Date: 20050322
Docket: DES-4-02
Citation: 2005 FC 393
BEFORE THE COURT:
IN THE MATTER OF a certificate signed pursuant to
subsection 77(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, (the "Act");
AND IN THE MATTER OF the referral of that certificate
to the Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;
AND IN THE MATTER OF Mohamed HARKAT
REASONS FOR ORDER
DAWSON J.
[1] The Solicitor General of Canada and the Minister of Citizenship and Immigration (together the "Ministers") have signed a certificate in which they state that Mohamed Harkat is a foreign national who is inadmissible to Canada on security grounds. As required by subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") the certificate has been referred to the Court for determination as to whether the certificate is reasonable. These are my reasons for determining the certificate to be reasonable and for dismissing Mr. Harkat's challenge to the constitutional validity of the applicable legislation.
[2] The sections of the Act which are relevant to these reasons are sections 33 and 34 and sections 76 through 81. They are set out in the Appendix to these Reasons.
[3] In these reasons, I first address the procedural steps taken in order to disclose to Mr. Harkat as much information as possible in order for him to be reasonably informed as to the matters that gave rise to the security certificate and to allow him to place relevant confidential information before the Court. I then deal with Mr. Harkat's challenge to the constitutional validity, applicability or effect of sections 78 through 80 of the Act. Following that, I consider the statutory scheme, the applicable standard of proof, what it is that the Ministers are required to prove, and the applicable legal principles. Next, I outline the allegations concerning Mr. Harkat, as set out in the summary provided to him. I then turn to review the evidence, the manner in which the Court dealt with the confidential information before it, and my analysis of the evidence. Finally, I consider Mr. Harkat's submission that the Ministers breached their obligations as articulated by the Supreme Court of Canada in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3.
Table of Contents Paragraph Number
1. Procedural Steps Regarding Disclosure of Information [4]
2. The Constitutional Issues [23]
3. The Statutory Scheme, The Standard of Proof, What
the Ministers Must Prove and Applicable Legal Principles [35]
4. The Nature of the Allegations Concerning Mr. Harkat [48]
5. The Public Evidence [50]
(i) Mr. Harkat's testimony [51]
(ii) Mrs. Sophie Harkat's testimony [65]
(iii) Mr. Cretes' testimony [68]
(iv) Mr. Marchessault's testimony [71]
6. The Confidential Information [80]
(i) The need to keep certain security information confidential [81]
(ii) Disclosure in other cases [90]
(iii) Principles relevant to the assessment of confidential
information [93]
7. Analysis of the Evidence [102]
(i) Mr. Harkat's testimony and credibility [105]
(ii) Abu Zubaida [115]
(iii) Mr. Marchessault and the Documents about
the Competency and Efficiency of CSIS [124]
(iv) Theresa Sullivan's Involvement in the CSIS Investigation [136]
(v) Conclusions on the Evidence [142]
8. Did the Ministers breach their obligation as articulated by the
Supreme Court in Ruby v. Canada (Solicitor General)? [145]
9. Conclusion [149]
PROCEDURAL STEPS REGARDING DISCLOSURE OF INFORMATION
[4] The following information, describing the steps taken by the Court that led to the public hearing held to allow Mr. Harkat an opportunity to be heard, is reflected in a series of public Orders and Directions issued by the Court. Nonetheless, it is helpful, I believe, to review that chronology here.
[5] The security certificate was referred to the Court on December 10, 2002. Pursuant to the obligation imposed by section 78 of the Act, I examined the security intelligence report upon which the certificate was based within seven days of the referral of the certificate to this Court. That report consisted of a narrative prepared for the Ministers. Contained within the narrative were a large number of footnotes that referred to other documents which, in turn, were contained in a number of reference indexes that accompanied the narrative. Those accompanying documents contain the detailed information upon which the security intelligence report is based. In total, the narrative and reference indexes comprise 10 volumes.
[6] Thereafter, I heard the viva voce testimony of, and questioned, a representative of the Canadian Security Intelligence Service ("CSIS" or the "Service") about the compilation and preparation of the security intelligence report and how disclosure of the information contained in both the narrative and the accompanying reference indexes would be injurious to national security, or to the safety of any person. Having considered such testimony, I provided Mr. Harkat with a summary of the narrative and with copies of some of the documents contained in the reference indexes that, in my opinion, enabled Mr. Harkat to be reasonably informed of the circumstances that gave rise to the issuance of the security certificate. In total, six volumes of material were provided to Mr. Harkat. The principle applied in order to provide the summary and accompanying documents to Mr. Harkat was that all of the information and documents placed before the Court should be disclosed to Mr. Harkat, except where evidence satisfied me that the disclosure of information or documents would be injurious to national security or to the safety of any person. For the balance of these reasons, I will refer to the non-disclosed portions of the narrative and the non-disclosed documents as the "confidential information".
[7] On three subsequent occasions the Ministers requested, pursuant to subsection 78(e) of the Act, that the Court receive information in the absence of Mr. Harkat and his counsel.
[8] The first request was made on March 24, 2003. Pursuant to that request, on April 2, 2003, I received relevant information provided in confidence, in March of 2003, by a foreign agency to the Service, and heard evidence from a representative of the Service as to why disclosure of the information would be injurious to national security. After hearing such evidence, I required CSIS to seek the consent of the foreign agency to the disclosure of the information to Mr. Harkat, and adjourned the subsection 78(e) application for that purpose. The Court reconvened on April 22, 2003 and received advice that consent had been received from the foreign agency for the release of the most salient information. In the result, that information was put in a summary provided to Mr. Harkat with the Court's order of April 22, 2003. This information was to the effect that the Service was advised by a foreign agency that "Abu Zubaida was able to identify [Mr. Harkat] by his physical description and his activities, including that he operated a guest house in Peshawar, Pakistan in the mid-1990's for mujahedeen travelling to Chechnya".
[9] The second request was made on July 21, 2003 at the commencement of the hearing held in order to provide Mr. Harkat with an opportunity to be heard with respect to his alleged inadmissibility. The Court, as obliged by subsection 78(e) of the Act, adjourned to an in camera session, in the absence of Mr. Harkat and his counsel. The information provided by counsel for the Ministers related to, and described, two contacts between Mr. Harkat and the Service. I was satisfied that the information was relevant. Contained within the information provided to the Court was information which would disclose the identity of certain individuals and disclose matters related solely to operational detail. In my view, based on the information provided to me, release of that portion of the information would have been injurious to national security or to the safety of any person. Accordingly, a summary was prepared and provided to Mr. Harkat which contained all of the information provided to the Court, except the information related to the identification of certain individuals and operational detail.
[10] Mr. Harkat on two occasions sought further disclosure of information. On March 4, 2003, I heard a motion brought by Mr. Harkat seeking disclosure of:
a. A list of all names of individuals and their notes who had direct or indirect dealings with Harkat who work directly for or on behalf of CSIS or any other intelligence agency;
b. The complete immigration file for Harkat;
c. The evidence as it relates to Mr. Abu Zubaida, including witness statements and interviews notes;
d. The evidence as it relates to Harkat's alleged presence in Afghanistan including any witness statements, photographs, wiretaps and other electronic or postal interceptions, and interview notes;
e. The evidence as it relates to Harkat's alleged association with those who support international extremist networks, and his assistance to Islamic extremists, including witness statements, wiretaps and interview notes.
[11] For reasons delivered in writing on March 7, 2003, the motion was dismissed (Harkat (Re) (2003), 231 F.T.R. 19).
[12] On July 23, 2003, in the course of providing Mr. Harkat with the opportunity to be heard, he again requested disclosure in order to more precisely define the case to be met. For reasons reported as Harkat (Re) (2003), 243 F.T.R. 161, I gave leave to Mr. Harkat to deliver questions in writing for the purpose of clarifying any matter set out in the summaries provided to him. Such questions were to be served and filed on or before August 8, 2003. Counsel for Mr. Harkat did not provide such questions until his new counsel, Mr. Copeland, delivered more than 231 questions by letter dated July 8, 2004, and subsequent correspondence. The history of delay on the part of Mr. Harkat from July 2003 to June 2004 is reviewed at paragraph 52 of the Court's reasons delivered on December 10, 2004, reported as Harkat (Re), 2004 FC 1717; [2004] F.C.J. No. 2101. That history need not be repeated here.
[13] On June 30, 2004, on my own motion, I issued a Direction to the parties as follows:
Some time has passed since the Court examined the information on which the security certificate was based ("information") in order to consider whether disclosure of all or part of that information would be injurious to national security or to the safety of any person.
Counsel for the Ministers are requested to advise as to their availability during the weeks of July 19 and 26 for the purpose of reviewing the information in private with the Court, in the absence of Mr. Harkat and his counsel, for the purpose of determining if as a result of the effluxion of time any further summary of the information or evidence may be provided to Mr. Harkat. The anticipated duration would not exceed one day.
[14] In consequence, I sat on July 26, 2004 in camera and in the absence of Mr. Harkat and his counsel, heard evidence from a representative of the Service, and questioned the representative about whether any further portion of the confidential information could be disclosed to Mr. Harkat without posing an injury to national security or endangering the safety of any person. The hearing was adjourned to permit further inquiries to be made by the Service. I then heard further evidence on August 27, 2004 and the matter was further adjourned. Under the Court's order of October 4, 2004, an additional summary statement was provided to Mr. Harkat. This summary related to a person named Odeh who was trained as a terrorist in Afghanistan, and implicated in the bombing of the U.S. Embassy in Nairobi.
[15] Such disclosure was not viewed by counsel for Mr. Harkat as being significantly pertinent, and I did advise Mr. Harkat that I would make no finding adverse to Mr. Harkat on the basis of any information that may have been provided by Odeh. The disclosure was made because it represented a portion of the confidential information that subsequently could be released because the information could now be found in open source material.
[16] It was after I commenced that second review of the confidential information that the Court received Mr. Copeland's questions referred to earlier in these reasons.
[17] The questions posed by Mr. Copeland to some extent went beyond clarifying matters set out in the summary (as contemplated by the Court's order) and instead went to ensuring that information considered relevant by Mr. Harkat was put before the Court. To illustrate, the following questions were posed by Mr. Copeland:
17. Please advise Justice Dawson of any evidence the Service might have to support the allegation that my client was involved in helping Islamic extremists while he was in Pakistan?
[...]
30. The number of Islamic extremists my client has assisted in Canada.
31. Please advise me as to the dates and locations when such assistance is alleged to have been provided;
32. Please provide Justice Dawson with the names of those Islamic extremists;
33. and all evidence establishing the assistance my client provided to them?
[18] No objection was taken to the scope of the questions and I considered it appropriate for Mr. Harkat to ask such questions for the purpose of ensuring information he considered relevant or necessary was placed before the Court.
[19] Thereafter, on July 28, 2004, the Court received another request from the Ministers, pursuant to subsection 78(e) of the Act, that the Court sit to hear evidence or information in camera, in the absence of Mr. Harkat and his counsel. The information sought to be adduced in camera was said to be evidence to describe the nature and specifics of the injury to national security or to the safety of persons that would result if answers to certain of the questions posed by Mr. Copeland were given to Mr. Harkat or his lawyer.
[20] As a result of that request, on August 27, 2004, I sat in camera and in the absence of Mr. Harkat and his counsel to receive the written answers to all of the questions posed by Mr. Harkat, to hear the viva voce evidence of a representative of the Service, and to question under oath the Service's representative. Where the information sought by Mr. Harkat was already contained in the confidential information, the representative drew my attention to where within the record the information was located. Where the information was not already before the Court, the representative confirmed the correctness of the answers provided in writing to the Court, expanded upon some answers so as to satisfy me as to the completeness of the answers, and testified (and answered questions from me) as to why the disclosure of many of the answers provided to the Court would be injurious to national security or the safety of any person. The hearing was then adjourned, pending receipt of some additional information to more fully respond to the questions.
