Almrei (Re)

Almrei (Re)
Court (s) Database
Federal Court Decisions
Date
2009-12-14
Neutral citation
2009 FC 1263
File numbers
DES-3-08
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20091214
Docket: DES-3-08
Citation: 2009 FC 1263
Ottawa, Ontario, December 14, 2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
IN THE MATTER OF a certificate signed pursuant
to section 77(1) of the Immigration and Refugee
Protection Act (IRPA);
AND IN THE MATTER OF the referral of a
certificate to the Federal Court pursuant to section
77(1) of the IRPA;
AND IN THE MATTER OF HASSAN ALMREI
REASONS FOR JUDGMENT
INTRODUCTION
[1] On February 22, 2008, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration signed a certificate in which they state that Hassan Almrei 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, as amended, ("IRPA"), the certificate was referred to the Court for determination as to whether it is reasonable. These are my reasons for determining that the certificate is not reasonable.
[2] These reasons take into account the information and other evidence heard in closed hearings in the absence of Mr. Almrei and his counsel and of the public. As set out in paragraph 83(1)(c) of the IRPA, the Court may, and shall on the request of the Minister, hear information or other evidence in the absence of the public if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person. A separate private set of reasons for judgment has been filed in the Designated Proceedings Registry of the Federal Court and will be accessible only to the Ministers and their counsel and to the Special Advocates and to any appellate court that may consider this matter further.
[3] In the aftermath of the tragic events of September 11, 2001 (“9/11”), it was reasonable to believe that Hassan Almrei posed a risk to the security of Canada. On the information then available to officials and to the Court, the inference was compelling that he was an extremist who supported the ideology of Osama Bin Laden and was involved in a global false document network. In security intelligence terms, Almrei had a “pedigree”. He came from a Syrian family linked to the Muslim Brotherhood, an organization formerly known for terrorist acts. Raised in Saudi Arabia, he had travelled to Pakistan and Afghanistan to join the jihad against the communist regime in Kabul. He was known to have associated with a leader of the Arab Afghan mujahidin, Ibn al Khattab, and to have supported Khattab’s jihad against the Russians in Chechnya.
[4] Following his admission to Canada in 1999, Almrei was linked to persons believed on reasonable grounds to have extremist views. Almrei was known to have contacts in Canada and abroad from whom he could obtain false identity and travel papers. He had himself used a forged passport to come to Canada. He lied to Canadian authorities about his background and concealed his travels to Afghanistan and Tajikistan. Canada extended its protection to Almrei by recognizing him as a Convention refugee. He returned the favour by providing a forged Canadian passport and funds to an Arab Afghan associate who had crossed our border illegally, arranged a marriage of convenience for a failed refugee claimant and dealt in illicit drivers’ licenses.
[5] In 2001, Almrei was at the very least an opportunist willing, for a suitable fee, to violate Canada’s laws while he took advantage of its generosity. His object was to gain Canadian permanent residency and Citizenship so he could travel freely abroad for business purposes. Prior to 9/11, this was known to the Canadian Security Intelligence Service (“CSIS”) and their counterparts in the Royal Canadian Mounted Police (“RCMP”). CSIS had been watching his movements and collecting information about him and his associates for over two years. The RCMP was conducting its own criminal investigation. Much of the information collected by both agencies was provided by human sources. CSIS saw Almrei as a “sleeper” and were content initially to keep him under surveillance and to identify his contacts. The events of 9/11 instantly changed that dynamic. Almrei was then viewed, on reasonable grounds, to be part of a much greater threat to North American security as someone who had the skills and the contacts to arrange for terrorists to cross borders on forged papers.
[6] If these proceedings were based solely on the information available to the Ministers and the Court in October 2001, I would have no difficulty in concluding that Almrei’s arrest and detention on a security certificate to contain the perceived threat was reasonable. But the Court is not engaged in that task. Nor is it conducting a judicial review of whether the Ministers who signed the fresh certificate in February 2008 made the correct decision. The question for the Court to determine is whether, on all of the information and other evidence presented in these proceedings, is the certificate reasonable to-day. Or, in other words, is the assertion that Almrei is presently a security risk based on objectively reasonable grounds.
