Harkat (Re)

Harkat (Re)
Court (s) Database
Federal Court Decisions
Date
2010-12-09
Neutral citation
2010 FC 1241
File numbers
DES-5-08
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20101209
Docket: DES-5-08
Citation: 2010 FC 1241
Ottawa, Ontario, December 9, 2010
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
IN THE MATTER OF a certificate signed
pursuant to subsection 77(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27, as amended
(the “Act”)
IN THE MATTER OF the referral of that
certificate to the Federal Court of Canada
pursuant to subsection 77(1) of the Act;
AND IN THE MATTER OF Mohammed HARKAT
AMENDED REASONS FOR JUDGMENT
Opening Statement
[1] Mr. Harkat is the subject of a security certificate and has not offered a credible testimony to the Court. He has surrounded himself in layers of clouds in which he does not let any light come through. At times, his testimony has been inconsistent, not only with his earlier statements, but also in comparison with the public and closed evidence presented by both parties. At times, his testimony was simply incoherent, implausible if not contradictory. The Ministers have provided sufficient evidence to demonstrate that the issuance of the certificate was reasonable. Therefore, the security certificate issued against Mr. Harkat on security grounds is upheld.
Findings
[2] I find that the evidence and information adduced by the Ministers is credible and provides reasonable grounds to make the following non-limitative conclusions. On a balance of probabilities, the Ministers have established the following facts.
[3] I find that Osama Bin Laden and Al-Qaeda supplied money and resources to the Chechen terrorist cause through Ibn Khattab and the Basayev group.
[4] I find that the Basayev and Khattab groups were not part of the Al-Qaeda core, but were part of the Bin Laden Network.
[5] I find that for at least 15 months, Mr. Harkat operated a guesthouse for Ibn Khattab and as such demonstrated active membership in a group involved in terrorist activities in Chechnya which was affiliated with the Basayev group.
[6] I find that, contrary to his testimony and evidence, Mr. Harkat visited Afghanistan during his stay in Pakistan.
[7] I find that Mr. Harkat had links to Al Gamaa Al Islamiya (AGAI), an Islamic extremist group in Egypt.
[8] The evidence adduced by the Ministers demonstrates that Mr. Harkat used “sleeper agent” methods. More precisely, he arrived in Canada using false documents, employed various anti-surveillance techniques and, for a while, concealed his aliases used while in Pakistan.
[9] I find that the Ministers’ evidence, contrary to that of Mr. Harkat, demonstrates that Mr. Harkat did assist Abu Messab Al Shehre and Mohammed Aissa Triki, two Islamist extremists, in Canada. Indeed, I also find that the evidence supports a finding that Mr. Harkat provided financial assistance to Mr. Al Shehre by paying legal fees with the involvement of Abu Zubaydah.
[10] I find that the evidence demonstrates that Mr. Harkat knew Abu Dahhak, an individual related to Al-Qaeda.
[11] I also find that, while in Canada, Mr. Harkat maintained existing contacts with Islamist extremists such as Ahmed Said Khadr and Abu Zubaydah.
[12] Furthermore, the Ministers’ evidence has consequently persuaded the Court that there are reasonable grounds to believe that Mr. Harkat was a member of an entity that is part of the Bin Laden Network (“BLN”) prior to his arrival in Canada. The Ministers have also established that there are reasonable grounds to believe that, after coming to Canada, Mr. Harkat continued to be an active member of the BLN and provided support to the network.
[13] I find that although the danger associated to Mr. Harkat has diminished over time, he still poses a danger to Canada, but at a lesser level, for the reasons set out herein.
