2010 FC 1241, 2010 FC 1241

[2012] 3 F.C.R. 251 DES-5-08 2010 FC 1241 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 reversed 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 — Referral pursuant to Immigration and Refugee Protection Act (IRPA), s. 77(1) to determine reasonableness of security certificate issued against Mohamed Harkat — Harkat fleeing Algerian police, finding employment in Pakistan with relief organization — Denying travelling to Afghanistan, meeting mujahideen — Using false Saudi Arabian passport to reach Canada as refugee — Later arrested on security grounds pursuant to IRPA, ss. 34(1) (c), (d), (f) — Ministers alleging, inter alia, that Harkat member of bin Laden network; using aliases to hide identity, activities; member of terrorist organization Al-Gama’a al-Islamiyya; operating guest house used by mujahideen; sleeper agent — Issue whether certificate reasonable — Evidence sufficient to demonstrate that certificate reasonable — Summaries of conversation not fabricated to support allegations against Harkat — Summaries of interviews reliable — Harkat’s testimony inconsistent, credibility undermined — Allegations against Harkat (e.g. that Harkat acquainted with Ibn Khattab, operating guest house for mujahideen, maintaining contacts with Islamist extremists) well supported by public, closed evidence, accepted herein — Evidence presented by Harkat not plausible, coherent, logical — Evident Harkat seeking to avoid preclusion of obtention of Canadian status — Harkat found to have engaged in terrorism — Certificate reasonable.

This was a referral pursuant to subsection 77(1) of the Immigration and Refugee Protection Act (IRPA) to determine the reasonability of a security certificate signed by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration (ministers) stating that Mohamed Harkat is inadmissible on security grounds under paragraphs 34(1) ( c ), (

d) and (

f) of the IRPA. Mr. Harkat, an Algerian national, claimed that he was wanted by the Algerian police for his involvement with a political party, the Front islamique du salut. He fled to Saudi Arabia where he later secured employment in Pakistan with a relief organization, the Muslim World League (MWL). For the next four years, Mr. Harkat supervised employees at a warehouse that delivered supplies to Afghan refugees. He testified that he remained in Pakistan during that time and never traveled into Afghanistan, nor did he meet mujahideen fighters on their way to or from that country. Mr.

Harkat’s terminated his employment with the MWL after the government of Pakistan announced that foreign workers had to leave immediately. However, he remained in Pakistan for a further 15 months during which time he was unemployed, and obtained a false Saudi Arabian passport that he used to reach Canada. Mr. Harkat was granted refugee status after his arrival in Canada, and was later arrested following the issuance of a security certificate on security grounds. The ministers alleged in security intelligence reports and in summaries of conversations and of interviews involving Mr.

Harkat that prior to and after arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activity as a member of the bin Laden network (BLN). The ministers specifically alleged, inter alia , that Mr.

Harkat used aliases to hide his identity and his activities on behalf of the BLN; was untruthful about his occupation in Pakistan by concealing from Canadian authorities his activities in support of Islamist extremist organizations; was a former soldier in Afghanistan and a member of the Egyptian terrorist organization Al-Gama’a al- Islamiyya; was an active jihadist and worked for the terrorist leader Ibn Khattab by operating a guest house in Peshawar used by mujahideen; and had access to sums of money when he required it. The ministers also alleged that Mr.

Harkat’s activities were suggestive of the modus operandi of a sleeper agent. At issue was whether the security certificate stating that Mr. Harkat is inadmissible because he is a member of a terrorist organization, he has engaged, engages or will engage in terrorism and that he is a danger to the security of Canada, is reasonable. Held , the certificate is reasonable.

The ministers provided sufficient evidence demonstrating that the certificate is reasonable, including the summaries of conversations that were made in accordance with the policies and procedures of the Canadian Security Intelligence Service (CSIS) and that set out the relevant facts. For the most part, Mr. Harkat denied or challenged the tenor of those summaries, but there was no evidence that they were fabricated by the ministers to support the allegations against him. The summaries of interviews conducted by CSIS with Mr. Harkat were also reliable. A review of the evidence showed that Mr.

Harkat was inconsistent throughout those interviews and in his sworn testimony. His credibility was thus undermined herein. As a result, the ministerial position was accepted on almost all of the allegations against Mr. Harkat, including the fact that Mr. Harkat had links to the Al-Gama’a al-Islamiyya terrorist organization; that Mr.

Harkat’s account of the reasons for his trip to Saudi Arabia, the ease with which he obtained a job with the MWL, of his place of residence while living in Pakistan, and what he did during the period of unemployment of 15 months was not credible; that based on the closed evidence tested by the special advocates, Mr. Harkat had visited Afghanistan; that it was not possible for Mr. Harkat to save a large amount of money during his period of employment with the MWL on the basis of the numbers provided by him, including his salary and expenses; that he

knew Ibn Khattab while in Pakistan and worked for him during his 15 months of unemployment by operating a guest house and thusfacilitating the terrorist operations of Khattab’s group; that Mr. Harkat provided financial assistance to Al Shehre, an Islamist extremistarrested upon his arrival in Canada, and maintained contact with him before and after his stay in Canada; and that Mr. Harkat associatedwith Ahmed Said Khadr, also an Islamist extremist and an Al-Qaida member, and Abu Zubaydah, who had operated a guest house formujahideen during the same period as Mr. Harkat. Mr.

Harkat’s behaviour recalled some of the characteristics attributed to sleeperagents, such as his use of a false passport and aliases, of keeping a low profile, his secretive approach about people and his life, and hislinks to Islamist extremists. The allegations against Mr. Harkat were well supported by the public and the closed evidence. His simplistic denial of key factualelements, which were supported by public evidence, affected his credibility. His evidence was not plausible, coherent and logical and histestimony was rejected for lack of credibility, honesty and transparency. It was evident that Mr.

Harkat did not reveal the true story ofhis life, deliberately keeping his past activities to himself because they would preclude the obtention of Canadian status. Mr. Harkatclearly posed a risk to the security of Canada. However, considering that Mr. Harkat now posed a diminished risk due to the passage oftime, the parties were invited to make submissions with respect to his conditions of release. In conclusion, almost all the allegations made against Mr. Harkat were accepted. Mr.

