Almrei v. Canada (Minister of Citizenship and Immigration)

Almrei v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2005-12-05
Neutral citation
2005 FC 1645
File numbers
DES-5-01
Notes
Digest
Decision Content
Date: 20051205
Docket: DES-5-01
Citation: 2005 FC 1645
Ottawa, Ontario, December 5, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
HASSAN ALMREI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND SOLICITOR GENERAL FOR CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] This case deals with the detention of an individual as a result of a "security certificate". Mr. Almrei, relying on subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), requests an order releasing him from detention. In balancing the interests of national security and personal liberty, I conclude that his release is not appropriate at this time. I do so on the basis of the public record. For the reasons that follow, his application is dismissed.
TABLE OF CONTENTS Paragraph
Number
1. Background 2
2. The Legislation 16
3. Jurisdiction 17
4. The Public Evidence 19
(i) Mr. Louis Dumas 20
(ii) P.G. 30
(iii) Alexandre Trudeau 52
(iv) Diana Ralph 58
(v) Hassan Ahmed 73
(vi) John Delarge 79
(vii) John O'Connor 91
(viii) David Goba 96
(ix) J.P. 99
(x) Hassan Almrei 134
(xi) The Psychological Assessment Report 169
(xii) The Affidavits 178
5. The Previous Testimony 179
(i) Frank Geswaldo 180
(ii) Peter Dietrich 181
(iii) Frank Lloyd Showler 185
(iv) Matthew Behrens 188
(v) Diane Ralph 190
(vi) Aly Hindy 191
(vii) Dr. Kamal Tawfik el-Helbawy 193
(viii) Dr. Khaled M. Abou el Fadl 204
6. The Sureties 223
7. Issue 234
8. Preliminary Observation 235
9. Removal Within A Reasonable Time 238
(i) The Law 238
(ii) The First Detention Review 239
(iii) The Present Proceeding 241
10 The Positions of the Parties 250
11. Analysis 254
12. Conclusion 272
13. Danger to National Security
or to the Safety of Any Person 273
(i) The Law 273
(ii) The First Detention Review 282
(iii) The Present Proceeding 285
14. The Positions of the Parties 290
(i) Mr. Almrei's Submissions 291
(ii) The Ministers' Submissions 300
(iii) Mr. Almrei's Reply 320
15. Analysis 334
(i) Participation in jihad 347
(ii) Document Forgery 382
(iii) Has the danger been neutralized? 402
16. Conclusion 427
17. Order page 161
18. Schedule "A" Detailed Chronology page 162
19. Schedule "B" Text of the Relevant
Statutory Provisions page 167
BACKGROUND
[2] The history underlying this matter is well documented. See: Almrei (Re) (2001), 19 Imm. L.R. (3d) 297 (F.C.T.D.); Almrei v. Canada (Minister of Citizenship and Immigration), 2003 FC 1394 (F.C.); Almrei v. Canada (Minister of Citizenship and Immigration) (2003), 245 F.T.R. 27 (F.C.); Almrei v. Canada (Minister of Citizenship and Immigration) (2004), 249 F.T.R. 53 (F.C.); Almrei v. Canada (Minister of Citizenship and Immigration) (2005), 251 D.L.R. (4th) 13, 330 N.R. 73 (F.C.A.) leave to appeal granted October 20, 2005, [2005] S.C.C.A. No. 223 (referred to throughout these reasons as Almrei); Almrei v. Canada (Minister of Citizenship and Immigration) 2005 FC 355. For context, a synopsis of the factual and procedural background is provided here.
[3] Mr. Almrei, a 31-year-old Syrian national, grew up in Saudi Arabia. Using a false United Arab Emirates passport, he arrived in Canada on January 2, 1999. Six months later, he filed a refugee claim and was found to be a Convention refugee.
[4] On October 16, 2001, a security certificate was signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada (the Ministers) under subsection 40.1(1) of the now repealed Immigration Act, R.S.C. 1985, c. I-2 (the former Act). The Ministers were of the opinion that Mr. Almrei was inadmissible by reason of subparagraphs 19(1)(e)(iii), 19(1)(e)(iv)(c), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the former Act. Those provisions state that no person shall be granted admission if there are reasonable grounds to believe that the person will engage or has engaged in terrorism or is a member of an organization that there are reasonable grounds to believe will engage, is or was engaged in terrorism. In accordance with subsection 40.1(2) of the former Act, Mr. Almrei was detained on October 19, 2001. He has remained in detention since that date.