INDEX (by paragraph numbers):
History of the Proceedings and comments 14-38
The Reasonableness Hearing 39-49
Other Comments on the Expert Evidence 50-54
Relevant Provisions of the IRPA 55-64
Factual Allegations against Mr. Harkat 65-74
The Issue 75
Key Words 76
Terrorism 77-81
Danger to the Security of Canada 82-84
Membership – Member 85-88
Organization 89-91
Other Definitions 92
Al-Qaeda core 93-95
The Bin Laden Network 96-102
Jihad 103
Mujahideen 104
Islamist Extremism 105-107
Conversations and Summaries of CSIS Interviews 108-119
Approach followed to make a judicial determination 120-122
Membership in the Front Islamique du Salut (“FIS”) 123-142
GIA 143
AGAI 144
The Passport Issue 145-159
Mr. Harkat’s Reasons for Leaving Algeria for Saudi Arabia 160-171
The Purpose of the Trip to Saudi Arabia 172-179
Mr. Harkat’s Reasons for Being in Saudi Arabia 180-208
Arrival in Pakistan and Working Life with the MWL 209-231
Financial Situation of Mr. Harkat while in Pakistan 232-239
Wazir 240-263
Mokhtar, his valuable friend 264-275
On Leaving Pakistan 276-289
The Use of Aliases 290-298
Mr. Harkat’s arrival and life in Canada 299-325
Mohammed Aissa Triki (“Wael”) 326-345
Allegation that Mr. Harkat is a “sleeper agent” 346-370
Ibn Khattab 371-377
Factual background on Ibn Khattab 378-386
Mr. Harkat and Ibn Khattab 387-390
Mr. Harkat’s work for Ibn Khattab 391-397
Was Ibn Khattab a terrorist? 398-410
Ibn Khattab and the Bin Laden Network 411-428
Al Shehre 429-432
Who is Al Shehre? 433-447
Harkat assisted Shehre in entering Canada and
while in Canada 448-464
Ahmed Said Khadr 465-482
Links between A. Khadr and Mr. Harkat in Pakistan 483-484
Links between A. Khadr and Mr. Harkat in Canada 485-495
Abu Zubaydah 496-526
Abu Dahhak 527-528
Mr. Harkat’s Credibility 529-538
Is Mr. Harkat a Danger to the Security of Canada? 539-547
The Reasonableness of the Certificate 548-551
History of Proceedings and Comments
[14] A certificate stating that Mr. Harkat was inadmissible on security grounds (the “2008 Certificate”) was signed by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration and referred to the Federal Court under the Immigration and Refugee Protection Act (“IRPA”) legislation on February 22, 2008.
[15] Previously, on December 10, 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration (“the Ministers”) had signed a certificate pursuant to then subsection 77(1) of the Immigration and Refugee Protection Act (the “2002 certificate”), in which they stated that they were of the opinion that Mohamed Harkat was a foreign national who is inadmissible to Canada on security grounds.
[16] A hearing as to the reasonableness of the 2002 certificate was held before Justice Dawson in March 2005. In the course of that proceeding, Mr. Harkat challenged the constitutionality of sections 78 through 80 in force at that time on the grounds that they violated the principles of fundamental justice guaranteed by section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). Justice Dawson upheld the constitutionality of the security certificate process, following the Federal Court of Appeal’s decision in Charkaoui (Re), 2004 FCA 421 and concluded that there were reasonable grounds to believe that Mr. Harkat had engaged in terrorism for a number of reasons, in particular by supporting terrorist activity as a member of the BLN (Harkat (Re), 2005 FC 393).
[17] Mr. Harkat appealed Justice Dawson’s rulings with respect to the constitutionality of the certificate procedure. On September 6, 2005, the Federal Court of Appeal dismissed Mr. Harkat’s appeal on the grounds that he had not demonstrated any manifest error which would justify the overruling of Charkaoui (Re), supra, and Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, where it had upheld the constitutionality of the same provisions of the former IRPA (see Harkat (Re), 2005 FCA 285). Mr. Harkat sought leave to the Supreme Court, which was granted.
[18] On February 23, 2007, the Supreme Court of Canada held that the judicial review of the reasonableness of the certificate under the IRPA violated section 7 of the Charter and consequently declared the relevant provisions to be of no force or effect. Chief Justice McLachlin, writing for a unanimous Court, held that the judicial process violated section 7 by limiting the named person’s right to know and answer the case against him or her. The Court held that such violation could not be saved by section 1 of the Charter because it did not minimally impair the rights in question (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (“Charkaoui #1”)).
[19] The Supreme Court declared that the former subsection 84(2) governing applications for judicial release, violated section 9 and subsection 10(c) of the Charter because it did not provide a timely detention review for foreign nationals.