[7] In arriving at a conclusion on that question, the Court has considered information and evidence that was not placed before the Ministers when the decision was made to issue the 2008 certificate, and that was not previously presented to the Court, which has cast a different light on circumstances and events.
[8] In these reasons, I will first set out the background to the issuance of the certificate, the procedural history of this application and the present legislative regime under which it was considered. Next, I will review the evidence and the issues, both legal and factual, that were raised during the proceedings. I will then outline the allegations concerning Mr. Almrei. Finally I will discuss my analysis and conclusions arising from the evidence and issues. Formal judgment will be reserved to allow the parties some time to review these reasons and propose questions for certification. An index is provided for convenient reference.
INDEX (by paragraph numbers):
Background 9-17
Procedural History of this Application 18-53
Legal Framework 54-57
Inadmissibility 58-62
“Member of an Organization” 63-69
“Terrorism” 70-74
Armed conflict exemption 75-79
“Danger to National Security” 80-81
Burden of Proof 82
Quality of the Evidence 83-85
Standard of Proof 86-105
Procedure 106-111
Role of the Special Advocates 112-113
The Issues 114-120
The Allegations 121-122
The “Information and Other Evidence”
Overview 123-127
The Open Source Information 128-131
Third Party Information 132-140
Telecommunications Intercepts 141-145
Physical Surveillance Reports 146-148
Information Obtained or Derived from
Torture or Cruel, Inhumane or
Degrading Treatment 149-153
The Human Source Information 154-164
The Service Witnesses 165-201
Hassan Almrei 202-260
The Expert Opinion Evidence 261-262
Dr. Martin Rudner 263-286
Mr. Thomas Quiggin 287-322
Sheikh Ahmad Kutty 323-335
Dr. Lisa Given 336-348
Dr. Brian Williams 349-394
Analysis
Are the factual allegations against Almrei
supported by the information and other
evidence? 395-398
Osama Bin Laden, Al Qaeda and
the “Bin Laden Network” 399-429
Almrei’s Travel and Status in Canada 430-434
Almrei’s association with Osama Bin
Laden and support for jihad 435-455
Arab Afghan Connections 456
Ibn Khattab 457-464
Nabil Almarabh 465-469
Ahmed Al Kaysee 470
Hisham Al Taha 471
Involvement in False Documentation 472-478
Security Consciousness and Use of
Clandestine Methodology 479
Should the Certificate be Stayed as an Abuse
of the Court’s Process? 480-483
Lack of Disclosure/Inability to
Meet the Case 484-489
Destruction of Evidence 490-492
Choice of Procedure 493-497
Breach of the Duty of Candour 498-503
Conclusion 504-509
Certified Questions 510-513
BACKGROUND
[9] In January 1999, Almrei arrived at Pearson Airport using a false United Arab Emirates passport bearing a valid multiple entry visa, was admitted as a visitor, and subsequently claimed Convention refugee protection on the ground that he feared persecution in Syria. The Immigration and Refugee Board granted him protection in June 2000. He applied for permanent residence in November 2000.
[10] A certificate naming Almrei as a security risk was signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada on October 19, 2001. Almrei was then taken into custody and detained in accordance with subsection 40.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, (“the former Act”). The matter was then referred to the Federal Court for a determination as to the reasonableness of the certificate. Hearings were held in October and November 2001. Following a ruling that he could not testify in a closed session, as he had requested, Mr. Almrei declined to provide evidence in that proceeding.
[11] The Court concluded that the closed evidence, heard in the absence of Mr. Almrei and his counsel, provided reasonable grounds to believe that Mr. Almrei was a member of an international network of extremist individuals who supported the Islamic extremist ideals espoused by Osama Bin Laden and that Mr. Almrei was involved in a forgery ring with international connections: Almrei (Re), 2001 FCT 1288, [2001] F.C.J. No. 1772.