[5] The certificate, pursuant to subsection 40.1(4) of the former Act, was referred to a designated judge of the Federal Court Trial Division, as it then was, for a determination as to its reasonableness. On October 24, 2001, an ex parte in camera hearing was held before Madam Justice Tremblay-Lamer. A summary of the information submitted at that hearing was subsequently provided to Mr. Almrei and his counsel. Justice Tremblay-Lamer's decision (finding the security certificate to be reasonable) was rendered on November 23, 2001, on the basis that the evidence (including evidence that was not disclosed to Mr. Almrei) supported "the view that Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Osama bin Laden and that Mr. Almrei is involved in a forgery ring with international connections that produces false documents".
[6] On December 5, 2001, Mr. Almrei received notice that the Minister of Citizenship and Immigration would be seeking an opinion that he was a danger to the security of Canada. Following an inquiry, Mr. Almrei (on February 11, 2002) was found to be inadmissible pursuant to paragraph 27(2)(a) of the former Act and a deportation order was issued.
[7] Later that year, on September 23rd, Mr. Almrei applied for a review of his detention under subsection 84(2) of the IRPA which came into force on June 28, 2002. The matter came before Mr. Justice Blanchard (a designated judge of the Federal Court Trial Division as it then was) and he held an ex parte in camera hearing in the absence of Mr. Almrei and his counsel to review updated information provided by the Ministers. Justice Blanchard was satisfied that the information submitted by the Ministers was relevant and that its disclosure would be injurious to national security. He approved the release of a summary of the information and it was provided to Mr. Almrei's counsel on November 19, 2002. Public hearings began on November 25th and 26th.
[8] Early in the new year, a decision (dated January 13, 2003) to deport Mr. Almrei to Syria (pursuant to paragraph 115(2)(b) of IRPA) was made by a ministerial delegate on the basis that Mr. Almrei was a danger to the security of Canada. Mr. Almrei was informed of the decision three days later and he promptly sought leave to apply for judicial review and judicial review of the decision. He also sought a stay of the execution of the removal order pending the disposition of his application. On the Minister's undertaking that he would not be removed until his application was determined, the request for a stay was withdrawn. Additionally, the Minister consented to the granting of leave for judicial review of the danger opinion. Mr. Almrei agreed to suspend the detention review with the proviso that upon seven days notice, by him, the review hearing would resume. A consent order to this effect was issued on January 21, 2003.
[9] The Minister of Citizenship and Immigration acknowledged serious errors with respect to the danger opinion and consented to Mr. Almrei's judicial review application. Mr. Almrei then requested that the detention review be resumed. Mr. Justice Blanchard granted the application for judicial review, remitted the matter to a different ministerial delegate for reconsideration and ordered that the detention review continue on June 24, 2003. Following hearings on June 24th and 25th, the parties were provided time to prepare and file written submissions.
[10] On July 28, 2003, Mr. Almrei received notice that the Minister would be making a further determination, pursuant to paragraph 115(2)(b) of the IRPA, as to whether he should be removed from Canada on the basis that he posed a threat to national security. Mr. Almrei requested and received an extension of time within which to make submissions regarding the risk that he would face if a danger opinion issued and he was, as a result, refouled to Syria. On October 23, 2003, a ministerial delegate determined that Mr. Almrei would not be at risk of torture if he were returned to Syria. In the alternative, the ministerial delegate found that any risk faced by Mr. Almrei in Syria was justified because of the danger he posed to the security of Canada. Mr. Almrei applied for leave and for judicial review of this decision.
[11] An affidavit, filed with the Federal Court on November 21, 2003, indicated that a date for Mr. Almrei's removal from Canadahad been selected. The removal was scheduled to occur within two and a half weeks, but a specific date was not disclosed for security reasons. Mr. Almrei applied for and was granted a stay of the removal order pending the disposition of the application for leave and for judicial review of the second danger opinion.
