Charkaoui, Re, 2004 FC 1031

                                                                                                                                  Date: 20040723

                                                                                                                             Docket: DES-3-03

Citation: 2004 FC 1031

Ottawa, Ontario, the 23rd day of July 2004

Present:           THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

IN THE MATTER OF a certificate

pursuant to subsection 77(1) of the

Immigration and Refugee Protection Act,

signed by the Minister of Immigration and

the Solicitor General of Canada (the Ministers)

S.C. 2001, c. 27 (the IRPA);

IN THE MATTER OF the referral

of this certificate to the Federal Court

of Canada pursuant to subsection 77(1)

and sections 78 and 80 of the IRPA;

IN THE MATTER OF the warrant for the

arrest and detention and the review of the

reasons justifying continued detention pursuant

to subsections 82(1), 83(1) and 83(3) of the IRPA;

IN THE MATTER OF the review of the

detention of Mr. Adil Charkaoui (Mr. Charkaoui)

pursuant to subsections 83(2) and 83(3) of the IRPA;

AND IN THE MATTER OF

Mr. Adil Charkaoui

REASONS FOR ORDER AND ORDER

INTRODUCTION AND BACKGROUND

[1]         This is the third motion for review of the detention of Mr. Adil Charkaoui (Mr. Charkaoui) and asking me whether he is still a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal. (See sections 82 and 83 of the IRPA). Mr. Charkaoui has been detained since May 21, 2003.

[2]         Although the Court has long been prepared to proceed with the review of the reasonableness of the certificate (see Charkaoui (Re), [2003] F.C.J. No. 1815, at paragraph 43 "Charkaoui III"), it has been unable to do so since an application to suspend the review of the certificate was made and allowed in order to let Mr. Charkaoui avail himself of an application for protection; this application for protection is still under review. (See subsections 79(1) and 112(1) of the IRPA.) This third review is therefore necessary (see subsection 83(2) of the IRPA).

[3]         Following the first two reviews of Mr. Charkaoui's detention, I identified for him three concerns that I had identified in my examination of the protected documents containing information as defined in the IRPA. (See section 76.) Given the importance of these concerns, I will repeat them again:

-            the applicant's life from 1992 to 1995 in Morocco and from 1995 to 2000 in Canada, including his travels;

-            the applicant's trip to Pakistan from February to July 1998;

-            the moving party's contacts with Abousfiane Abdelrazik, Samir Ait Mohamed, Karim Saïd Atmani, Raouf Hannachi and Abdellah Ouzghar

(Charkaoui (Re), [2003] F.C.J. No. 1119, at paragraph 63 "Charkaoui I" and

Charkaoui (Re), [2004] F.C.J. No. 78, at paragraph 5, "Charkaoui IV").

[4]         It seemed to me that in order to cope with the onerous burden of assessing whether Mr. Charkaoui was still a danger to national security or to the safety of any person, or was unlikely to appear at a proceeding or for removal, the Court would be in a better position if Mr. Charkaoui answered the questions raised by these three concerns.

[5]         In arriving at this observation, I had analyzed the evidence of the Ministers (both the evidence presented at a public hearing and the evidence presented in the absence of Mr. Charkaoui and his counsel) and I had concluded on two occasions that it was serious and that consequently the Ministers had discharged their onus and the onus had been shifted to Mr. Charkaoui who now had to discharge it (see Charkaoui IV, at paragraph 13). At these two reviews, Mr. Charkaoui did not present any evidence addressed to these three concerns and confined himself to requesting his release on bail and conditions, the latter to be determined by the Court. On two occasions, the Court concluded that Mr. Charkaoui had not discharged his onus of proof and consequently could not be released, even with bail or conditions, since in my opinion no condition or bail could have neutralized the existence of the danger to national security or to the safety of any person, or eliminated the risk that Mr. Charkaoui might not appear at a proceeding or for removal.

CASE UPDATE

[6]         For the purposes of this detention review, the parties are referring to the evidence as it was filed during the two previous reviews and to the evidence presented in the context of the most recent hearing.