[12] Efforts followed to remove Almrei from Canada. Opinions were issued by delegates of the Minister of Citizenship and Immigration that Almrei was a danger to the security of Canada and could be removed to Syria, his country of nationality. Mr. Almrei sought judicial review of those opinions in the Federal Court and brought several applications for release from detention: Almrei v. Canada (Minister of Citizenship and Immigration), 2004 FC 420, [2004] F.C.J. No. 509 affirmed, Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, [2005] F.C.J. No. 213; Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FC 355, [2005] F.C.J. No.437 Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FC 1645, [2005] F.C.J. No. 1994; Almrei v. Canada (Minister of Citizenship and Immigration), 2007 FC 1025, [2007] F.C.J. No.1292.
[13] Mr. Almrei’s appeal from the decision of the Federal Court of Appeal rejecting his challenge to the security certificate provisions of IRPA, as infringing sections 7 and 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (“the Charter”), was merged with those in the security certificate cases involving Adil Charkaoui and Mohammed Harkat. Reasons for judgment were issued by the Supreme Court of Canada on February 23, 2007 in Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [2007] S.C.R. 350 (“Charkaoui 1”). In its decision, the Supreme Court concluded that the IRPA regime for determining the reasonableness of security certificates and for reviewing the detention of named persons was inadequate to protect their interests when classified information was provided to a designated judge of the Federal Court during the closed proceedings.
[14] The Supreme Court declared that the procedures under IRPA for the judicial confirmation of certificates and for the review of the detention of the named persons violated the fundamental justice provisions of section 7 and had not been shown to be justified under section 1 of the Charter. Accordingly, the procedures were of no force or effect. In order to give Parliament time to amend the law, the Supreme Court suspended its declaration with respect to the invalidity of the certificate procedure for one year from the date of the judgment. After that year, the certificates concerning Mr. Almrei and any other named person that had been declared "reasonable" would lose that status. Should the Ministers wish to issue a certificate thereafter, a fresh determination of reasonableness would be required under the new process to be devised by Parliament. Similarly, any detention review occurring after the delay would be subject to the new process: (Charkaoui 1 at para. 140).
[15] The legislative response to Charkaoui 1 was enacted within the one year timeline set by the Supreme Court. An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S. C. 2008, c. 3 ("Bill C-3") received Royal Assent on February 14, 2008 and came into force on February 22, 2008. The amendments to IRPA enacted through Bill C-3 provided for the appointment of Special Advocates to represent the interests of named persons during closed security certificate proceedings and revised the detention review procedures set out in IRPA.
[16] In Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 (“Charkaoui II”) the Supreme Court of Canada considered the nature of the duty owed by the Service to retain and disclose information in its possession about a person named in a security certificate issued under subsection 77(1) of the Act. Previously, it had been the policy of the Service to destroy all operational notes after they had been transcribed into a report. The Supreme Court found this policy to be based upon a flawed interpretation of section 12 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act). The Court held that CSIS should be required to retain all of the information in its possession and disclose it to the Ministers and the designated judge in order to uphold the named person’s right to procedural fairness. If such were done, the Court reasoned, Ministers would be better positioned to make appropriate decisions on issuing a certificate. The designated judge would also be able to consider all of the evidence in determining what should be protected on national security grounds and what should be disclosed to the named person.
[17] On February 22, 2008, the date that the amendments to IRPA came into effect, the Ministers signed new certificates naming Mr. Almrei and four other persons as security risks and referred the certificates to the Federal Court for review under subsection 77(1) of IRPA. To initiate the present proceedings the Ministers filed a Notice of Referral of Certificate together with a top-secret Security Intelligence Report (“SIR”) with supporting reference materials. The SIR is a narrative report prepared by CSIS setting out its grounds for believing that a person is inadmissible to Canada. A public summary of the SIR entitled a Statement Summarizing the Information, with the corresponding open source reference material, was served on Mr. Almrei and filed with the Court.