[21] On October 19, 2004, I sat and received such additional information. On October 20, 2004, a Direction was issued to the parties that confirmed that I had received answers to all of the questions that had not been answered to Mr. Harkat on the ground of national security. I was satisfied that all permitted information had been provided to Mr. Harkat. In the course of this process the written confidential answers provided to the Court were revised twice to more fully respond to Mr. Harkat's questions.
[22] In addition to those steps I also endeavoured to assist Mr. Harkat to focus upon the case to be met by providing, by Direction dated October 4, 2004, an interim ruling that, having reviewed the confidential information, I would "make no finding adverse to Mr. Harkat on the basis of any information concerning Mr. Harkat which may have been provided by Ahmed Ressam or Maher Arar." Later, on October 20, 2004, a similar Direction was issued with respect to Odeh. The October 20, 2004, Direction also referenced question 82 posed by Mr. Copeland which sought further information about any allegation that Mr. Harkat trained in Afghanistan. The question was not publicly answered on grounds of national security. I directed that, "[i]n view of the allegations that Mr. Harkat has been in Afghanistan and that he concealed his travel to Afghanistan, Mr. Harkat ought to adduce whatever evidence is available to him that touches on whether he was ever in Afghanistan (whether at a training camp or not) and whether he concealed that".
THE CONSTITUTIONAL ISSUES
[23] In the Notice of Constitutional Question served on behalf of Mr. Harkat, it was stated that Mr. Harkat sought: an order striking down sections 77 through 81 of the Act as being unconstitutional; or, in the alternative, an order that adequately "enables [Mr. Harkat] to know the case he has to meet, and that entitles him to do so".
[24] In his written submissions filed in this proceeding and in oral argument, the relief sought by Mr. Harkat was refined. Mr. Harkat seeks a declaration that sections 78 through 80 of the Act violate principles of fundamental justice protected by section 7 of the Charter. In the alternative, Mr. Harkat asks the Court "to modify the application of the legislation so as to require that a Special Advocate, such as in the United Kingdom's SIAC [Special Immigration Appeals Commission] process, be appointed to represent [Mr. Harkat] in the ex parte in camera proceedings".
[25] In response, the Ministers argue that designated judges inquiring into the reasonableness of a security certificate do not have jurisdiction to render a decision in respect of the constitutionality of the applicable legislation. In the alternative, the Ministers submit that, if section 7 of the Charter is engaged, the legislation complies with the principles of fundamental justice under the Charter.
[26] These issues were argued prior to the release, on Friday, December 10, 2004, of the Federal Court of Appeal's decision in Charkaoui v. The Minister of Citizenship and Immigration, 2004 FCA 421; [2004] F.C.J. No. 2060. Accordingly, on Monday, December 13, 2004, I issued a Direction affording counsel the opportunity of addressing written submissions to the Court in consequence of that decision. Timelines for the filing of any such submissions were set out in the Direction. Further written submissions were filed on behalf of the Ministers, but not on behalf of Mr. Harkat.
[27] In those additional submissions, counsel for the Ministers conceded that the Court of Appeal's decision Charkaoui made it clear that designated judges do have the authority to consider constitutional questions. Counsel also submitted that, on the basis of the decision, Mr. Harkat's constitutional arguments should be dismissed.
[28] I agree that, in Charkaoui, the Court of Appeal settled the jurisdictional issue and held that designated judges may, on motion made before them, determine constitutional issues raised in the context of examining the reasonableness of a security certificate. I therefore move to consider the constitutional issues raised by Mr. Harkat.
[29] As to whether sections 77, 78 and 80 of the Act violate principles of fundamental justice protected by section 7 of the Charter, counsel for Mr. Harkat conceded in oral argument that those sections are so similar to the provisions found in section 40.1 of the former Immigration Act, R.S.C. 1985, c. I-2 ("former Act"), that I am bound by the decision of the Federal Court of Appeal in Ahani v. Canada (1996), 201 N.R. 233 (leave to appeal to the Supreme Court denied, [1996] S.C.C.A. No. 496) and that I would also be bound by the decision of the Court of Appeal, when released, in Charkaoui.
[30] In Ahani, the Federal Court of Appeal upheld the decision of Madam Justice McGillis, reported at [1995] 3 F.C. 669, that the procedure set out in section 40.1 of the former Act was in accordance with the principles of fundamental justice.
[31] In Charkaoui, the Federal Court of Appeal found the process established in sections 77 and 78 of the Act fulfills the minimum requirements of the principles of fundamental justice (see, paragraph 122).
[32] In the result, the Federal Court of Appeal has authoritatively decided that the legislative scheme impugned in this proceeding by Mr. Harkat is constitutionally sound, and it conforms with rights protected by section 7 of the Charter.
[33] With respect to Mr. Harkat's argument that section 7 of the Charter requires the appointment of a special advocate, or amicus curiae, in Charkaoui, at paragraphs 123 through 126, the Court of Appeal found that the appointment of a special advocate was not required in order for the Court to provide a hearing that is in accordance with the principles of fundamental justice. By my written reasons, given for dismissing Mr. Harkat's motion that an amicus curiae be appointed (delivered on December 10, 2004 and reported at Harkat (Re), 2004 FC 1717), I gave reasons for my conclusion that there is nothing in the particular circumstances of this case that renders the Court incapable of properly balancing and protecting Mr. Harkat's right so as to provide a hearing that conforms to the principles of fundamental justice.
[34] In the result, Mr. Harkat's application for constitutional relief is dismissed.
THE STATUTORY SCHEME, THE STANDARD OF PROOF, WHAT THE MINISTERS MUST PROVE AND APPLICABLE LEGAL PRINCIPLES
[35] Before setting out the legal principles that are relevant to the determination of the reasonableness of a security certificate, it might be helpful to comment briefly on the statutory scheme found in the Act and some relevant jurisprudence. In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at page 733 the Supreme Court characterized the "most fundamental principle of immigration law" to be that "non-citizens do not have an unqualified right to enter or remain in the country". The Court went on to quote from its earlier decision, Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, that "[t]he Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so".
[36] Thus, Parliament has the right to enact legislation prescribing the conditions under which non-citizens are permitted to enter and remain in Canada and Parliament has done so in the Act. The Act is express that Canadian citizens have an absolute right to enter and remain in Canada upon satisfying an immigration officer as to their citizenship (subsection 19(1) of the Act). Permanent residents enjoy only a qualified right to enter and remain in Canada; for example, they must comply with any conditions imposed under the regulations enacted under the Act (section 27). Foreign nationals who are not permanent residents have no absolute right to enter and remain in Canada; for example, if granted temporary resident status they may enter and remain in Canada on a temporary basis, must comply with all conditions, must leave when required, and may re-enter Canada only if their authorization provides for re-entry (section 29). Both permanent residents and foreign nationals are inadmissible to Canada for such things as being a member of a group that there are reasonable grounds to believe engages in terrorism (section 34). A security certificate may only be issued in respect of a permanent resident or a foreign national (subsection 77(1)).
[37] Permanent residents named in a security certificate enjoy procedural rights not granted to foreign nationals. Permanent residents are not subject to mandatory detention while foreign nationals are (section 82). Permanent residents who are detained are entitled to regular reviews of their detention (sections 83 and 84).
[38] In this context, the hearing afforded to a person named in a security certificate by subsection 78(i) is designed to allow the person to respond to the allegation of the state that they are inadmissible with no right to remain in Canada.
[39] Turning to the principles that govern the determination of reasonableness, it is settled law that, in proceedings to determine the reasonableness of a security certificate, the Ministers are required to prove the existence of reasonable grounds upon which to believe certain facts. The Ministers are not obliged to prove the existence of those facts. See, for example, Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 at paragraph 2. In the present case, at issue is whether there are reasonable grounds to believe that Mr. Harkat is inadmissible for:
(i) engaging in terrorism; or
(ii) being a member of an organization that there are reasonable grounds to believe engages, or has engaged, or will engage in terrorism, or has or will engage in, or instigate, the subversion by force of any government.
[40] Proof of "reasonable grounds to believe" requires that evidence demonstrates an objective basis for the reasonable grounds. As the Court of Appeal observed in Charkaoui, supra, at paragraph 103, more than suspicion or a mere subjective belief is required in order for the "reasonable grounds" standard to be met.
[41] In Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 the Federal Court of Appeal, at paragraph 60, described the "reasonable grounds" standard as being a standard that, "while falling short of a balance of probabilities, nonetheless connotes a bona fide belief in a serious possibility based on credible evidence."
[42] Separate from the legal test to be met is the standard of proof. The standard of proof is proof on a balance of probabilities. See, Singh at paragraph 3 and the authorities cited therein.
[43] Where a security certificate asserts inadmissibility on more than one ground, each ground must be read disjunctively. If any one ground is established, the certificate is to be determined to be reasonable. See, Singh at paragraph 4 and Zundel (Re), 2005 FC 295 at paragraphs 16 and 17.
[44] As to the terms "terrorism" and the concept of being a "member" of a group, in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 98, the Court found that "terrorism" includes any "act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act".
[45] The term "member" is to be given an unrestricted and broad interpretation. See, Singh, at paragraph 52. "Member" may be equated with "belonging to" an organization. See Chiau, supra, at paragraph 57. See also: Poshteh v. Canada (Minister of Citizenship and Immigration, 2005 FCA 85; [2005] F.C.J. No. 381 at paragraphs 27 through 29.
[46] Finally, I note that section 33 of the Act provides that facts that constitute inadmissibility under section 34 of the Act "include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur".
[47] Having set out the legal principles which are to guide the inquiry into the reasonableness of security certificate, I turn to review the allegations made in respect of Mr. Harkat.
THE NATURE OF THE ALLEGATIONS CONCERNING MR. HARKAT
[48] As referred to above, the security certificate issued in respect of Mr. Harkat sets out the belief of the Ministers that Mr. Harkat is inadmissible to Canada on security grounds pursuant to paragraphs 34(1)(c) and 34(1)(f) of the Act. Those provisions make inadmissible to Canada a person who there are reasonable grounds to believe:
(i) has engaged, or will engage, in terrorism; and
(ii) was, or is, a member of an organization that there are reasonable grounds to believe has engaged, or will engage, in terrorism or an organization that has or will engage in, or instigate, the subversion by force of any government.
[49] It is the position of the Service, as set out in the summary of the confidential information, that:
1. Prior to arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activity, but he concealed from Canadian authorities that he had supported Islamic extremists and travelled to Afghanistan.
2. He is a supporter of Afghani, Pakistani and Chechen extremists.
3. Mr. Harkat supported terrorist activity as a member of the terrorist group known as the Bin Laden Network, which includes Al Qaida. Before and after he arrived in Canada Mr. Harkat was and is linked to individuals believed to be in this network.
4. Mr. Harkat is associated with organizations that support the use of political violence and terrorism.
5. The Bin Laden Network engages in acts of terrorism in order to obtain its stated objective of establishing Islamic states based on a fundamentalist interpretation of Islamic law. The Bin Laden Network has been directly or indirectly associated with terrorist acts in several countries, including the August 7, 1998 bombings of the United States' Embassies in Kenya and Tanzania, the October 12, 2000 bombing of the naval destroyer U.S.S. Cole in Yemen, and is suspected of being involved in the planning and execution of the September 11, 2001 World Trade Center and Pentagon attacks.
