2016 FC 586, 2016 FC 586

[2017] 1 F.C.R. 229 DES-6-08 2016 FC 586 IN THE MATTER OF a Certificate Signed Pursuant to Subsection 77(1) of the Immigration and Refugee Protection Act (IRPA) and IN THE MATTER OF the Referral of a Certificate to the Federal Court Pursuant to Subsection 77(1) of the IRPA and IN THE MATTER OF MAHMOUD ES-SAYYID JABALLAH Indexed as: Jaballah (Re) Federal Court, Hansen J.—Ottawa and Toronto, various dates between October 6, 2008 and December 11, 2014; Ottawa, May 26 and June 24, 2016.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Security Certificate — Referral of security certificate pursuant to Immigration and Refugee Protection Act, s. 77(1) — Respondent, individual named in security certificate at issue signed by Minister of Citizenship and Immigration, Minister of Public Safety and Emergency Preparedness — In certificate, ministers of opinion that respondent inadmissible to Canada on security grounds described in Act , ss. 34(1) (b), (c), (d), (f) — Respondent, Egyptian national who claimed refugee status in Canada, becoming subject of Canadian Security Intelligence Service (CSIS) investigation — After issue of security certificate, respondent arrested, detained — Given evolution of evidentiary record in present matter, respondent bringing abuse of process motion pursuant to Canadian Charter of Rights and Freedoms, s. 24(1) seeking order either for stay of referral proceeding or excluding certain parts of evidence relied on by ministers — Ministers submitting that evidence establishing reasonable grounds to believe respondent member of Al Jihad (AJ), engaging in terrorism — Whether reasonable grounds to believe respondent was, is member of terrorist organization; whether security certificate issued reasonable; whether respondent’s motion for abuse of process should be allowed — Ministers failing to establish reasonable grounds to believe respondent was or is member of AJ, failing to show reasonable grounds to believe, inter alia, that respondent provided material support thereto (s. 34(1)(b)) — Also no evidence respondent himself supporting objectives of global terrorism (s. 34(1)(c)) — Regarding respondent’s inadmissibility under Act, s. 34(1)(d), evidence not supporting reasonable grounds to believe respondent today danger to Canada — However, combined effect of Act, ss. 33 , 34 meaning finding of present danger not required under Act, s. 34(1)(d) — Question therefore whether evidence established that respondent was in the past danger to the security of Canada — Something more than mere membership required for purpose of s. 34(1) (d) — Fact respondent associated with people who were or went on to become involved in global terrorism not necessarily providing reasonable grounds to believe respondent himself danger to Canadian security since little to no evidence establishing that associations thereof “operational” in nature or that individuals with whom respondent in contact having “access to Canada” — Thus, ministers not establishing on reasonable grounds to believe that respondent danger to Canadian society — In conclusion, security certificate filed by ministers not reasonable, therefore certificate quashed — Consideration of remaining grounds in respondent’s abuse of process motion not necessary — Security certificate not reasonable; motion dismissed.

This was a referral of a security certificate pursuant to subsection 77(1) of the Immigration and Refugee Protection Act . The respondent was the individual named in the security certificate at issue which was signed by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness. In the certificate, the ministers stated their opinion that the respondent is inadmissible to Canada on security grounds described in paragraphs 34(1) (b), (c), (

d) and (

f) of the Act. It is their opinion that there are reasonable grounds to believe that the respondent will, while in Canada, engage in or instigate the subversion by force of the government of Egypt; has engaged in terrorism; is a danger to the security of Canada; and was and is a member of Al Jihad (AJ), an organization that has engaged in terrorism. In accordance with the Act, the security certificate was referred to the Court to determine whether it was reasonable. The respondent, an Egyptian national, travelled with his wife and four children to Canada using a false Saudi passport.

He claimed refugee protection on the ground that he was wanted by Egyptian authorities on charges of inciting violence and that he would be killed if he returned to Egypt. Shortly after his arrival, the respondent was the subject of a Canadian Security Intelligence Service (CSIS) investigation, which led to the first security certificate issued against him. He was arrested and detained at this time but the Court quashed the certificate and the respondent was released from detention. Later, a second security certificate naming the respondent issued and he was again arrested and detained.

The Federal Court of Appeal set aside this Court’s determination that the certificate was reasonable and remitted the matter thereto for reconsideration, and the Court found that the second certificate was reasonable. The respondent tried unsuccessfully to secure his release for over five years between 2001 and 2006 until the Court ordered his conditional release in 2007. After amendments were made to the Act in 2008, the second security certificate was quashed by operation of law and a third security certificate, the subject of this proceeding, was subsequently issued.

Since then, the case has evolved significantly in terms of the evidentiary record and the allegations against the respondent, which led him to bring an abuse of process motion seeking an order, pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms , either staying the referral proceeding or excluding certain parts of evidence relied on by the ministers for reasons of disclosure and delays. Consequently, the Court issued an order excluding certain parts of the evidence. As to the case itself, the allegations of inadmissibility based on the grounds in paragraphs 34(1) (b), (

c) and (

d) of the Act were inextricably linked to the ground of inadmissibility in paragraph 34(1)(f)—membership in a terrorist organization. The case of the ministers was in large measure based on reasonable inferences that they submitted established evidence the cumulative impact of which led to the inference that there are reasonable grounds to believe that the respondent was a member of the AJ and engaged in terrorism. In support of the ministers’ assertion of the respondent’s membership in AJ, which would make the respondent inadmissible under paragraph 34(1)(

f) of the Act, the ministers relied on evidence about the respondent’s activities before and after his arrival in Canada, such as dissemination of propaganda and recruitment, the contact the respondent maintained with AJ leadership and members in other countries, use of clandestine methodology, etc.

The issues were whether there were reasonable grounds to believe the respondent was or is a member of a terrorist organization and consequently whether the security certificate at issue herein was reasonable and whether the respondent’s motion for abuse of process should be allowed. Held , the security certificate is not reasonable; the motion should be dismissed. To have the validity of legal proof, a reasonable inference must be based on known or established facts.

Regarding the respondent’s alleged activities before coming to Canada, it is believed that he is an Afghan war veteran who spent an unidentified period of time in Afghanistan and that his travel pattern was consistent with that of a mujahid extremist. In advancing this position, the ministers had to establish there were reasonable grounds to believe the respondent was in Afghanistan and there were reasonable grounds to believe that, while in Afghanistan, he participated in jihad and engaged in mujahedeen activities.

However, based on the record and findings made, there was insufficient credible and compelling evidence to support an objective belief that he was involved in military activities in that country. Thus, there were insufficient known or established facts from which reasonable inferences could be drawn that, taken together, gave rise to reasonable grounds to believe that the respondent was involved in the military conflict in Afghanistan.

Regarding the allegation that the respondent was in Pakistan in connection with his senior membership in AJ, the preponderance of the evidence was contrary to this since there was ample evidence that the respondent was a teacher in Pakistan. Therefore, there was no basis on which a reasonable inference could be drawn that the respondent went to Pakistan in connection with AJ.

With respect to the ministers’ assertion that the respondent was a senior member of AJ, the ministers relied on his alleged close association and contact with several leading members of AJ as well as members of other groups that engaged in terrorism or subversion. The ministers also contended that the respondent associated with AJ members in Canada. However, even if there were reasonable grounds to believe the respondent was in contact with individuals specified by the ministers, there was no evidence to link the respondent to AJ through these alleged contacts.

The alleged contacts did not allow for a reasonable inference to be drawn that would support a finding of reasonable grounds to believe the respondent would, while in Canada, engage in or instigate the subversion by force of the government of Egypt, has engaged in terrorism or is a danger to the security of Canada. Regarding the submission that the respondent practiced clandestine methodology and was security conscious, while there was insufficient evidence to establish that he used clandestine methodology, there were reasonable grounds to believe that he was security conscious.