Harkat was found to have engaged in terrorism,that he is a danger to the security of Canada and that he is a member of the Bin Laden Network. These factual conclusions linked Mr.Harkat to the grounds set out in paragraphs 34(1)(c), (

d) and (

f) of the IRPA. Therefore, the certificate based on these three grounds ofsecurity against Mr. Harkat is reasonable. 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. 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, 7, 9, 10(c), 24(1). Criminal Code, R.S.C., 1985, c. C-46, s. 269.1 (as enacted by R.S.C., 1985 (3rd Supp.), c. 10, s. 2). Immigration Act, R.S.C., 1985, c. I-2, s. 19(1) (as am. by S.C. 1992, c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 33, 34(1)(c),(d),(f), 37(1)(a), 77(1) (as am. by S.C. 2002, c. 8, s. 194; 2008,c. 3, s. 4), 78 (as am. by S.C. 2005, c. 10, s. 34(E); 2008, c. 3, s. 4), 79 (as am. by S.C. 2002, c. 8, s. 194), 80, 82.3 (as enacted by S.C.2008, c. 3, s. 4), 83(1)(a) (as am. idem), (c) (as am. idem), (g) (as am. idem), (h) (as am. idem), (1.1) (as enacted idem), 84(2). TREATIES AND OTHER INSTRUMENTS CITED Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S.No. 36.

International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, 2178 U.N.T.S. 197. CASES CITED considered: Harkat (Re), 2005 FC 393, 261 F.T.R. 52, 45 Imm. L.R. (3d) 65, affd 2005 FCA 285, 340 N.R. 286; Charkaoui v. Canada (Citizenshipand 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 (Citizenshipand Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326, 294 D.L.R. (4th) 478, 58 C.R. (6th) 45; Harkat (Re), 2009 FC 1050, [2010] 4F.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] 3F.C.R. 169, 197 C.R.R. (2d) 286, 345 F.T.R. 179; Jaballah (Re), 2010 FC 224, [2011] 3 F.C.R. 155, 363 F.T.R. 160, 88 Imm. L.R. (3d)268; Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163, 355 F.T.R. 222, 86 Imm. L.R. (3d) 212; Suresh v. Canada (Minister ofCitizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, 208 D.L.R. (4th) 1, 37 Admin.

L.R. (3d) 159; Ikhlef (Re), 2002 FCT 263,223 F.T.R. 233; Al Yamani v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1457, 149 C.R.R. (2d) 340,304 F.T.R. 222, 58 Imm. L.R. (3d) 181; Husein v. Canada (Minister of Citizenship and Immigration), (F.C.T.D.);Jaballah (Re), 2006 FC 1230, 148 C.R.R. (2d) 1, 301 F.T.R. 102, 58 Imm. L.R. (3d) 267; Gebreab v. Canada (Public Safety andEmergency Preparedness), 2010 FCA 274, 93 Imm. L.R. (3d) 28. referred to: Charkaoui (Re), 2004 FCA 421, [2005] 2 F.C.R. 299, 247 D.L.R. (4th) 405, 126 C.R.R. (2d) 298; Almrei v.

Canada (Minister ofCitizenship and Immigration), 2005 FCA 54, [2005] 3 F.C.R. 142, 251 D.L.R. (4th) 13, 45 Imm. L.R. (3d) 163; Harkat v. Canada(Minister of Citizenship and Immigration), 2006 FC 628, [2007] 1 F.C.R. 321, 270 D.L.R. (4th) 50, 278 F.T.R. 118; Harkat (Re), 2009FC 203, 339 F.T.R. 60; Harkat (Re), 2009 FC 1008, 351 F.T.R. 313; R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, (1994), 114D.L.R. (4th) 419, 89 C.C.C. (3d) 402; R. v. Klassen, 2003 MBQB 253, [2004] 4 W.W.R. 351, 179 Man. R. (2d) 115; Zündel (Re), 2005FC 295, 251 D.L.R. (4th) 511, 259 F.T.R. 36, 44 Imm.

L.R. (3d) 279; Mahjoub (Re), 2010 FC 787, 373 F.T.R. 36, 90 Imm. L.R. (3d) 76;Harkat (Re), 2009 FC 167, 339 F.T.R. 92, 80 Imm. L.R. (3d) 89; Baroud (Re) (1995), 98 F.T.R. 99 (F.C.T.D.); Suresh (Re) (1997), (FC), 140 F.T.R. 88, 40 Imm. L.R. (2d) 247 (F.C.T.D.); Zündel (Re), 2005 FC 295, 251 D.L.R. (4th) 511, 259 F.T.R. 36, 44Imm. L.R. (3d) 279; Canada (Minister of Citizenship and Immigration) v. Singh, , 151 F.T.R. 101, 44 Imm. L.R. (2d)309 (F.C.T.D.); Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487, 29 Admin.

L.R. (4th)21, 129 C.R.R. (2d) 18; Ahani (Re), , 146 F.T.R. 223, 42 Imm. L.R. (2d) 219 (F.C.T.D.); Kanendra v. Canada(Minister of Citizenship and Immigration), 2005 FC 923, 47 Imm. L.R. (3d) 265; Sittampalam v. Canada (Minister of Citizenship andImmigration), 2006 FCA 326, [2007] 3 F.C.R. 198, 279 D.L.R. (4th) 1, 56 Imm. L.R. (3d) 161.

AUTHORS CITED Anderson, Sean Kendall and Stephen Sloan. Terrorism: Assassins to Zealots . Lanham, Md.: Scarecrow Press, 2003. Bell, Stewart. “‘A lot’ of Canadians in al-Qaeda, Khadr says. Toronto, Vancouver men at terror camp”. National Post (August 17, 2004). Bell, Stewart. “Khadr tied to Al-Qaeda as far back as 1988”. National Post (February 1, 2003). Bell, Stewart and Jane Kokan. “Under western eyes”. National Post (October 14, 2005). Bergen, Peter L. Holy War, Inc.: Inside the Secret World of Osama Bin Laden. New York: Free Press, 2001. Dobbs, Michael. “A few loyal men direct bin Laden’s sprawling network”.