6. The Bin Laden Network, through Al Qaida, operated, and to some degree still operates, terrorist training camps and guest houses in Afghanistan, Pakistan and Sudan. The camps provide sanctuary, funds, military and counter-intelligence training including terrorist and guerrilla warfare techniques. The camps also teach the manufacture of explosive devices. It has been reported that as many as 5,000 militants may have been trained and dispersed to some 50 countries. One example of such a trainee is Ahmed Ressam. Mr. Ressam identified Abu Zubaida as the person who ran the Khaldun and Darunta training camps in Afghanistan where he trained. Mr. Ressam stated that Abu Zubaida arranged for his trip to Afghanistan, and provided him with Afghan clothes and an Afghan guide in order to take Mr. Ressam from Pakistan to the Khaldun camp.
7. The Bin Laden Network uses "sleepers" and suicide operatives in international terrorist operations. "Sleepers" are established in foreign countries for extended periods of time prior to a given operation being executed.
8. Mr. Harkat was a supporter of the Front islamique du salut ("FIS") in Algeria.
9. When the FIS severed its links with the Groupe islamique armée ("GIA"), he indicated that his loyalties were with the GIA. The GIA seeks to establish an Islamic state in Algeria through the use of terrorist violence, and it has engaged in civilian massacres. Mr. Harkat's decision to align himself with the GIA indicates his support for the use of terrorist violence.
10. Mr. Harkat has lied to Canadian officials about his:
1. period of work for a relief company in Pakistan;
2. travel to Afghanistan;
3. association with those who support international extremist networks;
4. use of aliases; and
5. assistance to Islamic extremists.
Such lies were for the purpose, in part, of disassociating himself from individuals or groups who support terrorism, or who may have participated in the Bin Laden Network.
11. Mr. Harkat has assisted Islamic extremists who have come to Canada.
12. Mr. Harkat has associated with Abu Zubaida since the early 1990s. Abu Zubaida was one of Osama bin Laden's top lieutenants since the 1990s. In March 2003, the service was advised that Abu Zubaida was able to identify Mr. Harkat by his physical description and his activities, including the fact that Mr. Harkat operated a guest house in Peshawar, Pakistan in the mid 1990s for mujahedeen travelling to Chechnya.
13. Mr. Harkat has been in contact with other individuals known to be involved in Islamic militant activities.
THE PUBLIC EVIDENCE
[50] Counsel for the Ministers led no evidence in public. Counsel for Mr. Harkat called Mr. Harkat, his wife Sophie Harkat, Mr. Warren Cretes and Mr. Jean-Luc Marchessault. Counsel also filed a statutory declaration completed by Steven Watt (an American lawyer who is the International Human Rights Fellow with the Center for Constitutional Rights). Mr. Watt's work since November 2001 has focussed on the detention and interrogation policies and practises of the United States government since September 11, 2001. Finally, counsel for Mr. Harkat filed a number of documents consisting largely of correspondence, newspaper articles, excerpts from annual reports of the Security Intelligence Review Committee ("SIRC") and court documents.
(i) Mr. Harkat's testimony
[51] In his testimony, Mr. Harkat denied the matters alleged in the summary. He specifically denied that he has knowingly supported or assisted Islamic extremists and denied being linked in any way to anyone in the Bin Laden Network. Mr. Harkat testified that he never associated with, or met with, Abu Zubaida. Mr. Harkat stated that he has never been in Afghanistan, never lived in Peshawar and never operated a guest house in Peshawar for mujahedeen. Mr. Harkat testified that he never supported the GIA.
[52] Mr. Harkat described completing high school in Algeria, and the circumstances relating to his involvement with the FIS that led him to flee from Algeria to Saudi Arabia, in April of 1990, during his first year of university. What follows is a summary of the balance of Mr. Harkat's testimony.
[53] The visa Mr. Harkat obtained for Saudi Arabia only permitted him to stay there for 15 days. His money began to run out, and he was given a phone number for someone in Jedda associated with the Muslim World League. While in Mecca, Mr. Harkat telephoned this person and explained his situation. Mr. Harkat was told to come to Jedda and the person, whose name Mr. Harkat does not recall, would try to help him. On arrival in Jedda, Mr. Harkat was told by this person that he would call the Muslim World League in Pakistan to see if they needed someone, and the person would also try to obtain a visa for Pakistan for Mr. Harkat. In the meantime, Mr. Harkat was to leave his passport, return to Mecca, and telephone after five days.
[54] After five days, Mr. Harkat called the person in Jedda who told him to come back to Jedda because the Muslim World League had a job for him. On arrival in Jedda, Mr. Harkat learned that he would leave the next day for Pakistan. He did not know what his job in Pakistan would involve. Mr. Harkat was given his ticket and travel documents and the following day flew from Jedda to Islamabad and then travelled by van to Peshawar. The next morning, Mr. Harkat was taken to the office of the Muslim World League in Peshawar where he met Abu Dahr and his subordinate, "engineer Abdullah".
[55] Abu Dahr and engineer Abdullah told Mr. Harkat that he would be responsible for a warehouse located between Islamabad and Peshawar known as Hai Al-Mohajereen (the Migrant's District) located in Babbi. Mr. Harkat described Hai Al-Mohajereen to be a refugee camp containing 100,000 people. Mr. Harkat was to be responsible for going, with a driver, to pick up things such as tents, oil, rice, dates, and blankets in Peshawar and then take such food and supplies to the warehouse for storage. Abu Dahr explained to Mr. Harkat that the Muslim World League wanted "somebody Arabic" to do this job, otherwise the supplies would be stolen and sold. Three Afghanis worked for Mr. Harkat.
[56] The warehouse was a four and one half hour drive from the Afghan border. In all the time Mr. Harkat was in Pakistan, he never travelled to, or over, the border into Afghanistan.
[57] Mr. Harkat worked for the Muslim World League from May 1990 to mid-1994. He left his employment because he was not able to renew the documentation that allowed him to move within Pakistan, and because the flow of relief supplies from Saudi Arabia was diminishing.
[58] While with the Muslim World League, Mr. Harkat had an identification card which identified him as an employee of the Muslim World League. The card had his picture on it, and the names "Muhammad Harkat" and "Abu Muslima" appeared on the card. "Abu Muslima" was a nickname given to Mr. Harkat. Later, when in Canada, Mr. Harkat denied to CSIS representatives that he had ever used the name Abu Muslima. Mr. Harkat denied this because, in his words, "maybe they were looking for someone else. Scared".
[59] In order to come to Canada, Mr. Harkat purchased a false Saudi passport because no entry visa was required for persons travelling to Canada on a Saudi Arabian passport. Had he travelled on his Algerian passport, a visa would have been required. On the first occasion Mr. Harkat tried to leave Pakistan using his false passport, he was turned away because officials observed that his passport was forged. Two or three weeks later, Mr. Harkat left Pakistan using his Algerian passport. He travelled to Malaysia because no visa was required to travel there. Five days later, he took one of the first available flights, flying business class, from Kuala Lumpur to London, England, and then on to Toronto. His travel was financed by the $18,000 U.S. which he had saved while working in Pakistan.
[60] On arrival in Toronto, Mr. Harkat claimed refugee status and disclosed to authorities that he had both a false Saudi passport and an Algerian passport. He was allowed to leave the Toronto airport and told to return within 21 days with a translator. Mr. Harkat then called "Taher" who was a taxi driver living in Ottawa that Mr. Harkat had met in Pakistan. Taher arranged to meet Mr. Harkat at the Ottawa bus depot on his arrival in Ottawa. Mr. Harkat then took the bus to Ottawa. Taher met him and took Mr. Harkat to a mosque where Mr. Harkat met a man called Ibrahim who allowed Mr. Harkat to stay with him for one or two weeks. Subsequently, when CSIS asked Mr. Harkat if he had ever seen Taher before he arrived in Canada or whether he had any previous relationship with Taher, Mr. Harkat answered "no". This was said, by Mr. Harkat, to be because Taher had asked him not to mention his name to CSIS.
[61] Mr. Harkat arranged for an acquaintance to drive him back to Toronto so that he could report to immigration authorities as required. At the last minute, the acquaintance decided not to go to Toronto and advised Mr. Harkat that Mr. Harkat's roommate, Ahmed Berseigi, was driving Ahmed Khadr to Toronto, so he would drive Mr. Harkat to Toronto as well. Mr. Harkat said that he did travel in a van to Toronto with Mr. Berseigi and Mr. Khadr. As for any discussion between Mr. Harkat and Mr. Khadr during the drive, Mr. Harkat said that when Mr. Khadr found out that Mr. Harkat had worked in Pakistan, he asked Mr. Harkat if he knew Mr. Khadr's name. Mr. Khadr also told Mr. Harkat that when he went to see the immigration authorities, he should just tell the truth. Aside from that, the two did not speak and Mr. Berseigi and Mr. Khadr spoke to one another throughout the trip, largely in Egyptian which Mr. Harkat did not understand. In any event, Mr. Harkat was not paying any attention because he was pre-occupied with his looming meeting with immigration authorities. Mr. Harkat had never before met Mr. Khadr and never saw him again.
[62] Mr. Harkat went on to testify that he had been questioned by CSIS about his knowledge of a Mr. Al-Shehri. Mr. Harkat explained that he once met with a Mr. Al-Shehri while Mr. Al-Shehri was in the Innes Road detention center in Ottawa. This meeting occurred after Mr. Harkat's then lawyer, Mr. Cretes, asked him to help see that Mr. Al-Shehri hired Mr. Cretes "because there is money on it". Mr. Harkat was also to suggest that Mr. Al-Shehri's family wire money for a retainer directly to the bank account of one Ahmed Derbas. According to Mr. Harkat, this was his first and last meeting with Mr. Al-Shehri.
[63] Mr. Harkat also described three meetings with a woman CSIS agent, Theresa Sullivan. A fourth meeting did not proceed when Mr. Harkat arrived with his lawyer, Mr. Cretes.
[64] Mr. Harkat concluded his evidence in chief by describing his employment history while he lived in Ottawa and his gambling problem that led to his voluntary banishment from the casino in Hull. Mr. Harkat's evidence on cross-examination will be dealt with below in the context of the Court's analysis of the evidence.
(ii) Mrs. Sophie Harkat's testimony
[65] Sophie Harkat testified that she and Mohamed Harkat first dated in April or May of 2000 and that they were married on January 2, 2001. During the time they were together, she never found Mr. Harkat to be evasive, hesitant or inconsistent when talking about his past, and she never had suspicions about his past.
[66] Mrs. Harkat believes that Mr. Harkat went directly from Algeria to Pakistan, where he worked in a refugee camp. He told her that he had decided to come to Canada when he had enough money to buy a plane ticket.
[67] On cross-examination, Mrs. Harkat agreed that she did not know too much about her husband before she married him. In oral argument, counsel for Mr. Harkat conceded that her testimony "is not going to help you a great deal one way or another".
(iii) Mr. Cretes' testimony
[68] Mr. Harkat's former immigration lawyer, Mr. Cretes, testified. Mr. Cretes specializes in immigration and refugee law and practices in Ottawa. Mr. Cretes recalled on one occasion meeting Mr. Harkat at the Ottawa detention center. Mr. Harkat had told him that he knew someone in the jail who needed a lawyer, so Mr. Cretes went to the detention center to meet this person. He met with Mr. Harkat in the parking lot first to get more background. The person in question was a Mr. Al-Shehri. Mr. Cretes cannot recall whether he actually met Mr. Al-Shehri, and found no file or electronic record opened in his office in respect of Mr. Al-Shehri.
[69] Mr. Cretes attended one interview with Mr. Harkat conducted by CSIS agents and agreed to go with Mr. Harkat to meet a CSIS agent at the Rideau Center. When Mr. Cretes was introduced to the agent, Theresa Sullivan, she said that the meeting would have to be re-scheduled so she could have a government lawyer in attendance.