Based on the record before the Court, any attempt to identify the source of that security consciousness would be speculative at best. Thus, the ministers failed to establish that there are reasonable grounds to believe the respondent was or is a member of AJ and failed to show there are reasonable grounds to believe, inter alia , that he provided material support thereto. There was also no evidence the respondent himself supported the objectives of global terrorism. It followed that the respondent’s inadmissibility under paragraphs 34(1) (

b) and (

c) of the Act was not established. Concerning whether the respondent was inadmissible under paragraph 34(1) (

d) of the Act (danger to the security of Canada), the evidence did not support reasonable grounds to believe the respondent is today a danger to Canada. However, the combined effect of sections 33 and 34 of the Act meant that a finding of present danger was not required under paragraph 34(1)(d). Accordingly, there was still the question of whether the evidence established that the respondent was in the past a danger to the security of Canada.

Although the case law on “danger to the security of Canada” is not fully settled, it is clear that something more than mere membership is required for the purposes of paragraph 34(1)(d). The record established that there were reasonable grounds to believe the respondent was in contact with individuals who were AJ members and who participated in global terrorism at the time he was in contact with them.

The fact that the respondent was in contact with AJ members outside Canada for whom there are reasonable grounds to believe were involved in global terrorism could contribute to a finding that the respondent is himself a danger to the security of Canada assuming that the allegation of membership in AJ is established.

However, the fact that the respondent was associated with people who either were or went on to become involved in global terrorism did not necessarily provide reasonable grounds to believe that he is himself a danger to Canadian security since there was little to no evidence that established that these associations were “operational” in nature. Additionally, there was no evidence that the individuals with whom the respondent was in contact had “access to Canada”. Thus, the ministers did not establish on reasonable grounds to believe that the respondent is a danger to Canadian security.

In conclusion, the security certificate filed by the ministers was not reasonable and it was quashed. Given this conclusion, consideration of the remaining grounds in the respondent’s abuse of process motion was not necessary and the motion was dismissed. STATUTES AND REGULATIONS CITED Bill C-3, 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. 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. 9, 10(c), 24(1) . Canadian Security Intelligence Services Act , R.S.C., 1985, c. C-23, s. 21 . Immigration Act , R.S.C., 1985, c. I-2, s. 40.1 (as enacted by S.C. 1992, c. 49, s. 31). Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 33, 34 , 77(1) , 83(1) (h), 83(1.1) . Law No. 58 of 1937 Issuing the Penal Code (Egypt). CASES CITED APPLIED: Mugesera v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100; Mahjoub (Re) , 2013 FC 1092 , 450 F.T.R. 28; Harkat (Re) , 2012 FCA 122 , [2012] 3 F.C.R. 635.

CONSIDERED: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Jaballah v. Canada (Public Safety andEmergency Preparedness), 2007 FC 379, 296 F.T.R. 1; Osmond v. Newfoundland (Workers’ Compensation Commission), 2001 NFCA21 , 200 Nfld. & P.E.I.R. 203; British Columbia v. Abitibi-Consolidated, 2005 BCSC 409, 16 C.P.C. (6th) 9; Jaballah (Re),2010 FC 79, [2011] 2 F.C.R. 145; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Harkat(Re), 2010 FC 1241, [2012] 3 F.C.R. 251. REFERRED TO: Chippewas of Kettle & Stony Point First Nation v.

Shawkence, 2005 FC 823, 42 C.C.E.L. (3d) 304. AUTHORS CITED Soufan, Ali H. The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda, New York: W.W. Norton & Company Inc.,2011. REFERRAL of a security certificate pursuant to subsection 77(1) of the Immigration and Refugee Protection Act in which the Ministerof Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness are of the opinion that the respondent isinadmissible to Canada on security grounds described in paragraphs 34(1)(b), (c), (

d) and (

f) of the Act. MOTION for an order pursuantto subsection 24(1) of the Canadian Charter of Rights and Freedoms in particular staying the referral proceeding. Security certificate notreasonable; motion dismissed. APPEARANCES Barbara Jackman, Marlys Edwardh, Adriel Weaver, Norman Boxall, Jonathan Dawe, Sarah L. Boyd and Frances Mahon for MahmoudEs-Sayyid Jaballah.

Donald MacIntosh, John Provart, Lucan Gregory, David Joseph, Tracey McCann, Andrew Cameron, David Knapp, Michael Pierce,Tessa Kroeker, Caroline Carrasco, Robert Batt, David Duggins, Robert Frater, Irena Krakowska, Meva Motwani, Jessica Winbaum,Tracey Vansickle and Julia Barss for the Minister of Citizenship and Immigration and the Minister of Public Safety and EmergencyPreparedness. John Norris, Paul J.J. Cavalluzzo and Ann McNaughton as special advocates. SOLICITORS OF RECORD Jackman, Nazami & Associates, Toronto and Sack Goldblatt Mitchell LLP, Toronto, for Mahmoud Es-Sayyid Jaballah.

Deputy Attorney General of Canada for the Minister of Citizenship and Immigration and the Minister of Public Safety and EmergencyPreparedness. John Norris, Paul J.J. Cavalluzzo and Ann McNaughton as special advocates. The following are the amended reasons for judgment rendered in English by [1] Hansen J.: Mr.

Mahmoud Es-Sayyid Jaballah (respondent) is named in a February 22, 2008 security certificate signed by theMinister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (ministers) pursuant tosubsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA or Act). In the certificate, the ministers statetheir opinion that the respondent is inadmissible to Canada on security grounds described in paragraphs 34(1)(b), (c), (

d) and (

f) of theAct. Specifically, it is the ministers’ opinion that there are reasonable grounds to believe the respondent will, while in Canada, engage inor instigate the subversion by force of the government of Egypt; has engaged in terrorism; is a danger to the security of Canada; and wasand is a member of Al Jihad (AJ), an organization that has engaged in terrorism. In accordance with the IRPA, the security certificatewas referred to the Court to determine whether it is reasonable. In these reasons, I conclude that the security certificate filed by theministers is not reasonable and will be set aside.

Classified reasons will also be issued and will include the information that cannot bedisclosed for reasons of national security. [2] Over the course of this proceeding, the original Security Intelligence Report (SIR) presented to the ministers in support of thesecurity certificate in February 2008 and the Public

Summary of the SIR (PSIR) provided to the respondent have undergone a number ofrevisions, in particular, in 2010, 2012, 2013 and in June and August 2014. In these reasons, the references to the SIR and the PSIR,unless otherwise indicated, are to the most recent version dated August 21, 2014. This is the third security certificate issued against therespondent. [3] The respondent, an Egyptian national, was born in Al-Sharqia, Egypt, on January 7, 1962. On May 11, 1996, he, his spouse andfour children, travelling on a false Saudi passport, arrived in Canada.

He claimed refugee protection on the ground that he was wanted byEgyptian authorities on charges of inciting violence and that he would be killed if he returned to Egypt. Shortly after his arrival, therespondent was the subject of a Canadian Security Intelligence Service (CSIS or Service) investigation. This investigation led to the firstsecurity certificate issued against the respondent in March 1999 at which time the respondent was arrested and detained.

The Courtquashed this certificate in November 1999 and the respondent was released from detention. [4] In August 2001, a second security certificate naming the respondent issued and he was again arrested and detained. In May 2003,the Federal Court of Appeal set aside this Court’s determination that the certificate was reasonable and remitted the matter to this Courtfor reconsideration. In October 2006, the Court found that the second certificate was reasonable. Between the time of his arrest in August2001 and October 2006, the respondent’s attempts to secure his release were unsuccessful.

Shortly after the Court’s determination that

the certificate was reasonable, the respondent brought another application for his release. In February 2007, before this application was concluded, the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 ( Charkaoui

I) held that the provisions in the IRPA dealing with the detention of foreign nationals violated

section 9 and subsection 10(

c) of the 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] (Charter) and declared the security certificate provisions in the Act to be of no force or effect. However, the Court suspended the declaration of invalidity for one year. In April 2007, the Court released the respondent on conditions that, as the Court described, “equate to house arrest” [ Jaballah v. Canada (Public Safety and Emergency Preparedness) , 2007 FC 379 , 296 F.T.R. 1, at paragraph 3] .