[20] The Supreme Court suspended the declaration of invalidity of the impugned provisions of the previous legislation for one year to allow Parliament to enact a constitutionally valid legislation. As a result, Mr. Harkat remained subject to the 2002 security certificate and conditions of release as imposed by Justice Dawson on May 23, 2006, until the coming into force of Bill C-3, an Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act.
[21] On February 22, 2008, Bill C-3 came into force in response to the rulings of the Supreme Court of Canada in Charkaoui #1. Bill C-3 made substantial modifications to the procedure governing the judicial review of certificates as well as applications for detention release in that context. These amendments included a new disclosure process and the appointment of special advocates to represent the interests of the named persons during the closed hearings. Bill C-3 also eliminated the distinction between permanent residents and foreign nationals for the purpose of mandatory detention review. The transitional provisions found in Bill C-3 stayed the conditions of release until further review by the Court.
[22] On June 26, 2008, the Supreme Court of Canada rendered a second decision concerning the constitutionality of the certificate process under the former IRPA: Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 (“Charkaoui #2”). In that appeal, Mr. Charkaoui sought a stay of proceedings in view of the destruction of original notes taken by the Canadian Security Intelligence Service (“CSIS” or the “Service”) during interviews with him. The Supreme Court allowed Mr. Charkaoui’s appeal in part. While it was held that a stay of proceedings was premature, the Court concluded that the destruction of operational notes was a serious breach of the Service’s duty to retain and disclose information. Justices Lebel and Justice Fish wrote on behalf of the Court at paragraph 53:
But whether or not the constitutional guarantees of s. 7 of the Charter apply does not turn on a formal distinction between the different areas of law. Rather, it depends on the severity of the consequences of the state’s actions for the individual’s fundamental interests of liberty and security and, in some cases, the right to life. By its very nature, the security certificate procedure can place these rights in serious jeopardy, as the Court recognized in Charkaoui. To protect them, it becomes necessary to recognize a duty to disclose evidence based on s. 7.
[23] On September 24, 2008, in conformity with Charkaoui #2, this Court ordered the Ministers to “… file all information and Intelligence related to Mohammed Harkat including, but not limited to, drafts, diagrams, recordings and photographs in CSIS’s possession or holdings with the designated proceedings section of the Court”.
[24] This order resulted in the filing of thousands of records, many of them redacted in part. The production of such documents required more than six months. However, the process was ongoing and began as soon as some redacted documents were ready to be filed. The redactions were necessary since a good number of documents did not only deal with Mr. Harkat, but with other matters that were not related to the case. The special advocates had access to the information relating to Mr. Harkat in accordance with the legislation but to nothing else. The Court therefore assumed an additional task in reviewing the relevance of the redactions. This exercise was time-consuming. The review identified questionable redactions, but some were warranted. The special advocates reviewed the Charkaoui #2 disclosure and identified some information which they felt was pertinent to the proceeding. As a result of the Charkaoui #2 review, documents were entered as exhibits (see ex. M13, M15, M17, M18, M25 and M26). Therefore, as a result of the Charkaoui #2 review, additional information was entered as exhibits. This disclosure process extended the proceeding by several months.
[25] In the fall of 2008, closed hearings were held concerning the Charkaoui #2 disclosure issue. Also, evidence was presented through a ministerial witness in support of the allegations made against Mr. Harkat and the reasonableness of the certificate. Since the Charkaoui #2 disclosure was ongoing, the cross-examination of the witness by the special advocates was limited to the issue of the danger associated to Mr. Harkat in relation to the review of conditions of release. The cross-examination concerning the reasonableness of the certificate was postponed to November 23, 2009. During those closed hearings, the Court dealt with other matters such as the request of the special advocates to access a CSIS employee file and human sources files. This resulted in the issuance of reasons for judgment in response to both requests (see Harkat (Re), 2009 FC 203; and Harkat (Re), 2009 FC 1050).