PROCEDURAL HISTORY OF THIS APPLICATION
[18] As Mr. Almrei remained in custody on February 22, 2008, more than seven years after his arrest on the initial certificate, a review of his detention was the initial priority. In compliance with the Supreme Court’s decision in Charkaoui I, the revised statute required a detention review to begin within six months of the coming into force of the new legislation. It took time to resolve some preliminary matters including the appointment of counsel and the selection of Special Advocates. The detention review was begun on August 20, 2008 and continued through the fall months. Following a series of hearings, Mr. Almrei was ordered released from detention on strict terms and conditions. The grounds for that decision are set out in reasons for judgment issued on January 2, 2009: Re Almrei, 2009 FC 3, [2009] F.C.J. No. 1.
[19] In correspondence dated September 12, 2008, in the DES-4-08 certificate, counsel for the Ministers advised the Court they had asked CSIS to examine closely the information and other evidence in each of the five certificate cases in order to determine whether original operational notes had been preserved in accordance with the decision of the Supreme Court in Charkaoui II. Further to motions filed by the respondent on September 30, 2008 (amended on October 31, 2008), a disclosure order was issued on October 10, 2008 in which CSIS was directed to produce all information and intelligence related to Mr. Almrei in its possession or holdings.
[20] CSIS was unable to meet the time-table initially fixed by the Court due to the quantity of records to be searched and the workload demands caused by similar orders in each of the other four certificate cases. Extensions of time were required to complete the work. In the interim, the proceedings continued, hearings were conducted and information was provided to the Court and the Special Advocates in response to undertakings made by CSIS and the Ministers' counsel during the detention review.
[21] On October 31, 2008 motions and a notice of constitutional question were filed by the respondent indicating his intention to challenge the standard of proof of "reasonable grounds to believe" set out in section 33 of the IRPA. Mr. Almrei sought an order that the standard of proof to be met by the evidence in the Court's determination of a certificate’s reasonableness pursuant to section 78 of the IRPA is to a balance of probabilities or, in the alternative, a declaration that the standard is inconsistent with the right to a fair hearing protected by section 7 of the Charter. In case management conferences with Mr. Almrei and counsel, I indicated that I would defer ruling on these matters until the completion of the evidentiary hearings.
[22] Mr. Almrei had previously brought a motion challenging the constitutionality of subsections 85.4(2) and 85.5(b) of IRPA which limit communications by Special Advocates with the named persons and their counsel after the Special Advocates have had access to the closed information in the SIR. This was linked with similar motions brought on behalf of three of the other named persons and which were collectively heard and adjudicated by the Chief Justice. In written reasons and an order released on November 3, 2008 (Re Almrei, 2008 FC 1216, [2008] F.C.J. No. 1488), the Chief Justice dismissed the constitutional motion as premature without prejudice to any party's right to challenge the constitutionality of the legislation with an appropriate factual matrix.
[23] By order dated January 2, 2009, the Chief Justice directed that my colleague Justice Eleanor Dawson adjudicate upon two common issues of law that had arisen in four of the certificate proceedings in relation to the Charkaoui II production, including this matter. The two common issues were identified in the order as follows:
a) What is the role of the designated judge with respect to the
additional information disclosed by the Ministers pursuant
to the decision of the Supreme Court of Canada in
Charkaoui v. Canada (Citizenship and Immigration), 2008
SCC 38? More specifically, does paragraph 62 of that
decision require the judge to "verify" all information
disclosed by the Ministers if the Special Advocates and
counsel for the Ministers all agree that a portion of that
information is irrelevant to the issues before the Court?
b) Should the information disclosed to the named persons and
their counsel be placed on the Court's public files in these
proceedings? If so, when?