It is noted that since that time there have been a number of reviews of the terms and conditions of his release that have resulted over time in a significant lessening of the stringency of the original terms and conditions of release. [ 5 ] In February 2008, with the coming into force of Bill C-3 [ 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], the relevant provisions of the Act were amended and the second security certificate was quashed by operation of law.

The third security certificate, the subject of the within proceeding, was issued later that month. [ 6 ] Since the signing of the certificate in February 2008, this case has evolved significantly both in terms of the evidentiary record and the allegations against the respondent. This is largely attributable to orders made on motions brought by the respondent, the ministers’ decisions to withdraw information dependent upon all protected human sources and certain other pieces of information, and other evidentiary rulings made during the course of the hearing.

Two orders in particular illustrate the change in the record over time. In August 2011, the Court excluded certain evidence on the basis that the information was inadmissible pursuant to paragraph 83(1) (

h) and subsection 83(1.1) of the IRPA by reason of there being reasonable grounds to believe the information was obtained as a result of torture. [ 7 ] Subsequently, the respondent brought an application for an order pursuant to subsection 24(1) of the Charter staying the within proceeding or, alternatively, for an order excluding all summaries relied on by the ministers for which the original investigative materials had been destroyed, including but not limited to, summaries of intercepted communications, interviews, and physical surveillance (the abuse of process motion).

At this point, it should be noted that the evidence on this motion was heard in conjunction with the evidence in relation to the reasonableness of the security certificate.

However, by agreement, the submissions of the parties and the special advocates were not made until the last two weeks of March 2013 after the ministers had closed their case on the reasonableness of the security certificate. [ 8 ] The respondent grounded the abuse of process motion on the Service’s breach of its obligation to retain and disclose original investigative materials in its possession and the delay in disclosing the public summaries of the materials; the ministers’ reliance on information that had been excluded in this proceeding; the interception of his solicitor-client communications and the misuse of those communications; and the delay in this matter and his prolonged and repeated subjugation to judicial proceedings while confined and, subsequently, under stringent conditions of release. [ 9 ] On September 17, 2013, the Court issued the following order with reasons that followed on October 3, 2013: 1.

All summaries relied on by the Ministers of intercepted oral communications for which the original recordings have been destroyed are excluded from the evidence in the within proceeding. 2. All summaries relied on by the Ministers of intercepted facsimile communications for which the original intercepts have been destroyed are excluded from the evidence in the within proceeding. For greater clarity, those facsimile communications for which the content purports to be quoted in its entirety in the operational report are not excluded. 3.

All summaries relied on by the Ministers of intercepted mail are excluded from the evidence in the within proceeding. However, intercepted mail for which the content purports to be quoted in its entirety in the operational report is not excluded; addresses taken from intercepted mail that appear to be recorded in full in the operational report are not excluded; information in operational reports from intercepted mail in relation to the quantity and title of publications is not excluded. 4. The Ministers shall prepare edited versions of the Security Intelligence Report and the Public

Summary of the Security Intelligence Report that reflect the above exclusions. 5. The decision on the motion for a stay of proceedings in relation to those grounds other than the destruction of original investigative materials is reserved. [ 10 ] Before turning to the case itself, it is convenient to observe that the manner in which the hearing unfolded, that is, the abuse of process motion was heard and decided after the ministers closed their case, added another layer of complexity to this case.

This is because the ministers’ case was advanced on the basis of the record that existed prior to the exclusion order on the abuse of process motion. Additionally, in the public hearing, the witnesses testified by reference to the October 2010 PSIR and in the closed hearing, the witnesses testified by reference to the September 2012 SIR. The testimony of the ministers’ witnesses is, and understandably so, based, in part on and replete with references to evidence that was subsequently excluded. [ 11 ] In the present case, the allegations of inadmissibility based on the grounds found in paragraphs 34(1) (b), (

c) and (

d) of the IRPA are inextricably linked to the ground of inadmissibility in paragraph 34(1) (f), membership in a terrorist organization. As such, the central issue in this proceeding is whether there are reasonable grounds to believe the respondent was or is a member of a terrorist organization. Before turning to the allegations underpinning the assertion of membership in a terrorist organization, it is necessary to deal with the standard of proof and the role of “reasonable inference”. [ 12 ]

Section 33 of the IRPA provides that the facts constituting inadmissibility under

section 34 are facts for which there are reasonable grounds to believe have occurred, are occurring or may occur. The facts may also arise from omissions unless otherwise provided. In Mugesera v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100, at paragraph 114 , the Supreme Court of Canada articulated the meaning of the “‘reasonable grounds to believe’” standard of proof as requiring “something

more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities”. The Courtexplained that “[i]n essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compellingand credible information”. [13] The ministers’ case, as they acknowledge, is in large measure based on reasonable inferences.

The ministers contend that whenviewed in their totality, these inferences establish the evidence the “cumulative impact” of which “leads to the inference that there arereasonable grounds to believe that the Respondent was a member of the AJ and engaged in terrorism”. [14] In Osmond v. Newfoundland (Workers’ Compensation Commission), 2001 NFCA 21 , 200 Nfld. & P.E.I.R. 203, theNewfoundland Court of Appeal provides helpful instruction regarding the drawing of reasonable inferences.

At paragraphs 134 and 135,the Court stated: This Court, in its judgment on appeal in Willard Miller, which is being filed concurrently with this decision, has stressed that aninference is different from speculation. [To that extent, I would not agree with the use of the word “speculative” in the quotation fromIson in the Nancy Miller case, supra]. Drawing an inference amounts to a process of reasoning by which a factual conclusion is deducedas a logical consequence from other facts established by the evidence.

Speculation on the other hand is merely a guess or conjecture;there is a gap in the reasoning process that is necessary, as a matter of logic, to get from one fact to the conclusion sought to beestablished. Speculation, unlike an inference, requires a leap of faith. As noted in Canadian Pacific Railway v. Murray (SCC), [1932] S.C.R. 112 the dividing line between a conjecture or guess on the one hand and an inference on the other is often a verydifficult one to draw. Nevertheless, there is a fundamental difference that requires a distinction to be made. As I observed in R. v.

Hillier(L.) et al (1993), (NL SC), 109 Nfld. & P.E.I.R. 92 (NFSC, TD), at para. [93] in another context: An inference is … a very different thing, qualitatively, from a guess or suspicion and a suspicion does not acquire evidentiary characterjust because there are a number of similar suspicions related to the case. For an inference to be drawn it must be grounded in some otherproven facts. In Jones v. Great Western Railway (1930), 47 T.L.R. 39 (H.L.) cited with approval in Canadian Pacific Railway v.

Murray, thedistinction was put thus: A conjecture may be plausible but it is of no legal value, for its essence is that of a mere guess. An inference in the legal sense, on theother hand, is a deduction from the evidence and if it is a reasonable deduction it may have the validity of legal proof. The attribution ofan occurrence to a cause is … always a matter of inference. [15] Similarly, the British Columbia Supreme Court in British Columbia v. Abitibi-Consolidated, 2005 BCSC 409, 16 C.P.C. (6th) 9stated, at paragraph 15: ….

An inference is a “conclusion reached by considering other facts and deducing a logical sequence from them”, Black’s LawDictionary, 7th ed. page 781. Or, in the case of evidence, it is “in the legal sense, … a deduction from evidence, and if it is a reasonablededuction it may have the validity of legal proof”, Montreal Tramways Co. v. Leveille, (SCC), [1933] 4 D.L.R. 337 at350 (S.C.C.).

Thus, it can be seen that to have the “validity of legal proof” a reasonable inference must be based on known, that is, established facts. [16] Lastly, the designated judge must always be mindful of the Supreme Court of Canada’s instruction in Charkaoui I, at paragraph39. It reads: First, an active role for the designated judge is justified by the language of the IRPA and the standards of review it establishes.

