Harkat (Re)

Harkat (Re)
Court (s) Database
Federal Court Decisions
Date
2010-12-09
Neutral citation
2010 FC 1242
File numbers
DES-5-08
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20101209
Docket: DES-5-08
Citation: 2010 FC 1242
Ottawa, Ontario, December 9, 2010
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
IN THE MATTER OF a certificate signed
Pursuant to subsection 77(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c.27, as amended (the “Act”)
IN THE MATTER OF the referral of that
Certificate to the Federal Court of Canada
Pursuant to subsection 77(1) of the Act;
AND IN THE MATTER OF Mohamed HARKAT
AMENDED REASONS FOR ORDER AND ORDER
1. Introduction
[1] Parliament has designed a security certificate regime that provides a named person such as the Applicant, Mohamed Harkat, with a fair hearing. That regime also protects information which, if disclosed, would harm Canada’s national security or the safety of any person. While national security considerations may preclude the disclosure of information, the procedure set out in the Immigration and Refugee Protection Act (“IRPA”) requires the provision of summaries throughout the proceeding to the named person to ensure that he is reasonably informed of the case made by the Ministers against him. To compensate for the absence of Mr. Harkat and his counsel during the in camera proceeding (“closed hearings”), special advocates are appointed to protect his interests. Mr. Harkat takes the position that such a scheme is unfair and does not enable the named person to be informed of the case that he has to meet, as there is a failure to disclose relevant evidence. It is further submitted that allowing inadmissible evidence and permitting a decision rendered based on evidence not provided to the named person breaches the principles of fundamental justice. He also submits that the use of special advocates and an improper balance of interests for disclosure purposes under the IRPA are not consistent with the principles of fundamental justice and section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). Mr. Harkat further argues that such infringement of section 7 cannot be justified under section 1. On the other hand, the Ministers argue that the legislation strikes an appropriate balance between the protection of confidential information and the protection of the rights of the named person, which is not inconsistent with the principles of fundamental justice. In the alternative, the Ministers submit that the provisions at play are saved by section 1 of the Charter. As it will be seen, the security certificate regime is ruled to be in accordance with the principles of fundamental justice and section 7 of the Charter, and, in the alternative, is saved by section 1. The motion challenging the constitutionality of the relevant provisions of the IRPA is dismissed.
INDEX (by paragraph numbers)
1. Introduction 1
2. The constitutional question 2-4
3. Brief history of the proceeding 5-21
4. Brief review of the Reasonableness hearing – summaries, 22-24
communications and orders
5. Factual allegations made against Mr. Harkat and disclosure of evidence 25-34
6. Parties’ positions - summaries of submissions made by Mr. Harkat 35-42
- summaries of submissions made by the Ministers 43-48
7. Overview of the new legislative IRPA provisions 49-68
- The new detention review provisions 69-72
- The appeal provisions under the new legislation 73
8. The IRPA special advocate system compared to other systems 74-80
9. Section 7 of the Charter and the principles of fundamental justice 81-83
10. What are the relevant principles of fundamental justice? 84-91
11. If required, can Section 1 of the Charter receive application in such a case? 92-96
12. The issues 97-98
13. What is national security information? 99-105
14. Have the liberty and security rights of Mr. Harkat been violated by the 106-113
effects of the legislation?
15. Is it acceptable under section 7 of the Charter that national security 114-126
information requires legal protection?
16. Are the protections found in the new IRPA substantive and meaningful 127-143
substitutes to ensure the safeguard of the principles of fundamental
justice while protecting national security information?
16.1 Are the disclosure provisions in the IRPA (paragraphs 83(1)(c) to 144-162
83(1)(e) unconstitutional because they do not strike a balance with
the public interest as in subsection 38.06(2) of the Canada Evidence
Act?
16.2 Are the IRPA provisions requiring the special advocates to seek 163-184
judicial authorization prior to communicating with anyone too
broad?
