Harkat v. Canada (Minister of Citizenship and Immigration)

Harkat v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2005-12-30
Neutral citation
2005 FC 1740
File numbers
DES-4-02
Decision Content
Date: 20051230
Docket: DES-04-02
Citation: 2005 FC 1740
BETWEEN:
MOHAMED HARKAT
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS CANADA
Respondents
REASONS FOR ORDER
LEMIEUX J.
A. INTRODUCTION
[1] Mohamed Harkat, (applicant) a citizen of Algeria and a foreign national in Canada, applied on September 23, 2005, for judicial release from detention pursuant to subsection 84(2) of the Immigration and Refugee Protection Act (Act) which came into force on June 28, 2002. Mr. Harkat arrived in Canada on October 6, 1995, after, according to him, residing in Pakistan for five years. Immediately upon his arrival, he made a refugee claim which, on February 24, 1997, was granted. He then made an application for permanent residence on March 18, 1997, which was refused on December 13, 2002.
[2] Section 84 of the Act reads:
84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.
Judicial release
(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person. [emphasis mine]
84. (1) Le ministre peut, sur demande, mettre le résident permanent ou l'étranger en liberté s'il veut quitter le Canada.
Mise en liberté judiciaire
(2) Sur demande de l'étranger dont la mesure de renvoi n'a pas été exécutée dans les cent vingt jours suivant la décision sur le certificat, le juge peut, aux conditions qu'il estime indiquées, le mettre en liberté sur preuve que la mesure ne sera pas exécutée dans un délai raisonnable et que la mise en liberté ne constituera pas un danger pour la sécurité nationale ou la sécurité d'autrui.
[3] Mr. Harkat has been detained at the Ottawa Regional Detention Centre since December 10, 2002, on a security certificate issued in early December 2002 pursuant to subsection 77(1) of the Act. He filed his application for judicial release from detention after my colleague Justice Dawson ruled on March 22, 2005, [2005 FC 393], the Ministers' security certificate was reasonable.
[4] Under section 81 of the Act if a security certificate is determined reasonable it is conclusive proof that the foreign national named in it is inadmissible; it is a removal order that may not be appealed against and is in force without the necessity of holding or continuing an examination or an admissibility hearing. The person named in it may not apply for protection under subsection 112(1) of the Act.
[5] Subsection 82(2) of the Act headed "Mandatory detention" provides that a foreign national who is named in a security certificate issued under subsection 77(1) "shall be detained without the issue of a warrant". This means that unlike the case of a permanent resident under section 83 of the Act, his application is Mr. Harkat's first opportunity to have his detention reviewed under the Act.
[6] The security certificate alleged Mr. Harkat was inadmissible to Canada on security grounds being a person described in paragraphs 34(1)(c) and 34(1)(f) of the Act because there were reasonable grounds to believe that:
(1) he has engaged in terrorism by supporting terrorist activities; and
(2) he was, or is, a member of the Bin Laden Network which is an organization that there are reasonable grounds to believe has engaged or will engage in terrorism.
[7] The principal findings and conclusions reached by Justice Dawson determining reasonable the security certificate issued in respect of Mr. Harkat are:
¶ 113 Even without finding Mr. Harkat's testimony to be implausible and incredible on the three material points set out above, on the basis of the confidential information it is clear and beyond doubt that Mr. Harkat lied under oath to the Court in several important respects, including his denials that he:
(i) knowingly supported or assisted Islamic extremists;
(ii) assisted Islamic extremists who have come to Canada;
(iii) was associated with Abu Zubaida;
(iv) was in Afghanistan; and
(v) lived in Peshawar.
¶ 114 With respect to the confidential information I rely upon to find Mr. Harkat to be incredible, I have paid close attention to the detail of the information provided, asked specific questions and received answers about the reliability of the various sources of information, and considered whether information was corroborated by more than one independent source. Having done so, I find that credible and reliable information coming from a number of independent sources, many of which are corroborated, contradicts Mr. Harkat's denial on each of these points. Weighing that evidence against Mr. Harkat's testimony, I conclude, on a balance of probabilities, that Mr. Harkat's denials are not credible and that he lied in his evidence to the Court.