[12] In the meantime, the detention review hearing resumed for another four days in late November 2003 and continued from January 5th to January 7th, 2004. Mr. Almrei requested and was granted an extension of time (until February 18, 2004) to file submissions.
[13] On March 19, 2004, Mr. Justice Blanchard dismissed the motion for statutory release from detention. An appeal of that decision was dismissed on February 8, 2005. An application for leave to appeal to the Supreme Court of Canada from the decision of the Federal Court of Appeal was granted on October 20, 2005.
[14] The hearing of Mr. Almrei's application for judicial review of the second danger opinion occurred on November 16 and 17, 2004. Supplementary submissions were made in January 2005. On March 11 of 2005, Mr. Justice Blanchard allowed the application and ordered that the matter be remitted for redetermination by another delegate of the Minister.
[15] On May 10, 2005, Mr. Almrei submitted a written request for a review of his detention and filed a sparse "applicant's motion record" on May 30th. The detailed chronology of the various steps and hearings in relation to this matter is attached as Schedule "A" to these reasons.
THE LEGISLATION
[16] The text of the relevant provisions of the former Act as well as the corresponding provisions of the IRPA are attached to these reasons as Schedule "B". For ease of reference, subsection 84(2) of the IRPA is reproduced here.
Immigration Refugee Protection Act,
S.C. 2001, c. 27
84(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.
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
84(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.
JURISDICTION
[17] At the outset of the public hearing, counsel addressed the issue of the Court's jurisdiction to conduct a further detention review (a process not specifically provided for in the IRPA). The Ministers' submission is to the effect that the Federal Court of Appeal's decision in Almrei resolves any uncertainty regarding the question of jurisdiction. In view of the prospect of indeterminate detention, the Court of Appeal, it is said, adopted a purposive and principled approach to the interpretation of subsection 84(2) of the IRPA to ensure that the detention review process complies with the principles of fundamental justice and that the Act does not give rise to indeterminate detention. Mr. Almrei's counsel agrees with the Ministers' submission.
[18] Mr. Justice Letourneau, writing for a unanimous Court, states at paragraph 36 of Almrei, that where there is new evidence, or evidence of a change of circumstances, the appropriate procedure is to make a new application for a review of detention on the basis of that evidence. Thus, it appears that subsection 84(2) is to be interpreted expansively and, provided that there is evidence of a material change in circumstances since the previous determination, the Court has jurisdiction to undertake a detention review.
THE PUBLIC EVIDENCE
[19] The public evidence is comprised of: the affidavits that were filed by the applicant; the Ministers' filed documents consisting of the public summary approved by the Court on June 17th and the accompanying reference index containing 36 entries; the further disclosure document that was served and filed on July 15th with an accompanying reference index containing 10 entries; the evidence provided by the witnesses at the public hearing; the documents tendered as exhibits during the public hearing; the documents from previous hearings that were referred to and relied upon during the public hearing; the further disclosure document that was ordered on October 14th with an accompanying reference index containing four entries; and a further affidavit filed thereafter. Additionally, at the request and direction of counsel, I have reviewed portions (as directed by counsel) of the evidence of some of the witnesses who testified at earlier proceedings. A summary of the public testimony in this proceeding is contained in paragraphs 20 through 233 of these reasons. On the consent of the parties, on the first day of the public hearing, the Ministers' witnesses were called to testify first.
June 27, 2005
Mr. Louis Dumas
[20] Mr. Dumas is the Manager of the Security Review Division in the National Security Directorate of Canada Border Services Agency (CBSA) in Ottawa. He has been employed by the federal government for over fifteen years. He provided a history of his various past positions. He is now principally responsible for dealing with matters pertaining to section 34 (the inadmissibility provision that touches on issues of terrorism, subversion and espionage) of the IRPA.
[21] Mr. Dumas discussed the procedure surrounding the application of section 115 of the IRPA. He explained that the section applies to Convention refugees who have been determined to be inadmissible to Canada on security grounds. Such an individual, if ultimately found to constitute a threat to the security of Canada, may be removed notwithstanding that he or she is a Convention refugee. The process is normally referred to as a "danger opinion".