[26] In October 2008, the Ministers consented to a change of residence, and to the removal of a condition that required Mr. Harkat to reside with two supervising sureties. The Ministers’ consent was conditional on Mr. Harkat’s acceptance of a number of conditions, including the installation of surveillance cameras on the premises by the Canada Border Services Agency (“CBSA”). The Ministers also agreed to have one of his supervising surety removed.
[27] In March 2009, this Court conducted a public review of the conditions imposed on Mr. Harkat. It concluded that his release without conditions would be injurious to national security but, however, confirmed his release under more appropriate conditions. Among others, Mr. Harkat could stay home alone between 8AM and 9PM provided he gave the CBSA a 36-hour notice and call them every hour on the hour (see Harkat (Re), 2009 FC 241).
[28] On April 23, 2009, as a result of the ongoing closed hearings, the Ministers disclosed facts publicly that had not been previously disclosed and on which they relied upon, as well as a summary and further disclosure of Charkaoui #2 documents (see ex. M15, which contains part of the Charkaoui #2 disclosure. The Ministers and public counsel agreed to include only the parts of that document that were put before the witnesses in examination and cross-examination).
[29] On May 12, 2009, nineteen days before the public hearings into the reasonableness of the security certificate were to begin, the CBSA conducted a search of Mr. Harkat’s residence. Sixteen law enforcement officers were involved, including three canine units. Searches were authorized by the conditions of release. Having become cognisant of how the search was done, this Court immediately cancelled such authority given to the CBSA, and subjected them to a prior authorization by the designated judge (see Order dated May 12, 2009 amending the conditions of release). Upon request by Mr. Harkat, the search was reviewed by the Court. It was ruled that the search authorization provided for in paragraph 16 of the conditions of release did not authorize the intrusive and broad nature of the search and seizure conducted on May 12, 2009 (see Harkat (Re), 2009 FC 659).
[30] On May 26, 2009, a Ministers’ letter was delivered to the Court providing new information in relation to the reliability of a human source that had provided information on Mr. Harkat (the “polygraph issue”). Based on the content of this letter, the Court ordered the Ministers to file, on a confidential basis, the complete human source file, as the Court then had information that led it to question the completeness of the information provided by the Ministers. On June 16, 2009, the Court issued a public direction offering three CSIS witnesses an opportunity to explain their testimony and their failure to provide relevant information to the Court. They accepted the Court’s invitation.
[31] In their submissions, the special advocates sought the exclusion of all information provided by the human source in question as a remedy pursuant to subsection 24(1) of the Charter. On October 15, 2009, the Court issued its public reasons for order and order (Harkat (Re), 2009 FC 1050). The Court concluded that the failure to provide the information was systemic, but found that there was no intent to filter or conceal the information concerning the human source on the part of the CSIS employees and that there were insufficient grounds to rule that Mr. Harkat’s rights as guaranteed by the Charter had been violated. The remedy sought by the special advocates was thus denied. However, the Court ordered that another human source file relied upon by the Ministers be made available to the special advocates and to the Court, setting aside the human source privilege, to ensure that there was no further concern in relation to the special advocates’ ability to fully test the evidence. This was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding. The review of the human source files by the special advocates and the Court did not disclose any new evidence to the effect that the information presented to the Court was incomplete or not reflective of the information gathered. The Ministers filed a new classified exhibit which reflected more properly the content of the human source file related to the polygraph test. The other human source file reviewed by the special advocates and the Court did not contain information inconsistent with the original ministerial exhibits filed on human sources (see also footnotes 1 and 2).[1]*
[32] On September 21, 2009, Mr. Harkat filed an application for a review of his conditions of release. In light of a new threat assessment provided by the Ministers, an important number of restrictions were removed. Among others, Mr. Harkat could now go on outings without the presence of his sureties and was allowed to travel outside the Ottawa region under certain conditions (Harkat (Re), 2009 FC 1008). Some restrictions remain such as having to wear a GPS bracelet.
[33] During the closed hearing prior to the beginning of the public hearing on the reasonableness of the certificate, an issue arose in relation to third party information that the special advocates considered needed to be transmitted to Mr. Harkat. This information is in principle protected; of course, it is open to the third party to allow the intelligence authorities to disclose the information. This sensitive issue was dealt with at length during closed hearings. The special advocates agreed that some of the information was such that permission should be sought from that specific source of information. A process was established by the Ministers to seek such permission in specific cases. Some of this information was eventually disclosed to Mr. Harkat through summaries.