. . .
¶ 143 A consideration of all of the evidence before me establishes, on an objective basis, grounded on evidence I find to be credible, that there are reasonable grounds to believe that:
1. Prior to arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activity.
2. Mr. Harkat travelled to and was in Afghanistan.
3. Mr. Harkat supported terrorist activity as a member of the terrorist group known as the Bin Laden Network. Before and after he arrived in Canada Mr. Harkat was linked to individuals believed to be in this network.
4. The Bin Laden Network engages in acts of terrorism in order to obtain its stated objective of establishing Islamic states based on a fundamentalist interpretation of Islamic law. The Bin Laden Network has been directly or indirectly associated with terrorist acts in several countries. (Parenthetically, I observe that Mr. Harkat did not challenge the contention of the Ministers that the Bin Laden Network is an organization that has engaged, or will engage, in terrorism.)
5. The Bin Laden Network operated terrorist training camps and guest houses in Afghanistan and Pakistan. The camps provided sanctuary, funds, and military and counter-intelligence training. Abu Zubaida ran the Khaldun and Darunta training camps in Afghanistan.
6. Mr. Harkat acknowledges he was a supporter of the FIS. When the FIS severed its links with the GIA, Mr. Harkat indicated his loyalties were with the GIA. The GIA seeks to establish an Islamic state in Algeria through the use of terrorist violence. Mr. Harkat's support of the GIA is consistent with support for the use of terrorist violence.
7. Mr. Harkat lied to Canadian officials about his:
- work for a relief company in Pakistan;
- travel to Afghanistan;
- association with those who support international extremist networks;
- use of the alias Abu Muslima; and
- assistance to Islamic extremists.
I infer that such lies were for the purpose, at least in part, of distancing himself from those who support terrorism and to mislead Canadian authorities about his involvement in the support of terrorist activities.
8. Mr. Harkat has assisted Islamic extremists who have come to Canada.
9. Mr. Harkat has associated with Abu Zubaida since the early 1990's. Abu Zubaida was one of Osama Bin Laden's top lieutenants from the 1990's until his capture.
10. While in Canada Mr. Harkat has been in contact with individuals known to be involved in Islamic militant activities.
¶ 144 It follows that Mr. Harkat is inadmissible to Canada as a person described in paragraphs 34(1)(c) and 34(1)(f) of the Act because there are reasonable grounds to believe that:
(i) Mr. Harkat has engaged in terrorism by supporting terrorist activity; and
(ii) Mr. Harkat was, or is, a member of the Bin Laden Network which is an organization that there are reasonable grounds to believe has engaged or will engage in terrorism. [emphasis mine]
[8] For completeness, I detail Justice Dawson's three implausibility findings which she referred to in paragraph 113 of her reasons finding the security certificate issued against Mr. Harkat to be reasonable. At paragraph 105 of her reasons she wrote:
¶ 105 There is a presumption at law that testimony given under oath is truthful, unless there is a reason to doubt the truthfulness of the evidence. However, three aspects of Mr. Harkat's testimony, while possibly true, raise a real question as to whether his evidence is plausible or rings true. These areas were Mr. Harkat's evidence about how he acquired his job with the Muslim World League, his salary while employed by the Muslim World League in Pakistan, and his travel from Ottawa to Toronto, by van, with Mr. Ahmed Khadr.
[9] In respect of being hired by the Muslim World League for the warehouse supervisor job, Justice Dawson concluded:
¶ 106 ... Given Mr. Harkat's testimony that the Muslim World League did not want a Pakistani or an Afghani for the job, and that honesty was required for the supervisor position, Mr. Harkat's testimony sheds no light on how the Muslim World League satisfied itself that Mr. Harkat was sufficiently honest for the position and is difficult to believe.
[10] In terms of his salary, Justice Dawson said that no explanation was given as to why Mr. Harkat was paid so well and concluded: "It is again difficult to believe that someone in Mr. Harkat's circumstance would be paid $18,000 U.S. while working in a refugee camp in Pakistan".