[22] The security review division is seized with making recommendations to the decision maker at Citizenship and Immigration Canada (CIC) and provides a body of work to the decision maker that addresses the issue of the threat to security. The process is a complex one. All of the evidence in relation to the individual in question is reviewed, including:
· the immigration documents;
· the different interactions the individual has had with immigration entities and authorities;
· the interviews that the individual might have had with CIC officials;
· the Canadian Security and Intelligence Service (CSIS) documents and appendices.
[23] After reviewing a multiplicity of sources and assessing their reliability, a 30-35 page document entitled a "danger memo" is prepared and submitted to the individual and counsel for comment. Fifteen days are provided for comment, but because the individual's fate is at stake, extensions (normally an additional 15 days) are granted upon request. Requests for further extensions are viewed sympathetically having regard to the seriousness of the matter and the principles of basic fairness.
[24] Upon receipt of the individual's comment, the memo and the comment are then forwarded to the Director General of Case Management Branch at CIC to initiate the decision-making process.
The Director General is responsible for appointing a ministerial delegate, authorized to render section 115 decisions, and engaging that decision-maker in making a fair and well-documented decision. The CIC decision should be available within 90 days of delivery of the memo and comment. The process is a priority for CBSA and for the government in general because the IRPA does not allow for permanent detention.
[25] If a decision is made that the individual can be removed, it is important that the division is in a state of readiness to effect removal. CBSA was ready for Mr. Almrei's removal in 2003 and had leased a plane and secured travel documentation, but removal did not take place because the removal decision was to be judicially reviewed. Mr. Dumas stated that he knew of no impediment to a request from Mr. Almrei asking to leave Canada, that he could make such a request at any time, but has not done so.
[26] On cross-examination, Mr. Dumas acknowledged that individual circumstances may require that more than 90 days is needed for preparation of a removal decision although an effort is made to engage a decision maker who will be able to deliver within 90 days. Contingencies can arise. For example, where the Court orders further disclosure that, in turn, precipitates an invitation for further submissions, the decision may be delayed.
[27] In response to questions posed by Mr. Almrei's counsel, Mr. Dumas said that he did not believe that a ministerial delegate has ever disagreed with the division's recommendation. He could not recall a recommendation not to remove ever having been made with respect to an individual for whom a security certificate had been issued. When asked whether anyone detained under the security certificate provisions had ever been released from custody, he recalled one individual who chose to go to a third country. In such a case, the Ministers must agree to the proposed third country and the travel document becomes a key component. It can usually be obtained expeditiously.
[28] Regarding the conditions of Mr. Almrei's detention, Mr. Dumas was questioned as to whether CBSA has taken any steps to deal with the issues that had been raised. He stated that CBSA is made aware of difficulties and makes an effort to engage people at the regional level and within CIC to address the issues that are presented. However, Mr. Dumas had no direct personal knowledge of Mr. Almrei's conditions of detention. Regarding potential alternatives to detention in solitary confinement, Mr. Dumas opined that regard must be had to alternatives to removal and that this is something that "is being very, very actively discussed at the moment" but he is "not privy to the heart of the discussions". With respect to alternatives pending the removal decision, Mr. Dumas feels that while solitary confinement is not the preferable solution, the alternative of being within the general population is an important consideration that cannot be taken lightly. He was not aware of any request by Mr. Almrei to be removed from solitary confinement nor was he aware of any request for the work of the division to be expedited.
[29] I pause to note that by correspondence dated July 4, 2005, the Ministers notified the Court that Mr. Almrei and his counsel were served with the Security Review Division's memorandum and its appendices on June 30, 2005. Mr. Almrei's counsel stated in written submissions that the memorandum was disclosed to the applicant on July 4, 2005, and that pursuant to an agreement with CBSA, the applicant's submissions were completed on July 29, 2005.
P.G.
[30] P.G., a CSIS employee, is the Senior Middle East Analyst in a branch known as RAP (Requirements, Analysis and Production). He regularly provides training on the Middle East and the nature of Islamic extremism to incoming intelligence officers. He has provided seminars on Islamic extremism to officials at the municipal, provincial, and federal levels across Canada.