[34] The special advocates and public counsel aimed to obtain updated information about Abu Zubaydah and Wazir, two individuals alleged to have links with Mr. Harkat. Closed hearings were held and the matter was reviewed at length. When possible, public communications of the information was made (see communication dated May 12, 2010). At the end of the public hearings, the Court informed the parties that any new information concerning these two individuals could be filed with the Court until August 31, 2010. As a result, a communication was issued (see communication dated September 1, 2010).
[35] In accordance with the legislation and Charkaoui #2, full access to the bank of information in the hands of CSIS in regards to Mr. Harkat, and other Intelligence information has been given to those involved in closed hearings. It gave the special advocates access to information about targets, individuals of concern, methodologies and methods of operation, exchanges of information with foreign agencies, investigative reports, potential names of human sources, etc. This information is highly protected and such material cannot be shared with anyone. That information shall remain secret and, depending on future mandates assumed by any counsel involved, this may raise unforeseen issues such as potential conflicts of interest (see also footnote 3).
[36] The new approach to the security certificate cases can also open up discussions on the application of criminal law concepts to such procedure. This is not a criminal proceeding; Intelligence evidence cannot be compared to conventional evidence. It requires its own set of rules and procedures that cannot be imported from classical criminal law concepts and procedures. Mr. Harkat’s life is not at stake at the stage of the examination of the reasonableness of the certificate. At this time, his inadmissibility to Canada for security reasons is. The Ministers, in applying the IRPA, are of the opinion that Mr. Harkat is inadmissible to Canada. His deportation, if required, is not the issue here. It may become an issue in the future, in which case other IRPA provisions will be relevant and Mr. Harkat will have available other legal resources applicable to such situations.
[37] Many lawyers were involved in this proceeding, all paid from the public purse. There were five lawyers for the Ministers, three public counsel for Mr. Harkat, and two special advocates. The involvement of so many people generated a multitude of motions and requests which required months of preparation, hearings and necessary time to write. Other lawyers intervened as to the polygraph issue, which made the whole process more time consuming.
[38] These proceedings are supposed to unfold as informally and as expeditiously as the circumstances and considerations of fairness and natural justice permit (see paragraph 83(1)(a) of the IRPA). From February 2008 to October 2010, more than thirty-two (32) months have passed. It was impossible for the Court to proceed more expeditiously. A lot of work was generated by the intervention of numerous lawyers in the interest of their respective clients. Sufficient time had to be allowed for the Ministers to comply with Charkaoui #2 and the reviewing process had to take place, including consideration as to the pertinence of the redactions. The search of Mr. Harkat’s home and the polygraph issues also required judicial time. The scheduling of public hearings for so many counsel involved was time-consuming as well and the process of public disclosure also created hurdles. These have been lengthy proceedings.
The Hearing as to the reasonableness of the certificate
[39] The public hearing on the reasonableness of the certificate of Mr. Harkat was held on November 4, 2008, from January 18 to February 12, 2010 and from March 8 to March 11, 2010. Public and closed oral submissions were heard between May 25 and June 1, 2010. Public and closed hearings were held on and off from September 2008 to May 2010.
[40] During the public hearings, the Ministers called John, an Intelligence officer with CSIS, as their first witness. The examination-in-chief of John begun on November 8, 2008. He gave a very concise testimony in relation to the CSIS mandate, as well as to how a security certificate is prepared under IRPA. Although he had reviewed the Public Security Intelligence Report (“Public SIR”), he did not review the classified information in order not to inadvertently reveal material that is not in the public realm, and did not participate in the preparation of Mr. Harkat’s security certificate. Mr. Webber, public counsel for Mr. Harkat, did thank him for his professionalism (see Transcript of Proceedings, Vol. 6 at 144). I concur. His testimony was informative, well presented and balanced. For the purposes of these reasons, his testimony was very useful.