[11] Finally, in terms of his travel from Ottawa to Toronto, by van, with Ahmed Khadr, a high ranking associate of Osama Bin Laden, Justice Dawson stated that both Mr. Harkat and Mr. Khadr allegedly worked in Pakistan in the area of Islamic charities but yet Mr. Harkat said he had little or almost no discussion with Mr. Khadr when he traveled with him in a van from Ottawa to Toronto. She observed Mr. Harkat said Mr. Khadr's only advice to him was to tell the truth to immigration authorities. Justice Dawson found:
[108] ...Given their common background in relief work in Pakistan, and notwithstanding Mr. Harkat's explanation that he was pre-occupied, I find it implausible that this was the extent of the conversation over a five hour journey with one of Osama Bin Laden's highest ranking authorities.
[12] She concluded:
¶ 109 These aspects of Mr. Harkat's testimony did not ring true as he testified. Plausibility findings are to be made only where the evidence is so far beyond the realm of what could reasonably be expected that one can safely conclude that the testimony cannot be true. While Mr. Harkat's testimony on these points could possibly be true, realistically one would not reasonably expect that Mr. Harkat would be hired and paid as he explained, or that there to be no real conversation with Mr. Khadr over a five hour journey. As. Mr. Harkat testified I found his evidence on these points to be inherently implausible and incredible.
[13] After receiving the applicant's material, the Chief Justice of this Court immediately contacted counsel for the parties to set a schedule of steps leading to fixed hearing dates for the public examination of Mr. Harkat's application for judicial release.
[14] In accordance with that schedule, counsel for the respondents filed, on October 7, 2005, public and confidential versions of a document entitled "Information pertaining to the application for release by Mohamed Harkat pursuant to section 84 of the Immigration and Refugee Protection Act" supported by two volumes of public materials and three volumes of confidential materials.
[15] After my undertaking the necessary study of all materials, both public and confidential, filed before Justice Dawson in connection with the security certificate and the additional materials filed for the purpose of this application, I, on October 14, 2005, in camera and ex parte, met with counsel and officials of the respondents for three hours and made several suggestions how the public version of the respondents' information document opposing Mr. Harkat's detention release might be expanded to ensure maximum public disclosure to Mr. Harkat and his counsel without compromising national security information. Issues of relevance were also raised. The Court met again, in camera and ex parte with the respondents' same persons on October 17, 2005, to hear their response to the Court's suggestions and explanations why the views of the Court on some of its October 14th proposals could not be accommodated.
[16] As a result of that exchange, counsel for the respondents served and filed on October 17, 2005, an amended and expanded public information document. I am satisfied it provides for maximum disclosure in the circumstances.
[17] The Court held public hearings on October 24, and 25, as well as on November 2, 3, 4 and 8, 2005. Evidence was also adduced by Mr. Harkat's counsel in camera in the presence of counsel for the respondents on November 25, 2005. The Court also heard from counsel for the respondents ex parte and in camera on November 4, 2005, for approximately two hours and on November 29 and 30, 2005, for approximately 10 hours.
B. The Federal Court of Appeal's decision in Almrei
[18] The leading case on the interpretation and application of subsection 84(2) of the Act is the Federal Court of Appeal's decision in Almrei v. Canada(Minister of Citizenship and Immigration), 2005 FCA 54, whose reasons for judgment were rendered by Justice Létourneau. I note that the Supreme Court of Canada recently granted leave to appeal this decision.
[19] Mr. Almrei, like Mr. Harkat, is a foreign national and has refugee but not permanent resident status in Canada. He is a citizen of Syria who has been detained on a security certificate since October 19, 2001, a certificate found to be reasonable by Justice Tremblay-Lamer on November 23, 2001. Mr. Almrei was, a few days later, informed the Minister of Citizenship and Immigration would be seeking an opinion that he constituted a danger to the security of Canada which might permit his removal to Syria despite his refugee status in Canada.
[20] From Almrei, supra, I take the following principles from Justice Létourneau's reasons:
(1) At paragraph 5 of his reasons, he stated "the facts in these proceedings require special attention because time and the behaviour of the parties are of the essence of a subsection 84(2) application for judicial release from detention". [emphasis mine]
(2) Broadly speaking, the objective of subsection 84(2) is "to ensure that due diligence will be exercised by the authorities in removing a foreign national who has been detained for security reasons" (paragraph 28). This subsection contains an obligation "to proceed with the removal within a reasonable time" (paragraph 28) [emphasis mine].