17. Other Issues 185-188
- The Standard of Proof 189-191
- The Admissibility of the Evidence 192-195
- The decision on the reasonableness of the certificate may be 196-202
based on information unknown to the named person or included
in summaries of information
18. Conclusion in response to the first question 203-204
19. Section 1 205-208
19.1 The Oakes test 209
19.1.1 A pressing and substantial objective 210-217
19.1.2 Are the legislative provisions in issue rationally connected 218-221
to this pressing and substantial objective?
19.1.3 Is there a minimal impairment of the rights? 222-227
19.1.4 Are the effects of the infringement proportional to the 228-232
importance of the objective?
19.1.5 Conclusion on section 1 233
20. Conclusion 234-235
21. Certified questions 236
22. The Order 237
Appendix A Latest conditions of release of Mr. Harkat
Appendix B List of judgments, orders, communications and summaries issued
2. The constitutional question
[2] Do sections 77(2), 78, 83(1)(c) to (e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(b) of the IRPA violate section 7 of the Charter in that they do not provide for fair trial standards, fail to grant to the named person the right to know and answer the case made against him and make it impossible for the Court to render a sufficiently informed decision on the basis of the facts and the law?
[3] Sections 1 and 7 of the Charter provisions read as follows:
Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Droits et libertés au Canada
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Vie, liberté et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
[4] The relevant IRPA provisions read as follows:
Filing of evidence and summary
77(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the certificate is based, and a summary of information and other evidence that enables the person who is named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed.
Dépôt de la preuve et du résumé
77(2) Le ministre dépose en même temps que le certificat les renseignements et autres éléments de preuve justifiant ce dernier, ainsi qu’un résumé de la preuve qui permet à la personne visée d’être suffisamment informée de sa thèse et qui ne comporte aucun élément dont la divulgation porterait atteinte, selon le ministre, à la sécurité nationale ou à la sécurité d’autrui.
Determination
78. The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not.
Décision
78. Le juge décide du caractère raisonnable du certificat et l’annule s’il ne peut conclure qu’il est raisonnable.
Protection of information
83.(1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:
(c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person;
(d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;
(e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed;
Protection des renseignements
83.(1) Les règles ci-après s’appliquent aux instances visées aux articles 78 et 82 à 82.2:
c) il peut d’office tenir une audience à huis clos et en l’absence de l’intéressé et de son conseil — et doit le faire à chaque demande du ministre — si la divulgation des renseignements ou autres éléments de preuve en cause pourrait porter atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
d) il lui incombe de garantir la confidentialité des renseignements et autres éléments de preuve que lui fournit le ministre et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
e) il veille tout au long de l’instance à ce que soit fourni à l’intéressé un résumé de la preuve qui ne comporte aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui et qui permet à l’intéressé d’être suffisamment informé de la thèse du ministre à l’égard de l’instance en cause;
(h) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence;
h) il peut recevoir et admettre en preuve tout élément — même inadmissible en justice — qu’il estime digne de foi et utile et peut fonder sa décision sur celui-ci;
(i) the judge may base a decision on information or other evidence even if a summary of that information or other evidence is not provided to the permanent resident or foreign national; and
i) il peut fonder sa décision sur des renseignements et autres éléments de preuve même si un résumé de ces derniers n’est pas fourni à l’intéressé;
Restrictions on communications — special advocate
85.4(2) After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate.
Restrictions aux communications — avocat spécial
85.4(2) Entre le moment où il reçoit les renseignements et autres éléments de preuve et la fin de l’instance, l’avocat spécial ne peut communiquer avec qui que ce soit au sujet de l’instance si ce n’est avec l’autorisation du juge et aux conditions que celui-ci estime indiquées.
Disclosure and communication prohibited
85.5 (b) communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel.
Divulgations et communications interdites
85.5 b) de communiquer avec toute personne relativement au contenu de tout ou partie d’une audience tenue à huis clos et en l’absence de l’intéressé et de son conseil dans le cadre d’une instance visée à l’un des articles 78 et 82 à 82.2.