[24] At paragraph 62 of its decision in Charkaoui II, the Supreme Court had made the following comments:
As things stand, the destruction by CSIS officers of their operational notes compromises the very function of judicial review. To uphold the right to procedural fairness of people in Mr. Charkaoui's position, CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. The ministers and the designated judge will in turn be responsible for verifying the information they are given. If, as we suggest, the ministers have access to all the undestroyed "original" evidence, they will be better positioned to make appropriate decisions on issuing a certificate. The designated judge, who will have access to all the evidence, will then exclude any evidence that might pose a threat to national security and summarize the remaining evidence -- which he or she will have been able to check for accuracy and reliability -- for the named person. [Emphasis added]
[25] As a result of the highlighted phrases, a question arose as to whether the designated judge in a certificate case must personally verify all of the information provided to the Court in conformity with the disclosure obligation imposed on CSIS.
[26] In reasons for judgment released on March 5, 2009 (Re Almrei, 2009 FC 240, [2009] F.C.J. No. 346), Justice Dawson considered that the reference to verification in the Charkaoui II judgment stemmed from the context of the former legislative scheme, not that enacted by Bill C-3. The Supreme Court could not have intended that the Court consider information which the Ministers and the Special Advocates had agreed was irrelevant. Where the information was relevant, the Court was required under the amended statute to determine whether disclosure would be injurious to national security. That responsibility could not be delegated to counsel.
[27] At paragraph 62 of her reasons, Justice Dawson concluded as follows,:
(a) Where the Ministers and the special advocate agree that material disclosed by the Ministers pursuant to Charkaoui 2 is irrelevant to the issues before the Court, the Court may rely upon that agreement. In such a case, the Court need not verify information that the Ministers and the Special Advocates agree to be irrelevant.
(b) No information filed with the Court in confidence pursuant to Charkaoui 2 can be disclosed to the person named in a security certificate without the prior approval of the Court.
(c) Information or evidence disclosed to the named persons pursuant to Charkaoui 2 should be disclosed directly to counsel for each person named in a security certificate. The Charkaoui 2 disclosure should not be placed on the Court’s public file. Such information or evidence would only become public if it is relied upon by a party and placed into evidence.
(d) Summaries of evidence or information made pursuant to paragraph 83(1)(e) of the Act must be placed on the Court’s public file because they relate to information relied upon by the Ministers and to what transpired in the in camera proceedings.
[28] Additional issues outside the scope of the Chief Justice’s Order were raised at the hearing before Justice Dawson. It was argued that the designate judge should not have regard to any portion of the Charkaoui II disclosure unless it was necessary to adjudicate a disagreement or it was relied upon by one of the parties. Justice Dawson noted, at paragraphs 34-36 of her reasons, that it was premature to make any pronouncements circumscribing the role of the designated judge in reviewing the material absent an understanding of the content and submissions on a proper evidentiary basis. Each case would depend on its own circumstances and there could be many reasons for the Court to review the information.
[29] Justice Dawson expressly made no determination about the permissibility of the Ministers later seeking to augment the information upon which the security certificate is based, or to amend the report filed in support of the certificate, by relying upon a portion of the Charkaoui II disclosure (endnote 1 to the Reasons for Order). The question of whether the Ministers could augment the information in the SIR became an issue in this case but the additional information was from sources other than the Charkaoui II disclosure.
[30] On February 9, 2009, CSIS having completed their file search, the Ministers filed bound volumes entitled “Charkaoui II Production” including DVDs containing approximately 1276 records of varying size retrieved from the CSIS operational databank in an electronic format.
[31] Some of the information in the produced records was redacted or blacked out by CSIS as it concerned the investigation of other persons and was, in their view, irrelevant as outside the scope of the October 10, 2008 Order. Internal administrative information such as the names of CSIS employees, file and phone numbers and information which would disclose operational methods or identify human sources was also redacted. I considered it necessary to review unredacted or clear versions of these records to ensure that the redactions were valid and did not exclude information material to the proceedings. Based on that review, I was satisfied that for the most part, the redactions had been appropriate in that they did not obscure information that was material to this case and necessary for the Court and the Special Advocates to perform their functions in the closed proceedings.