(3) Unreasonable delay by the authorities that unduly and unjustifiably prolongs the detention of a person is a violation of his or her constitutional right to liberty and security of the person (paragraph 29). [emphasis mine]
(4) "The primary focus of a section 84(2) application for judicial release is whether or not the foreign national will be removed within a reasonable time. The secret evidence is not needed for that purpose. It is only if there is evidence that the removal will not take place within a reasonable time that it is necessary to consider whether the release of the foreign national would pose a danger to national security or to the safety of any person" (paragraph 33). [emphasis mine]
(5) "In a section 84(2) application for judicial release, removal within a reasonable time, after the security proceedings are completed, is the central question" (paragraph 34) [emphasis mine].
(6) "A renewal of a section 84(2) application is possible if new facts are discovered or if there is a substantial change in circumstances since the previous application" (paragraph 36).
(7) The objective behind subsection 84(2) is "is to ensure judicial examination of detention and judicial protection against indeterminate or indefinite detention" (paragraph 36).
(8) On an application for judicial release pursuant to subsection 84(2), the burden is on the foreign national to prove that he or she will not be removed from Canada within a reasonable time and that his or her release will not pose a danger to national security or to the safety of any person. That burden has to be discharged on a balance of probabilities (paragraph 39). [emphasis mine]
(9) "A person who applies for judicial release under subsection 84(2) must establish four things:
(a) that he or she has not been removed from Canada;
(b) that at least 120 days have elapsed since the Federal Court determined the security certificate to be reasonable;
(c) that he or she will not be removed from Canada within a reasonable time; and
(d) that the release would not pose danger to national security or to the safety of any person (paragraph 41)";
(10) Of these four conditions, Justice Létourneau wrote the following at paragraph 42:
¶ 42 The first two conditions for the application of subsection 84(2) are straightforward and certainly not difficult to prove. As for the last two conditions, the person applying for judicial release is faced with an evidentiary burden. This means that he has to file some evidence that he has reasonable grounds to believe that the removal will not be effected within a reasonable time and that his release will not pose a danger to national security or to the safety of any person. That evidence has to be answered. Otherwise, the applicant will be entitled to release. This means that the burden then shifts to the party that opposes the release. In practice, the Crown cannot sit idle. It also bears an evidentiary burden, i.e. the burden of introducing evidence that the removal will occur within a reasonable time and, if necessary, that the applicant is still a threat within the terms of subsection 84(2) of the IRPA. The judge will then assess the evidence adduced by both parties and determine whether the conditions of subsection 84(2) are met. [emphasis mine]
(11) ". . . it is now known that a decision on the reasonableness of the security certificate is not a decision that is conclusive proof that the person is a danger to the security of Canada: see Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3, at paragraph 83. To put it in different terms, the decision on the security certificate is not determinative of the merit, opportunity and legality of the detention of that person, although it may be grounded on a finding that the person is a danger to the security of Canada pursuant to paragraph 34(1)(d) of the IRPA" (paragraph 48).
(12) "A subsection 84(2) application requires the judge to determine whether the foreign national will or will not be removed from Canada "within a reasonable time". This concept of "removal within a reasonable time" requires a measurement of the time elapsed from the moment the certificate was found to be reasonable and an assessment of whether that time is such that it leads to a conclusion that removal will not occur within a reasonable time. Concerns about a possible violation of the "reasonable time" requirement emerge after the 120 days mentioned in subsection 84(2) have elapsed and removal has not yet occurred" (paragraph 55). [emphasis mine]
(13) "Where the removal of a foreign national is delayed so as to bring into play the "reasonable time" requirement, the judge hearing the judicial release application must consider the delay and look at the causes of such delay" (paragraph 57).