[31] Among other things, he explained the distinction between intelligence officers and intelligence analysts. Officers are investigators who handle cases and investigate threats to the security of Canada. They are involved in resource recruitment and other activities. Analysts take a variety of information that has been made available from a variety of sources. The information is analysed and synthesized and, where required, papers are written that serve to outline the Service position on a particular matter. The papers are provided to senior Canadian government officials and they generally cover issues of national security.
[32] P.G. explained that the term "Al Qaeda" means three different things: Al Qaeda proper; Al Qaeda associated or affiliated; and Al Qaeda inspired. Historically, Al Qaeda was an organization founded in the late 1980s by Abdullah Azzam. He (Azzam) saw the organization as a vanguard to promote a particular version of Islam and to defend Islam from its perceived enemies. Upon Azzam's death in 1989, Osama bin Laden, a Saudi national, took effective control of the organization and publicly declared his desire to carry out acts of violence in the defence of his version of Islam. Al Qaeda is known to have been responsible for the attacks of 9/11 in the United States and for a series of other attacks around the world. Since the attacks of 9/11 and the invasion of Afghanistan shortly thereafter, what was known as Al Qaeda has changed.
[33] "Al Qaeda proper", or "core Al Qaeda", is the slimmed-down version of the original organization and remains intent on carrying out acts of violence. It is still led by Mr. bin Laden and by his second-in-command, an Egyptian named Ayman Al-Zawahiri. Although the group suffered from the attacks in Afghanistan and the loss of some of its leaders (who were killed or incarcerated), it still exists.
[34] "Al Qaeda associated or affiliated" relates to terrorist or extremist groups that have had links to Al Qaeda since the 1990s. Two examples are the Libyan Islamic Fighting Group known as the LIFG and the Indonesian group known as Jemaah Islamiyah. These groups have collaborated and worked with Al Qaeda in the past.
[35] "Al Qaeda inspired" refers to individuals or small groups that share the same ideology as Al Qaeda and are as committed to acts of violence and acts of terrorism as are the core and affiliated groups.
[36] P.G. referred to statements that had been made by Osama bin Laden. In 1998, he (bin Laden) issued a famous fatwa in which he called for a campaign against the Jews and Crusaders (Christians), because of their attacks on Islam. In that fatwa, he called upon all Muslims to kill Americans and Westerners (whether civilian or military), wherever they are located. A more recent statement, in October 2004, occurred when Mr. bin Laden went on television just prior to the American presidential election to explain his campaign as a defensive one in which he was defending Islam from its persecutors and its oppressors. On two occasions, Mr. bin Laden has named Canada specifically as a country that is contributing to what we call the war on terrorism (what Al Qaeda would call a war on Islam) and, as a participant in that war, Canada is a viable target for retribution.
[37] The term "Osama bin Laden network", P.G. defined as: individuals who have pledged fealty or loyalty to bin Laden himself (core Al Qaeda); individuals who belong to groups that take their direction from Al Qaeda (Al Qaeda-affiliated); and individuals who belong to the larger network of individuals or small groups who believe or have adopted the wider ideology of bin Laden (Al Qaeda inspired). In a sense, the network consists of a variety of individuals with varying degrees of connectedness to Osama bin Laden himself or to Al Qaeda.
[38] It is the view of the Service that the capture or death of Osama bin Laden would have a negligible effect on the larger movement, whether it be core or inspired, for the simple reason that Al Qaeda is more than one individual. It was created to provide an example. The word "Al Qaeda" in Arabic means "the base", not in the military sense, but in the sense of something upon which to build. While we might welcome Mr. bin Laden's capture or demise, it would have a negligible effect on the desires, the intents, or the plans of these groups of extremists that fully intend to continue their campaign of terrorism.
[39] P.G. testified that Al Qaeda, as defined by the tripartite definition, constitutes a direct threat not only to Canada but to our closest allies. This threat has not diminished since 9/11. It has not diminished since the war on terrorism began in October 2001. The Service believes that the threat posed by Al Qaeda will be with us for the foreseeable future.