The Washington Post (September 27, 2001). Friscolanti, Michael. “The house of Khadr”. Maclean’s , August 4, 2006, online: <http://www.macleans.ca/canada/national/article.jsp? content=20060807_131499_131499>. Gall, Carlotta. “Muslim fighter embraces warrior mystique”, The New York Times (October 17, 1999). Gerges, Fawaz A. The Far Enemy: Why Jihad Went Global. Cambridge: Cambridge University Press, 2005. Higgins, Andrew and Alan Cullison. “Terrorist’s Odyssey: Saga of Dr. Zawahiri illuminates roots of al-Qaeda terror”. The Wall Street Journal (July 2, 2002). Hoffman, Bruce. Inside Terrorism.

New York: Columbia University Press, 2006. Katzman, Kenneth. Afghanistan: Connections to Islamic Movements in Central and South Asia and Southern Russia. Congressional Research Service for Congress, Report RS20411, December 7, 1999, online: <http://digital.library.unt.edu/ark:/67531/metacrs7705/m1/1/high_res_d/RS20411_1999Dec07.pdf>. Leopold, Jason. “US Recants Claims on ‘High-Value’ Detainee Abu Zubaydah”. Truthout (30 March 2010), online: <http://archive.truthout.org/government-quietly-recants-bush-era-claims-about-%22high-value%22-detainee-zubdaydah58151>.

Lieven, Anatol. “Russia on the Eve: Nightmare in the Caucasus” (2000), 23 The Washington Quarterly , No. 1. Oxford English Dictionary , 2nd ed. Oxford: Clarendon Press, 1989, “jihad”, “mujahideen”. Phares, Walid. The Confrontation: Winning the War Against Future Jihad . New York: Palgrave MacMillan, 2008. Scheuer, Michael. Through our Enemies’s Eyes: Osama Bin Laden, Radical Islam, and the Future of America , 2nd ed. Washington, D.C.: Potomac Books Inc., 2006. Shephard, Michelle. Guantanamo’s Child: The Untold Story of Omar Khadr . Mississauga, Ont.: J. Wiley & Sons, 2008. Suskind, Ron.

The One Percent Doctrine: Deep Inside America’s Pursuit of its Enemies Since 9/11 . New York: Simon & Schuster, 2006. “The Afghan-Arabs Part Two”. Asharq Al-Awsat , July 1, 2005, online: <http://www.asharq-e.com/news.asp?section=3&id=649>. U.S. Department of State. Country Reports on Terrorism 2006. Office of the Coordinator for Counterterrorism, April 30, 2007, online: <http://www.state.gov/j/ct/rls/crt/2006/>.

Vidino, Lorenzo. “The Arab Foreign Fighters and the Sacralization of the Chechen Conflict” in Al-Nakhlah: The Fletcher School Online Journal for issues related to Southwest Asia and Islamic Civilization , Spring 2006, online: <http://fletcher.tufts.edu/Al- Nakhlah/Archives/~/media/Fletcher/Microsites/al%20Nakhlah/archives/2006/vidino.ashx>. Vidino, Lorenzo. “How Chechnya Became a Breeding Ground for Terror” (2005), 12 Middle East Quarterly , No. 3. Wilhelmsen, Julie. “Between a Rock and a Hard Place – The Islamisation of the Chechen Separatist Movement” (2005), 57 Europe-Asia Studies , No. 1.

Williams, Brian Glyn. “Allah’s Foot Soldiers: An Assessment of the Role of Foreign Fighters and Al-Qa’ida in the Chechen Insurgency” in Ethno-Nationalism, Islam and the State in the Caucasus: Post Soviet Disorder .

London: Routledge, 2007, online: <http://www.brianglynwilliams.com/10_Ethno%20Ch10_962.pdf>. “World exclusive interview with Ibn al-Khattab”, 27 September 1999, Azzam Publications, online: <http://www.islamicawakening.com/viewarticle.php?articleID=640>. referral pursuant to subsection 77(1) of the Immigration and Refugee Protection Act (IRPA) to determine the reasonability of a security certificate signed by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration (ministers) issued against Mohamed Harkat. The certificate is reasonable.

APPEARANCES 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. Matthew Weber , Norman Boxall and Leonardo Russomanno for Mohamed Harkat. Paul J. J. Cavalluzzo and Paul D. Copeland as special advocates. SOLICITORS OF RECORD Deputy Attorney General of Canada for Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration. Webber Schroeder Goldstein Abergel , Ottawa, and Bayne Sellar Boxall , Ottawa, for Mohamed Harkat. Paul J. J. Cavalluzzo and Paul D. Copeland as special advocates. The following are the amended reasons for judgment rendered in English by Noël J.: Opening Statement [ 1 ] Mr.

Harkat is the subject of a security certificate and has not offered a credible testimony to the Court. He has surrounded himself in layers of clouds in which he does not let any light come through. At times, his testimony has been inconsistent, not only with his earlier statements, but also in comparison with the public and closed evidence presented by both parties. At times, his testimony was simply incoherent, implausible if not contradictory. The ministers have provided sufficient evidence to demonstrate that the issuance of the certificate was reasonable. Therefore, the security certificate issued against Mr.

Harkat on security grounds is upheld. Findings [ 2 ] I find that the evidence and information adduced by the ministers is credible and provides reasonable grounds to make the following non-limitative conclusions. On a balance of probabilities, the ministers have established the following facts: [ 3 ] I find that Usama bin Laden and Al-Qaida supplied money and resources to the Chechen terrorist cause through Ibn Khattab and the Basayev group. [ 4 ] I find that the Basayev and Khattab groups were not part of the Al-Qaida core, but were part of the bin Laden network. [ 5 ] I find that for at least 15 months, Mr.

Harkat operated a guest house for Ibn Khattab and as such demonstrated active membership in a group involved in terrorist activities in Chechnya which was affiliated with the Basayev group. [ 6 ] I find that, contrary to his testimony and evidence, Mr. Harkat visited Afghanistan during his stay in Pakistan. [ 7 ] I find that Mr. Harkat had links to Al-Gama’a al-Islamiyya (AGAI), an Islamic extremist group in Egypt. [ 8 ] The evidence adduced by the ministers demonstrates that Mr. Harkat used “sleeper agent” methods.