[70] Subsequently, Ms. Sullivan attended at Mr. Crete's office, and advised that she was no longer employed with CSIS and that she was looking for a job. Mr. Cretes took her résumé and has not heard from her since.
(iv) Mr. Marchessault's testimony
[71] Mr. Marchessault worked for CSIS from April 1989 to 1998 when CSIS terminated his employment. He began his employment as an intelligence officer doing security screening for government employees in Ottawa. In July of 1991, he was transferred to Toronto to do field investigations and he served in both the counter-intelligence and counter-terrorism branches of CSIS.
[72] While employed with CSIS, Mr. Marchessault wrote reports with respect to operational interviews, saw reports written by others, and reviewed CSIS files relating to persons of interest. He also dealt with informants. He testified that informants are on occasion paid by CSIS for information. Sometimes informants provide information as a result of animosity towards the person they are providing information about; other times informants are motivated by the good of the country. Persons who are initially reluctant to provide information to CSIS sometimes provide information as a result of comments made to them by CSIS agents.
[73] Mr. Copeland proffered Mr. Marchessault as an expert with respect to writing and assessing reports for CSIS, and with respect to articles and a book concerning the Service.
[74] On being cross-examined upon his qualifications, Mr. Marchessault agreed that his supervisors expressed concern to him about the quality of his intelligence reports and that they testified to that effect when Mr. Marchessault grieved his dismissal from CSIS. At the grievance hearing, Mr. Marchessault tried to establish that there was a conspiracy at CSIS to fire him. The written decision of the Public Service Staff Relations Board ("PSSRB"), filed in evidence, relating to Mr. Marchessault's grievance found that "there is no evidence of the conspiracy to get rid of" Mr. Marchessault and also found that the employer reached, in good faith, the conclusion that Mr. Marchessault was not performing to the expected minimum standard. That latter conclusion was reached on the basis of documentary and testimonial evidence and specifically on "the basis of several evaluation reports, done by three successive supervisors, after serious attempts on their part to explain to the grievor his shortcomings, and to improve the quality of his work through close monitoring".
[75] Given the grounds upon which Mr. Marchessault was dismissed, as evidenced in the decision of the PSSRB, and his assertion of a conspiracy at CSIS concerning his employment, I was not satisfied that he had the required expertise and impartiality towards the Service so as to be qualified as an expert about the Service. In view of the discretion given to the Court pursuant to subsection 78(j) of the Act, he was, however, permitted to testify.
[76] Mr. Marchessault testified that he found the statement contained in the summary that the Service "believes that Harkat has engaged in terrorism by supporting terrorist activity" to "sound vague". In his experience, CSIS reports on what "they perceive as a mandated threat" and do not mention anything peripheral. In his view, paragraph 10 of the summary should have included more information about the political situation in Algeria. In his view, there could be "100 pieces of evidence" that contradict one piece of evidence and CSIS would go with the one piece of evidence that suggests a threat to national security.
[77] Based on Mr. Marchessault's experience and involvement with CSIS, he testified that the general thrust of Mr. Metrovica's report of a stolen briefcase in 1991 (contained in exhibit 18) was true. Also true, in Mr. Marchessault's view, were newspaper articles about: the loss of a computer diskette by CSIS in 1996 (exhibit 21); the destruction of Air India tapes in 1986 (exhibit 23); the suicide of Tony Iachetta, a CSIS agent, in 1995 (exhibit 25); the problems Pierre Leduc had with CSIS in 1995 when CSIS suspended him (exhibit 25); Michel Simard's efforts to organize CSIS employees and his suspension in 2000 after he went public with complaints about "leadership and morale problems at CSIS" (exhibit 26); the first "Sidewinder" report prepared in 1997 and the softening of the second version of the report in 1999 (exhibits 27 and 28); pressure being put upon the former chief psychologist at CSIS to provide confidential medical and psychological information about employees (exhibit 29); the fact Ahmed Ressam slipped from CSIS' grasp in 1999 (exhibit 30); and the difficulty CSIS had in 1985 when attempting to monitor Mr. Talwinder Singh Parmar (exhibit 31). Mr. Marchessault said he could provide more information in camera about these matters.
[78] On cross-examination, Mr. Marchessault admitted his disappointment at losing his job with CSIS and said that, in addition to going to the PSSRB, he wrote letters to SIRC and to the Solicitor General. Mr. Marchessault continues to believe that there was a conspiracy within CSIS to have him fired.
[79] The documentary evidence filed on Mr. Harkat's behalf will be reviewed in the context of the Court's analysis of the evidence.
THE CONFIDENTIAL INFORMATION
[80] In these reasons, I am unable to disclose the confidential information that is before the Court because its disclosure would be injurious to national security, or to the safety of any person. (As previously noted, summaries of the confidential information have been provided to Mr. Harkat). In this portion of the reasons, I explain why it is necessary to keep certain security information confidential, deal with the complaint made by Mr. Harkat's counsel that better disclosure has been provided in other cases, and set out the general principles relevant to the Court's assessment of the confidential information.
(i) The need to keep certain security information confidential
[81] Courts, both here and abroad, have recognized the need for security intelligence information to be kept secret in order to protect national security. See, for example, Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 (at paragraph 48); Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3 (at paragraphs 43 and 44); Charkaoui, supra (at paragraphs 100, 101); R. v. Shayler, [2002] 2 All E.R. 477 (H.L.); Halperin v. C.I.A. (1980), 629 F.2d 144 (at page 150) (D.C.C.C.A.); Murray v. United Kingdom (1995), 19 EHRR 193 (E.C.H.R.) (at paragraph 58); Vereniging Weekblad Bluf! v. Netherlands (1995), 20 EHRR 189 (E.C.H.R.) (at paragraphs 34 and 35).
[82] The need to protect this type of information is not specific to security certificate cases. As noted by the Federal Court of Appeal in Almrei, supra at paragraph 73, sections 38 and following of the Canada Evidence Act, R.S.C. 1985, c. C-5 are provisions of general application which ensure that, in the course of court proceedings, sensitive or potentially injurious information is not publicly released.
[83] In oral argument, counsel for Mr. Harkat conceded that where national security interests are raised, persons named in security certificates will never know the whole case to be met, and much information must be kept from the person concerned and their counsel.
[84] The need to preserve the secrecy of security information flows from the fact that security intelligence investigations are directed towards future events. They attempt to predict future events by discovering from past and present events patterns of occurrences and relationships. This requires piecing together bits of information that may at first not appear to be related.
[85] A group or organization with hostile intentions has an ongoing existence with a continuity of operations. Accordingly, a security intelligence investigation does not end with the detention or apprehension of one member of the group. Rather, investigations are long-range and on-going. This is one of the principal factors that distinguishes intelligence investigations from criminal investigations. Furthermore, there is no completed "offence" to provide a framework for the investigation. For this and other reasons, the Court has in the past held that criminal law principles and policies do not apply to security certificate proceedings (see, for example, Madam Justice McGillis in Ahani, supra at paragraphs 40 and 42) and the Court has held that transcripts of any electronic surveillance need not be disclosed where disclosure would be injurious to national security or the safety of persons. See: Canada (Minister of Citizenship and Immigration) v. Singh (1998), 153 F.T.R. 183.
[86] When security intelligence information is disclosed by the Court or other authorities, it must be assumed that the information will reach persons who have knowledge about the subject of an investigation and his activities. In the hands of such an informed reader, seemingly unrelated pieces of information, which by themselves may not be particularly sensitive, can provide an insight into the scope or progress of an ongoing intelligence operation. For example, apparently innocuous information can nonetheless alert those who are under investigation to the fact they are under surveillance or that there is a leak from some source within the organization. This may alert them to take evasive or other steps to frustrate the intelligence investigation.
[87] Equally, disclosure of the fact that certain information is not known by the authorities may allow an informed reader to learn about subjects of investigation, methods of investigation, sources of information, or that certain activities are not under investigation.
[88] Parliament, in subsection 78(b) of the Act, has made the designated judge responsible to ensure the confidentiality of the information upon which the security certificate is based, and of any other evidence provided to the judge, where disclosure would be injurious to national security or the safety of any person. This obligation and its companion obligation to provide a summary to the person concerned, reflect the tension between the democratic requirement of open court proceedings and the equally compelling necessity of keeping security information secret.
[89] Examples of information of the type that must be kept confidential include:
1. Information obtained from human sources, where disclosure of the information would identify the source and put the source's life in danger (see the decision of Madam Justice McGillis in Ahani, supra at paragraph 19 where Justice McGillis discusses when human source information may be disclosed). As well, jeopardizing the safety of one human source will make other human sources or potential human sources hesitant to provide information if they are not assured that their identity will be protected.
2. Information obtained from agents of the Service, where the disclosure of the information would identify the agent and put the agent's life in danger.
3. Information about ongoing investigations where disclosure of the information would alert those working against Canada's interest and allow them to take evasive action.
4. Secrets obtained from foreign countries or foreign intelligence agencies where unauthorized disclosure would cause other countries or agencies to decline to entrust their own secret information to an insecure or untrustworthy recipient. (See Ruby, supra at paragraph 43 and following for discussion of the fact that Canada is a net importer of intelligence information, and such information is necessary for the security and defence of Canada and its allies).
5. Information about the technical means and capacities of surveillance and about certain methods or techniques of investigation of the Service where disclosure would assist persons of interest to the Service to avoid or evade detection or surveillance or the interception of information.
(ii) Disclosure in other cases
[90] If one considers the examples listed above, one can see that the extent to which information can be disclosed without risk to national security or the safety of any person requires a careful assessment of the evidence. Disclosure will always be situation specific. For example, turning to Madam Justice McGillis' discussion in Ahani of the disclosure of information obtained from a human source, where several persons have had access to the information provided by the source, disclosure may likely be made without fear of identifying the source. Where, however, the evidence establishes that the information was only imparted to or known by one or two persons, disclosure of the information cannot be made without identifying the source of the information or putting the individuals in danger. Because disclosure depends upon the evidence in the particular case, it is not helpful or relevant to compare, as Mr. Copeland did, public summaries provided in security cases and note that, in different cases, different disclosure has been made. Different disclosure is made in each case because considerations relevant to disclosure depend upon the evidence before the Court in each individual case.
[91] There is another reason why comparison of public summaries is not helpful. Here, counsel for Mr. Harkat observed that, in similar proceedings pending against Mr. Adil Charkaoui, the Court disclosed a copy of a photograph of Mr. Charkaoui that Abu Zubaida recognized as identifying a person Mr. Zubaida saw in Afghanistan. No similar photographic disclosure was provided in this case.
[92] The correct inference to be drawn from the fact that there was no similar disclosure in this case is that, as discussed below, there is different confidential information before the Court in these cases.
(iii) Principles relevant to the assessment of confidential information
[93] In my assessment of the confidential information, I have adopted and applied the principles articulated by my colleague Mr. Justice Blanchard in Almrei v. Canada (The Minister of Citizenship and Immigration), [2004] 4 F.C.R. 327; aff'd 2005 FCA 54; [2005] F.C.J. No. 213. Although Justice Blanchard was writing in the context of a detention review conducted pursuant to subsection 84(2) of the Act, the nature of the exercise a designated judge must perform when confidential information is received by the judge in the absence of a party and their counsel remains the same whether the judge is determining the reasonableness of a security certificate or reviewing detention under subsection 84(2) of the Act. At paragraphs 59 and 60, Mr. Justice Blanchard wrote:
59. [...] Since the evidence must be received in the absence of the applicant or counsel it is incumbent on the designated judge to rigorously and critically scrutinize this evidence in reaching any determination regarding its relevance to the issues, its reliability and proper weight.