[40] P.G. described Ibn Khattab as an individual who fought in Afghanistan and who later devoted his efforts to Chechnya where the Chechens were fighting against the Russians for independence. He would place Mr. Khattab in the category of Al Qaeda affiliated as opposed to Al Qaeda core and stressed that Chechen affairs are not his specialty. Mr. Khattab was killed a number of years ago by, it is believed, Russian forces.
[41] In relation to Mr. Almrei, P.G. familiarized himself with the public summary just prior to the hearing. His evidence in relation to the particular allegations specific to Mr. Almrei was couched in general, rather than specific, terms.
[42] Regarding the allegation that Mr. Almrei is involved in the procurement of false documentation, P.G. explained the importance that such an activity has in the Al Qaeda or Osama bin Laden network operations. He stated that since 9/11, there has been increased international co-operation on the sharing of information with respect to Islamic extremists. Al Qaeda and affiliated and inspired organizations and individuals are aware of this. Hence, there is, if anything, an increased need for fraudulent documentation (such as passports, identity cards, birth certificates) to thwart the efforts to provide lists of known terrorists around the world. He pointed to the example of Mr. Ahmed Ressam (an Algerian-Canadian extremist who was arrested in Washington State trying to cross the border to carry out an act of terrorism in Los Angeles) who was able to procure false documentation based on a fraudulent Quebecbirth certificate that allowed him to evade security officials and travel relatively easily. The Al Qaeda network, he stated, will continue to seek to acquire false documentation to facilitate its operations worldwide.
[43] With respect to whether the identification of an individual, as one who may be a terrorist, has any impact on his or her usefulness, P.G. stated that the notoriety or public divulgence of one's name has little or no effect on that individual's usefulness to extremist organizations. When a person is committed ideologically to a cause such as that of Al Qaeda, the mere inconvenience of being identified publicly has no effect. By way of example, he referred to the well-known and well-publicized case of Mr. Ahmed Sayed Khadr, who was arrested in 1995 in Pakistan for his role in an attack on the Egyptian embassy in Islamabad. His release was granted after pressure from the Canadian government. Despite the notoriety and the fame that Mr. Khadr had gained throughout his arrest and trial, he returned to terrorism and was killed by Pakistani forces in 2004. Despite the fact that he was very well known to a large number of people, it had no effect on his desire and intent to engage in acts of terrorism.
[44] On the notion of "commitment", P.G. testified that people who believe wholeheartedly in the ideology and aims of an organization such as Al Qaeda essentially devote their lives to that cause. Their "devotion to the cause is not shaken with any degree of certainty". It is a choice that they have made; it is something they believe in fervently; and it is something that they will remain committed to as long as they live.
[45] The path that an individual adopts in embracing an ideology of terrorism or extremism can take place in a number of different ways. Individuals who, throughout the 1980s and 1990s, travelled to Afghanistan and lived or trained in camps that were either Al Qaeda or Al Qaeda affiliated received instruction on the ideology, its purpose, and its goals. These individuals would have pledged allegiance to these goals. With the demise of the camps in Afghanistan, there are other ways to learn about the ideology and to embrace it. There are individuals who have returned from Afghanistan and who seek to spread their ideology. Or, it could be as simple as going onto the internet and reading sources, reading statements, reading papers that explain the ideology, its goals and its intent. It is not possible to define a linear process through which a given individual will commit himself or herself to a movement of Islamic extremism.
[46] It is the belief of the Service that an individual who is alleged to have been involved in jihad in the 1990s and who is alleged to have had experience in document forgery would return to those activities upon release from detention, perhaps not immediately, but in time, and would adopt the same activities that had been engaged in previously. Detention does not operate as a deterrent to future activities. A number of individuals who had been incarcerated in Guantanamo Bay, upon their release, returned to the Afghanistan/Pakistan area and took up where they left off and engaged in operations against coalition forces in Afghanistan before they were captured. There are other examples in Morocco, Russia, and Indonesia where individuals who have spent time in prison or in detention have returned to their terrorist activities upon release. Mr. Lamari (a Spaniard of Algerian origin who was incarcerated in Spain in the late 1990s or early 2000s because of his membership in an extremist group) openly stated while in prison that he would seek retribution on the Spanish government for incarcerating him. He is believed to have been one of those involved, if not the mastermind, in the attacks in Madridin March 2004. It is the Service's assessment that detention does not act as a deterrent and does not serve to neutralize or make individuals less useful to the wider Islamic extremist movement.