(14) "Thus, in determining whether there will be execution or enforcement of the removal order within a reasonable time, a judge must look at the delay generated by the parties as well as at the institutional delay which is inherent in the exercise of a remedy . . . subsection 84(2) ... authorizes a judge to discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time, as required by the provision. In other words, where an applicant, rightly or wrongly, tries to prevent his removal from Canada and delay ensues as a result of his action, he cannot be heard to complain that his removal has not occurred within a reasonable time, unless the delay is unreasonable or inordinate and not attributable to him" (paragraph 58). [emphasis mine]
(15) ". . . to a limited extent . . . the length of the past detention and the conditions of detention are relevant factors to be taken into account in considering an application for judicial release under subsection 84(2) ...these two factors are far from being determinative of the application" (paragraph 80) [emphasis mine].
(16) "Indeed, the test for granting or refusing a subsection 84(2) application is future-oriented. Evidence has to be provided that the applicant will not be removed within a reasonable time. If the government produces, at the hearing, credible and compelling evidence of an imminent removal from Canada, the time already served and the conditions of detention lose much of their significance because what is at issue on the application is either more detention, release or removal. Since a planned removal within a reasonable time is compliance with the law, judicial release under subsection 84(2) ceases to be an option. Past delays, conditions of detention and even abuses, while they might give rise to other remedies, are no longer operative factors within the terms of subsection 84(2) since there is then no evidence that the applicant will not be removed within a reasonable time" (paragraph 81). [emphasis mine]
(17) "The length and conditions of past detention may be relevant in assessing the credibility of the evidence submitted that the removal is imminent. ... As for the conditions of detention, they may be such, especially when coupled with a lengthy detention, that the phrase "within a reasonable time" takes another significance, one of urgency. The removal must then be effected even more expeditiously in order to be in compliance with the requirements of subsection 84(2)" (paragraph 82). [emphasis mine]
(18) "It is in this light that, where necessary, the length and conditions of past detention must be looked at by the judge along with the operative causes of delay" (paragraph 83).
C. THE EVIDENCE
(1) The evidence of the applicant
[21] All of the applicant's evidence was adduced in public except in the in camera hearing held on November 25, 2005.
(a) The applicant's documentary evidence
[22] Prior to the public hearing which began on October 24, 2005, the applicant filed five classes of documents in four volumes as follows:
(1) The affidavit of Simon King for the purpose of informing the Court what had transpired from March 24, to October 24, 2005.
(2) The affidavit of Michael Nuyen informing the Court of the technology behind two types of ankle bracelets for electronic surveillance which would be worn by the applicant should he be released and be permitted within certain hours to be outside the family home accompanied by sureties.
(3) The affidavits of several sureties including the applicant's wife, Sophie Harkat, her mother, Pierrette Brunette, Pierre Loranger, a resident in the family home, Jessica Squires, Kevin Skerrett and Leonard Bush who would supervise Mr. Harkat's compliance with his release conditions.
(4) The affidavits of over 70 individuals who pledged several thousand dollars by way of contribution towards a surety or performance bond to ensure that Mr. Harkat would abide by the terms of his release;
(5) A compendium of material relevant to refoulement under section 115 of the Act; and
(6) A separate document from Human Rights Watch of April 2005 entitled "Still at Risk" (diplomatic assurances, no safeguard against torture)".
(7) The evidence of Dr. Cameron who conducted a psychiatric examination of Mr. Harkat in September of 2005.
[23] What Mr. King's affidavit discloses are the following material events:
(a) On March 24, 2005, two days after the filing of Justice Dawson's decision on the reasonableness of the security certificate, the Acting Manager of the Canada Border Services Agency (Agency or CBSA) in Ottawa (Acting Manager) wrote to Mr. Harkat informing him the CBSA, pursuant to paragraph 115(2)(b) of the Act, would be seeking from the Minister's delegate an opinion that he was a person who represents a danger to the security of Canada. The Acting Manager told Mr. Harkat an opinion rendered pursuant to that paragraph had serious consequences notwithstanding he had been found a Convention refugee. If the Minister was of the opinion that he should not be allowed to remain in Canada on the basis of the danger that he would represent to the security of Canada, it could result in his removal from Canada to his country of citizenship, Algeria. Mr. Harkat was told he could provide written representations on a preliminary basis and would be provided a further opportunity to rebut CIC's memorandum to the Minister's delegate containing CIC's recommendations and documents for the purpose of the danger opinion.