More precisely, he arrived in Canada using false documents, employed various anti-surveillance techniques and, for a while, concealed his aliases used while in Pakistan. [ 9 ] I find that the ministers’ evidence, contrary to that of Mr. Harkat, demonstrates that Mr. Harkat did assist Abu Messab Al Shehre and Mohammed Aissa Triki, two Islamist extremists, in Canada. Indeed, I also find that the evidence supports a finding that Mr. Harkat provided financial assistance to Mr. Al Shehre by paying legal fees with the involvement of Abu Zubaydah. [ 10 ] I find that the evidence demonstrates that Mr.

Harkat knew Abu Dahhak, an individual related to Al-Qaida. [ 11 ] I also find that, while in Canada, Mr. Harkat maintained existing contacts with Islamist extremists such as Ahmed Said Khadr and Abu Zubaydah. [ 12 ] Furthermore, the ministers’ evidence has consequently persuaded the Court that there are reasonable grounds to believe that Mr. Harkat was a member of an entity that is part of the bin Laden network (BLN) prior to his arrival in Canada. The ministers have also established that there are reasonable grounds to believe that, after coming to Canada, Mr.

Harkat continued to be an active member of the BLN and provided support to the network. [ 13 ] I find that although the danger associated to Mr. Harkat has diminished over time, he still poses a danger to Canada, but at a lesser level, for the reasons set out herein. Table of Contents Paragraphs History of Proceedings and Comments 14–38 The Hearing as to the Reasonableness of the Certificate 39–49 Other Comments on the Expert Evidence 50–54 Relevant Provisions of the Immigration and Refugee Protection Act 55–64 Factual Allegations Against Mr. Harkat 65–74

The Issues 75 Key Words 76 Terrorism 77–81 Danger to the Security of Canada 82–84 Membership—Member 85–88 Organization 89–91 Other

Definitions 92 Al-Qaida Core 93–95 The bin Laden Network 96–102 Jihad 103 Mujahideen 104 Islamist Extremist 105–107 Conversations and Summaries of CSIS Interviews 108–119 Approach Followed to Make a Judicial Determination 120–122 Membership in the Front islamique du salut (FIS) 123–142 GIA 143 AGAI 144 The Passport Issue 145–159 Mr. Harkat’s Reasons for Leaving Algeria for Saudi Arabia 160–171 The Purpose of the Trip to Saudi Arabia 172–179 Mr. Harkat’s Reasons for Being in Saudi Arabia 180–208 Arrival in Pakistan and Working Life With the MWL 209–231 Financial Situation of Mr.

Harkat While in Parkistan 232–239 Wazir 240–263 Mokhtar, His Valuable Friend 264–275 On Leaving Pakistan 276–289 The Use of Aliases 290–298 Mr. Harkat’s Arrival and Life in Canada 299–325 Mohammed Aissa Triki (Wael) 326–345 Allegation that Mr. Harkat is a “Sleeper Agent” 346–370 Ibn Khattab 371–377 Factual Background on Ibn Khattab 378–386 Mr. Harkat and Ibn Khattab 387–390 Mr.

Harkat’s Work for Ibn Khattab 391–397 Was Ibn Khattab a Terrorist? 398–410 Ibn Khattab and the bin Laden Network 411–428 Al Shehre 429–432 Who is Al Shehre? 433–447 Harkat Assisted Shehre in Entering Canada and While in Canada 448–464 Ahmed Said Khadr 465–482 Links Between A. Khadr and Mr. Harkat in Pakistan 483–484 Links Between A. Khadr and Mr. Harkat in Canada 485–495 Abu Zubaydah 496–526 Abu Dahhak 527-528 Mr. Harkat’s Credibility 529–538 Is Mr.

Harkat a Danger to the Security of Canada? 539–547 The Reasonableness of the Certificate? 548–551 History of Proceedings and Comments [ 14 ] A certificate stating that Mr.

Harkat was 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 Immigration and Refugee Protection Act [S.C. 2001, c. 27] (IRPA) legislation on February 22, 2008. [ 15 ] Previously, on December 10, 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration (the ministers) had signed a certificate pursuant to then subsection 77(1) [as am. by S.C. 2002, c. 8 , s. 194] of the Immigration and Refugee Protection Act (the 2002 certificate), in which they stated that they were of the opinion that Mohamed Harkat was a foreign national who is inadmissible to Canada on security grounds. [ 16 ] A hearing as to the reasonableness of the 2002 certificate was held before Justice Dawson in March 2005.

In the course of that proceeding, Mr. Harkat challenged the constitutionality of sections 78 through 80 [ss. 78 (as am. by S.C. 2005, c. 10, s. 34 (E), 79 (as am. by S.C. 2002, c. 8 , s. 194)] in force at that time [hereinafter the former IRPA ] on the grounds that they violated the principles of

fundamental justice guaranteed by

section 7 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]] (the Charter). Justice Dawson upheld the constitutionality of the security certificate process, following the Federal Court of Appeal’s decision in Charkaoui (Re) , 2004 FCA 421 , [2005] 2 F.C.R. 299 and concluded that there were reasonable grounds to believe that Mr. Harkat had engaged in terrorism for a number of reasons, in particular by supporting terrorist activity as a member of the BLN ( Harkat (Re) , 2005 FC 393 , 261 F.T.R. 52). [ 17 ] Mr.

Harkat appealed Justice Dawson’s rulings with respect to the constitutionality of the certificate procedure. On September 6, 2005, the Federal Court of Appeal dismissed Mr. Harkat’s appeal on the grounds that he had not demonstrated any manifest error which would justify the overruling of Charkaoui (Re) , above, and Almrei v. Canada (Minister of Citizenship and Immigration) , 2005 FCA 54 , [2005] 3 F.C.R. 142 , where it had upheld the constitutionality of the same provisions of the former IRPA (see Harkat (Re) , 2005 FCA 285 , 340 N.R. 286). Mr.