[7]         The Ministers did not adduce any additional evidence at the public hearing. At the Court's request (pursuant to the general authority given to the designated judge in sections 83(1) and 78 of the IRPA), a hearing of about two hours was held in the absence of Mr. Charkaoui and his counsel. Mr. Charkaoui objected to this request by the Court, citing the language of section 78 of the IRPA in support of his argument that an in camera review of the evidence can be conducted only on the initiative of the Ministers. With respect, I am unable to adopt this argument. In a proceeding such as this it is essential, in my opinion, that a Court be able to maintain its critical faculty by opting for a proactive approach and that it be able to take any steps that seem appropriate to it in order to reach the fairest and most equitable decision. In this case the Court felt that it was necessary to hold a hearing because this was the third review of the detention. The Court examined some witnesses under oath, bearing in mind the most recent evidence and the three concerns referred to earlier. Apart from what is stated in the present judgment, the Court is of the view that it cannot disclose any more information than what is already included in the summary of the evidence previously given to Mr. Charkaoui on May 26, July 17 and August 14, 2003.

[8]         Mr. Charkaoui, through his counsel, filed 19 sworn statements, some of which (albeit with some changes) had previously been filed during the other two reviews of the detention. Some statements (by Mr. Charkaoui's father and sister, and by Ouazzami Larbi) proposed a plan of supervision of Mr. Charkaoui if his conditional release were the solution adopted by the Court. Most of the statements include an amount of money as a contribution to bail totalling $50,000.

[9]         Mr. Charkaoui had filed a sworn statement in support of the review of detention. On July 6, 2004, his counsel was informed by mail that the Ministers intended to cross-examine him. At the commencement of the hearing, his counsel informed the Court that Mr. Charkaoui's sworn statement was withdrawn from the record.

[10]       Through the sworn statement of Mr. Charkaoui's father, Mohamed Charkaoui, some documentary evidence was filed. Briefly, it refers to torture and human rights in Morocco, the contracting-out of torture and the torture practised by the United States. It also presents a report on the violations of human rights and mistreatment of prisoners in Iraq. This evidence also discusses the Maher Arar case and includes some documents in support of the allegation that the Canadian Security Intelligence Service (hereinafter the Service) has relations with countries suspected of torture. This list is not exhaustive. The purpose of the filing of this documentary evidence is to demonstrate that the statements of Abu Zubaida and Ahmed Ressam (which are part of the summary of the evidence previously given to Mr. Charkaoui on May 26, July 17 and August 14, 2003), identifying Mr. Charkaoui, upon presentation of photographs, under the name of Al-Maghrebi and stating that he had been seen by them in Afghanistan in a camp, were not credible since they had been obtained under torture or, in the case of Mr. Ressam, under the pressure of an agreement for clemency or a reduced sentence in connection with his trial in the United States.

[11]       Four witnesses were examined and cross-examined. Mr. Charkaoui's father and sister (Mohamed and Hind Charkaoui) and Ouazzami Larbi talked about the matters contained in their sworn statements.

[12]       The fourth witness, Abdurahman Khadr (Mr. Khadr), a 22-year-old Canadian citizen, testified about his life in Afghanistan from 1996 to November 2001, in Jalalabad (until 1999) and in Kabul (until 2001) and under CIA detention from November 2001 to March 2003, a period during which he had agreed to become an informer. In this capacity, he was sent to Guantanamo Bay, Cuba for about eight months. Subsequently, after being trained in infiltration, he was sent to Bosnia where he remained for one month. In December 2003, he decided to return to Toronto, Ontario, Canada, a place where he had stayed several times in the 1980s and 1990s with his parents and brothers.

[13]       Summarily, Mr. Khadr's testimony addresses the following subjects:

-            His father personally knew and admired Osama Bin Laden and was in turn respected by him;

-            His father wanted him to undergo training as a "suicide bomber", which he refused on more than one occasion;

-            As a son of a "famous" father, he enjoyed a privileged status with access to the training camps in Afghanistan and an opportunity to meet the leaders of the Al-Qaeda network as well as the participants in the camps through weekly visits to the transitional "guest houses";

-            He never saw Mr. Charkaoui in Afghanistan although he had met all the Canadian participants in the camps, without exception he says. However, on cross-examination, he acknowledged that he had not known that Mr. Ressam had participated in Al-Qaeda training in a camp in Afghanistan in 1998;

-            During meetings with Canadian representatives in May 2002, he was interrogated about various persons of interest but he was not shown any photographs of Mr. Charkaoui and was not asked about him;