(b) On April 21, 2005, after obtaining a fifteen day extension, Paul Copeland, one of Mr. Harkat's counsel, made a preliminary submission enclosing several pieces of documentary evidence in the form of Country Reports on Algeria, originating from the U.S. Department of State for the years 2004 and 2005, from the testimony of a witness from Human Rights Watch before the U.S. House of Representatives Committee on International Relations and from an Amnesty International report on Algeria. Various other documents and expert evidence in the form of affidavits from Professors Entelis and Joffé on the situation in Algeria as well as a letter from Amnesty International dated April 21, 2005, opposing the deportation of Mr. Harkat to Algeria were also forwarded.
.
(c) In his April 21, 2005 letter to the Acting Manager, Mr. Copeland asked for immediate advice whether or not Canada was seeking diplomatic assurances from Algeria. He indicated he looked forward to receiving from CBSA Ottawa the complete package of material that will be presented to the Minister's delegate. He requested the name of the Minister's delegate and enquired about his or her qualifications, education, and training. He enquired whether there were any reports from UN groups, NGOs or other governments concerning the situation in Algeria that will be relied on by the Government of Canada.
(d) During the period between April 22, 2005 and September 12, 2005, Mr. King's affidavit exhibits correspondence exchanged between Mr. Copeland and the CBSA or Citizenship and Immigration Canada (CIC) or material received by Mr. Copeland on the situation in Algeria and, in particular, in respect of suspected members or sympathizers of groups such as Le Groupe Islamique Armé (GIA) which he passed on to the Canadian Government. For example, on May 13, 2005, Mr. Copeland forwarded to the Acting Manager CBSA Ottawa a news item concerning the torture of an Algerian individual. On June 9, 2005, Mr. Copeland wrote to CBSA Ottawa pointing out he had not received responses to four outstanding questions. He also enclosed two documents related to a decision concerning an Algerian national by the U.S. Board of Immigration Appeals dated May 26, 2005, upholding a refugee claim by concluding that the individual had met his burden of showing he had a well-founded fear of persecution in Algeria on account of political opinion. On June 29, 2005, Mr. Copeland wrote to the Minister of Foreign Affairs enquiring whether the Department was seeking diplomatic assurances from the Government of Algeria [emphasis mine]. On June 27, 2005, he was still asking for answers to his outstanding questions. He received a reply on July 28, 2005, from Louis Dumas, Manager, and Counter-terrorism in the National Security Division at CBSA. Mr. Dumas told Mr. Copeland three of his questions would be addressed in the CBSA's memorandum to the Minister's delegate. Mr. Dumas indicated the Minister's delegate would soon be selected. When acknowledging receipt of the Minister of Foreign Affairs' letter of acknowledgement, Mr. Copeland forwarded to the Minister a United Nations Press Release concerning Prime Minister Blair's plans to seek diplomatic assurances from certain countries. That UN press release dated August 23, 2005, was headed "Diplomatic Assurances not an Adequate Safeguard for Deportees". On September 12, 2005, Mr. Dumas advised, upon enquiry from Mr. Copeland, the memorandum for the Minister's delegate was forthcoming and would be transmitted shortly to Mr. Harkat and to him for comments.
[24] During the public hearing, Mr. Harkat's counsel, Paul Copeland and Andrew Webber, filed many documents. An important one was filed on October 29, 2005 entitled Memorandum to the CIC Minister's Delegate and related correspondence. The memorandum recommends Mr. Harkat be returned to Algeria. It was received by Mr. Copeland's office on October 24, 2005, when he was in Ottawa on the first day of hearing on Mr. Harkat's application. In fact, this document is CBSA's disclosure package in respect of the danger opinion it was seeking from the Minister's delegate. The disclosure package included its memorandum to the Minister's delegate and twelve appendices. Mr. Dumas' letter invited representations to the Minister within fifteen (15) days with advice that if Mr. Harkat or his counsel required additional time in order to submit representations, they should address any request to Mr. Peter Foley of the CBSA. I note CBSA's memorandum is 54 pages in length. In addition, the twelve (12) appendices are of unknown length.