Harkat sought leave to the Supreme Court, which was granted. [ 18 ] On February 23, 2007, the Supreme Court of Canada held that the judicial review of the reasonableness of the certificate under the IRPA violated

section 7 of the Charter and consequently declared the relevant provisions to be of no force or effect. Chief Justice McLachlin, writing for a unanimous Court, held that the judicial process violated

section 7 by limiting the named person’s right to know and answer the case against him or her. The Court held that such violation could not be saved by

section 1 of the Charter because it did not minimally impair the rights in question ( Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 ( Charkaoui No. 1)). [ 19 ] The Supreme Court declared that the former subsbection 84(2) [ S.C. 2001, c. 27 ] governing applications for judicial release, violated

section 9 and paragraph 10(

c) of the Charter because it did not provide a timely detention review for foreign nationals. [ 20 ] The Supreme Court suspended the declaration of invalidity of the impugned provisions of the previous legislation for one year to allow Parliament to enact a constitutionally valid legislation. As a result, Mr. Harkat remained subject to the 2002 security certificate and conditions of release as imposed by Justice Dawson on May 23, 2006 [ Harkat v.

Canada (Minister of Citizenship and Immigration) , 2006 FC 628 , [2007] 1 F.C.R. 321], until 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 (hereinafter the new IRPA)]. [ 21 ] On February 22, 2008, Bill C-3 came into force in response to the rulings of the Supreme Court of Canada in Charkaoui No. 1. Bill C-3 made substantial modifications to the procedure governing the judicial review of certificates as well as applications for detention release in that context.

These amendments included a new disclosure process and the appointment of special advocates to represent the interests of the named persons during the closed hearings. Bill C-3 also eliminated the distinction between permanent residents and foreign nationals for the purpose of mandatory detention review. The transitional provisions found in Bill C-3 stayed the conditions of release until further review by the Court. [ 22 ] On June 26, 2008, the Supreme Court of Canada rendered a second decision concerning the constitutionality of the certificate process under the former IRPA : 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 proceedings in view of the destruction of original notes taken by the Canadian Security Intelligence Service (CSIS or the Service) during interviews with him . The Supreme Court allowed Mr. Charkaoui’s appeal in part. While it was held that a stay of proceedings was premature, the Court concluded that the destruction of operational notes was a serious breach of the Service’s duty to retain and disclose information.

Justice LeBel and Justice 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 . [ 23 ] On September 24, 2008, in conformity with Charkaoui No. 2, this Court ordered the ministers 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”. [ 24 ] This order resulted in the filing of thousands of records, many of them redacted in part. The production of such documents required more than six months. However, the process was ongoing and began as soon as some redacted documents were ready to be filed. The redactions were necessary since a good number of documents did not only deal with Mr. Harkat, but with other matters that were not related to the case. The special advocates had access to the information relating to Mr. Harkat in accordance with the legislation but to nothing else.

The Court therefore assumed an additional task in reviewing the relevance of the redactions. This exercise was time- consuming. The review identified questionable redactions, but some were warranted. The special advocates reviewed the Charkaoui No. 2 disclosure and identified some information which they felt was pertinent to the proceeding. As a result of the Charkaoui No. 2 review, documents were entered as exhibits (see exhibits M13, M15, M17, M18, M25 and M26). Therefore, as a result of the Charkaoui No. 2 review, additional information was entered as exhibits.

This disclosure process extended the proceeding by several months. [ 25 ] 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 to Mr. Harkat in relation to the review of 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 such as the request of the special advocates to access a CSIS employee file and human sources files. This resulted in the issuance of reasons for judgment in response to both requests (see Harkat (Re) , 2009 FC 203 , 339 F.T.R. 60; and Harkat (Re) , 2009 FC 1050 , [2010] 4 F.C.R. 149). [ 26 ] 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 acceptance of a number of conditions, including the installation of surveillance cameras on the premises by the Canada Border Services Agency (CBSA). The ministers also agreed to have one of his supervising sureties removed. [ 27 ] In March 2009, this Court conducted a public review of the conditions imposed on Mr. Harkat. It concluded that his release without conditions would be injurious to national security but, however, confirmed his release under more appropriate conditions. Among others, Mr.

Harkat could stay home alone between 8 a.m. and 9 p.m. provided he gave the CBSA a 36-hour notice and call them every hour on the hour (see Harkat (Re) , 2009 FC 241 , 339 F.T.R. 104). [ 28 ] 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, which contains part of the Charkaoui No. 2 disclosure. The ministers and public counsel agreed to include only the parts of that document that were put before the witnesses in examination and cross-examination). [ 29 ] On May 12, 2009, nineteen days before the public hearings into the reasonableness of the security certificate were to begin, the CBSA conducted a search of Mr. Harkat’s residence. Sixteen law enforcement officers were involved, including three canine units. Searches were authorized by the conditions of release.

Having become cognizant of how the search was done, this Court immediately cancelled such authority given to the CBSA, and subjected them to a prior authorization by the designated judge (see order dated May 12, 2009, amending the conditions of release). Upon request by Mr. Harkat, the search was reviewed by the Court.

It was ruled that the search authorization provided for in paragraph 16 of the conditions of release did not authorize the intrusive and broad nature of the search and seizure conducted on May 12, 2009 (see Harkat (Re) , 2009 FC 659 , [2010] 3 F.C.R. 169). [ 30 ] 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).

Based on the content of this letter, the Court ordered the ministers to file, on a confidential basis, the complete human source file, as the Court then had information that led it to question the completeness of the information provided by the ministers. On June 16, 2009, the Court issued a public direction offering three CSIS witnesses an opportunity to explain their testimony and their failure to provide relevant information to the Court.

They accepted the Court’s invitation. [ 31 ] 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 its public reasons for order and order ( Harkat (Re) , 2009 FC 1050 [cited above]). The Court concluded that the failure to provide the information was systemic, but found that there was 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. The remedy sought by the special advocates was thus denied. 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 was no further concern in relation to the special advocates’ ability to fully test the evidence. This was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding.