60. In testing evidence which cannot be disclosed for security reasons, the designated judge must adopt a principled approach to the exercise. To that end the presence or absence of corroboration, consistency of the evidence, and whether it is hearsay, are among factors to consider. To test the reliability of the evidence the judge may probe into the credibility and reliability of the source of the information. This may be done by the designated judge putting questions directly to affiants and possibly to other persons. In addition the judge may question counsel representing the Service on their submissions.
To similar effect are the comments of my colleague Mr. Justice S. Noël in Charkaoui (Re), [2004] 3 F.C.R. 32 (F.C.) at paragraphs 100 to 102.
[94] While not in any way commenting upon the source or sources of confidential information before the Court in this case, I believe that, generally, if any confidential information is provided by a human source, some relevant inquiries and areas for examination by the Court of one or more witnesses under oath may include matters such as the following: the origin and the length of the relationship between the Service and the human source; whether the source was paid for information; what is known about the source's motive for providing information; whether the source has provided information about other persons, and, if so, particulars of that; the extent to which information provided by the source has been, or is, corroborated by other evidence or information; the citizenship/immigration status of the source and whether that status has changed throughout the course of the source's relationship with the Service (to the extent that such status touches upon the source's security within Canada and their vulnerability to duress); whether the source has been subject to any form of pressure to provide information, and if so, why and by whom; whether the source was or is under investigation by the Service or any other intelligence agency or police force; whether the source has a criminal record or any outstanding criminal charges in Canada or elsewhere; the nature of any relationship between the source and the subject of the investigation; whether there is any known or inferred motive for the source to provide false information or otherwise mislead the investigation in any way. This list is not exhaustive and the matters outlined here may not be relevant or applicable in every case.
[95] Similarly, if any confidential information is provided from another intelligence agency, some relevant inquiries and areas for examination may include: the manner in which the Service assesses the reliability of information provided by that agency and its conclusion as to the reliability; to what extent has, or is, information from such agency corroborated; is there any suggestion the agency may have a motive for colouring the information provided; what is the human rights record of the agency and the agency's home country; how does the foreign agency itself assess the reliability of the information it has provided; is the agency a mere conduit for information originating from a less reliable agency. Again, this list is not intended to be exhaustive.
[96] If any confidential information is provided that is obtained through technical sources such as electronic surveillance, relevant inquiries may include: the accuracy of any document that records intercepted information; the accuracy of any translation (if applicable); the objectivity or bias of any summary made of intercepted information; and how the parties to any conversation are identified.
[97] Regardless of the source of the evidence, questions should be posed as to the existence of any exculpatory evidence.
[98] In summary, the designated judge must inquire into the source of all information contained within the confidential information upon which the Ministers rely to establish the reasonable grounds for their belief that the person concerned is inadmissible to Canada upon security grounds. Once the source of the information is identified, the designated judge should consider what the written record discloses and what any relevant witness can testify to about the reliability of the information and extent to which the information, or other information from that source, is corroborated. Throughout, the judge must remain vigilant and mindful of his or her obligation to probe the reliability of all evidence. The potential for error caused by such things as mis-identification, mistake, deception, incompetence or malevolence must be considered. As stated earlier, it is important that questions be directed to whether there is exculpatory information in the possession of the Service.
[99] It is only through this demanding exercise that the Court can properly assess the evidence tendered on behalf of the Ministers and the person named in the certificate. A rigorous, objective determination is required in order to protect the interests of the person named in the certificate as well as the legitimate interests of the state.
[100] In order to carry out this scrutiny of the confidential information, after hearing final public closing argument on December 9, 2004, the Court sat in camera and in the absence of Mr. Harkat and his counsel on Tuesday, December 20, 2004 and heard evidence from a witness produced on the Ministers' behalf, and heard the submissions of counsel for the Ministers based upon the confidential information. By prior, public Direction, I had advised that I required the Ministers to address the source of each item of information relied upon by the Ministers, the reliability of each source of information, the presence or absence of independent, corroborating information, and to answer questions about the involvement, if any, of Theresa Sullivan in the Service's investigation. The witness provided such information and answered under oath questions asked by counsel for the Ministers and by me. At that time, a document was tendered and received by the Court as a confidential exhibit. This document, identified by the witness, among other things depicted, in chart form, the source of every item of information contained in the confidential information and depicted, in chart form, every item of information that was provided by a particular source.
[101] Subsequently, I reviewed in detail the entire record in order to analyse and form my conclusions about the reliability of the information before the Court. In the course of preparing these reasons, further questions arose and by way of public Direction I required the re-attendance of counsel for the Ministers and a witness, in camera and in the absence of Mr. Harkat and his counsel, for the purpose of answering those further questions. That was done on February 18, 2005. As the reasons were being finalized, I identified two further areas of inquiry and two instances where a review of the transcript of the prior in camera proceeding showed that further questioning was required. A Direction issued requiring the re-attendance of counsel and the witness on March 17, 2005. On that date, I asked the witness additional questions.
ANALYSIS OF THE EVIDENCE
[102] I now turn to the analysis of the totality of the evidence before the Court adduced in the public hearing, and contained in the 10 volumes of confidential information and in the testimony provided to the Court in camera in the absence of Mr. Harkat and his lawyer. The analysis will proceed pursuant to the following outline:
(i) Mr. Harkat's testimony and credibility;
(ii) Information received from Abu Zubaida;
(iii) Mr. Marchessault's testimony and the documents filed that relate to the competence and efficiency of CSIS;
(iv) Theresa Sullivan's involvement in the CSIS investigation; and
(v) Conclusions on the evidence.
[103] Before commencing the analysis, in R. v. Sheppard, [2002] 1 S.C.R. 869 the Supreme Court of Canada re-affirmed the importance of reasoned judgments, and observed that at "the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public ... The courts attract public support or criticism at least in part by the quality of their reasons". Reasons should reflect that the judge properly identified the relevant issues, applied the appropriate principles, considered key and conflicting evidence and addressed the arguments advanced to the Court. The requirement of giving reasons "itself concentrates the judicial mind on the difficulties that are presented".
[104] Reasons delivered in a security intelligence case cannot fully justify and explain a result publicly when the evidence the Court relies upon cannot be disclosed. In order to ensure rigour in my analysis, I have included in my analysis of the evidence a series of footnotes. Contained in the Court's confidential file, in my handwriting, is the text of each footnote containing the reference to that part of the confidential information or confidential testimony I rely upon to support my findings, together with any pertinent comments.
(i) Mr. Harkat's testimony and credibility
[105] There is a presumption at law that testimony given under oath is truthful, unless there is a reason to doubt the truthfulness of the evidence. However, three aspects of Mr. Harkat's testimony, while possibly true, raise a real question as to whether his evidence is plausible or rings true. These areas were Mr. Harkat's evidence about how he acquired his job with the Muslim World League, his salary while employed by the Muslim World League in Pakistan, and his travel from Ottawa to Toronto, by van, with Mr. Ahmad Khadr.
[106] With respect to how he was hired, Mr. Harkat testified that the Muslim World League wanted to hire "somebody Arabic" for the warehouse supervisor job, because a local person would sell the relief supplies on the market. Yet, Mr. Harkat testified that he was hired, almost sight unseen, for the position. According to Mr. Harkat, once he telephoned from Mecca to the representative for the Muslim World League in Jedda, he was told "come here, and bring your passport, and we're going to see if the Pakistan, they give you a visa or they accept you". Once Mr. Harkat arrived in Peshawar, both his supervisor Abu Dahr and Abullah the engineer knew that it had been decided elsewhere that Mr. Harkat was the person who had been hired to look after the warehouse. Given Mr. Harkat's testimony that the Muslim World League did not want a Pakistani or an Afghani for the job, and that honesty was required for the supervisor position, Mr. Harkat's testimony sheds no light on how the Muslim World League satisfied itself that Mr. Harkat was sufficiently honest for the position and is difficult to believe.
[107] Second, Mr. Harkat testified that he was paid 10,000 Pakistani rupees (or between $400 to $500 U.S. dollars a month) so that he was able to save $18,000 U.S. dollars while working for the Muslim World League. Mr. Harkat admitted this was "pretty good money for that part of the world". No explanation was given as to why Mr. Harkat was paid so well. It is again difficult to believe that someone in Mr. Harkat's circumstance would be paid $18,000 U.S. while working in a refugee camp in Pakistan.
[108] Third, Mr. Harkat testified that he travelled in a van from Ottawa to Toronto with Ahmed Khadr. Mr. Khadr was a high ranking associate of Osama Bin Laden. Both Mr. Harkat and Mr. Khadr had worked in Pakistan in the area of Islamic charities yet Mr. Harkat said that he had little or almost no discussion with Mr. Khadr, whose only advice was to tell Mr. Harkat to tell the truth to immigration authorities. Given their common background in relief work in Pakistan, and notwithstanding Mr. Harkat's explanation that he was pre-occupied, I find it implausible that this was the extent of the conversation over a five hour journey with one of Osama Bin Laden's highest ranking authorities.
[109] These aspects of Mr. Harkat's testimony did not ring true as he testified. Plausibility findings are to be made only where the evidence is so far beyond the realm of what could reasonably be expected that one can safely conclude that the testimony cannot be true. While Mr. Harkat's testimony on these points could possibly be true, realistically one would not reasonably expect that Mr. Harkat would be hired and paid as he explained, or that there to be no real conversation with Mr. Khadr over a five hour journey. As. Mr. Harkat testified I found his evidence on these points to be inherently implausible and incredible.
[110] Also troubling were instances where the testimony of Mrs. Harkat and Mr. Cretes were at odds with Mr. Harkat's, although those discrepancies were not on material points in Mr. Harkat's testimony. A discrepancy between Mrs. Harkat's evidence and her husband's was her belief that Mr. Harkat travelled directly from Algeria to Pakistan. Neither Mr. or Mrs. Harkat were, however, cross-examined upon this point.
[111] Mr. Cretes' recollection was at odds with Mr. Harkat's as to which had asked the other for assistance with respect to the person detained at the Innes Road Detention Center. Mr. Cretes testified that, while his memory was vague, "what I do recall is that [Mr. Harkat] called me and knew of someone in jail that needed a lawyer". Mr. Harkat testified that it was Mr. Cretes who asked Mr. Harkat for assistance. Having observed both witnesses, I prefer Mr. Cretes' evidence. Mr. Cretes gave his evidence in a straight forward manner and was candid about what he did and did not remember.
[112] Mr. Harkat's credibility was also undermined by his admission that he lied on two occasions to CSIS, once concerning his use of the alias "Abu Muslima" and once about his relationship with Taher.
[113] Even without finding Mr. Harkat's testimony to be implausible and incredible on the three material points set out above, on the basis of the confidential information1 it is clear and beyond doubt that Mr. Harkat lied under oath to the Court in several important respects, including his denials that he:
(i) knowingly supported or assisted Islamic extremists;
(ii) assisted Islamic extremists who have come to Canada;
(iii) was associated with Abu Zubaida;
(iv) was in Afghanistan; and
(v) lived in Peshawar.
[114] With respect to the confidential information I rely upon2 to find Mr. Harkat to be incredible, I have paid close attention to the detail of the information provided, asked specific questions and received answers about the reliability of the various sources of information, and considered whether information was corroborated by more than one independent source. Having done so, I find that credible and reliable information coming from a number of independent sources, many of which are corroborated, contradicts Mr. Harkat's denial on each of these points. Weighing that evidence against Mr. Harkat's testimony, I conclude, on a balance of probabilities, that Mr. Harkat's denials are not credible and that he lied in his evidence to the Court.