[41] The Ministers’ second witness, Doctor Martin Rudner, is an expert in Intelligence, national security matters as well as terrorism studies. He gave evidence on counterterrorism in relation to Al-Qaeda and its affiliated groups, on Ibn Khattab, on Algeria and on sleeper agents. He also gave insightful evidence on the evolution of modern Islamic extremism. His testimony was useful to the Court. He gave an impression of neutrality when testifying and his written report and oral testimony were well documented (concerning the closed hearing witnesses, see also footnote 4).
[42] Mr. Harkat testified on his behalf. He also testified before Justice Dawson at the hearing into the reasonableness of the 2002 certificate. In a recent decision, Justice Dawson stated that “the Ministers may cross-examine him upon any prior statement made in prior security certificate proceedings or before the IRB” (see Jaballah (Re), 2010 FC 224 at para. 116). The Ministers did so. As a result, the assessment of Mr. Harkat’s credibility is outlined below.
[43] The respondent called Mr. Thomas Quiggin, an expert in Intelligence collection and reliability. Although he has never worked for an intelligence agency, he has done some extensive work on the subject. He testified at length on the BLN, on Ibn Khattab and on “sleeper agents”. Mr. Quiggin is the only witness who testified that Al-Qaeda did not deploy sleeper agents to the West.
[44] Professor Wesley Wark was retained by Mr. Harkat to provide independent critical analysis of the public SIR with regards to Mr. Harkat. Professor Wark is an expert on Canadian national security, on global trans-national terrorism and on Al-Qaeda. He reviewed the public SIR and other documents, and concluded that CSIS had prepared a weak and flawed case against Mr. Harkat. The Court noted that Professor Wark criticized the public SIR to the point of giving an impression of advocating for Mr. Harkat. However, he was useful when informing the Court of his factual knowledge and of his views on some subject matters.
[45] Ms. Lisa Given, a professor in Librarian information science at the University of Alberta, testified as an expert for Mr. Harkat in relation to the reliability of the public information gathered in this instance. Although Professor Given had no in-depth knowledge of the case presented by the Ministers, she gave insightful evidence into the importance of corroborating the information gathered in order to ascertain the veracity of facts when dealing with public information.
[46] Mr. Harkat also brought Professor Brian Williams to testify as an expert on Al-Qaeda, on Chechnya and on Ibn Khattab. He offers the only course on the history of the Chechen conflict at the University of Massachusetts; in addition, he has done some field work in Afghanistan and in a number of former Soviet countries. He has never been to Chechnya due to the precarious situation there. Although critical of other experts in the field, Professor Williams gave an eloquent depiction of Chechnya in the mid-1990s. Professor Williams mentioned that he does not accept any mandate to testify as an expert unless he has concluded that the person in question is innocent in the light of his review of the case. The report he filed was based on his view that Mr. Harkat was innocent (see Transcript of Proceedings, Vol. 22 at 8, 9 and 11). That being said, his statement report, his publications and testimony were useful in informing the Court on the Chechen political situation.
[47] Professor George Joffé also testified as an expert on behalf of Mr. Harkat via teleconference from the United Kingdom. Professor Joffé has provided reports in a number of cases. He is an expert on the Maghreb region, and more specifically on Algeria. Although he was not originally called to testify, Mr. Harkat felt it was important for him to explain his recollection of the atmosphere in Algeria in the late 1980s and early 1990s, resulting response to the evidence given by Dr. Rudner (who described Algeria as living under new democratic values and where freedom of expression was gaining strength), but also in view of some discrepancies that had been raised earlier in relation to two distinct reports Professor Joffé provided to the Court. In these reports, he described the climate in Algeria in the late 1980’s and early 1990’s as democratically open; in his opinion, while freedom of expression prevailed, this did not prevent unwarranted arrests of politically active people.