Thestatute requires the designated judge to determine whether the certificate is “reasonable”, and emphasizes factual scrutiny by instructingthe judge to do so “on the basis of the information and evidence available” (s. 80(1)). [17] Moreover, as the Court observes at the same paragraph, the IRPA requires the designated judge to engage in a searching reviewof the information and the evidence in determining the reasonableness of the certificate.

In Jaballah (Re), 2010 FC 79, [2011] 2 F.C.R.145, at paragraphs 46–47, Justice Dawson explained that this will require the designated judge to weigh the evidence in support of theallegations and to determine which facts are accepted. If the preponderance of the evidence is contrary to the ministers’ allegation, therecan be no reasonable grounds for the allegation (see also: Mahjoub (Re), 2013 FC 1092, at paragraph 44). [18] Returning to the inadmissibility ground found in paragraph 34(1)(

f) of the IRPA, the ministers claim the respondent was and is asenior member of AJ, also known as the Egyptian Islamic Jihad (EIJ), a terrorist organization which advocates the use of violence as ameans to establish an Islamic state in Egypt, and which is “closely linked” to Al-Qaida. As such, the respondent is inadmissible toCanada pursuant to paragraph 34(1)(

f) of the Act. In support of the assertion of membership in AJ, the ministers rely on evidence aboutthe respondent’s activities prior to his arrival in Canada in May 1996. The ministers also rely on the respondent’s activities after hearrived in Canada, including: dissemination of propaganda and recruitment; the contact the respondent maintained with AJ leadershipand members in other countries; his ongoing contact with several Islamic extremists; his contact with AJ leadership in the periodsurrounding the East Africa bombings; and use of clandestine methodology.

Reliance is also placed on an Interpol Red Notice issued inrelation to the respondent regarding outstanding charges in Egypt for being a member of a terrorist organization. [19] According to the Personal Information Form (PIF) the respondent filed in support of his refugee claim, he is a devout Muslimwho fled Egypt after being persecuted, detained and tortured by the Egyptian authorities in connection with his religious and politicalbeliefs. He attended the University of Zagazig between 1981 and 1985 where he was affiliated with a group from the mosque led byBadr, a professor at the university.

He states that he was first arrested when he was 19 years old, after the assassination of Anwar al-Sadat in 1981. Following his arrest, he was detained without charge for two years. During this detention, he was interrogated andtortured. Following his release, he was approached by Egyptian security officers who asked him to collect information about people whospoke out against the government, but he refused. He was rearrested and detained several more times over the course of the next decade.At times, his spouse, Husna al-Mashtouli, was also detained and tortured.

He was arrested and detained a final time on September 1,

1990 for six months. The respondent states that he attempted to leave Egypt three times before finally being permitted to leave to make a pilgrimage to the holy sites in Saudi Arabia. He left Egypt for Saudi Arabia with his family in or around July 1991 and did not return. [ 20 ] A brief description of how the respondent came to the Service’s attention will provide a backdrop for the Service’s subsequent investigation and the conclusions that were drawn. In the course of its investigation, the Service obtained information from a variety of sources including open sources, human sources, technical sources obtained under the authority of

section 21 of the Canadian Security Intelligence Services Act , R.S.C., 1985, c. C-23 (CSIS Act), and domestic and foreign agencies. [ 21 ] Although the respondent’s identity was not yet known, at the end of May 1996, he was observed in the company of an individual under the Service’s surveillance. Subsequently, at the end of June 1996, the Service observed the respondent in a Toronto park with Hassan Farhat, Kassem Daher, Mustafa Krer, and three other adult males along with a number of children.

Shortly after, the individual the Service observed at the end of May and in the park was identified as the respondent and he became a person of interest to the Service. [ 22 ] Within a few days, the Service had the respondent’s statement to a Citizenship and Immigration Canada officer (CIC officer) upon his arrival in Canada, at which time he surrendered the false Saudi passport on which he and his family were traveling and provided the officer with his true identity.

The respondent stated that he purchased the false Saudi passport from Abu Abdallah, a 35-year-old Iraqi he met in Pakistan. [ 23 ] The respondent told the CIC officer that he left Egypt on January 12, 1991 and was in Pakistan from December 1 to August 30, 1994 on a work visa. From this latter date to September 30, 1995, he was in Yemen illegally and then he was in Azerbaijan illegally until May 4, 1996. On May 11, 1996, he transited illegally through Germany and arrived in Canada on the same day.

According to the passport, it was issued on August 2, 1995 at Tarif, Saudi Arabia and it contained the following stamps: • August 8, 1995, a United Kingdom single entry visa valid until February 8, 1996 issued in Riyhad, Saudi Arabia; • October 16, 1995, Karameh, Jordan entry stamp; • October 23, 1995, Pakistan single entry visa valid until January 22, 1996; • November 1, 1995, Jordan exit stamp; • November 1, 1995, Islamabad, Pakistan entry stamp; • March 25, 1996, Pakistan single entry visa valid until September 24, 1996; • April 7, 1996, Karachi, Pakistan international airport exit stamp; • April 7, 1996, Azerbaijan single entry visa valid until May 7, 1996; • May 4, 1996, Georgia single entry visa valid until June 4, 1996; • May 6, 1996, Artvin, Turkey entry stamp; • May 11, 1996, Istanbul, Turkey exit stamp.

As an aside, it appears that there is also a May 4, 1996 Azerbaijan exit stamp that was not included in the reporting about the contents of the passport. [ 24 ] When he entered Canada, the respondent also had the following documents in his possession: • three certificates from the International Islamic Relief Organization (IIRO), Pakistan office attesting to the respondent’s work as a teacher and director of an orphanage in Pakistan; • one certificate from the IIRO certifying that Mohamed Mohamed Abdallah was also a teacher at an orphanage in Pakistan; • a certificate attesting to the respondent’s work as a teacher on behalf of the Saudi Arabian Ministry of Education in Pakistan; • a certificate attesting to the respondent’s spouse’s work as a teacher on behalf of the Yemeni Ministry of Education in Pakistan from January 1993 to August 1994; and • a torn piece of note paper with the following phrase, “I want to apply for political refugee condition”. [ 25 ] Turning to the respondent’s alleged activities before coming to Canada, the PSIR sets out the Service’s belief that the respondent is an “Afghan war veteran” and the Service’s conclusion that he “spent an unidentified period of time in Afghanistan, and that his travel pattern was consistent with that of a mujahid extremist—one who left Egypt to fight in Afghanistan, trained in Yemen, may have fought in Chechnya, and cannot return to Egypt” (PSIR, paragraphs 4 and 11). [ 26 ] As counsel for the ministers stated, in advancing this position, they must establish there are reasonable grounds to believe the respondent was in Afghanistan and there are reasonable grounds to believe that while in Afghanistan, he participated in jihad and engaged in mujahedeen activities.

In support of these allegations, the ministers rely on the respondent’s statements made during two Service interviews on March 5 and August 21, 1998, the information found in Exhibit 11, Tab A36, a letter the respondent received from Peshawar, Pakistan in April 1997 and classified information. The ministers also rely, in part, on the respondent’s alleged travel on false Iraqi and Saudi passports to Egypt, Saudi Arabia, Pakistan, Yemen, Azerbaijan, Jordan and Turkey, successively. They contend that this travel pattern is consistent with the travel pattern of a “mujahid extremist”.

Additionally, the ministers submit that the respondent’s presence in Pakistan was in furtherance of his senior membership in AJ and not simply for his employment as a teacher. As well, the

ministers argue that it may reasonably be inferred that the respondent’s travels to Yemen and Azerbaijan were to further his AJ connections. [ 27 ] Turning to the evidence in the public record regarding the respondent’s travels, in support of the allegation that the respondent was in Afghanistan, the ministers rely primarily on the two Service interviews referred to above. The two investigators, Michel Guay and David, who conducted the first and second interviews respectively, testified on behalf of the ministers. [ 28 ] Mr. Guay joined the Service in 1992 and worked as an analyst at CSIS’s headquarters.