(ii) Abu Zubaida
[115] Mr. Harkat argues that information obtained from Abu Zubaida, as summarized and disclosed by the Court, was obtained as a result of torture and, as such, is inadmissible. In the alternative, he submits on the basis of the summary provided that insufficient detail was provided so that no evidentiary value should be given to the evidence.
[116] The Ministers respond that Mr. Harkat has adduced no proof, on a balance of probabilities, that evidence obtained from Abu Zubaida was obtained as a result of torture. They rely upon a decision of the British Columbia Supreme Court, made in the context of the Extradition Act, R.S.C. 1985, c. E-23, where the Court found that a person alleging torture must convince the Court, upon a balance of probabilities, that there was torture.
[117] Mr. Harkat argues that the current location and condition of Abu Zubaida is unknown, so that all he is able to do is to put publicly available material before the Court and ask the Court to infer from that material that Abu Zubaida has been tortured. Specifically, Mr. Harkat points to, among other things: a June 28, 2004 article from the Globe and Mail and a June 27, 2004 article from the New York Times reporting that a controversial memorandum from the U.S. Justice Department (the "Gonzales memorandum") (drafted to give the CIA guidance on how far it could go in the use of extreme interrogation techniques) sprang from internal debate as to how to extract information from Abu Zubaida; a copy of the Gonzales memo; a Human Rights Watch Briefing Paper entitled "The United States' Disappeared"; the statutory declaration of Mr. Watt of the Centre for Constitutional Rights and his response to written interrogatories; and the transcript of the evidence of Ward Elcock, the former Director of CSIS, before the Arar inquiry.
[118] The Gonzales memorandum is lengthy. Its purport may be taken from the following introductory paragraphs:
You have asked for our Office's views regarding the standards of conduct under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment as implemented by Sections 2340-2340A of title 18 of the United States Code. As we understand it, this question has arisen in the context of the conduct of interrogations outside of the United States. We conclude below that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A's proscription against torture. We conclude by examining possible defenses that would negate any claim that certain interrogation methods violate the statute.
In Part I, we examine the criminal statute's text and history. We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration e.g. lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual's personality; or threatening to do any of these things to a third party. The legislative history simply reveals that Congress intended for the statute's definition to track the Convention's definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.
In Part II, we examine the text, ratification history, and negotiating history of the Torture Convention. We conclude that the treaty's text prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for "cruel, inhuman, or degrading treatment or punishment." This confirms our view that the criminal statute penalizes only the most egregious conduct. Executive branch interpretations and representations to the Senate at the time of ratification further confirm that the treaty was intended to reach only the most extreme conduct.
In Part III, we analyze the jurisprudence of the Torture Victims Protection Act, 28 U.S.C. § 1350 note (2000), which provides civil remedies for torture victims, to predict the standards that courts might follow in determining what actions reach the threshold of torture in the criminal context. We conclude from these cases that courts are likely to take a totality-of-the-circumstances approach, and will look to an entire course of conduct, to determine whether certain acts will violate Section 2340A. Moreover, these cases demonstrate that most often torture involves cruel and extreme physical pain. In Part IV, we examine international decisions regarding the use of sensory deprivation techniques. These cases make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.
In Part V, we discuss whether Section 2340A may be unconstitutional if applied to interrogations undertaken of enemy combatants pursuant to the President's Commander-in-Chief powers. We find that in the circumstances of the current war against al Qaeda and its allies, prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President's authority to conduct war. In Part VI, we discuss defenses to an allegation that an interrogation method might violate the statute. We conclude that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A. [underlining added]
[119] It is Mr. Watt's opinion, based on his experience with the Center for Constitutional Rights and publicly available documentation, that:
21. In short, publicly available documentation demonstrates that, although U.S. domestic law prohibits torture and other mistreatment of detainees, since the September 11 attacks, the U.S. Executive Branch through a strained interpretation of applicable domestic and international law has approved detention practices and interrogation techniques that constitute torture or other cruel, inhuman or degrading treatment as these terms are defined under international and United States domestic law.
[...]
54. Since April, 2004, prompted by the Abu Ghraib prison abuse scandal, there has been extensive media coverage in the United States on the systemic practice and the origins of torture and inhumane treatment of detainees in U.S. custody in Afghanistan and Guantánamo.
[...]
56. Media reports, official investigations, as well as first-hand accounts by prisoners formerly detained by U.S. officials in Afghanistan and Guantánamo uncover significant and pervasive abuses at the hands of U.S. officials, including interrogation methods that have resulted in the serious injury or deaths of persons in custody and, in some instances, their "rendition" to other countries for torture.
[...]
77. More recently, news media have reported that the practice of "rendering" individuals, developed by military or CIA lawyers and "vetted by Justice Department's office of legal counsel", has been applied to hundreds - if not thousands - of individuals in post-9/11 terrorism interrogations. Dana Priest and Joe Stephens, Secret World of U.S. Interrogation: Long History of Tactics in Overseas Prisons is Coming to Light, Wash. Post (May 11, 2004) (detailing the long-time existence of "interrogation rooms of foreign intelligence services - some with documented records of torture - to which the U.S. government delivers or 'renders' mid- or low-level terrorism suspects for questioning").
78. "Rendition" requires the concerted efforts of United States intelligence, immigration authorities, and military branches in rendering individuals to foreign authorities. Id. (reporting that the Saudi government is currently detaining and interrogating 800 terrorism suspects through an operation controlled by a joint intelligent task force including officers from the CIA, FBI, and other United States law enforcement agencies). "Rendition" has been described publicly by the former Director of the CIA, George Tenet, as one of the United States' key counter-terrorism policies.
[...]
80. First-hand accounts from persons once held by the United States in Afghanistan and Guantánamo reveal that they have been subjected to mistreatment by both prison guards and interrogators and have been subjected to many of the techniques detailed in the legal memoranda noted above. Significantly, none of those released to date has been a so-called "high-value" detainee; in fact, most were apparently not members of al-Qaeda or the Taliban. Therefore, it cannot be determined if the methods used on these particular individuals are representative of the methods used on more important detainees. What is abundantly clear, however, is that detainees were all subjected to treatment which, at a minimum, amounted to cruel, inhuman or degrading treatment.
[...]
95. Abu Zubaydah is a detainee in U.S. custody. He was captured in March 2002 in Pakistan and was reportedly in U.S. control in Pakistan in June of that year. The United States' 'Disappeared': The CIA's Long-Term 'Ghost Detainees', Human Rights Watch (Oct. 2004) at 26. He has been held incommunicado since his capture. Initially a U.S. military official stated that the U.S. was looking to turn him over to a foreign intelligence service that would use more "brutal" interrogation techniques than would be permissible in the United States. Defense Secretary Rumsfeld stated that Zubaydah was under U.S. control as of April 2002. Id. Currently, Zubaydah is said to be held in Jordan. Yossi Melman, CIA Holding al-Qaida Suspects in Secret Jordanian Lockup, Haaretz (Oct. 13, 2004). Jordan is known to use physical means to coerce confessions. CIA Holds Top Al Qaeda Suspects in Jordan, Reuters (Oct. 13, 2004).
96. Abu Zubaydah was apparently shot during his capture. U.S. officials reportedly withheld pain medication from him at this time as an interrogation device. The United States' "Disappeared" at 12, 26-27; see also U.S. Decries Abuse, supra.
97. After a debate within the U.S. Government about the methods used to interrogate Abu Zubaydah, the U.S. Department of Justice Office of Legal Counsel prepared the August 2002 memorandum detailed above which significantly narrowed the U.S. definition of torture and paved the way for coercive interrogation techniques. See [paragraph]50 above, supra; see also, The United States' "Disappeared" at 7. In June, 2004, agents from the U.S. Federal Bureau of Investigation (FBI) publicly expressed their disapproval of the techniques being used by the CIA on Zubaydah. David Johnston and James Risen, Aides Say Memo Backed Coercion Already in Use, N.Y. Times (June 27, 2004). [underlining added]
[120] The evidence before the Court satisfies me that better evidence about the conditions Mr. Abu Zubaida has been subjected to is not likely to be available to Mr. Harkat. In that circumstance, I believe it to be an appropriate exercise of the discretion given to the Court by subsection 78(j) of the Act to conclude that this material, all of it hearsay and to some extent speculation, does raise significant concern about the methods used to interrogate Abu Zubaida.
[121] While normally a court must decide the admissibility of evidence before considering what, if any, weight is to be given to the evidence, subsection 78(j) of the Act makes it clear that more flexibility is given to a judge inquiring into the reasonableness of a security certificate because the judge is entitled to receive into evidence anything that, in the opinion of the judge, is appropriate, even if inadmissible in a court of law.
[122] In this case, there is an additional pressing concern surrounding the information obtained from Mr. Abu Zubaida. Setting aside the issue of torture or mistreatment, the Court has no evidence before it as to what it was that Mr. Abu Zubaida said, or in what circumstance. This information is required in order for the Court to assess the weight to be given to the information. The concern is aptly illustrated by the following portion of Mr. Harkat's counsel's final argument:
I spent a fair bit of time talking to the Media in regard to this, but what I have mostly said is: If they said to Abu Zubaida, in whatever circumstances he is: "Did you know a short Algerian guy, a little bit heavy set, walks with a limp, was connected to the FIS, ran a guest house in Peshawar for mujahideen going to Chechnya?" and he said "yes", in my submission, that is virtually worthless as evidence, particularly all the more so if he is being pressured or tortured while he is responding in that fashion.
If, on the other hand, what happened was they said: "Okay, Mr. Zubaida. You have told us everything, you have answered all the questions. Is there anything else we should know?" and he said: "Yes. There is this short Algerian guy, walks with a limp, connected with the FIS, who ran this guest house in Peshawar for mujahideen going to Chechnya", that actually might have some evidentiary value.
Have they given you enough to understand how those answers came out? Does their description of the process by which they extracted or obtained the information from Abou Zubaida make sense? Can you put weight on his statements given the circumstances? - - And that is the issue of the reliability of evidence obtained under torture; or, in some circumstances, it gets pretty close to torture.
[123] On all of the evidence before the Court, I am left in doubt as to how Mr. Abu Zubaida came to provide information about Mr. Harkat. I do not know what photograph he identified, whether what is provided to the Court is the text of what Mr. Abu Zubaida volunteered, or whether he answered "yes" in response to a leading question. In light of that, and the doubt raised about the treatment afforded to Mr. Abu Zubaida, I give no weight to the information provided to the Court through Abu Zubaida.
(iii) Mr. Marchessault and the Documents about the Competency and Efficiency of CSIS
[124] In paragraphs 71 to 78 above, I reviewed Mr. Marchessault's testimony both in direct and cross-examination. He agreed that while employed by CSIS his supervisors expressed concern to him about the quality of his intelligence reports. He continues to believe there was a conspiracy within CSIS to have him removed. In its written decision relating to the grievance Mr. Marchessault filed when he was dismissed, the PSSRB found no evidence of conspiracy and found that CSIS, in good faith, concluded that Mr. Marchessault was not performing to the expected minimum standard. On the basis of the grounds for his dismissal and his continuing belief in a conspiracy against him, I find Mr. Marchessault to lack objectivity towards CSIS. I place little or no reliance upon his criticism of the Service that it ignores the preponderance of evidence and ignores evidence peripheral to what CSIS perceives as a mandated threat. I did, however, in an in camera ex parte session, direct inquiries to the representative of the Service about the existence of exculpatory evidence3 and was attentive to the existence of any facts that contradict any assertion made by the Service or any instance where assertions made by the Service were not factually supported.