[32] To illustrate, included in the records were documents such as periodic situation or overview reports concerning all of the CSIS investigative targets during the relevant time-frame. These records were produced because they incidentally contained Mr. Almrei’s name and information concerning him. The remainder of the information in these documents was irrelevant to these proceedings and was properly redacted in the disclosed records. In this respect, I would note that paragraph 83(1)(j) of the IRPA provides that the Court shall not base a decision on information or other evidence provided by the Minister if the judge determines that it is not relevant or if the Minister withdraws it.
[33] In some instances, while the redacted information was not on its face material to these proceedings, I considered that the redactions had been excessive and tended to unnecessarily obscure portions of the records. For example, the names and other identifying particulars of casual contacts and sources of information, including police officers, was routinely redacted in these documents in keeping with the Service’s policy of protecting human sources. This information was not sensitive and would not have put individuals at risk if inadvertently released. On March 20, 2008 I ordered reconsideration of the redactions in the documents filed on February 9, 2009. Ministers were also directed to conduct a further search for additional documents relating to certain named individuals with a connection to this case. On March 27, 2009 the Ministers filed revised copies of the February 9, 2009 document production with a number of redactions removed.
[34] It became apparent during the review of the February 9th documents that CSIS had conducted a thorough search of their operational databank for any records that contained Mr. Almrei’s name (and his “kunya” or respect name), and variants thereof. A great deal of this material was repetitive and of no evidentiary value, as it merely reiterated previously collected information in the periodic reports required by the administrative procedures of the Service.
[35] It is doubtful that the Supreme Court had this type of disclosure in mind when they stated that “…CSIS should be required to retain all the information in its possession and to disclose it to the Ministers and the designated judge” at paragraph 62 of Charkaoui II. In hindsight, a more focused search would have saved considerable time. Produced records that were of value included electronic intercept and physical surveillance reports and reports of requests for information addressed to foreign agencies and their responses, the implications of which will be discussed below.
[36] On March 24-25, 2009 the Ministers filed an Amended Security Intelligence Report (“A/SIR”) and an additional reference volume, and an Amended Summary of the Security Intelligence Report together with corrections to the reference index of February 22, 2008 and additional public and private reference material. The respondent and the Special Advocates objected to the filing of this new material more than a year after the issuance of the certificate.
[37] In Charkaoui II, the Supreme Court commented on the practice of submitting evidence to the designated judge considering the reasonableness of the certificate which was not before the Ministers when they signed it. The Court concluded that any new evidence should be admitted, regardless of whether it is submitted to the designated judge by the Ministers or by the named person. The judicial review process is not limited to a consideration of the material before the Ministers or to the bases of their initial decision and new evidence can be as beneficial to the named person as to the Ministers: Charkaoui II at paragraphs 70-73.
[38] In my view, such a practice may in some circumstances constitute an abuse of the Court’s process where, for example, information is unfairly withheld for tactical reasons and provided too late in the proceedings for the named person to respond, as was alleged here. In this instance, there was no evidence before me to substantiate such a finding. The material was accepted subject to further consideration following closing arguments. I recognize, however, that the practical effect of this decision was to allow the Ministers to bolster their case following the strong challenge presented by the respondent during the detention review hearings. The Ministers filed a sizable body of material that had not been referenced or considered in the decision to issue the certificate.
[39] On March 27, 2009 I dismissed motions brought by the respondent in anticipation of the reasonableness hearings: Re Almrei, 2009 FC 322, [2009] F.C.J. No. 681. The first motion, regarding the constitutionality of subsections 85.4(2) and 85.5(b) of the IRPA, in relation to communications between the respondent and the Special Advocates, was largely based on the arguments previously heard and determined by Chief Justice Allan Lutfy in November.