-            He stated that in Afghanistan, the name of Zubeir Al-Maghrebi, like other names such as Abu Reda and Abu Hamza, is frequently used as a cover name and cannot serve as an indication of the true identity of the person who uses this name;

-            He described the situation of the prisoners when he was working for the CIA at Guantanamo Bay and observed the way they were treated. He was also the confidant of individuals when they discussed their treatment. He spoke about small cells, torture using smoke, unreasonable hours of detention (15 minutes outside every 72 hours), loud music, sleep deprivation, and excrement mixed with blood applied to the face;

-            He knew Mr. Zubaida and he described him as being one of the three leaders of the Khalden movement. He was the coordinator of the participants in the training camps. In this capacity, he coordinated their arrival in Pakistan, their conveyance to a "guest house" and to the camp and their return;

-            He heard some people from the CIA mention that Mr. Zubaida had been seriously wounded at the time of his arrest and that they were using this situation against him. At the time when these remarks were communicated to him, he did not know what they meant. The documentary evidence on this point (an article from the International Herald Tribune dated December 27, 2002, Mr. Charkaoui's motion record, page A-239, see also pages A-77, A-211, A-214 and A-242) is that the sedatives prescribed for reducing pain from the injuries incurred at his arrest had been subtly controlled in order to get him to talk;

-            On cross-examination, he admitted having lied to his family by hiding his role as an informant to the CIA. Also, he admitting having lied to his lawyer and to the people of Canada upon his arrival in Canada during his initial press conference in December 2003. He justified his subsequent decision to tell the truth by his desire to break with his past and begin a new life.

PARTIES' SUBMISSIONS

[14]       The Ministers argue that there must be some logical sequence from the analysis made during the first two reviews. They say their evidence (both public and in the absence of Mr. Charkaoui and his counsel) is still serious, their onus is discharged and is shifted to Mr. Charkaoui. The Ministers note that Mr. Charkaoui has not responded to the Court's concerns and that the recent evidence does not refute the statements of Mr. Ressam and Mr. Zubaida implicating Mr. Charkaoui, which were obtained freely and without constraint. Concerning Mr. Khadr's testimony, the Ministers argue that it cannot be adopted in view of the lies that were duly admitted during his cross-examination. The Ministers further allege that in any case his testimony that he did not see Mr. Charkaoui in Afghanistan must be evaluated in light of the fact that he did not know that Mr. Ressam had gone to an Al-Qaeda camp, which deprives it of any probative force. Concerning the standard of review, the Ministers are of the opinion that it was clearly defined in the Charkaoui I judgment, paragraph 39.

[15]       In light of the new evidence, it is Mr. Charkaoui's opinion that the statements of Mr. Ressam and Mr. Zubaida concerning him should be withdrawn from the record, given that they were obtained through mistreatment amounting to torture or in the context of an agreement that promotes disclosure of facts that are untrue. Furthermore, Mr. Khadr's testimony should be adopted when he says he never saw Mr. Charkaoui in Afghanistan because he was in a situation in which he met all the participants from Canada when they were on their way to the training camps, including the Khalden camp. Following this evaluation, the Court should reassess the Ministers' evidence and draw a different conclusion in accordance with the applicable standard of review.

[16]       On the standard of review that was adhered to in the two reviews, Mr. Charkaoui submits that it should be replaced by the one referred to in Almrei v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 509, at paragraph 34, that is, the balance of probabilities and not reasonable grounds to believe. He contends that there is a contradiction between the application of the standard adopted in Almrei, supra, and the one adopted by the Court in this case.

[17]       Finally, through his counsel, he submits that the approach taken by the Court on the earlier reviews, that is, assessing the danger and then looking at the possibility of conditional release or bail, is not the right one. In his opinion, the Court should instead try to find the conditions that could secure a neutralization of danger. He submits that the approach taken by the Court up to now is "rigid" and does not reflect the approach recommended by Parliament in Division 6 of the IRPA and the regulations thereunder, notwithstanding the paramountcy of sections 82 to 84 of the IRPA over that division (see section 85 of the IRPA).

ISSUE

[18]       Taking into account the evidence presented by the Ministers associating dangerousness to national security and the safety of others with Mr. Charkaoui, should he be released on bail or subject to conditions in accordance with the evidence he has filed and the approach he suggests be taken?