[25] The related correspondence principally concerns the assurances Canada was seeking from Algeria in respect of Mr. Harkat, namely:
(1) A letter dated July 25, 2004, from the Canadian Embassy in Algiers to the Algerian Foreign Ministry. In that document, the Canadian Embassy asked;
(a) if Mr. Harkat was deported to Algeria, whether the Algerian Government would consent to his return and would issue him a travel document for this purpose;
(b) whether Mr. Harkat faces outstanding criminal charges in Algeria or has he been found guilty by an Algerian Court;
(c) if Mr. Harkat has been or would be found guilty by an Algerian Court and sentenced to death, would the Algerian Government guarantee that the sentence would not be carried out; and
(d) is the Algerian Government in a position to provide explicit guarantees Mr. Harkat will be treated in a humane fashion and would not be subject to torture or to any other inhumane or cruel treatment in conformity with international obligations contracted by Algeria by virtue of the Convention against torture; and the International Covenant on Civil and Political Rights.
(2) A response from the Algerian Government dated December 8, 2004. The Department of Foreign Affairs for Algeria advised:
(a) as to capital punishment while prescribed in the Algerian Penal Code for various crimes, there has been a moratorium in Algeria against execution of the death penalty since 1993 noting, however, that such a moratorium is not backed by any legislative or regulatory provision;
(b) Algeria has signed the UN Convention against torture and other relevant instruments which is a guarantee in itself. Moreover, the Algerian Ministry of Foreign Affairs recalled that Algeria recognized the competence of two UN surveillance committees operating under the Convention on torture and the one related to civil and political rights and regularly presented reports to those two committees; and
(c) the Algerian Government could not give any guarantees concerning the non-execution of a sentence imposed by an Algerian Court on account of the principle of the separation of powers;
(3) a further letter dated June 20, 2005, from the Canadian Embassy in Algiers asking whether Mr. Harkat is subject to any outstanding indictments or whether a warrant of arrest is in force against Mr. Harkat in Algeria;
(4) a letter dated July 17, 2005, in response from the Ministry of Foreign Affairs providing information with respect to Mr. Harkat from the archives of Bureau Interpol Alger. Specifically, it responded that "sur le plan interne l'intéressé ne faisait l'objet que d'une fiche d'attention, en date du 19/02/92, se rapportant à son séjour en Afghanistan"
[26] Mr. Copeland filed a letter dated October 26, 2005 to Mr. Foley at CBSA seeking, for the reasons set out therein, a three-month extension to make submissions countering CBSA's memorandum to the Minister's delegate and requesting whether that document could be provided in electronic format so that it might be forwarded in that manner quickly to his experts and to Human Rights Watch for input. He also asked the Minister of Public Safety about the qualifications of the Minister's delegate. I was informed by Mr. Copeland during the hearing that time for Mr. Harkat's reply to CBSA's memorandum to the Minister's delegate was only extended to mid-December 2005.
[27] I need not detail all of the other documents filed during the hearings by counsel for the applicant. I mention a few. They cover topics such as news items of recent events concerning the alleged CIA secret jails, the alleged treatment by the U.S. of Al Qaeda detainees and policy debates in the U.S. concerning detainee policy and torture. Other documents filed were a Newsweek article entitled "The Debate over Torture", November 21, 2005, detention proceedings in New Zealand concerning Mr. Zaoui, the Security Intelligence Review Committee Annual Report 2004-2005, a report by the Jamestown Foundation on Algerian Salafists and the new face of terrorism in Spain, the Human Rights Committee Report functioning under the International Covenant on Civil and Political Rights concerning Canada, a Human Rights Watch Report of October 2004 entitled "The United States 'Disappeared'", and a letter dated October 27, 2005 forwarded to the Federal Court by the International Civil Liberties Monitoring Group.
