.

From 1997 to 2002, Harkat regularly went to the Lac Leamy Casino in Hull (Gatineau), and to a lesser extent the Montreal Casino. During this period, Harkat won and lost large amounts of money. According to Harkat, in June 2001, the casino gave him a pass in the first row of the theatre for all the shows at the casino because they knew that he had lost $100,00.00 [ sic ] dollars while gambling. Thus, over the years, Harkat often had to borrow money from his girlfriend and her brother. During his testimony before the Federal Court on October 27, 2004, Harkat acknowledged that he had a gambling problem.

Employment: In February 2000, Harkat had three jobs: gas station attendant, pizza delivery man and car parts deliveryman. In March 2000, Harkat resigned from the pizzeria and lost his two other jobs, but found two other jobs, including one at a gas bar. In December 2001, Harkat was receiving unemployment insurance while working for a pizzeria.

Harkat indicated that the manager at the pizzeria had agreed to sign a letter stating Harkat had begun to work on the 15 th of that month and if asked, Harkat would claim he had worked at the pizzeria on a voluntary basis when he was bored at home or as a favour when the manager needed some help. Harkat was never paid by cheque therefore they could not prove anything. Previous employment: In September 2001, Harkat indicated that he had worked for Human Concern International (HCI) in Saudi Arabia and for the company ‘Muslim’.

(See Exhibit M15—the underlined portions show what was previously disclosed to Mr. Harkat. This document was part of the Charkaoui No. 2 disclosure to Mr. Harkat. Both groups of lawyers agreed that not all the information found in that document could be used judicially as evidence, but only the information that was used in examination and cross-examination of witnesses. It is included here in order to show the extent of the disclosure made to Mr.

Harkat.) [ 30 ] Further summaries of conversations he had in May and June of 2001 with members of his family, friends and a fiancée and her mother in Algeria were made available to Mr. Harkat and added to the PSIR following a decision in Harkat (Re) , 2009 FC 167 , 339 F.T.R. 92. Those summaries were disclosed to Mr. Harkat and his counsel, who then had 10 days to serve and file a motion asking the Court to treat these summaries of conversations confidentially. Since Mr.

Harkat did not file such motion, the summaries became part of the Public Amended Security Intelligence Report (see Exhibit M7, at Appendix K). [ 31 ] The public hearings produced 51 exhibits for the ministers and 82 exhibits for Mr. Harkat, as well as 9 witnesses. The public evidence is voluminous and gives good insight into the facts of this case, the history of Islam and the political reality of the time involving countries such as Algeria, Saudi Arabia, Pakistan, Afghanistan and Russia (Chechnya and Dagestan).

The evidence also gives an understanding of the Canadian immigration system insofar as it relates to Mr. Harkat. The public evidence is such that Mr. Harkat knows all of the allegations made against him with some valuable supporting factual evidence. The entire factual basis may not be known to him but his knowledge is such that as it was seen during the presentation of his evidence, he was able to respond to it. The written submissions of public counsel for Mr.

Harkat reflect very clearly his knowledge of the case. [ 32 ] The closed hearings also produced an important number of exhibits both from the ministers and the special advocates. Witnesses were cross-examined. All pertinent avenues were explored. Because of the polygraph issue, human sources files in their full integrity were exceptionally produced, read and reviewed. All participants to such process became fully cognizant and were able to assume their duties accordingly. [ 33 ] The open source material relied upon by the ministers was challenged by Mr. Harkat through the testimony of Dr.

Lisa Given, associate professor in the School of Library and Information Studies of the Faculty of Education at the University of Alberta in Edmonton. She made it clear that the information could not be relied upon in its entirety and has to be scrutinized rigorously. [ 34 ] The public process has been such that Mr. Harkat was able, through expert testimonies, to offer his own open source documentation. 6. Parties’ position