The review of the human source files by the special advocates and the Court did not disclose any new evidence to the effect that the information presented to the Court was incomplete or not reflective of the information gathered. The ministers filed a new classified exhibit which reflected more properly the content of the human source file related to the polygraph test. The other human source file reviewed by the special advocates and the Court did not contain information inconsistent with the original ministerial exhibits filed on human sources (see also footnotes 1 and 2). [*] [ 32 ] On September 21, 2009, Mr.

Harkat filed an application for a review of his conditions of release. In light of a new threat assessment provided 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 such as having to wear a GPS bracelet. [ 33 ] During the closed hearing prior to the beginning of the public hearing on the reasonableness of the certificate, an issue arose in relation to third-party information that the special advocates considered needed to be transmitted to Mr. Harkat. This information is in principle protected; of course, it is open to the third party to allow the intelligence authorities to disclose the information. This sensitive issue was dealt with at length during closed hearings.

The special advocates agreed that some of the information was such that permission should be sought from that specific source 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. [ 34 ] The special advocates and public counsel aimed to obtain updated information about Abu 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 was made (see 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. As a result, a communication was issued (see communication dated September 1, 2010). [ 35 ] In accordance with the legislation and Charkaoui No. 2, full access to the bank of information in the hands of CSIS in regards to Mr. Harkat, and other intelligence information has been given to those involved in closed hearings.

It gave the special advocates access to information about targets, individuals of concern, methodologies and methods of operation, exchanges of information with foreign agencies, investigative reports, potential names of human sources, etc. This information is highly protected and such material cannot be shared with anyone.

That information shall remain secret and, depending on future mandates assumed by any counsel involved, this may raise unforeseen issues such as potential conflicts of interest (see also footnote 3). [ 36 ] The new approach to the security certificate cases can also open up discussions on the application of criminal law concepts to such procedure. This is not a criminal proceeding; intelligence evidence cannot be compared to conventional evidence. It requires its own set of rules and procedures that cannot be imported from classical criminal law concepts and procedures. Mr.

Harkat’s life is not at stake at the stage of the examination of the reasonableness of the certificate. At this time, his inadmissibility to Canada for security reasons is. The ministers, in applying the IRPA , are of the opinion that Mr. Harkat is inadmissible to Canada. His deportation, if

required, is not the issue here. It may become an issue in the future, in which case other IRPA provisions will be relevant and Mr. Harkat will have available other legal resources applicable to such situations. [ 37 ] Many lawyers were involved in this proceeding, all paid from the public purse. There were five lawyers for the ministers, three public counsel for Mr. Harkat, and two special advocates. The involvement of so many people generated a multitude of motions and requests which required months of preparation, hearings and necessary time to write.

Other lawyers intervened as to the polygraph issue, which made the whole process more time-consuming. [ 38 ] These proceedings are supposed to unfold as informally and as expeditiously as the circumstances and considerations of fairness and natural justice permit (see paragraph 83(1)( a ) [as am. by S.C. 2008, c. 3, s. 4 ] of the IRPA ). From February 2008 to October 2010, more than 32 months have passed. It was impossible for the Court to proceed more expeditiously. A lot of work was generated by the intervention of numerous lawyers in the interest of their respective clients.

Sufficient time had to be allowed for the ministers to comply with Charkaoui No. 2 and the reviewing process had to take place, including consideration as to the pertinence of the redactions. The search of Mr. Harkat’s home and the polygraph issues also required judicial time. The scheduling of public hearings for so many counsel involved was time-consuming as well and the process of public disclosure also created hurdles. These have been lengthy proceedings. The Hearing as to the Reasonableness of the Certificate [ 39 ] The public hearing on the reasonableness of the certificate of Mr.

Harkat was 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 . Public and closed hearings were held on and off from September 2008 to May 2010. [ 40 ] During the public hearings, the ministers called John, an intelligence officer with CSIS, as their first witness. The examination- in-chief of John began on November 8, 2008. He gave a very concise testimony in relation to the CSIS mandate, as well as to how a security certificate is prepared under the IRPA .

Although he had reviewed the Public Security Intelligence Report (Public SIR), he did not review the classified information in order not to inadvertently reveal material that is not in the public realm, and did not participate in the preparation of Mr. Harkat’s security certificate. Mr. Webber, public counsel for Mr. Harkat, did thank him for his professionalism (see transcript of proceedings, Vol. 6, at 144). I concur. His testimony was informative, well presented and balanced. For the purposes of these reasons, his testimony was very useful. [ 41 ] The ministers’ second witness, Dr.

Martin Rudner, is an expert in intelligence, national security matters as well as terrorism studies. He gave evidence on counterterrorism in relation to Al-Qaida and its affiliated groups, on Ibn Khattab, on Algeria and on sleeper agents. He also gave insightful evidence on the evolution of modern Islamic extremism. His testimony was useful to the Court. He gave an impression of neutrality when testifying and his written report and oral testimony were well documented (concerning the closed hearing witnesses, see also footnote 4). [ 42 ] Mr. Harkat testified on his behalf.

He also testified before Justice Dawson at the hearing into the reasonableness of the 2002 certificate. In a recent decision, Justice Dawson stated that “the ministers may cross-examine him upon any prior statement made in prior security certificate proceedings or before the IRB” (see Jaballah (Re) , 2010 FC 224 , [2011] 3 F.C.R. 155, at paragraph 116 ). The ministers did so. As a result, the assessment of Mr. Harkat’s credibility is outlined below. [ 43 ] The respondent called Mr. Thomas Quiggin, an expert in intelligence collection and reliability.

Although he has never worked for an intelligence agency, he has done some extensive work on the subject. He testified at length on the BLN, on Ibn Khattab and on “sleeper agents”. Mr. Quiggin is the only witness who testified that Al-Qaida did not deploy sleeper agents to the West. [ 44 ] Professor Wesley Wark was retained by Mr. Harkat to provide independent critical analysis of the Public SIR with regards to Mr. Harkat. Professor Wark is an expert on Canadian national security, on global transnational terrorism and on Al-Qaida.