[28] To round out the description of documents filed by counsel for the applicant, as exhibit "U", is volume II of the applicant's bound document entitled Memorandum to the CIC Minister's Delegate and related correspondence. Included in that package, is a letter dated November 14, 2005, from Peter Foley of the CBSA consisting of additional disclosure related to the danger opinion being sought. Amongst those documents is found correspondence concerning the assurances Canada is seeking from Algeria in respect of Mr. Harkat. First, there is a letter dated September 5, 2005. Canada asked the Algerian Ministry of Foreign Affairs two questions: the first was information to determine the last date of departure of Mr. Harkat from Algerian territory. The second asked for written confirmation from Algeria whether Mr. Harkat currently faces criminal charges or whether there is an existing warrant of arrest against him. The Algerian Ministry of Foreign Affairs responded on October 26, 2005. It advised Canada that Mr. Harkat, at no time, has been the subject of a criminal proceeding in Algeria nor is he or has been the subject of an arrest warrant. Algeria advised Canada that the Ministry would be transmitting to Canada information concerning the date of Mr. Harkat's last exit from Algeria. Counsel for the applicant also filed a copy of a memorandum of understanding between the Government of the United Kingdom and the Government of Jordan regulating understandings with respect to specified persons prior to deportation.
(b) The oral evidence on behalf of the applicant
[29] Three classes of witnesses deposed oral testimony on behalf of Mr. Harkat and were cross-examined. Mr. Harkat himself, Mrs. Harkat, her mother and other proposed supervisory sureties and other witnesses, namely, Mr. Nuyen and Dr. Cameron.
[30] Mr. Harkat's testimony was brief. He expressed his strongly held fear of return to torture if deported to Algeria and the nightmares which were associated with this fear. He denied ever supporting Islamic extremism and ever supporting the Osama Bin Laden Network. He avowed being against violence to human beings. He talked about his bank accounts and lack of funds. He denied having friends associated with Islamic extremism or supporting violence. He did not adduce any evidence in support of his claims or any evidence corroborating any of them. He testified he would respect the release conditions which are proposed in connection with his application for judicial release.
[31] The essence of Sophie Harkat's testimony and those of other proposed supervising sureties concerned their duties and responsibilities as supervising sureties, their knowledge of the conditions which would surround his proposed release from detention and their obligation to immediately notify the authorities if those conditions were breached. Briefly stated, those conditions are analogous to house arrest: a strict curfew, inability to be outside the family home unless in company of a supervising surety; no use of telecommunication devices; no internet access; reporting to authorities; wearing of an electronic bracelet; no association with specified persons; no speaking Arabic over the one land line telephone access which would be available to him in the family home. Mrs. Harkat and all of the other proposed supervising sureties believed Mr. Harkat would live up to these conditions and if he breached them, they would immediately report him to the authorities. In addition, the supervising sureties testified to the considerable amount of money they were willing to put up which they were aware they would lose if release conditions were not complied with.
[32] Mr. Nuyen is a project manager for JEMTEC Inc. JEMTEC provides services related to the electronic monitoring of the activities of individuals who wear an anklet which functions as a transmitter. He had been retained by counsel for the applicant. He described two systems: a basic electronic monitoring system and a more sophisticated system called passive GPS tracking system. He touched upon an even more sophisticated tracking system known as active GPS tracking although he admitted that this technology albeit in expanding use in the United States, was not extensively known in Canada but could be available. He described publicly the limitations surrounding these systems. After hearing his testimony and at the request of counsel for the respondents, I heard evidence in camera and ex parte on the operational limits of the technology and how Mr. Harkat could operationally exploit the limitations. I was of the view the operational limits of the technology should not be disclosed in public as such disclosure would be detrimental to national security. I rejected the remaining evidence tendered in camera and ex parte, being of the view it should be presented in public.
[33] Dr. Colin Cameron is the Medical Director of the Trauma Disorders Program at the St-Lawrence Valley Correctional and Treatment Centre and an Assistant Professor of Psychiatry at the University of Ottawa. On September 27, 2005, he conducted a three-hour psychiatric assessment of Mr. Harkat at the Ottawa-Carleton Detention Centre by giving him a battery of tests. Based on his assessment of Mr. Harkat, Dr. Cameron expressed the belief that he suffers from major depression and symptoms of post-traumatic stress disorder. He said Mr. Harkat's mental health was liable to worsen the longer he stayed incarcerated. In particular, he stated in his testimony