[125] I do accept, on the basis of Mr. Marchessault's testimony and the documents referred to in paragraph 77 above, that in the past CSIS intelligence officers have had briefcases stolen and lost a computer diskette, and that the other events set out in paragraph 77 above likely took place.
[126] Similarly, I accept that in its reports for 1998-1999; 1999-2000; and 2002-2003, SIRC expressed concerns with respect to a number of items. In the first mentioned report, SIRC expressed concern with respect to transnational crime and economic espionage: CSIS was said to have drawn too broad a definition of "economic security"; CSIS investigators were said to lack the training and experience to recognize the types of financial and corporate crimes that were supposed to be the object of concern; and CSIS was said to have acquired information on street-level criminal activities that were not within the scope of its strategic objectives. SIRC also noted, in a passage not relied upon by Mr. Harkat, that "in meeting the goals set by Justice McDonald to create an agency able to 'perform effectively in a lawful and proper manner' the CSIS Act and its associated legislative reforms have proven to be remarkably successful. CSIS does its job of identifying threats to Canada and advising the government about them; SIRC and other responsible bodies including the Inspector General and the relevant Committees of Parliament review the Service's work to help ensure it is effective and that it conforms to the law".
[127] The second SIRC report relied upon by Mr. Harkat investigated media assertions relating to a joint RCMP-CSIS project, codenamed "Sidewinder". SIRC listed the principal assertions reported in the media to be:
· that the goal of Sidewinder was to gather and analyze intelligence about efforts by the Chinese Government and Asian criminal gangs to influence Canadian business and politics;
· that the Project was terminated before completion because the Service anticipated political resistance;
· that CSIS improperly destroyed all copies of Sidewinder's final report, as well as drafts, correspondence and other related documents;
· that ending the joint project in 1997 was premature and subsequently hobbled the government's ability to deal with emerging threats to the country;
· that the Sidewinder team's request for additional resources, and its recommendation to CSIS/RCMP management to launch a formal investigation into the alleged activities were answered by the project being terminated and the team being disbanded;
· that the mismanagement of Project Sidewinder had significantly harmed overall relations between CSIS and the RCMP.
[128] The main conclusions of SIRC's review of CSIS' conduct were:
· The Committee found no evidence of political interference as alleged. None of the documents or records reviewed, interviews conducted or representations received evidenced such interference, actual or anticipated. Project Sidewinder was not terminated; it was delayed when its product was found to be inadequate.
· With respect to the Sidewinder first draft report, we found the draft to be deeply flawed in almost all respects. The report did not meet the most elementary standards of professional and analytical rigour. The actions the Service took to ensure that subsequent products of its collaborative effort with the RCMP on Project Sidewinder would be of higher quality were appropriate.
· The Committee found no evidence of any substantial and immediate threat of the sort envisaged in the first Sidewinder draft, no evidence that a threat was being ignored through negligence or design, and no evidence that the Government had not been appropriately warned of substantive threats where such existed. Both CSIS and the RCMP continue to investigate similar threats separately.
· The Committee found no indication that the disagreements between CSIS and the RCMP, which arose during the course of Project Sidewinder, had caused, or were symptomatic of, difficulties in other areas of the inter-agency relationship.
· The Service disposed of what it regarded as "transitory documents" related to the Sidewinder first draft report. It is unable to locate other documents the Committee regards as clearly non-transitory and has stated that these were not disposed of but rather "misfiled". However, the Committee does not believe this lapse had a material impact on the events surrounding Project Sidewinder; nor is there any evidence that raw information, kept in Service files and in part used by the Sidewinder analysts to compile their first report, was disposed of or altered in any manner.
[129] With respect to the flawed, first draft report SIRC wrote:
According to the RCMP, the two agencies were scheduled to examine the paper in a "joint review board" on June 9, 1997. Prior to the joint board, however, the Service convened its own internal review, and then shelved the report because, according to the Director General RAP, its findings were "based on innuendo, and unsupported by facts." The RCMP objected to the circumvention of the joint board review procedure and encouraged the analyst/authors of the first draft to prepare a facting binder in support of the report's assertions. Work on Project Sidewinder was suspended, while discussions between the Service and the RCMP about its future continued.
[...]
The Committee believes that the Service correctly assessed the first draft and took appropriate actions to ensure that subsequent products of its collaborative effort with the RCMP on Project Sidewinder would be of higher quality. The Committee believes further that both actions were consistent with the Service's responsibility to assess threats to Canada and Canadians rigorously and in a professional manner and provide objective advice to Government based on those assessments. As it stood in May 1997, Project Sidewinder's first draft report failed to meet those standards.
[130] In the final SIRC report Mr. Harkat tendered in evidence, SIRC reported on its review of CSIS' investigation of the threat posed by Ahmed Ressam within the context of Sunni extremism. SIRC wrote:
Upon reviewing all the relevant documentation, the Committee concluded that the Service did not possess specific information that would have forewarned it of Ressam's planned terrorist operations. In the Committee's view, the actions CSIS took to locate Ressam in 1999 were appropriate in light of the information available at the time. The Committee saw no evidence that it was a lack of vigilance on the part of the Service that contributed to Ressam's ability to escape detection after his return in 1999.
[...]
The Committee found that the Service's investigative activities following Ressam's arrest were appropriate and proportionate to the threat. The Service complied with the requirements of law, ministerial direction and policy. All the information collected was strictly necessary to its investigation of an imminent threat to the security of Canada.
[131] What was filed in Court by Mr. Harkat were excerpts from the SIRC reports. I have reviewed these reports in their entirety in light of the jurisdiction given pursuant to subsection 78(c) and (j) of the Act and the importance to both Mr. Harkat and Canada's security interests of the issue of the Service's competence.
[132] Of relevance is SIRC's review in its 1999-2000 report of the loss of CSIS documents from a vehicle. (This was an incident reported in Globe and Mail articles written by Mr. Metrovica and put in evidence by Mr. Harkat as exhibits 19 and 22). SIRC wrote at page 10 of the report:
As noted earlier, several other employees were involved - albeit peripherally - in the incident. Although the Service's internal investigation showed that most media allegations of procedural non-compliance were unfounded, in the Committee's opinion the incident highlighted a lack of rigour in the Service's control over the removal from its premises of documents by officers. The Service has since taken steps to address these gaps.
[...]
The Service's own "lost documents" investigation was conducted in a competent and professional manner, ultimately revealing how its classified materials went astray. Internal Security Branch staff maintained a focussed and coordinated approach to handling the many issues and questions raised by the incident. CSIS Headquarters gave clear direction to Toronto Region which, in turn, successfully enlisted the very important co-operation of local law enforcement agencies - co-operation crucial to learning the probable fate of the documents. Finally, the policies and guidelines in place for performing and consolidating damage assessments by various operational branches proved effective.
[133] In the 2002-2003 report, SIRC "elected to examine in depth a complex set of related CSIS investigations into Sunni extremism managed from two separate CSIS regional offices during the period April 2001 through March 2002". The following findings were made:
Targeting and Investigations
The Committee selected a sample of targets to examine in detail, a selection determined by the relatively high level of investigative activity for each. The Committee found that in all cases the Service had reasonable grounds to suspect the target's involvement in activities that constituted a threat to the security of Canada and that the levels of investigation were proportionate to the threat activities observed.
In obtaining targeting authorities and conducting the investigations, the Service met all the requirements set out in law, ministerial direction and operational policy. It collected only the information strictly necessary for the investigation.
Two instances drew the Committee's attention and required additional inquiries of the Service. In the first, the Committee reviewed documentation about an unusual event involving one of the selected targets. Upon receipt of additional information from the Service, the Committee was satisfied that no improper conduct on the part of CSIS contributed to the event, nor did any Service employee contravene operational policy.
The second instance related to an error on the part of the Service that had been rectified by CSIS as soon as it was noticed. This error involved an instance of mistaken identity. Unusual and extenuating circumstances contributed to the error and the Committee is satisfied that it was unintentional. Further, the Committee was able to confirm that the Service took the proper administrative and operational measures to correct the error as soon as it became evident. The Committee believes that the authorities subsequently invoked by the Service were appropriate.
[...]
Recruitment and Direction of Human Sources
[...]
In all cases the Committee found that the Service had acted appropriately and within the law and had properly followed all policies and procedures relating to the recruiting and directing of human sources. In one especially sensitive area of the Service's use of human sources - one that had drawn the Committee's attention previously (see SIRC Report 2001-2002, page 8) - the Committee found that CSIS managed the relationship with the source appropriately.
The Committee did identify some minor errors and oversights in one Region's human source record keeping. Although the Committee does not believe these lapses were representative of the overall high quality of CSIS's management of the human source cases reviewed, the importance of proper documentation to human source operations generally required that we bring even these relatively minor administrative errors to the attention of the Service.
[...]
CONCLUSIONS
The investigations reviewed here straddle the months before and after the events of September 11, 2001. It was evident to the Committee that the Service's investigations of Sunni Islamic extremism in general, and the specific targets we examined, were well underway before September 11. The Service had identified targets, sought and obtained warrant powers, developed useful human sources and had regular and extensive exchanges of information with other relevant Canadian agencies.
The events of September 11 certainly intensified the Service's own activities and the level of exchanges with other agencies. However, the nature and intent of the overall investigation did not change. Before and after September 11 the Service's investigations in both regions appeared to the Committee to be thorough, well managed and appropriately documented. Rules and procedures designed to protect individual civil liberties and religious and social institutions were scrupulously observed throughout. The Committee identified no evidence or information that would indicate that CSIS had in its possession any information that should have alerted it, and through it the Government, to the impending events of September 11.
[134] Without listing each exhibit filed by Mr. Harkat relating to CSIS, I have read each carefully. I have also, as he requested, received and read the entire SIRC report with respect to "The Role of CSIS in the Matter of Maher Arar". The documents are generally peripheral to the issue of the Service's ability to obtain and analyse information relating to threats to Canada's security (other than in the areas of transnational crime and economic espionage, which are not relevant to Mr. Harkat). I place more reliance upon the SIRC reports because they are prepared on the basis of access to the totality of relevant information, including information classified "top secret", and there is a greater appearance of balance in the SIRC report than in the media reports. SIRC is careful to note (at page 3 of its 2002-2003 report) that the findings of any single review are not to be read as a judgment of the Service's operations as a whole. SIRC, while pointing to areas where the Service should improve, does not, in the reports relied upon by Mr. Harkat, criticize the Service as being either incompetent or inefficient and I find no basis in the evidence before me to support that broad a conclusion. That is not to say that errors have not occurred and will not occur in the future.
[135] Notwithstanding the criticism of CSIS by Mr. Marchessault and in the media reports filed by Mr. Harkat, on the basis of my examination of a representative of the Service about the reliability of the confidential information, I am satisfied that adequate internal controls exist within CSIS that permit me generally to rely upon the information contained in the confidential information. The confidential information comes from a number of sources. A significant amount of the material information is corroborated. The information speaks for itself. I have not found it necessary to rely to any extent upon CSIS' evaluation of that information.
(iv) Theresa Sullivan's Involvement in the CSIS Investigation
[136] Mr. Cretes testified that on one occasion Mr. Harkat was to meet a CSIS agent who introduced herself as Theresa Sullivan. Tendered into evidence was the decision of the PSSRB relating to Ms. Sullivan's grievance of the termination of her employment with CSIS due to the revocation of her top secret security clearance. Evidence before the PSSRB established that Ms. Sullivan had contact with a person of operational interest to the Service, that she was instructed to cease contact with this person, but she did not abide by the direction and continued to have contact with the person. Ms. Sullivan explained her actions by stating that, after her marriage broke up, she had become infatuated with this relationship with the person of interest. She said that in 1998 and 1999, she was undergoing a personal crisis and that her judgment was questionable at the time. The PSSRB found CSIS to have valid reason to revoke Ms. Sullivan's security clearance.