He reviewed the Public SIR and other documents, and concluded that CSIS had prepared a weak and flawed case against Mr. Harkat. The Court noted that Professor Wark criticized the Public SIR to the point of giving an impression of advocating for Mr. Harkat. However, he was useful when informing the Court of his factual knowledge and of his views on some subject-matters. [ 45 ] Ms. Lisa Given, a professor in Library and Information Studies at the University of Alberta, testified as an expert for Mr. Harkat in relation to the reliability of the public information gathered in this instance.

Although Professor Given had no in-depth knowledge of the case presented by the ministers, she gave insightful evidence into the importance of corroborating the information gathered in order to ascertain the veracity of facts when dealing with public information. [ 46 ] Mr. Harkat also brought Professor Brian Williams to testify as an expert on Al-Qaida, on Chechnya and on Ibn Khattab. He offers the only course on the history of the Chechen conflict at the University of Massachusetts; in addition, he has done some field work in Afghanistan and in a number of former Soviet countries.

He has never been to Chechnya due to the precarious situation there. Although critical of other experts in the field, Professor Williams gave an eloquent depiction of Chechnya in the mid-1990s. Professor Williams mentioned that he does not accept any mandate to testify as an expert unless he has concluded that the person in question is innocent in the light of his review of the case. The report he filed was based on his view that Mr. Harkat was innocent (see transcript of proceedings, Vol. 22, at 8, 9 and 11).

That being said, his statement report, his publications and testimony were useful in informing the Court on the Chechen political situation. [ 47 ] Professor George Joffé also testified as an expert on behalf of Mr. Harkat via teleconference from the United Kingdom. Professor Joffé has provided reports in a number of cases. He is an expert on the Maghreb region, and more specifically on Algeria. Although he was not originally called to testify, Mr.

Harkat felt it was important for him to explain his recollection of the atmosphere in Algeria in the late 1980s and early 1990s, resulting response to the evidence given by Dr. Rudner (who described Algeria as living under new democratic values and where freedom of expression was gaining strength), but also in view of some discrepancies that had been raised earlier in relation to two distinct reports Professor Joffé provided to the Court.

In these reports, he described the climate in Algeria in the late 1980s and early 1990s as democratically open; in his opinion, while freedom of expression prevailed, this did not prevent unwarranted arrests of politically active people.

[48] Both Mr. Warren Creates and Mr. Suleiman Khan gave their own recollection of facts in relation to Mr. Harkat. Mr. Creates is animmigration lawyer who represented Mr. Harkat on his refugee claim before the Immigration and Refugee Board (IRB). Although Mr.Creates does not have a great recollection of the events, he does remember that he was present during two meetings between CSIS’officers and Mr. Harkat. He also said that he had not sought to represent Al Shehre while in Canada, contrary to what Mr. Harkat said.He also filed part of his handwritten notes of a CSIS interview with Mr. Harkat which may contradict part of the

summary of theinterview of the intelligence officers. Mr. Khan is responsible for the management and operation of the Islam Care Centre in Ottawa. Heis also one of the founding members of Human Concern International (HCI) and had contact with Ahmed Said Khadr (A. Khadr orKhadr) on numerous occasions. Mr. Khan also testified that he was very close to A. Khadr and was not aware of his involvement withIslamic extremists until later. The witness visited Al Shehre in prison as part of his volunteer work at the Ottawa-Carleton DetentionCentre, where he also met with Mr.

Harkat years later when he was detained. [49] Close to 20 witnesses have been crossed-examined in closed hearings on numerous subject-matters, such as the reasonableness ofthe certificate, the polygraph issue, the assessment of danger, Charkaoui No. 2 disclosure issues, human sources, etc. Other Comments on the Expert Evidence [50] The public hearings dealt with more than six expert witnesses, most of them viva voce, but some only through their respectivereports. There was considerable contradiction between experts to the extent that I raised that question in the public hearings.

ProfessorWark gave the following explanation (see transcript of proceedings, Vol. 17, at 118): This happens frequently — to come back to Your Honour’s general question, this happens frequently in academic debate on issues. Wetry and arrive at the best authorities for statements.

It is often difficult in the field of terrorism because terrorist organizations, by theirnature, don’t keep and allow us to see archival records that we can validate various kinds of theories about their operations, so we do ourbest. [51] Being left with many contradictions on most of the subject-matters, the Court has to keep in mind that experts are not allowed totake over the functions of the trier of fact. Expert evidence cannot be allowed to be a substitute for the Court’s own evaluation of theevidence (see R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9, at paragraph 21). [52] It is trite law that any lack of objectivity, neutrality or independence on the part of an expert impacts on the weight to be given toopinions (see R. v. Klassen, 2003 MBQB 253, [2004] 4 W.W.R. 351, at paragraph 28). [53] Intelligence (only accessible to a few) helps to provide more knowledge as to the modes of operation, the actors, and theobjectives of terrorist networks. It is indispensable. Expert evidence has to be understood in view of that consideration. Therefore, anyopinion given has to be weighed carefully.

To give value to expert evidence and recognize it as valid, one must look at the supportingreferences. Opinions are not sufficient, they must be factually based. [54] The Court has noted that some of the experts had strong feelings and opinions about the subject-matters discussed. As well, someof Mr. Harkat’s experts contradicted themselves (see Mr. Quiggin and Professor Williams on Khattab, or Mr. Quiggin, Mr. Wark andMr. Williams on sleeper agents). Professor Joffé contradicted his report filed on the political climate in Algeria in the late 1980s andearly 1990s.

However, at the end of the day, all experts were helpful to some extent. Relevant Provisions of the Immigration and Refugee Protection Act [55] The ministers are of the opinion that Mr. Harkat, a foreign national born in Algeria on August 6, 1968, is inadmissible onsecurity grounds under paragraphs 34(1)(c), (

d) and (

f) of the IRPA, for: Security34. (1) … (

c) engaging in terrorism; (

d) being a danger to the security of Canada; … (

f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in actsreferred to in paragraph (a), (

b) or (c). [56] The ministers base their opinion on inadmissibility under the above security grounds on a rule of

interpretation of the IRPAaccording to which one is to include facts arising from omissions, unless otherwise provided, and also those for which there arereasonable grounds to believe have occurred in the past, are occurring or may occur in the future. In short, evidence may be based onpast, present or anticipated future circumstances.