ANALYSIS

[19]       I intend to dispose of the problematic arising out of this third review of the detention in the following way:

-            the applicable standard of review;

-            whether the statements of Mr. Ressam and Mr. Zubaida implicating Mr. Charkaoui should or should not be withdrawn;

-            the appropriate approach on a review of detention and its application to the evidence filed to date by the parties.

Applicable standard of review

[20]       This is an application for review of detention before the Court has had an opportunity to rule on the reasonableness of the certificate. The Court, in the performance of its responsibilities, is subject to sections 83(2), 85 and Division 6 of the IRPA and the regulations thereunder. The Court is being asked to continue the detention of the permanent resident if that person is still a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.

[21]       In another judgment arising out of these proceedings, Charkaoui (Re), [2003] F.C.J. No. 1816, at paragraph 126 "Charkaoui II", the Court, after explaining that the standard of review should reflect the special nature of national security, concluded with the comment: "Having said this, we will see that the 'reasonableness' and 'reasonable grounds to believe' standards comport requirements that come close to the preponderance of evidence standard."

[22]       In this regard, in Almrei, supra, at paragraph 34, Mr. Justice Blanchard commented:

I agree with the applicant that a determination that a security certificate is reasonable is not conclusive proof that the person is a danger to the security of Canada. Section 81(a) states that, if a certificate is determined to be reasonable, it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible. If satisfying the requirements of 81(a) automatically satisfied the requirements of 84(2), the latter would be redundant. Further, Parliament has clearly set out two different standards of proof in respect of section 81(a) and subsection 84(2), reasonable grounds and balance of probabilities, respectively. I am not persuaded, however, that there is anything in the Court of Appeal's decision in Ahani (2000) which is inconsistent with this conclusion or inconsistent with the determination in Suresh. In fact, Justice Linden recognized these two differing standards of proof at paragraph 16 of Ahani (2000):

...the onus of proof in this release application is on the person applying to be released. In my view, that onus must be met on the ordinary standard of proof in civil cases, the balance of probabilities. While Parliament has changed the normal standard of proof in the subsection 40.1(1) proceedings to "reasonableness" in paragraph 40.1(4)(d) and to "reasonable grounds" in section 19, it has not done so with regard to the release proceedings under subsection 40.1(8) to (10). Further, the word "satisfied" is used. Hence, in my view, there is no reason to think that the standard of proof should be anything other than the usual balance of probabilities standard.

I think Blanchard J. was referring to section 80(1) of the IRPA rather than section 81.

[23]       Mr. Charkaoui's counsel sees a contradiction between the standard adopted by my colleague and my standard. I do not agree. In Charkaoui II, I clearly stated that I considered the reasonable grounds to believe standard as being one that came close to the preponderance of evidence or the balance of probabilities. Moreover, I note that Blanchard J., in Almrei, supra, was dealing with a review of the detention of an alien under section 84(2) of the IRPA while the present review is governed by section 83 of the IRPA.

[24]       I will close by reciting what the Court said about the standard of review in Charkaoui I, at paragraph 39:

Thus, the designated judge is not to look for proof of the existence of the facts but rather to analyze the proof as a whole while asking himself whether it is sufficient for a person to have a reasonable belief that there is a danger to national security or the safety of any person or that the respondent will avoid the procedure or removal. Although it is not at the level of the preponderance of probabilities, this standard must tend toward a serious possibility of the existence of facts based on reliable and justifiable evidence. To this effect, Mr. Justice Evans of the Court of Appeal wrote, in Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at paragraph 60:

As for whether there were "reasonable grounds" for the officer's belief, I agree with the Trial Judge's definition of "reasonable grounds" (supra, at paragraph 27, page 658) as a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes "a bona fide belief in a serious possibility based on credible evidence." See Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.).

I note that my colleague, Mr. Justice Blais, held that this standard was applicable in Zündel (Re), [2004] F.C.J. No. 60, at paragraphs 16, 17 and 18.

[25]       In light of the foregoing, I see no need to alter the standard that was previously adopted and applied, because the Court continues to be persuaded that the standard of evidence approaching that of preponderance of proof is the applicable one for the purpose of determining whether Mr. Charkaoui still continues to be a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.