Brief history of the proceedings
[5] A certificate stating that Mr. Harkat is inadmissible on security grounds (the “2008 Certificate”) was signed by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration and referred to the Federal Court under the new Immigration and Refugee Protection Act (the “New IRPA” or “ IRPA”) legislation on February 22, 2008. It is alleged that Mr. Harkat is inadmissible on security grounds for engaging in terrorism, being a danger to the security of Canada, being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism (see paragraphs 34(1)(c), (d) and (f) of the new IRPA).
[6] On February 22, 2008, an Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act (“Bill C-3” or the “New IRPA”), came into force in response to the rulings of unconstitutionality of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, (“Charkaoui #1”). The Court held that the former legislation violated section 7 of the Charter in that it violated the named person’s right to know and answer the case against him and that it could not be saved by section 1 of the Charter because it did not minimally impair the rights in question. It also declared that the former subsection 84(2) governing the application for judicial release violated section 9 and paragraph 10(c) of the Charter by not providing timely detention review for foreign nationals. Bill C-3 made substantial modifications to the procedure governing the judicial review of certificates as well as to the applications for detention release in that context. These amendments included a new national security information disclosure process with the addition of special advocates to represent the interests of the named persons in the closed hearings. Bill C-3 also eliminated the distinction between permanent residents and foreign nationals for the purposes of the judicial interim release. Mr. Harkat’s 2008 certificate was signed after the enactment of Bill C-3. The Ministers also sought the status quo of his conditions of release.
[7] On June 26, 2008, the Supreme Court of Canada rendered a second decision on the security certificate process in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 (“Charkaoui #2”). In that appeal, Mr. Charkaoui sought a stay of proceeding given the destruction of original notes taken by the Canadian Security Intelligence Service (“CSIS”) during interviews with him. The Supreme Court allowed Mr. Charkaoui’s appeal in part. While a stay of proceedings was found to be premature, the Court held that the destruction of operational notes was a serious breach of CSIS’s duty to retain and disclose information. Justices Lebel and Fish wrote on behalf of the Court at para. 53:
But whether or not the constitutional guarantees of s. 7 of the Charter apply does not turn on a formal distinction between the different areas of law. Rather, it depends on the severity of the consequences of the state’s actions for the individual’s fundamental interests of liberty and security and, in some cases, the right to life. By its very nature, the security certificate procedure can place these rights in serious jeopardy, as the Court recognized in Charkaoui. To protect them, it becomes necessary to recognize a duty to disclose evidence based on s. 7.
[8] In conformity with this judgment, this Court ordered the Ministers and CSIS on September 24, 2008 to “… file all information and Intelligence related to Mohammed Harkat including, but not limited to, drafts, diagrams, recordings and photographs in CSIS’s possession or holdings with the designated proceedings section of the Court.”
[9] The special advocates, with Ministers’ counsel and the designated judge, reviewed the Charkaoui #2 disclosure and identified the information which they felt was pertinent to the proceeding. As a result of the Charkaoui #2 review, informative documents were entered as exhibits (see ex. M13, M15, M17, M18, M25 and M26).
[10] In the fall of 2008, closed hearings were held concerning the Charkaoui #2 disclosure issue. Also, evidence was presented through a ministerial witness in support of the allegations made against Mr. Harkat and the reasonableness of the certificate. Since the Charkaoui #2 disclosure was ongoing, the cross-examination of the witness by the special advocates was limited to the issue of the danger associated with Mr. Harkat in relations to the review of his conditions of release. The cross-examination concerning the reasonableness of the certificate was postponed to November 23, 2009. During those closed hearings, the Court dealt with other matters initiated by the special advocates, such as their request to access a CSIS employee file and human sources files. This resulted in the issuance of reasons for judgment in both cases (see Harkat (Re), 2009 FC 203; and Harkat (Re), 2009 FC 1050).
[11] In October 2008, the Ministers consented to a change of residence, and to the removal of a condition that required Mr. Harkat to reside with two supervising sureties. The Ministers’ consent was conditional on Mr. Harkat’s agreement to a number of conditions, such as the instalment of surveillance cameras by the Canada Border Services Agency (“CBSA”). The Ministers also agreed to the removal of a supervising surety.