Summary of the submissions made by Mr. Harkat [ 35 ] The applicant submits that the security certificate process constitutes a violation of

section 7 of the Charter in that the named person is denied the ability to know and answer the case made against him. More precisely, it is the position of the applicant that the security certificate process violates

section 7 in the following fashions: - By providing solely for summaries of information or evidence to the applicant, subsection 77(2) [of the IRPA ] does not provide him with the ability to know and answer the case; - By automatically denying disclosure to the named person on the basis of national security interests, paragraph 83(1) (

e) of the IRPA infringes

section 7 of the Charter ; - By allowing the judge to base a decision on information or other evidence regardless of whether a

summary of that information or evidence has been disclosed to the applicant, paragraph 83(1)(

i) is contrary to the same principles of fundamental justice and therefore violates

section 7 of the Charter ; - By prohibiting the special advocates from communicating with anyone about the proceedings after they have received the confidential information without authorization of the Court, subsection 85.4(2) and

section 85.5 violate

section 7 of the Charter ; - The standard of review of reasonableness, through a combination of sections 33 and 78, if interpreted as mandating a standard less than a balance of probabilities, constitutes a breach of

section 7 of the Charter . [ 36 ] In order to make a full answer and defence, the Supreme Court of Canada stated in Charkaoui No. 1 that there must be disclosure to the extent that it allows the person not only to present the evidence, but to also make a full legal argument (see paragraph 52). According to Mr. Harkat, this suggests that the named person not only has to be able to respond to the allegation, but has to be able to make a legal argument regarding the merits of the allegation itself. In spite of the presence of the special advocates, the ministers must strictly meet their disclosure duties.

The ministers must apprise the named person of the essence of the evidence they are relying on to make their case, so that the named person can meet that case. This is an essential part of the right to a fair hearing. [ 37 ] Therefore, when a particular allegation is decisively based on evidence called in secret, the Court should be required to balance the national security interests with the public interest in ensuring a fair hearing. The special advocates do not have the ability to rebut the government’s case since they cannot discuss the case with the named person.

In order to protect the right to a fair hearing, the Court must provide the fullest disclosure of information possible to the named person while ensuring that the information is protected. [ 38 ] Mr. Harkat submits that paragraph 83(1) (

e) of the IRPA violates

section 7 of the Charter . He argues that in the wake of Charkaoui No. 1 and Charkaoui No. 2, there is a constitutional duty to strike a balance which calls for the most complete disclosure possible. As a consequence, the designated judge is said to have a duty to require the ministers to discharge their onus of proving that national security concerns override the right of the named person to a fair hearing. Mr.

Harkat argues that national security confidentiality concerns arising in circumstances other than immigration security certificates is governed by subsection 38.06(2) [as enacted by S.C. 2001, c. 41 , s. 43] of the Canada Evidence Act [R.S.C., 1985, c. C-5] (CEA), where the judge is required to strike a balance between the national security interest and other interests, including the public interest in a fair proceeding. Such balancing

should therefore be regarded as the constitutionally compliant approach. [ 39 ] Mr. Harkat submits that the special advocates are unable to assist the named person in this process if prevented from communicating with them after reviewing the secret material. As well, subsection 85.4(2) of the IRPA provides that once a special advocate has received the confidential information, he may communicate with another person about the proceeding only with the presiding judge’s authorization; in Mr.

Harkat’s submissions, that is a violation of the solicitor-client privilege because the presiding judge will be privy at least to the subject-matter of communications between the special advocate and the named person. Mr. Harkat also argues that where the special advocates are not permitted to ask the named person questions about the ministers’ case after reviewing disclosure, it will be impossible to assist the person in properly making a full answer and defence. [ 40 ] The applicant submits that the violations to

section 7 cannot be saved under

section 1 of the Charter . He argues that there are no exceptional circumstances warranting any derogation from the disclosure rights of the named person, and that the IRPA disclosure regime fails to qualify a national security prohibition that can minimally impair the applicant’s

section 7 rights, and therefore cannot be saved under

section 1. He accepts, however, that the protection of national security is a sufficiently compelling public interest to justify intruding on solicitor-client privilege. It follows that the legislation may legitimately impose restrictions on the otherwise free flow of information between solicitor and client.

However, any such restriction must observe the principle of minimal impairment which, the applicant submits, is far more than necessary to safeguard national security (see factum of the applicant on disclosure and the public interest/communication with the special advocates dated April 26, 2010, at paragraph 70). [ 41 ] Mr. Harkat expressed an intent to challenge some provisions of the IRPA , namely: subsection 77(2) and paragraphs 83(1) (

c) to 83(1) (

e) insofar as it does not relate to the restrictions on disclosure; paragraph 83(1) (

h) on the admissibility of the evidence; and paragraph 83(1) (

i) that provides that a decision can be based on information or evidence regardless of whether a

summary has been disclosed to the applicant; however, he never presented any written or oral submissions in that regard. This Court did draw the attention of counsel to this situation. It is Mr. Harkat’s opinion that arguments were made to support the constitutional invalidity of these provisions based on the general argum

[…]