[48] Both Mr. Warren Creates and Mr. Suleiman Khan gave their own recollection of facts in relations to Mr. Harkat. Mr. Creates is an immigration lawyer who represented Mr. Harkat on his refugee claim before the Immigration and Refugee Board (“IRB”). Although Mr. Creates does not have a great recollection of the events, he does remember that he was present during two meetings between CSIS’ officers and Mr. Harkat. He also said that he had not sought to represent Al Shehre while in Canada, contrary to what Mr. Harkat said. He also filed part of his handwritten notes of a CSIS interview with Mr. Harkat which may contradict part of the summary of the interview of the Intelligence officers. Mr. Khan is responsible for the management and operation of the Islam Care Centre in Ottawa. He is also one of the founding members of Human Concern International (“HCI”) and had contact with Ahmed Said Khadr (“A. Khadr” or “Khadr”) on numerous occasions. Mr. Khan also testified that he was very close to A. Khadr and was not aware of his involvement with Islamic extremists until later. The witness visited Al Shehre in prison as part of his volunteer work at the Ottawa Carleton Detention Centre, where he also met with Mr. Harkat years later when he was detained.
[49] Close to twenty (20) witnesses have been crossed-examined in closed hearings on numerous subject matters, such as the reasonableness of the certificate, the polygraph issue, the assessment of danger, Charkaoui #2 disclosure issues, human sources, etc.
Other Comments on the Expert Evidence
[50] The public hearings dealt with more than six expert witnesses, most of them viva voce, but some only through their respective reports. There was considerable contradiction between experts to the extent that I raised that question in the public hearings. Professor Wark gave the following explanation:
This happens frequently – to come back to Your Honour’s general question, this happens frequently in academic debate on issues. We try and arrive at the best authorities for statements. It is often difficult in the field of terrorism because terrorist organizations, by their nature, don’t keep and allow us to see archival records that we can validate various kinds of theories about their operations, so we do our best.
(see Transcript of Proceedings, Vol. 17 at 118)
[51] Being left with many contradictions on most of the subject matters, the Court has to keep in mind that experts are not allowed to take over the functions of the trier of fact. Expert evidence cannot be allowed to be a substitute for the Court’s own evaluation of the evidence (see R. v. Mohan, [1994] 2 S.C.R. 9 at para. 21).
[52] It is trite law that any lack of objectivity, neutrality or independence on the part of an expert impacts on the weight to be given to opinions (see R. v. Klassen, 2003 MBQB 253 at para. 28).
[53] Intelligence (only accessible to a few) helps to provide more knowledge as to the modes of operation, the actors, and the objectives of terrorist networks. It is indispensable. Expert evidence has to be understood in view of that consideration. Therefore, any opinion given has to be weighed carefully. To give value to expert evidence and recognize it as valid, one must look at the supporting references. Opinions are not sufficient, they must be factually based.
[54] The Court has noted that some of the experts had strong feelings and opinions about the subject matters discussed. As well, some of Mr. Harkat’s experts contradicted themselves (see Mr. Quiggin and Professor Williams on Khattab, or Mr. Quiggin, Mr. Wark and Mr. Williams on sleeper agents). Professor Joffé contradicted his report filed on the political climate in Algeria in the late 1980s and early 1990s. However, at the end of the day, all experts were helpful to some extent.
Relevant provisions of the Immigration Refugee Protection Act
[55] The Ministers are of the opinion that Mr. Harkat, a foreign national born in Algeria on August 6, 1968, is inadmissible on security grounds under paragraphs 34(1)(c), (d) and (f) of the IRPA, for:
[…]
[…]
c) engaging in terrorism;
c) se livrer au terrorisme;
d) being a danger to the security of Canada;
d) constituer un danger pour la sécurité du Canada;
[…]
[…]
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).
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)
[56] The Ministers base their opinion on inadmissibility under the above security grounds on a rule of interpretation of IRPA according to which one is to include facts arising from omissions, unless otherwise provided, and also those for which there are reasonable grounds to believe have occurred in the past, are occurring or may occur in the future. In short, evidence may be based on past, present or anticipated future circumstances. Section 33 of the IRPA reads as follows:
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.
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.
[57] If the evidence presented supports only one of the security grounds invoked upon by the Ministers, this is sufficient to establish inadmissibility on that ground only (see Almrei (Re), 2009 FC 1263, at para. 59; Zûndel (Re), 2005 FC 295, at paras. 16-17).
[58] At this stage, the Court is to determine whether the certificate is reasonable or not (see section 78 of the IRPA).