From early 1995 until the spring/summer of 1998, he was an investigator in the Toronto region working on the Sunni Islamic extremism desk. He was the first investigating officer on the respondent’s file. [ 29 ] Mr. Guay stated that he had very little, if any, independent recollection of the interview. Therefore, for the purpose of refreshing his memory before testifying in this proceeding, he reviewed his operational report of the interview which is a

summary of the interview and the testimony he gave in 1999 in the first security certificate proceeding. As to the timing of the interview, Mr. Guay explained that the Service had acquired quite a bit of information about the respondent’s contacts and activities in Canada, in particular, his contacts with individuals, some of whom were previously known to the Service. Thus, at that time, the purpose of the interview was to clarify the respondent’s relationships with these individuals and to try to provide some context to the information that had already been collected. [ 30 ] Mr.

Guay testified that he brought an Egyptian interpreter to assist him with the interview. The interview lasted approximately an hour-and-a-half. As he had testified in 1999, he did not recall whether or not he took notes at the interview and added that he did not believe the interpreter took notes but he could not recall. He explained that generally speaking, note taking is something that would be avoided and he would only try to take notes when there was something of import or of significance to take down.

He also stated that if there was something of specific interest, he would try to write it down as quickly as possible after the interview. [ 31 ] The operational report has 13 paragraphs, a number of which are not relevant for the purpose of the present discussion. This includes the first three paragraphs that touch on introductory matters; paragraphs five to nine that summarize Mr.

Guay’s questions regarding the respondent’s knowledge of and his relationships with a number of individuals and the respondent’s frustration at the fact that his answers were not accepted; and paragraphs 12 and 13 which deal with the end of the interview. [ 32 ] Paragraph 4 of the operational report reads (Ref. Ind. Tab 141): The writer then informed JABALLAH that he was aware that JABALLAH had been involved in jihad activities overseas (including Afghanistan) before coming to Canada, and had been involved with individuals and groups who were attempting to bring down the Egyptian government.

JABALLAH protested that although he had been arrested various times in Egypt, he had never been charged with anything by Egyptian authorities. The writer indicated that he wasn’t referring to activities in Egypt, but elsewhere. JABALLAH was silent. [ 33 ] Mr. Guay explained that the statement he made to the respondent in paragraph 4 would have been informed by the various reports he reviewed that showed the respondent’s interests in AJ; in Ayman Al Zawahiri, his philosophy and observations during various interviews; and in the on-going situation in Afghanistan with the Taliban.

He added that these and others would have led him to ask the respondent about his activities in jihad overseas and that he was just attempting to gauge the respondent’s reaction to the statement. [ 34 ] Paragraph 10 of the operational report states: The writer then asked JABALLAH why he spent approximately one year in Yemen as a part of his travels prior to coming to Canada. JABALLAH responded that he had been looking for work. The writer then asked about JABALLAH’s eight-month sojourn in Azerbaijan. Again, JABALLAH responded that he had been looking for work.

When the writer expressed his incredulity that anyone would travel to these two countries simply in search of employment, JABALLAH responded that he had worked for various relief agencies, in support of Afghan refugees and victims of the Afghan conflict . [Emphasis added.] [ 35 ] Mr. Guay testified that at this point in the interview, the respondent retrieved a paper from a closet for Mr. Guay to look at that indicated he had been working for a relief agency. As the paper was primarily, if not entirely, in Arabic and he could not read Arabic, he would have given it to the interpreter to read.

He testified that given the purpose of the interview, the names of relief agencies and their locations were of very low importance at the time. As well, he stated that he did not take a copy or make any notation of anything in the document. Further, he could not recall if the document shown to him on cross-examination was the same letter that was shown to him during cross-examination in the 1999 hearing. At this juncture, it is observed that the respondent’s attempt to show Mr. Guay a paper concerning his work for a relief agency is not recorded in the

summary of the interview. [ 36 ] At paragraph 11 of the operational report, it states: JABALLAH was asked if he knew Dr. Ayman AL ZAWAHIRI. When JABALLAH did not recognize the name, the writer showed him a photograph of ZAWAHIRI. After closely studying the photograph, JABALLAH indicated that during his time at one of the refugee camps in Afghanistan (where he was a teacher) he had seen an individual who resembled the man in the photograph, but had never met the man.

JABALLAH also indicated that determining identities was difficult because no one in Afghanistan used their real names. [ 37 ] With reference to paragraph 11 of the operational report, during examination-in-chief, Mr. Guay was asked what significance, if any, he attached to the respondent’s statement that he had been in Afghanistan. He replied (transcript June 12, 2012, pages 114 to 116): Afghanistan was of particular interest to the Service, especially in this period.

I mentioned previously that the Service’s evaluation or assessment of the Islamic extremist threat evolved from previous years. … So the presence of someone in Afghanistan, especially during that period from in ’79 to ’89, would have indicated had they been there

they would have either been fighting or at least in support of the jihad against the Russians. [ 38 ] In terms of the accuracy of the operational report, given that it was only a

summary of the interview, on cross-examination Mr. Guay observed that as the respondent’s answers were essentially denials or indications of already known information, there was very little new information and very little to recall. Mr. Guay added that, as was his practice, he sent the draft of the operational report to the interpreter to ensure the accuracy of the reporting and that nothing of significance had been omitted. Mr. Guay acknowledged that at that time he was not particularly interested in what the respondent was doing when he said he was in Pakistan nor did he ask any follow-up questions about his time in Afghanistan. He also acknowledged that the report was a

summary of what is believed to be salient in terms of the “section 12 [of the CSIS Act ] interest”. [ 39 ] David, the second investigator to interview the respondent, joined CSIS in 1991 and in 1994, he was deployed to the Toronto regional office where he worked as an investigator for five-and-a-half years. He succeeded Mr.

Guay as the investigator on the respondent’s file. [ 40 ] He explained that the timing of the interview was driven by external events, in particular, the August 20, 1998 U.S. cruise missile attacks in Sudan and on training camps in Afghanistan in retaliation for the August 7, 1998 bombings of the U.S. embassies in East Africa. The concern was whether AJ was planning retaliatory action. Thus, the primary purpose of the interview was to collect information about any AJ plans for retaliation.

Second, the goal was to try to corroborate information that had been collected through other investigative methodologies and to gather additional information. [ 41 ] David testified that the interview started around midnight and lasted about three-and-a-half hours. He had an Arabic interpreter to assist him with the interview. He essentially held the same view as Mr. Guay about note taking during an interview. [ 42 ] The operational report of the interview has 13 paragraphs.

In general, the respondent was asked to comment on the U.S. bombing of targets in Afghanistan and Sudan and was asked questions concerning other names he had used in the past, his relationships with various individuals, and his overseas contacts. The respondent was also asked about his contact with an individual in the U.K. named Daoud. The respondent indicated that he may have spoken to an individual by this name when calling the International Office for the Defence of the Egyptian People (IODEP), which he described as a humanitarian organization.

Relevantly, he then produced a letter from the IODEP attesting to his mistreatment by the Egyptian authorities. The following excerpts from the operational report are also relevant to this discussion. They read (Ref. Ind. Tab 142): 6. JABALLAH was shown a photograph of Ayrnan AL ZAWAHRI, leader of Egyptian AL JIHAD. JABALLAH stated that he did not recognize the photograph, nor had he ever met AL ZAWAHIRI in person. JABALLAH also denied ever having been in telephone contact with AL ZAWAHRI. … 10. The writer asked JABALLAH whether he had ever met Usama (Osama) BIN LADEN.

JABALLAH denied ever meeting BIN LADEN in Afghanistan or anywhere else. JABALLAH insisted that he was in Afghanistan as a teacher and did not participate in the Jihad. JABALLAH produced a document in Arabic attesting to the fact that he worked as a teacher in Afghanistan. JABALLAH noted that what he knows of BIN LADEN, he learned through recent media coverage. 13. … JABALLAH asked the writer – in what appeared to be a hypothetical manner – what would happen if he did, in fact, know some of the individuals mentioned during the interview without being aware of their specific backgrounds.