[40] I concluded that the issue of the constitutionality of the restrictions on communication by the Special Advocates continued to be premature in the absence of a factual basis. The alternate remedy sought, to authorize the respondent to submit questions to the Special Advocates in a sealed envelope and to receive their replies without disclosure to the Court or to the Ministers, was also denied. I ruled that while there was no obstacle to the respondent asking questions of the Special Advocates without informing the Court or the Ministers, the Special Advocates would have to obtain judicial authorization prior to communicating their answers to the respondent so as to respect the Court’s obligation to protect information that would injure Canada’s national security.
[41] The Special Advocates were authorized throughout the proceedings to communicate with the respondent and his counsel regarding scheduling matters and, from time to time, to discuss certain legal issues so long as this did not involve disclosure of top secret information they had access to in the closed materials. They were also authorized to communicate with the Special Advocates appointed in the other security certificate cases regarding common disclosure issues stemming from the closed hearings. On May 14, 2009, for example, Mr. Copeland was authorized to communicate to Mr. Almrei and his counsel that the top secret material filed by the Ministers did not rely upon information that was obtained by or derived from the interrogation of detainees by the US authorities at Guantánamo Bay, Cuba or at any of the so-called "black sites" said to be operated by US intelligence services. On May 20, 2009, Mr. Cameron was authorized to communicate with counsel for Mr. Almrei about the redacted contents of a RCMP report.
[42] In his motions, the respondent also sought a declaration that the Charter required the importing of the balancing test in section 38.06 of the Canada Evidence Act into paragraph 83(1)(e) of IRPA so as to allow for the disclosure of information where the interests of justice outweighed the injury to national security. I concluded that this motion was also premature as the situation anticipated by the respondent had, as yet, not occurred. I also declined to issue a declaration of principles with respect to disclosure at that time, as requested, for similar reasons.
[43] As matters progressed in the case, it did not prove necessary to decide the balancing issue as the conflict between the competing security and liberty interests did not arise on a disclosure motion. The Ministers objected to the disclosure of certain telecommunications and physical surveillance reports as they were not relied upon in support of the SIR and did not, on their face, provide material evidence of an exculpatory nature. But they resisted this disclosure on the grounds of a lack of relevancy and not because their release would injure national security. Upon considering the matter and concluding that they could be relevant and were non-injurious, summaries of the reports were ordered disclosed to the respondent.
[44] The closed evidentiary hearings in the fall of 2008 had proceeded on the understanding that the Ministers would present testimony from Service witnesses relating to both Mr. Almrei's alleged dangerousness and flight risk, for the purposes of the detention review, and to the reasonableness of the certificate. The respondent elected not to cross examine the Service witness who testified in the public hearing on matters going only to reasonableness on the understanding that he would be recalled for that purpose. For operational reasons, the Service witness was no longer available for the new dates scheduled when the reasonableness hearing was postponed. In the circumstances, the evidence of the witness relating to reasonableness was struck out and Ministers were granted leave to call a new Service witness to give evidence relating to the allegations at the public hearing. The same Service witness who testified in the closed hearings on detention gave evidence in the closed hearings on reasonableness.
[45] On April 17, 2009 following a series of closed hearings respecting disclosure to the respondent, the Ministers filed a document entitled Public Disclosure of Information used in the Amended Security Intelligence Report (SIR). This included summaries of intercepted conversations and physical surveillance reports that were relied upon in the A/SIR, and information provided to CSIS by CIC and the CBSA that was used in the A/SIR.
[46] On April 24, 2009 the Ministers filed documents entitled Disclosure of Information in the Charkaoui II Production. This consisted of summaries of intercepted communications involving Mr. Almrei between September 12, 2001 and October 18, 2001 together with an overview summary of physical surveillance reports concerning Mr. Almrei between August 1999 and October 2001.