Section 33 of the IRPA reads as follows: Rules ofinterpretation33.

The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unlessotherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurringor may occur. [57] If the evidence presented supports only one of the security grounds invoked upon by the ministers, this is sufficient to establishinadmissibility on that ground only (see Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163, at paragraph 59; Zündel (Re), 2005 FC 295,251 D.L.R. (4th) 511, at paragraphs 16–17). [58] At this stage, the Court is to determine whether the certificate is reasonable or not (see

section 78 [as am. by S.C. 2008, c. 3, s. 4]of the IRPA).

[ 59 ] The review process is not limited to an examination of the material that was before the ministers, but additional evidence as well, such as documentary evidence, witness and expert evidence (see paragraphs 83(1)( c ) [as am. idem ] and ( g ) [as am. idem ] of the IRPA and Charkaoui No. 2, at paragraphs 70 to 73). Both parties are provided “with an opportunity to be heard” (see paragraph 83(1)(

g) of the new IRPA ), but the burden of proof rests initially on the ministers who allege that, in their opinion, Mr. Harkat is inadmissible on the basis of security grounds (see subsection 77(1) [as am. idem ] of the IRPA). [ 60 ] With the proviso that any piece of evidence must be ruled reliable and appropriate by the Court, all evidence can be admitted and relied upon, even if it is inadmissible in a court of law (see paragraph 83(1)( h ) [as am. idem ] of the IRPA ). [ 61 ] There is an exception: when there are reasonable grounds to believe that evidence has been obtained through the use of torture as defined by

section 269.1 [as enacted by R.S.C., 1985 (3rd Supp.), c. 10, s. 2] of the Criminal Code , R.S.C., 1985, c. C-46 , or cruel, inhumane or degrading treatment or punishment within the meaning of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (December 10, 1984, [1987] Can. T.S. No. 36). That evidence will be excluded (see subsection 83(1.1) [as enacted idem ] of the new IRPA ).

Earlier this year, my colleague Justice Blanchard issued his reasons for order and order, explaining what type of information secured in conditions amounting to torture had to be excluded (see Mahjoub (Re) , 2010 FC 787 , 373 F.T.R. 36). In the present certificate proceeding, the evidence in support of the allegations does not raise issues related to torture. Whenever a concern was raised in relation to this matter, the ministers’ counsel immediately agreed to have that information withdrawn. [ 62 ] The standard of proof with respect to the facts constituting inadmissibility under

section 33 of the new IRPA is “reasonable grounds to believe”. [ 63 ] This standard requires something more than mere suspicion, but is less stringent than the criminal standard of “beyond a reasonable doubt”. Therefore, after having assessed the adverse evidence on a balance of probabilities, the opinion of the ministers that the named person is inadmissible on security grounds has to be assessed as to whether or not it is a bona fide belief and a serious possibility based on credible evidence.

It is important to keep in mind that the designated judge has additional evidence to consider which was not before the ministers at the time they made their decision. In this case, there was considerable new evidence adduced by both sides, some of which came from the named person in the form of documentary evidence, expert evidence and testimonies. The Court is to make its assessment according to the preponderance of probabilities.

At the end of the day, the Court must decide, only after having examined the adverse evidence, if the certificate is based on reasonable evidence. [ 64 ] As Mosley J. most aptly explained in Almrei (Re) , 2009 FC 1263 [cited above], at paragraph 101 : I am of the view that “reasonable grounds to believe” in

section 33 implies a threshold or test for establishing the facts necessary for an inadmissibility determination which the ministers’ evidence must meet at a minimum, as discussed by Robertson J.A. in Moreno , above. When there has been extensive evidence from both parties and there are competing versions of the facts before the Court, the reasonableness standard requires a weighing of the evidence and findings of which facts are accepted. A certificate can not be held to be reasonable if the Court is satisfied that the preponderance of the evidence is to the contrary of that proffered by the ministers.

Factual Allegations Against Mr. Harkat [ 65 ] The security certificate is supported by a Confidential Security Intelligence Report (CSIR or TS SIR) (see also footnote 5). A Public Security Intelligence Report (Exhibit M5) was filed on February 22, 2008, and provided to Mr. Harkat. A Revised Public Security Intelligence Report (RPSIR—Exhibit M7), the result of an ongoing review of the classified information in closed hearing which brought the disclosure of additional information, was filed 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 BLN. The specific allegations made 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. [ 66 ] The RPSIR appendices contain a brief description of organizations or individuals such as Al-Qaida, the Groupe islamique armé (GIA), Ibn Khattab and Ahmed Said Khadr. They also include 6 CSIS 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 used by the ministers as supporting evidence to the allegations. Finally, the RPSIR also contains the public information relied on by the ministers and other immigration documentation pertaining to Mr. Harkat. [ 67 ] As a result of an ongoing review of the classified information during closed hearings, more detailed factual allegations were provided to Mr. Harkat 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. [ 68 ] On February 10, 2009, the ministers filed a Supplementary Confidential SIR, and a Supplementary Public SIR (Exhibit M11) which alleges 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. [ 69 ] As a result of the special advocates’ review of the Charkaoui No. 2 disclosure, further information was disclosed to Mr. Harkat (see

summary of the Charkaoui No. 2 disclosure, April 23,2009, Exhibit M15—the underlining shows 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): 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. Contacts 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 Contacts 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’. [ 70 ] A further

summary of conversations he had with members of his family, friends and a fiancée and her mother in Algeria in May and June 2001 was also made available to Mr. Harkat (made part of Appendix K of the Public SIR (Exhibit M7) following the judgment in Harkat (Re) , 2009 FC 167 , 339 F.T.R. 92). [ 71 ] The public hearings resulted in 52 exhibits for the ministers and 85 exhibits for Mr. Harkat, as well as 9 witnesses.

The public evidence is voluminous and is instructive as to the factual situation at play, the history of Islam, the political reality of the time involving countries such as Algeria, Saudi Arabia, Pakistan, Afghanistan and Russia (Chechnya and Dagestan). It also gives a good understanding of our Canadian immigration process insofar as it relates to Mr. Harkat. The public evidence is such that Mr. Harkat knows all of the allegations made against him, with support

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