The writer stated that this would be the time to raise the issue. JABALLAH, upon reflection, declined the offer. [ 43 ] Turning first to the ministers’ submission that there are reasonable grounds to believe the respondent was in Afghanistan, the ministers point to the respondent’s acknowledgement in the March 5 and August 21, 1998 Service interviews that he had been in Afghanistan working as a teacher and had spent time in a refugee camp there. The ministers also rely on a public

summary found at Exhibit 10, Tab A36. It states: “Service investigation revealed that Mr. Jaballah travelled to both Afghanistan and Pakistan in 1991”. [ 44 ] The ministers claim the respondent gave contradictory information in the interviews regarding his recognition of Zawahiri’s photograph. The ministers state that, during the first interview when he was shown a photograph of Zawahiri he stated that he “met” a person who resembled Zawahiri at a refugee camp in Afghanistan. However, the ministers misstate what was purportedly said during the interview.

According to the operational report, the respondent stated that during his time at one of the refugee camps in Afghanistan “he had seen an individual who resembled the man in the photograph, but had never met the man”. During the second interview when he was shown a photograph of Zawahiri, the respondent stated he did not recognize the photograph and had never been in telephone contact with or met Zawahiri in person. The ministers note that at the end of the interview, the respondent asked David what would happen if he did know some of the people mentioned in the interview without knowing their background.

The ministers argue that this illustrates the inconsistencies in the respondent’s answers: on the one hand, denying that he had any overseas contacts and on the other, asking what would happen if he did know some of the individuals. [ 45 ] The ministers point out that Zawahiri was not known to have spent time in a refugee camp in Afghanistan. In stating that he may have met an individual who resembled Zawahiri’s photograph at a refugee camp in Afghanistan, the respondent was trying to provide an explanation for the reason he knew Zawahiri.

Additionally, the respondent did not list Afghanistan as one of the countries in which he had resided in his PIF and yet he told Mr. Guay and David that he had been a teacher in Afghanistan. Further, at his Immigration and Refugee Board (I.R.B.) hearing on June 15, 1998, when being examined by the ministers’ representative, he denied being associated with the “Returnees from Afghanistan” or with any other group. [ 46 ] The ministers dispute the respondent’s position that Mr. Guay and David were mistaken when they reported that the respondent said he was in Afghanistan.

They maintain that there is simply no evidence that either Mr. Guay or David, who were experienced intelligence officers accompanied by experienced interpreters, misunderstood the respondent. The ministers stress that in contrast to their position, the respondent is asking the Court to draw an inference based on speculation without any evidence. They, however, are simply asking the Court to accept the respondent’s statements contained in the evidence. The ministers also question how the respondent could teach in Afghanistan when he does not speak any of the languages spoken there.

[ 47 ] The respondent submits that the far more plausible inference is that Mr. Guay and David were mistaken in their understanding that he had said he lived in Afghanistan. The respondent says it is noteworthy that in the operational report of the first interview, if one reads the last two lines in the immediately preceding paragraph 10, it records the respondent as stating that “he had worked for various relief agencies, in support of Afghan refugees and victims of the Afghan conflict”. [ 48 ] The respondent notes that the interview was conducted with the assistance of an interpreter.

He claims the reporting at paragraph 11 that “he indicated that during his time at one of the refugee camps in Afghanistan (where he worked as a teacher)” could quite consistently relate to his earlier statement regarding his work for “Afghan refugees and victims of the Afghan conflict”. It is also argued that it would be odd for the respondent to be so forthcoming when his statements were at odds with his PIF and his testimony at the I.R.B. hearing.

It is contended that it is a matter of simple confusion arising from the more than one meaning that could be given to the statement “I worked in an Afghan refugee camp”. It is pointed out that there were no follow-up questions, such as: did you participate in the conflict while you were there?; who were you with?; where were you?; and where did you travel? [ 49 ] The respondent submits that neither David nor Mr. Guay made contemporaneous notes, both were reliant on an interpreter and the late hour at which the second interview was conducted heightened the possibility of error.

During cross-examination, David was shown a document from the IIRO written in Arabic (in the respondent’s possession when he entered Canada), a document that would be entirely consistent with what the respondent stated in his PIF and before the I.R.B. David agreed that it was possible an error had been made, however, in fairness, he also stated that he stood by his operational report. [ 50 ] Lastly, it is argued that the ministers’ position regarding the respondent’s alleged presence in Afghanistan is grounded on circular reasoning.

That is, the ministers’ assertion that the respondent is a member of AJ is, in part, based on his alleged travel to Afghanistan. However, at the same time, the Service’s conclusion that the respondent travelled to Afghanistan is based, in part, on the belief that he is a member of AJ. [ 51 ] As set out above, the ministers allege the respondent was in Afghanistan for an unidentified period of time.

According to the PSIR, the testimony and the submissions of counsel, the allegation is that the respondent was in Afghanistan between November 1991 and June 1994. [ 52 ] With respect to the Service interviews, there are some matters that call into question the reliability of the information contained in the operational reports. During his testimony, David stressed that the overarching purpose of an interview is to collect information and to corroborate information.

He explained that corroboration in the context of intelligence gathering includes the collection of information in relation to known facts, that is, corroboration of facts already supported by direct evidence. Although both David and Mr. Guay had specific goals in mind for each of their respective interviews, the fact that little or no attention was paid to the letter the respondent produced during the course of the two interviews is at odds with this overarching purpose. It is noted that the operational report for the first interview does not mention that the respondent had produced a document for Mr.

Guay to read and David reported that the respondent had produced a letter written in Arabic attesting to the fact that he worked as a teacher in Afghanistan. In view of the investigative significance of the respondent being in Afghanistan, it is incomprehensible that an important piece of evidence produced by the respondent himself would not be retained or copied. This is particularly so given that up until that time, the respondent had consistently denied ever being in Afghanistan. [ 53 ] There is another concern.

One cannot help but wonder how the question was posed when it is reported that the respondent denied ever meeting Bin Laden in Afghanistan. For example, if the question was, did you ever meet Bin Laden in Afghanistan, the respondent’s answer, without some further clarification, is not necessarily an acknowledgement that he was in Afghanistan.

This concern is heightened by the fact that the interview was conducted in English and the respondent’s limited proficiency in English. [ 54 ] It must also be observed that, as argued, it is entirely possible the reporting of the respondent’s statement about “his time at one of the refugee camps in Afghanistan (where he worked as a teacher)” was due to a misunderstanding of his prior statement that he worked for relief agencies “in support of Afghan refugees and victims of the Afghan conflict”. The possibility of this having occurred is enhanced by the fact that the interview was conducted in English.

Or, it could also flow from an unwitting assumption that since the work was in support of Afghan refugees and victims, the work had been done in Afghanistan. [ 55 ] The difficulty faced here is that since both Mr. Guay and David had little independent recollection of their interviews which is certainly understandable, the only surviving information about what was said at the interviews is in the operational reports. In these circumstances, the interviewers’ testimony does little to enhance the reliability of the statements contained in the reports.

It must also be stressed that these observations should not be construed in any way as inferring bad faith on the part of the two investigators. To conclude, it is plausible that innocent errors occurred in the reporting, however, a finding of plausibility is insufficient to ground a reasonable inference. [ 56 ] As to the information found in Exhibit 10, Tab A36, it is undated and unsourced and purports to be a

summary of a report. However, there is no corresponding report in the classified record on which this

summary is allegedly based. As such, it is impossible to assess the reliability of the statement and it will be given no weight. [ 57 ] It remains to be determined whether there are reasonable grounds to believe the respondent was involved in military activities in Afghanistan. There is insufficient credible and compelling evidence to support an objective belief that he was involved in military activities there.

In addition to the classified information in support of the assertion that the respondent was engaged in military conflict in Afghanistan, the ministers also point to an April 1997 letter the respondent received from an individual in Peshawar, Pakistan (Exhibit 11, Tab A19). The letter provides a detailed update on the Taliban and the situation in Afghanistan. The ministers claim that only a person who fought in Afghanistan would receive such a letter. This assertion is speculative at best. First, there is no information on the record about the author or the author’s motivation for writing the letter.