[137] Mr. Harkat argues on the basis of this evidence that if the confidential information contains "material or reports from her, or in fact reports from her about what informants said", the Court should be "even more wary and more cautious about her evidence".
[138] I agree that Ms. Sullivan's conduct and her statement to the PSSRB about questionable judgment require close investigation by the Court of any work product that came from Ms. Sullivan.
[139] In the result, on December 20, 2004, I heard evidence from a representative of the Service, and questioned the representative, about: Ms. Sullivan's role in the Service's investigation of Mr. Harkat; the type of supervision she was subject to; the review conducted by CSIS as a result of her employment difficulties; the extent any information obtained by Ms. Sullivan was corroborated; who the person of operational interest Ms. Sullivan maintained contact with was; and when Ms. Sullivan ceased to be involved in the Harkat investigation4.
[140] The evidence I heard satisfied me that Ms. Sullivan's difficulties did not compromise the confidential information put before the Court.
[141] Alternatively, even if I discount entirely confidential information contained in reports that may have been prepared by Ms. Sullivan, there is sufficient information to support my conclusion about the reasonableness of the certificate5.
(v) Conclusions on the Evidence
[142] In in camera sessions in the absence of Mr. Harkat and his counsel, I have heard evidence, asked questions and received answers that go to the reliability of the confidential information that I consider to be relevant and pertinent. I have assessed whether information was corroborated by one or more independent sources. I have weighed the evidence tendered and the submissions made on Mr. Harkat's behalf including those related to the competence of CSIS. In that respect I have contemplated the possibility of alternative explanations suggested on Mr. Harkat's behalf. For example, is Mr. Harkat the victim of a conspiracy? Has he been slandered? Has he been mistakenly identified? Is there another Abu Muslima? I have asked if the Service is aware of any exculpatory information.
[143] A consideration of all of the evidence before me establishes, on an objective basis, grounded on evidence I find to be credible, that there are reasonable grounds to believe that:
1. Prior to arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activity6.
2. Mr. Harkat travelled to and was in Afghanistan7.
3. Mr. Harkat supported terrorist activity as a member of the terrorist group known as the Bin Laden Network. Before and after he arrived in Canada Mr. Harkat was linked to individuals believed to be in this network8.
4. The Bin Laden Network engages in acts of terrorism in order to obtain its stated objective of establishing Islamic states based on a fundamentalist interpretation of Islamic law. The Bin Laden Network has been directly or indirectly associated with terrorist acts in several countries. (Parenthetically, I observe that Mr. Harkat did not challenge the contention of the Ministers that the Bin Laden Network is an organization that has engaged, or will engage, in terrorism.)
5. The Bin Laden Network operated terrorist training camps and guest houses in Afghanistan and Pakistan. The camps provided sanctuary, funds, and military and counter-intelligence training. Abu Zubaida ran the Khaldun and Darunta training camps in Afghanistan.
6. Mr. Harkat acknowledges he was a supporter of the FIS. When the FIS severed its links with the GIA, Mr. Harkat indicated his loyalties were with the GIA. The GIA seeks to establish an Islamic state in Algeria through the use of terrorist violence. Mr. Harkat's support of the GIA is consistent with support for the use of terrorist violence9.
7. Mr. Harkat lied to Canadian officials about his10:
- work for a relief company in Pakistan;
- travel to Afghanistan;
- association with those who support international extremist networks;
- use of the alias Abu Muslima; and
- assistance to Islamic extremists.
I infer that such lies were for the purpose, at least in part, of distancing himself from those who support terrorism and to mislead Canadian authorities about his involvement in the support of terrorist activities.
8. Mr. Harkat has assisted Islamic extremists who have come to Canada11.
9. Mr. Harkat has associated with Abu Zubaida since the early 1990's12. Abu Zubaida was one of Osama Bin Laden's top lieutenants from the 1990's until his capture.
10. While in Canada Mr. Harkat has been in contact with individuals known to be involved in Islamic militant activities13.
[144] It follows that Mr. Harkat is inadmissible to Canada as a person described in paragraphs 34(1)(c) and 34(1)(f) of the Act because there are reasonable grounds to believe that:
(i) Mr. Harkat has engaged in terrorism by supporting terrorist activity; and
(ii) Mr. Harkat was, or is, a member of the Bin Laden Network which is an organization that there are reasonable grounds to believe has engaged or will engage in terrorism.
Did the Ministers breach their obligation as articulated by the Supreme Court in Ruby v. Canada (Solicitor General)?
[145] The Federal Court of Appeal in Re Charkaoui, supra at paragraphs 79 and 153 re-affirmed the duty of the Ministers and their counsel to make full and frank disclosure to the Court of all relevant facts, including information that could serve to exculpate a person named in a security certificate. Chief Justice Richard stressed the importance of this principle by referring to it as "a fundamental principle of justice".
[146] In this proceeding, Mr. Harkat says that the Ministers breached this duty in two respects and he asks the Court to be vigilant about whether the duty was breached in other respects. At paragraphs 30 to 34 of the Court's reasons dismissing Mr. Harkat's motion for the appointment of an amicus curiae (See: Harkat (Re), [2004] F.C.J. No. 2101), I rejected Mr. Harkat's argument that the Ministers failed to make full, candid and fair disclosure of the political situation in Algeria and improperly suggested that false Saudi passports were passports of choice only for Islamic extremists.
[147] Throughout my review of the confidential information, I have devoted attention to confirming that statements contained in the narrative of the security intelligence report were factually substantiated. Statements contained in the summary about things such as Mr. Harkat's "method and route of travel to Canada" and "use of security techniques" are expanded upon in the complete narrative and were factually supported.
[148] I did not find any breach of the duty upon the Ministers and their counsel to make full, fair and candid disclosure.
CONCLUSION
[149] For these reasons, an order will issue determining the security certificate to be reasonable.
[150] I conclude by noting that at paragraph 12 above I referred to the history of delay on the part of Mr. Harkat from July 2003 to June 2004. Mr. Harkat's current counsel, Mr. Copeland, was retained on or around June 22, 2004 when he appeared on Mr. Harkat's behalf before the Federal Court of Appeal. From the time of Mr. Copeland's retainer until the re-commencement of the public hearing on October 25, 2004, he worked diligently to effectively and expertly marshal the case on Mr. Harkat's behalf. He was ready for a hearing within four months of his retainer. Mr. Copeland's able and diligent representation of Mr. Harkat shows that cases of this nature need not, and should not, be protracted.
"Eleanor R. Dawson"
Judge
Toronto, Ontario
March 22, 2005
APPENDIX
Sections 33, 34, 76 through 81 of the Act:
| 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
34(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
[...]
76. The definitions in this section apply in this Division.
76 "information" « _renseignements_ »
"information" means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.
76 "judge" « _juge_ » "judge" means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.
77(1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court, which shall make a determination under section 80.
77(2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.
78. The following provisions govern the determination:
(a) the judge shall hear the matter;
(b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;
(e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;
(g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;
(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;
(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and
(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.
79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).
79(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Courts Act.
80(1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.
80(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.
80(3) The determination of the judge is final and may not be appealed or judicially reviewed.
81. If a certificate is determined to be reasonable under subsection 80(1),
(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;
(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and
(c) the person named in it may not apply for protection under subsection 112(1).
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33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.
34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants_:
a) être l'auteur d'actes d'espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s'entend au Canada;
b) être l'instigateur ou l'auteur d'actes visant au renversement d'un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité du Canada;
e) être l'auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d'autrui au Canada;
f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c).
34(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national.
[...]
76. Les définitions qui suivent s'appliquent à la présente section.
76 « _juge_ » "judge"
« _juge_ » Le juge en chef de la Cour fédérale ou le juge de cette juridiction désigné par celui-ci.
76 « _renseignements_ » "information"
« _renseignements_ » Les renseignements en matière de sécurité ou de criminalité et ceux obtenus, sous le sceau du secret, de source canadienne ou du gouvernement d'un État étranger, d'une organisation internationale mise sur pied par des États ou de l'un de leurs organismes.
77(1) Le ministre et le solliciteur général du Canada déposent à la Cour fédérale le certificat attestant qu'un résident permanent ou qu'un étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée pour qu'il en soit disposé au titre de l'article 80.
77(2) Il ne peut être procédé à aucune instance visant le résident permanent ou l'étranger au titre de la présente loi tant qu'il n'a pas été statué sur le certificat; n'est pas visée la demande de protection prévue au paragraphe 112(1).
78. Les règles suivantes s'appliquent à l'affaire_:
a) le juge entend l'affaire;
b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
c) il procède, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et selon la procédure expéditive;
d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve;
e) à chaque demande d'un ministre, il examine, en l'absence du résident permanent ou de l'étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l'affaire soit si le juge décide qu'ils ne sont pas pertinents ou, l'étant, devraient faire partie du résumé, soit en cas de retrait de la demande;
g) si le juge décide qu'ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d'autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l'affaire;
h) le juge fournit au résident permanent ou à l'étranger, afin de lui permettre d'être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
i) il donne au résident permanent ou à l'étranger la possibilité d'être entendu sur l'interdiction de territoire le visant;
j) il peut recevoir et admettre en preuve tout élément qu'il estime utile - même inadmissible en justice - et peut fonder sa décision sur celui-ci.
79. (1) Le juge suspend l'affaire, à la demande du résident permanent, de l'étranger ou du ministre, pour permettre à ce dernier de disposer d'une demande de protection visée au paragraphe 112(1).
79(2) Le ministre notifie sa décision sur la demande de protection au résident permanent ou à l'étranger et au juge, lequel reprend l'affaire et contrôle la légalité de la décision, compte tenu des motifs visés au paragraphe 18.1(4) de la Loi sur les Cours fédérales.
80(1) Le juge décide du caractère raisonnable du certificat et, le cas échéant, de la légalité de la décision du ministre, compte tenu des renseignements et autres éléments de preuve dont il dispose.
80(2) Il annule le certificat dont il ne peut conclure qu'il est raisonnable; si l'annulation ne vise que la décision du ministre il suspend l'affaire pour permettre au ministre de statuer sur celle-ci.
80(3) La décision du juge est définitive et n'est pas susceptible d'appel ou de contrôle judiciaire.
81. Le certificat jugé raisonnable fait foi de l'interdiction de territoire et constitue une mesure de renvoi en vigueur et sans appel, sans qu'il soit nécessaire de procéder au contrôle ou à l'enquête; la personne visée ne peut dès lors demander la protection au titre du paragraphe 112(1).
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-4-02
STYLE OF CAUSE:
IN THE MATTER OF a certificate signed pursuant to subsection 77(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, (the "Act");
AND IN THE MATTER OF the referral of that certificate to the Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;
AND IN THE MATTER OF Mohamed HARKAT
PLACE OF HEARING: Ottawa, Ontario
DATES OF HEARING: July 21, 23, 25, 2003
October 25, 26, 27, 28, December 6, 7, 8, 9, 2004
REASONS FOR ORDER OF THE HONOURABLE
MADAM JUSTICE DAWSON
DATED: March 22, 2005
APPEARANCES:
Mr. Paul Copeland Counsel on behalf of Mohamed Harkat
Mr. Matthew Webber
Mr. James Mathieson Counsel on behalf of the Ministers
Mr. Michael W. Dale
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE MINISTERS
Deputy Attorney General of Canada
Toronto, Ontario
Copeland, Duncan FOR MOHAMED HARKAT
Barrister, Solicitors
31 Prince Arthur Ave.,
Toronto, Ontario
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