[59] The review process is not limited to an examination of the material that was before the Ministers, but additional evidence as well, such as documentary evidence, witness and expert evidence (see paragraphs 83(1)(c) and (g) of the IRPA and Charkaoui v. Canada (Minister of Citizenship and .Immigration), 2008 SCC 38 at paras. 70 to 73). Both parties are provided “with an opportunity to be heard” (see paragraph 83(1)(g) of the New IRPA), but the burden of proof rests initially on the Ministers who allege that, in their opinion, Mr. Harkat is inadmissible on the basis of security grounds (see subsection 77(1) of IRPA).
[60] With the proviso that any piece of evidence must be ruled reliable and appropriate by the Court, all evidence can be admitted and relied upon, even if it is inadmissible in a court of law (see paragraph 83(1)(h) of the IRPA).
[61] There is an exception: when there are reasonable grounds to believe that evidence has been obtained through the use of torture as defined by section 269.1 of the Criminal Code, (R.S., 1985, c. C-46), or cruel, inhumane or degrading treatment or punishment within the meaning of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (December 10, 1984, Can. T.S. 1987 No. 36). That evidence will be excluded (see subsection 83(1.1) of the New IRPA). Earlier this year, my colleague Justice Blanchard issued his Reasons for Order and Order, explaining what type of information secured in conditions amounting to torture had to be excluded (see Mahjoub (Re), 2010 FC 787). In the present certificate proceeding, the evidence in support of the allegations does not raise issues related to torture. Whenever a concern was raised in relation to this matter, the Ministers’ counsel immediately agreed to have that information withdrawn.
[62] The standard of proof with respect to the facts constituting inadmissibility under section 33 of the New IRPA is “reasonable grounds to believe”.
[63] This standard requires something more than mere suspicion, but is less stringent than the criminal standard of “beyond a reasonable doubt”. Therefore, after having assessed the adverse evidence on a balance of probabilities, the opinion of the Ministers that the named person is inadmissible on security grounds has to be assessed as to whether or not it is a bona fide belief and a serious possibility based on credible evidence. It is important to keep in mind that the designated judge has additional evidence to consider which was not before the Ministers at the time they made their decision. In this case, there was considerable new evidence adduced by both sides, some of which came from the named person in the form of documentary evidence, expert evidence and testimonies. The Court is to make its assessment according to the preponderance of probabilities. At the end of the day, the Court must decide, only after having examined the adverse evidence, if the certificate is based on reasonable evidence.
[64] As Mosley J. most aptly explained in Almrei, 2009 FC 1263, at para. 101:
I am of the view that “reasonable grounds to believe” in s. 33 implies a threshold or test for establishing the facts for an inadmissibility determination which the Ministers’ evidence must meet at a minimum, as discussed by Robertson, J.A. in Moreno, above. When there has been extensive evidence from both parties and there are competing versions of the facts before the Court, the reasonableness standard requires a weighing of the evidence and findings of which facts are accepted. A certificate can not be held to be reasonable if the Court is satisfied that the preponderance of the evidence is to the contrary of that proffered by the Ministers.
Factual Allegations against Mr. Harkat
[65] The security certificate is supported by a Confidential Security Intelligence Report (“CSIR” or “TS SIR”) (see also footnote 5). A Public Security Intelligence Report (“PSIR” – ex. M5) was filed on February 22, 2008, and provided to Mr. Harkat. A Revised Public Security Intelligence Report (“RPSIR” – ex. M7), the result of an ongoing review of the classified information in closed hearing which brought the disclosure of additional information, was filed on February 6, 2009. Generally, the RPSIR alleges that prior to and after arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activity as a member of the terrorist entity known as the BLN. The specific allegations made by the Ministers are as follows:
(a) Prior to arriving in Canada in October 1995, Harkat was an active member of the Bin Laden Network and was linked to individuals believed to be in this Network. He was untruthful about his occupation in Pakistan as he had concealed from Canadian authorities his activities in support of Islamist extremist organizations;
(b) In Algeria, Harkat was a member of the Front Islamique du Salut (“FIS”), a legal political party at the