Second, the receipt of the letter is equally if not more consistent with having lived in the region and been part of a community of people who were affected by the conflict. [ 58 ] The ministers maintain that as it is implausible that the respondent would have taught in Afghanistan, rather, it is reasonable to infer that he must have been involved in the military conflict while he was there. As an aside, with reference to the respondent’s inability

to speak the languages, it is noted that the source relied on by the ministers about the local languages in Afghanistan does not form part of the record. Of greater import is the testimony of Dr. Daniel Byman, an expert witness for the ministers. Dr. Byman testified as an expert on terrorism, counterterrorism policy, Middle East security and U.S. national security as it pertains to the Middle East. Regarding the asserted implausibility of the respondent having taught in Afghanistan, Dr.

Byman testified that, while teaching jobs would have been few and far between during the 1990s, it was “not impossible” that someone might have worked in Afghanistan as a teacher during that time (transcript June 29, 2012, page 93). [ 59 ] Having regard to the above findings and those made in relation to the classified information, there are insufficient known or established facts from which reasonable inferences can be drawn that taken together give rise to reasonable grounds to believe the respondent was involved in the military conflict in Afghanistan. [ 60 ] The next question is whether the respondent was in Pakistan in connection with his senior membership in AJ, as the ministers allege.

The ministers point out that Pakistan was a safe haven for Islamic militants and that Peshawar, in particular, was known as a centre of “Islamic extremism”. As well, members of extremist groups went to Pakistan to train. It is alleged that since the respondent did not make a refugee claim there, he had to have been there for another purpose. [ 61 ] The preponderance of the evidence is contrary to the ministers’ allegation in this respect. There is ample evidence that the respondent was a teacher in Pakistan, including his statement in his PIF, his testimony at his I.R.B. hearing (Ref. Ind.

Tab 13), letters attesting to his work as a teacher from the IIRO (Exhibit A for identification, subsequently made an exhibit in the in camera hearing), and the evidence given by Abdul Rahman Khadr in the Charkaoui I proceeding (Ref. Ind. Tab 169, pages 188–189). The evidence that the respondent worked in Pakistan as a teacher and worked with Afghan refugees is consistent with Dr.

Byman’s evidence that many Arabs went to Pakistan to do humanitarian work and that various organizations, including the IIRO, were based there and provided services to the large population of Afghan refugees who were displaced as a result of the conflict (transcript July 3, 2012, pages 5–8). There is no evidence that the Peshawar branch of the IIRO had any links to terrorism or terrorist organizations, aside from the mere fact that various terrorist organizations also operated in Peshawar in the 1990s.

While there is evidence that some leaders of AJ and other organizations, such as the Islamic Group and Al-Qaida, were in Pakistan at various times throughout the 1980s and 1990s, the record indicates that around the time the respondent arrived in Pakistan the leaders of AJ and Al-Qaida were already leaving for Sudan (transcript June 27, 2012, pages 159–160). As there is no evidence that the respondent did anything other than teach in Pakistan and having regard to Dr.

Byman’s testimony that a teacher could have worked in Peshawar teaching Arabic (transcript July 3, 2012, pages 31–35), there is no basis on which a reasonable inference may be drawn that the respondent went to Pakistan in connection with AJ. [ 62 ] As to the respondent’s travel to Yemen, the ministers note that the respondent told the I.R.B. that he travelled to Yemen because it was the only country where a teacher could find a job very easily. However, he did not have status in Yemen and gave contradictory evidence regarding whether he had worked in Yemen.

At one point he claimed he had worked as a teacher in a Yemeni school, yet later, he said he attempted to find a job in Yemen but was unable to find one (Ref. Ind. Tab 13, page 16). [ 63 ] The ministers rely on Dr. Byman’s testimony that Yemen had a weak government, which at times was supportive of the jihadist movement. He testified that AJ had a large presence in Yemen and that some of its leadership council were based there (transcript June 27, 2012, pages 73, 77, 88, 143–144). As well, Ali Soufan, the author of The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda (New York: W.W.

Norton & Company Inc., 2011) states that “[A]l-Qaeda sympathizers could be found throughout Yemeni institutions, including in the intelligence services” and that “[s]ome would help terrorists obtain visas and fraudulent documents, or tip them off when foreign governments were looking for them” (Exhibit 57, page 154). Dr. Byman testified that this quotation reflected his understanding of what was transpiring in Yemen in the 1990s (transcript June 28, 2012, pages 7–8).

Many “notorious terrorists” lived in Yemen and AJ appears to have had a significant presence there: Thirwat Shehata was in Yemen from 1993 to 1995 as were other AJ members; Ayman Al Zawahiri found Yemen useful (though less valuable than Sudan) because of its proximity to Egypt; and some reports claim Zawahiri was in charge of Al-Qaida’s Yemeni cell (Exhibit 56, page 61). Dr.

Byman also indicated that Yemen was not a place many refugees would seek out (transcript July 3, 2012, page 166). [ 64 ] The ministers claim it is odd that the respondent would go to Yemen in August 1994 until August 1995 given that, in 1993, Egypt put Yemen on a list of countries supporting anti-government militants (Exhibit 56, page 61).

The respondent would have been aware of this as he kept in contact with his family in Egypt who informed him about what was happening in Egypt. [ 65 ] The ministers add that the respondent maintained regular contact with various people from Yemen after his arrival in Canada in 1996. This included Izzat, or Abu Yasser, who served as a communications link between Zawahiri and AJ leaders in the U.K., Azerbaijan and Yemen.

Izzat was also a supplier of false documents to terrorists. [ 66 ] Even if the ministers’ submissions in relation to the situation in Yemen at the material time is accepted, although the evidence is somewhat more equivocal regarding Yemen’s support for extremist movements than the ministers suggest, without more, it does not support a reasonable inference that the respondent was there in connection with AJ. In this proceeding, there is no evidence of the respondent having had any contact with AJ members or having done anything while in Yemen that suggests involvement with AJ.

Moreover, there is very little evidence of the respondent’s alleged contacts having been in Yemen at the time he was there. [ 67 ] Lastly, as to the respondent’s evidence before the I.R.B., he testified that he fled Pakistan for Yemen because he did not need a visa to travel there and planned to look for work. He added that many Arabs were travelling there at the time.

As to the respondent’s alleged contradictory testimony before the I.R.B., in this proceeding, counsel for the ministers acknowledged that, “in all fairness” this was likely a typographical error in the transcript. [ 68 ] With respect to the respondent’s travel to Azerbaijan, again there is simply no evidence that he had any contact with AJ members or was in any way involved with AJ.

The statements about the situation in Azerbaijan alone do not give rise to a reasonable inference that the respondent was in that country in furtherance of his AJ connections. [ 69 ] Lastly, regarding the respondent’s travel pattern, it is recalled that it has always been and still is the ministers’ position that the respondent’s “travel pattern was consistent with that of a mujahid extremist—one who left Egypt to fight in Afghanistan, trained in

Yemen, may have fought in Chechnya, and cannot return to Egypt”. To start, it is observed there is no information indicating that the respondent was ever in Chechnya nor is it alleged he was. More importantly, it cannot be reasonably inferred from the respondent’s presence in Afghanistan at some unidentified time for some unknown duration and his presence in Yemen that he fought in Afghanistan or trained in Yemen or in any way engaged in the activities of a mujahid extremist.

Additionally, it does not follow from what others may have done during the course of their travels that the respondent participated in the same activities during the course of his travels. [ 70 ] The ministers also submit that the respondent’s “travel patterns are highly consistent with the movements of other AJ members”. In support, they assert that the CA [Communications Analyst] “noted that Jaballah had associates in Azerbaijan, Pakistan and Yemen” (ministers’ written submissions, paragraph 288).

As this is evidence grounded on excluded summaries of intercepted oral communications, as explained below, it will be given no weight. [ 71 ] Before dealing with the respondent’s alleged activities after he arrived in Canada, it is useful to recall the Court’s ruling on the use that can be made of the testimony of the CSIS Communications Analyst (CA). In both their written and oral submissions, the ministers rely on the testimony of the CA who listened to and prepared summaries of the majority of the respondent’s intercepted oral communications as well as that of others.