WHETHER THE STATEMENTS OF MR. RESSAM AND MR. ZUBAIDA IMPLICATING MR. CHARKAOUI SHOULD OR SHOULD NOT BE WITHDRAWN

[26]       It will be recalled that the statements of Mr. Ressam and Mr. Zubaida were to the effect that they had identified Mr. Charkaoui with the help of photographs and had linked him to the name Zuberi Al-Maghrebi and his presence in Afghanistan in a training camp.

[27]       Mr. Charkaoui, relying on the documentary evidence describing torture and arguing that Mr. Ressam was under the influence of an agreement that could minimize his jail sentence, submits that these two statements are not factual and cannot be held against him. He asks that the Court withdraw them from the record as they were obtained unlawfully by torture, in accordance with article 15 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN doc. A/RES/39/46 (1984)) (hereinafter Convention Against Torture), to which Canada is a signatory and party, and which states:

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

[28]       Concerning the statement of Mr. Ressam, I have previously reported that the interviews with Mr. Ressam were conducted by the Service in January 2002 (see Charkaoui III, at paragraph 18). I should add that these interviews were held in the presence of a lawyer who was representing him and that at two distinct points Mr. Ressam instantly and without hesitation identified Mr. Charkaoui on two different photographs under the name of Zubeir Al-Maghrebi.

[29]       Exercising its general authority under section 78 of the IRPA, the Court had verified this statement and did so again using the best possible evidence given the special situation arising out of this case. The Court is satisfied that this evidence may form part of the record for what it represents.

[30]       Mr. Zubaida's statement must be treated differently. At this point the Court is confronted with contradictory evidence presented by the parties concerning the treatment he has undergone. It is important to note that the documentary evidence in support of Mr. Charkaoui's submissions is contained in reports by international agencies (Amnesty International among others) and articles from the European, American and Canadian press. This evidence is somewhat corroborated by what is said by Mr. Khadr, who, as was mentioned earlier, testified that he had heard some people from the CIA state that Mr. Zubaida had been seriously wounded at the time of his arrest and that they were using this situation against him. On the other hand, the Ministers' position on this matter is the opposite, since they claim that Mr. Zubaida was not mistreated. They presented some evidence in the absence of Mr. Charkaoui and his counsel for the purpose of supporting this claim.

[31]       Having read the documentary evidence adduced by Mr. Charkaoui, the possibility that such mistreatment occurred leaves the Court in some puzzlement. While I do not wish to question the authenticity of the content of this documentary evidence, I am hesitant as to what weight to assign to this type of proof. Nevertheless, bearing in mind the objectives of the Convention Against Torture and the conflicting evidence presented by the two parties, it is the Court's intention not to take into consideration the statement of Mr. Zubaida and not to assign it any importance for the time being in my analysis of the facts. However, the Court is not withdrawing this statement as presented from the record, in view of the type of evidence presented by the parties and the contradiction that exists in the evidence in support of the respective submissions of the parties.

The appropriate approach on a review of detention and its application to the evidence filed to date by the parties

[32]       It will be recalled that Mr. Charkaoui is of the opinion that the approach taken by the Court on the first two reviews of the detention is "rigid" and should be different. The Court, he says, should perform its duty by identifying the conditions that could neutralize the danger.

[33]       I explained earlier in Charkaoui I, at paragraph 54, and Charkaoui IV, at paragraphs 13, 14, 15, 16 and 17 that the Court had to assess the danger as contained in the Ministers' evidence and that if there were a danger, the burden of proof then shifted to the interested person for the purpose of evaluation and identification of bail and conditions if appropriate. In my opinion, sections 83 and 85 and Division 6 and the regulations thereunder dictate such an approach. I do not believe that the approach recommended by Mr. Charkaoui, of identifying the conditions for neutralizing the danger notwithstanding the seriousness of that danger, is the right one in the circumstances.

[34]       At the end of the hearing on the present review of the detention, I reassessed the Ministers' evidence, leaving aside the statement by Mr. Zubaida and asking myself whether Mr. Charkaoui still continued to be a danger to national security or to the safety of any person or would be unlikely to appear at a proceeding or for removal. Bearing in mind the summary of the evidence given to Mr. Charkaoui and the statement of Mr. Ressam, the documentary evidence including the two hearings without the presence of Mr. Charkaoui and his counsel and the public hearings, the Court, using the standard of proof approaching that of the preponderance of proof, considers that Mr. Charkaoui still continues to be a danger to national security or to the safety of any person and is unlikely to appear at a proceeding or for removal.