[47] Public evidence hearings were conducted over the course of 18 days in Toronto between April 27, 2009 and May 27, 2009. The testimony will be described below. On six occasions during those hearings, the court held in camera and ex parte conferences in chambers with CSIS counsel and the Special Advocates to discuss disclosure and other issues relating to the closed information. A security cleared court reporter and registry officer were present to ensure the maintenance of a record.
[48] The parties filed extensive written submissions on the factual and legal issues in these proceedings and public oral argument was heard in Toronto on July 2, 3, 6, 2009.
[49] Closed hearings were held in Ottawa to address questions which had arisen with respect to the reliability of classified information provided to the Court and to the Special Advocates. On April 3, 2009 I ordered CSIS to conduct a search for any documents or other records in the possession of the Service not included in the February 9, 2009 documents which contained an assessment of the credibility and reliability of the information provided by specified human sources. The Ministers filed additional information respecting the human sources on May 1, 2009 and, on May 15, 2009, a Supplementary Response to the April 3, 2009 Order. On May 25, 2009 the Ministers fled a Revised and Amended Source Exhibit.
[50] On June 3, 2009, I issued a confidential direction to the Ministers and CSIS for production to the Court and the Special Advocates of copies of documents and other records from the CSIS human source files and instructions concerning a review of the files. On June 9, 2009 I ordered production of the original source exhibits filed with the Court in the prior certificate proceedings. On June 17, 2009, an Order was issued for production of the source exhibits sworn in support of warrants issued in 2000 and 2001 relating to the respondent. That material was delivered and the Ministers filed a document entitled a “Source Précis” on June 22, 2009 containing additional and revised information.
[51] Examination and cross-examination of service witnesses with respect to issues arising from these documents and, more generally, with respect to the closed information relied upon by the Ministers in the A/SIR, took place in Ottawa between June 22 and 26, 2009. Closed oral submissions were heard in Ottawa on July 27-28, 2009.
[52] On July 24, 2009 the Special Advocates brought a motion in the closed proceedings to have the security certificate quashed on the grounds that it was an abuse of the Court’s process. The Ministers filed their written response on August 21, 2009. The respondent was informed of this on August 26, 2009. Reply submissions were received from the Special Advocates on September 4, 2009. While I deal with that motion in greater detail in my closed reasons due to the sensitive nature of the information referenced, I will also touch on it in these reasons.
[53] A review of the release conditions was begun on July 28, 2009 and continued in a public hearing on September 14, 2009. At that time, counsel for the Ministers advised that they wished to present information to the Court in a closed hearing. The proceedings were adjourned for closed hearings, conducted over the following two weeks during which the Court considered and authorized the disclosure of public summaries of a new CSIS threat assessment and a CBSA risk assessment. In the course of those hearings, additional issues arose which required the postponement of the public condition review proceedings. At the request of the respondent, on October 5, 2009 they were adjourned sine die pending the outcome of the reasonableness determination.
LEGAL FRAMEWORK
[54] The relevant legislative provisions for the purposes of this case are set out in Divisions 4 and 9 of Part 1 of IRPA. Division 4 sets out the rules for determining, in general, inadmissibility to Canada. Division 9 deals with certificates and the protection of information. It will be necessary also to touch briefly on sections of the Criminal Code and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[55] It is well established that non-citizens do not have an unqualified right to enter or remain in the country: Chiarelli v. Canada (Minister of Citizenship and Immigration), [1992] 1 S.C.R. 711, [1992] S.C.J. No. 27. Permanent residents enjoy a qualified right to remain so long as they comply with any conditions imposed under the Regulations enacted under the Act; foreign nationals who are not permanent residents may be permitted to remain only on a temporary basis.
[56] Parliament has the constitutional authority to define the terms under which non-citizens, such as Mr. Almrei, may enter and stay in Canada and the Executive has the duty to enforce those terms and in doing so, may exercise considerable discretion, subject to the principles of fairness, to determine whether it is advisable for a non-citizen to be removed. Deportation does
not, in itse