[47] In summary, P.G. stated that the Service is of the opinion that Mr. Almrei continues to pose a threat to the security of Canada. That is based, in part, on his past activities both in having participated in a jihad and in his participation in document forgery. Secondly, given his belief, "his adoption of the ideology associated with Al Qaeda, based on those particular incidents and ideologies, [the Service] considers him to be a threat to the security of Canada".
[48] On cross-examination, P.G. initially agreed that it was a "fair assumption to make" that there are many individuals who took part in campaigns in Afghanistan and perhaps even Tajikistan who did not ultimately become supporters of Al Qaeda or the Osama bin Laden network and such groups. He later qualified his response (in speaking of Mr. Gar Pardy's evidence during the Arar inquiry) and said that, by itself, the fact of having been in Afghanistan, taken as an isolated act, in and of itself, does not constitute a threat. There is, he stated, "a very big difference between being in Afghanistan and participating in campaigns in Afghanistan".
[49] Regarding the commitment to the ideology, P.G. was asked if it was "impossible ever to renounce such a commitment". He replied that nothing is ever impossible. It is just highly improbable that individuals who have embraced this ideology so fervently would choose at one point to renege or to abandon that philosophy. He later explained that, from the perspective of Al Qaeda, the people are engaged in a war of survival. They see themselves on the defensive in a long-standing campaign against Islam and against Muslims. Hence, the commitment to the cause is a commitment for one's faith and in essence one's existence.
[50] While maintaining that he was not aware of any individual (who had been detained in Guantanamo Bay or similar facilities) who was released but did not take up terrorist activities following the release, he acknowledged that he was not aware of every individual who had been detained but released from Guantanamo Bay. He also acknowledged that the adoption of the ideology is pivotal. The following exchange occurred during cross-examination:
Q. There is also the adoption of the Al Qaeda ideology, which was also
reflected in your evidence?
A. That is correct.
Q. That is really a concern that informs the others. If he didn't show that
ideology any more, his participation in jihad would be essentially
irrelevant?
A. I would have to say that the adoption of the ideology is a driver for specific
activities, yes.
Q. Similarly with the document forgery ring. Without the driving force of the
ideology, the concern around national security tends to dissipate. I am not
going to suggest that it disappears completely, but it tends to dissipate?
A. I certainly could not exclude the possibility of document forgery but, in the
absence of the ideology, it would no longer be an issue of national security.
That is correct.
[51] In response to various questions by counsel regarding surveillance, mobility restrictions, house arrest and the like, P.G., while not conceding that they would act as impediments to clandestine behaviour and activities, acknowledged that they could do so.
June 28, 2005
Alexandre Trudeau
[52] Mr. Trudeau is the son of the late Prime Minister. He met Mr. Almrei at the Metro West Toronto Detention Centre while doing research for a potential documentary on the issue of security certificates. Mr. Trudeau visited Mr. Almrei twice and talked to him once on the telephone. He (Mr. Trudeau) was sympathetic to Mr. Almrei's condition.
[53] Mr. Trudeau stated that he has had substantial contact with Muslim communities in Canada, in the Middle East, and in other parts of the world. He has travelled to the Middle East since childhood and, over the past few years, has been doing documentary or journalistic work on issues in Iraq, Israel and Palestine. Mr. Trudeau found Mr. Almrei to be a man of faith and tolerance. He would place Mr. Almrei within the "centre of the spectrum" of followers of Islam.
[54] Mr. Trudeau feels that he has an instinct for knowing whom he can trust. Mr. Trudeau's issue is not to know what Mr. Almrei has done. He presumes that Mr. Almrei is innocent because he has not been charged or found guilty. Mr. Trudeau is prepared to post a conditional bond in the amount of $5,000. He understands that if Mr. Almrei were released on conditions and were to breach any one of the conditions, that he would be required to pay $5,000. Mr. Trudeau also understands that if he knew that Mr. Almrei breached a condition, he would be obliged to report the breach to the appropriate authority. Mr. Trudeau additionally indicated his willingness to act as an individual who could accompany Mr. Almrei, if Mr. Almrei were allowed out during the day.