[35]       Since I have reached this conclusion, the Ministers have discharged their onus, which again shifts to Mr. Charkaoui.

[36]       Of all the evidence presented by Mr. Charkaoui, there is only one aspect that seems intended to try to respond to the questions raised by the concerns that the Court had identified and communicated to him (see paragraph 3 of this decision). This is the testimony by Mr. Khadr that he had not seen Mr. Charkaoui in Afghanistan or in a "guest house" on his way to a training camp.

[37]       I do not wish in any way at this point to rule on the credibility of this testimony, for I see no need to do so, but I must note again that Mr. Khadr, while having stated that he knew all of the Canadians who had gone to Afghanistan to be trained, acknowledged that he had not seen Mr. Ressam although the latter had stayed at the Khalden camp in 1998. I would add that Mr. Charkaoui was a permanent resident and not a Canadian citizen and that he spoke French. I am inclined by all of this to find that it is probable that Mr. Charkaoui, like Mr. Ressam, escaped observation by Mr. Khadr notwithstanding a visit to Afghanistan. In other words, Mr. Khadr's testimony does not suffice in itself to persuade me that Mr. Charkaoui was not in Afghanistan in 1998.

[38]       My concerns remain and I have had no further evidence from Mr. Charkaoui that might enable me to alleviate or eliminate them. I can only observe that Mr. Charkaoui's burden has not been discharged and that the danger that I had previously characterized as "serious" continues to exist.

[39]       Having reached this conclusion, I have difficulty seeing any conceivable conditions that might neutralize this serious danger. Mr. Charkaoui has presented no evidence that might allow me an understanding of this danger, and I do not see any way in which it can be alleviated or neutralized. It is inconceivable that the proposed supervision by his parents and/or sister and/or Mr. Ouazzami Larbi and the deposit of $50,000 in bail money could neutralize the danger as it is described in the evidence.

[40]       This view is reinforced by the fact that the Court has been given no assurances by Mr. Charkaoui that he would comply with these conditions if ever they were contemplated for his release, as he has withdrawn his sworn statement and has not testified at the hearings.

[41]       To perform its role in any such proceeding, the Court needs the unequivocal participation of the parties. This is an exceptional proceeding that is unlike other proceedings. The Court's role is likewise exceptional and calls for more than the ordinary use of personal resources and open-mindedness. To guarantee full success in such a proceeding, consistent with the interests of justice and human rights while guaranteeing national security, it is important, it seems to me, to have the full participation of the parties in the presentation of the evidence.

[42]       In short, the danger is still serious, the concerns remain and at this point, in light of the record as it is presented, no bail or conditions could reassure the Court that the danger could be neutralized if a release were granted.

THIS COURT ORDERS THAT:

-            Mr. Charkaoui continue to be held in detention, pursuant to subsection 83(3) of the IRPA, until the designated judge rules anew on the continuation of the detention.

                          "Simon Noël"

                                Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           DES-3-03

STYLE:                                                IN THE MATTER OF A CERTIFICATE UNDER SUBSECTION 77(1) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT

AND ADIL CHARKAOUI

PLACE OF HEARING:                     MONTRÉAL, QUEBEC

DATES OF HEARING:                     JULY 13 AND 14, 2004

REASONS:                                         THE HONOURABLE MR. JUSTICE SIMON NOËL

DATED:                                             JULY 23, 2004

APPEARANCES:

DANIEL ROUSSY                               FOR THE SOLICITOR GENERAL OF CANADA

and

LUC CADIEUX

DANIEL LATULIPPE              FOR THE MINISTER OF CITIZENSHIP

JOHANNE DOYON                           FOR ADIL CHARKAOUI

SOLICITORS OF RECORD:

MORRIS ROSENBERG                      FOR THE SOLICITOR GENERAL OF CANADA

DEPUTY ATTORNEY                         AND THE MINISTER OF CITIZENSHIP

GENERAL OF CANADA

DOYON, MORIN                               FOR ADIL CHARKAOUI

MONTRÉAL, QUEBEC