In some instances, the reliance on this testimony is problematic. At paragraphs 92 to 94 of the ministers’ written submissions, they take the following position with regard to the use of the CA’s evidence: As a highly qualified and experienced Communications Analyst (“CA”), the witness was assigned to Jaballah’s file for over three years. In that time, they listened to hundreds of his intercepted phone calls. Summaries of the CA’s evidence given in camera were provided by Court Orders, dated January 8, 2013 and February 18, 2014. The redacted testimony of the CA was provided in a Court Order dated July 3, 2014.

The evidence shows that Jaballah used the phone extensively to make contact with other terrorists, in spite of tepid attempts to keep his phone number a secret. The CA testified that they became very familiar with Jaballah’s voice and that of many of his regular contacts and further observed that Jaballah “was quite comfortable when he was using his cellular telephone…”. In this regard, the CA was familiar with the voices of Jaballah’s contacts Farhat, Krer, “Abbas”, “Mohammed Ali”, and “Najib”. The CA testified that they would recognize “Mohammed Ali’s” voice “anywhere”.

The CA’s reliability on this matter has not been questioned nor an answer provided by Jaballah to deny its credibility. The CA’s evidence unquestionably supports the Ministers allegations as the evidence shows Jaballah’s regular (and unexplained) contact with senior members of the AJ. [ 72 ] By way of background, as detailed above, on September 17, 2013, all summaries of intercepted oral communications were excluded from the evidence in this proceeding. The ministers brought a motion returnable on June 11, 2014 to have the September 17, 2013 amended order set aside.

At the same time, an additional question arose on which submissions were made: what use, if any, could be made of the CA’s evidence? The Court gave oral reasons and rulings on June 17, 2014. The motion to set aside the order was dismissed and in relation to the use of the CA’s evidence, the ruling states (transcript June 17, 2014, pages 99 to 105): Now, turning to the matter of the CA evidence. On September 18th, 2013 the Court ordered the exclusion of all summaries of intercepted communications for which the original recordings had been destroyed from the evidence in this proceeding.

On November 20, 2012, before this order was issued, the Court heard the testimony of the communications analyst, who briefed and prepared the majority of the summaries that were excluded. The question that now arises is the use, if any, that can be made of the CA’s evidence regarding the identification of certain individuals with whom it is alleged the respondent was in contact by telephone. Special advocates take the position that the CA’s evidence should be excluded, for the same rationale as applied to exclude the summaries pursuant to the September 18th exclusion order.

The Ministers seek to rely on the CA’s identification of the voices of the respondent and other individuals involved in the intercepted communications. The Ministers characterized the CA’s evidence as earwitness testimony. They argue that voice identification is similar to eyewitness identification. They acknowledge the recognized frailties surrounding eyewitness identification, but maintain that this is a matter of weight and eyewitness identification, and applies equally to voice identification. The Ministers note that pursuant to valid

Section 21 CSIS Act warrants, the CA listened to intercepts of the respondent’s telephone lines for a number of years. As a result, the CA became very familiar with, not only the respondent’s voice, but also the voices of some of his contacts. The Ministers maintain that the CAs, and I quote from the Ministers: “… resulting knowledge of and memory of the voices was properly obtained and properly admitted,” end quote. They had that there was, open quote: “No question about the ability of the CA to identify certain voices.” End quote.

As to the consequences flowing from the exclusion of the summaries, the Ministers argue that the ruling excluding the summaries did not deal with the substantive evidence. It is also argued that the CA’s evidence regarding the identification of the voices did not depend on the content of the summaries and was elicited independently. The Ministers submit that this evidence meets the indicia of reliability articulated in a number of criminal cases, such as, for example, the Queen and Bench, the Queen and Castro, Queen and Carter.

It is acknowledged that Mr. Jaballah could not challenge the CA on the basis of the original intercepts. Nevertheless, the Ministers take the position that he was able to challenge the CA’s knowledge of each of those persons identified, the number of occasions the CA listened to them, to test the CA’s reliability using alleged corroborative material. The special advocates did not object to or challenge this evidence at the time, even though it was clear the CA was called for substantive purposes.

The Ministers also submit that the special advocates’ submission that the CA’s voice identification is reliant on the summaries is not supported by the evidence. In the Ministers’ view, I believe it was the case the witness’s memory was refreshed by evidence later found to be inadmissible. The witness’s viva voce evidence is still admissible in certain circumstances and advance this assertion by reference to the Supreme Court of Canada’s decision in the Queen and Fliss. Obtaining and processing and familiarization with the voices is evidence in the Ministers’ view that is not tainted by any breach of Mr.

Jaballah’s Charter rights. The CA’s evidence ought not to be excluded. It provides cogent, reliable and appropriate evidence. The Ministers also point out that in the past the Court has also admitted evidence of third parties that is completely unsourced. In the Ministers’ view, the evidence of the CA reaches a much higher level of reliability.

At the outset, I wish to note that the CA’s evidence concerning educational background, linguistic skills, employment history, training, tasking guidelines, the preparation of the summaries, and other similar matters are clearly admissible and are beyond the scope of the present request for the exclusion of evidence that concerns the identification of parties to intercepted communications. I also wish to add one additional observation. Throughout their submissions, the Ministers refer to the CA’s evidence as voice identification and as being similar to eyewitness identification.

However, in my view, a distinction must be drawn between voice identification—that is, a voice belonging to a particular person—and recognition of a voice in the sense that it is a voice previously heard. My use of the term “voice identification” should not be taken in any way as my acceptance that it is synonymous with voice recognition. I have conducted, again, a detailed review of the CA’s evidence. This review has led me to the view that the bulk of the CA’s voice identification evidence cannot be separated out from the summaries and, for the most part, is inextricably linked to the summaries.

The CA testified extensively about the ways in which the intercepts were taken and the summaries that were created. The Ministers drew out this information by reading sections of the summaries to the CA verbatim then asking questions. As the special advocates point out, Ministers never took the CA through the CA’s evidence to determine what the CA remembered independently and what the CA did not. Certainly, witnesses are entitled to refresh their memory by reference to excluded evidence as long as they do so out of court.

Once in the witness box, their testimony must be sourced from that refreshed memory, and stating this, I’m relying on the decision in Fliss at paragraph 60. Turning to the Ministers’ observation that the special advocates never challenged the reading in of the now excluded summaries during the CA’s testimony. Given the history of presenting in this fashion, it is not surprising that the special advocates did not challenge this approach to adducing the evidence.

I note as well at that time it was not clear that the Ministers were introducing this evidence for the purposes of voice identification of the individuals involved in the communications identified in the

summary. I notice, though, that this case is distinguishable from that—where the impugned transcript had already been excluded when it was read in. However, having said all of this, the fundamental flaw with the Ministers’ position that, as above noted, there is very little of the CA’s evidence regarding the identity of the individuals intercepted that is not grounded on a

summary. There are some few instances where, arguably, the CA’s evidence was not linked to a

summary. I say “arguably” because there are other potential difficulties with that evidence. … I’m also going to do something that I’ve said on multiple occasions that I would not do. It seems I’ve often said that if evidence should be excluded, the trial judge should exclude it and get on with the matter. However, in this case, I’m very concerned that having said “arguably”, that by simply excluding all of that evidence, I will now exclude evidence that could actually be admissible. However, in approaching it in this fashion, I also recognize that I don’t leave parties with a lot of certainty.

And so I appreciate sometimes that this could be a distinction without a difference. But for the sake of certainty and moving the case forward, I can say that any of the evidence at issue that is grounded on the

summary or given by reference to a

summary will be given no weight . Those remaining matters will be subject to further submissions at the time of the final argument. [Emphasis added.] [ 73 ] Lastly, in terms of background, on July 3, 2014, the Court issued an order disclosing to the respondent “all publicly disclosable excerpts of the communications analyst’s November 20, 2012 evidence that survive the Court’s September

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