[55] Mr. Trudeau's expressed motive for being a surety is "his country". He does not feel that it is in Canada's interest to detain people who have not been charged. He also believes that when people seek refuge, they do so under a certain amount of duress. The process, to a certain extent, requires lying. People facing torture, Mr. Trudeau stated, are willing to do a lot to escape the torture. Some lie and some do not.
[56] Mr. Trudeau said that he has never met Nabil Al Marabh, Ahmed Al-Kaysee, or Hoshem Al-Taha. He signed a letter supporting the release of Adil Charkaoui.
[57] On cross-examination, Mr. Trudeau related that he has never met Mr. Almrei's parents or any members of his family. He was not aware if any member of Mr. Almrei's family had ever put up any money for his release. Mr. Trudeau has met Mr. Almrei only in Canada and only since
Mr. Almrei has been detained.
Diana Ralph
[58] Dr. Ralph, a Canadian citizen, lives in Toronto in a triplex house that she and her wife, Ms. Jean Hanson, own. Dr. Ralph is on permanent disability leave from her position as Associate Professor of Social Work at Carleton University. She holds a Ph.D. in psychology and an M.S.W. Ms. Hanson has a Master's degree in counselling psychology.
[59] Dr. Ralph testified that she has known Mr. Almrei since she first offered to stand as a bail surety for him in June 2003. At that time, she had not met him. Her motive for offering to stand as a surety was a matter of principle. She viewed the fact that five Muslim men were being held "without due process" as unjust. She determined that the best way to be a surety would be to actually supervise him in her own home. For that reason, Dr. Ralph offered to have Mr. Almrei live in her home with her and her wife. Since then, she has developed a strong relationship with Mr. Almrei and sees him "mostly every week" and talks to him almost daily.
[60] Dr. Ralph is very fond of Mr. Almrei and describes him as a wonderful man. She stated that he is "gentle and kind and intelligent and funny and thoughtful". Their relationship is deep and, after "probably thousands of hours of conversation", she feels that she probably knows Mr. Almrei better than she knows her son. He has, "in fact, become like a son to [Dr. Ralph]".
[61] Dr. Ralph reiterated her offer to have Mr. Almrei live in their home. She and her wife have a basement apartment with a separate entrance that was renovated specifically for Mr. Almrei at a cost of $32,000. It is a one-bedroom apartment with a combined living/dining room/ kitchen area and a bathroom. An additional $6,000 was recently expended, in contemplation of Mr. Almrei's release, to move Dr. Ralph's counselling office from the basement to the main floor of the house.
[62] In addition to offering their home, Dr. Ralph and Ms. Hanson are prepared to post a bond in the amount of $10,000. Dr. Ralph trusts Mr. Almrei not to breach any conditions imposed by the Court because he has "consistently demonstrated his highly principled integrity and thoughtfulness". Dr. Ralph understands that if Mr. Almrei were released on conditions and he were to breach a condition, the $10,000 would be forfeited. She also understands that she would be obliged to report any breach.
[63] Dr. Ralph also provided the names of others (most of them from her neighbourhood) who would be prepared to accompany Mr. Almrei if he were to be allowed out. She testified that she has informed these people about the CSIS allegations against Mr. Almrei.
[64] Mr. Almrei and Dr. Ralph have talked about what he would do if he were released. For the first couple of months, he would require adjustment. She reported that he is hoping to get a job and to improve his written English. Dr. Ralph would like to see him in the Transitional Year Program (TYP) at the University of Toronto (a program designed to assist adults without a valid high school diploma to gain entrance to university). She thinks that he would be eligible.
[65] Dr. Ralph was adamant that she is not being hoodwinked by Mr. Almrei. She has had training in assessing and working with people. She has worked as a social worker, as a university professor teaching social workers and as a psychology professor. She has worked in psychiatric hospitals, with people in the corrections system, and with people in the child welfare system. She believes that she has a good "capacity to assess people and to tell when I am being conned".