[12] In March 2009, this Court conducted a review of conditions of Mr. Harkat in public. Closed hearings were also held to deal with the classified information on danger. It concluded that his release without conditions would be injurious to national security, but confirmed his release under more appropriate conditions. For instance, Mr. Harkat could stay home alone between 8 a.m. and 9 p.m., provided he gave the CBSA a 36-hour notice and called them every hour on the hour (see Harkat (Re), 2009 FC 241).
[13] On April 23, 2009, as a result of the ongoing closed hearings, the Ministers disclosed facts publicly that had not been previously disclosed and on which they relied upon, as well as a summary and further disclosure of Charkaoui #2 documents (see ex. M15). This was tendered as an exhibit although counsel agreed that only the information dealt with during examination or cross-examination of witnesses could be relied upon by the designated judge. This document remains part of the public record insofar only as it shows the extent of the information disclosed to Mr. Harkat as a consequence of Charkaoui #2.
[14] On May 12, 2009, a search of Mr. Harkat’s residence took place. The search was reviewed by the Court and was held to be unjustified. All items seized were returned to Mr. Harkat by order of this Court (see Harkat (Re), 2009 FC 659).
[15] On May 26, 2009, a Ministers’ letter was delivered to the Court providing new information in relation to the reliability of a human source that had provided information on Mr. Harkat (the “polygraph issue”). As a result, the Court ordered the Ministers to file, on a confidential basis, the human source file, as the Court had evidence that led it to question the completeness of the information provided by the Ministers. In addition, on June 16, 2009, the Court issued a public direction offering three CSIS witnesses the opportunity to explain their testimony and their failure to provide relevant information to the Court. They accepted the Court’s invitation.
[16] In their submissions, the special advocates sought the exclusion of all information provided by the human source in question as a remedy pursuant to subsection 24(1) of the Charter. On October 15, 2009, the Court issued public reasons for order and order (Harkat (Re), 2009 FC 1050). The Court found that there were no intent to filter or conceal the information concerning the human source on the part of the CSIS employees and that there were insufficient grounds to rule that Mr. Harkat’s rights as guaranteed by the Charter had been violated. However, the Court ordered that another human source file relied upon by the Ministers be made available to the s`ecial advocates and to the Court, setting aside the human source privilege, to ensure that there were no further concerns in relation to the special advocates’ ability to fully test the evidence. This was found to be necessary to remedy the damage brought to the administration of justice and to re-establish a climate of trust and confidence in the proceeding. A new exhibit was filed by the Ministers which properly reflected the content of the human source file related to the polygraph test.
[17] On September 21, 2009, Mr. Harkat filed an application for an order reviewing his conditions of release. In light of a new threat assessment issued by the Ministers, an important number of restrictions were removed. Among others, Mr. Harkat could now go on outings without the presence of his sureties and was allowed to travel outside the Ottawa region under certain conditions (Harkat (Re), 2009 FC 1008). Some restrictions remain, which can be found in Appendix “A” of the present Reasons.
[18] During the closed hearing prior to the beginning of the public hearing on the reasonableness of the certificate, an issue arose as to third party information that the special advocates considered necessary to be transmitted to Mr. Harkat. This information is protected from disclosure by a caveat in the Intelligence world, to the effect that permission must be obtained for disclosure. This sensitive issue was addressed extensively during closed hearings. The special advocates agreed that some of the information was such that permission should be sought from those specific sources of information. A process was established by the Ministers to seek such permission in specific cases. Some of this information was eventually disclosed to Mr. Harkat through summaries or communications.
[19] The special advocates and public counsel sought to obtain updated information on Zubaydah and Wazir, two individuals alleged to have links with Mr. Harkat. Closed hearings were held and the matter was reviewed at length. When possible, public communications of the information were provided (see for example communication dated May 12, 2010). At the end of the public hearings, the Court informed the parties that any new information concerning these two individuals could be filed with the Court until August 31, 2010, although the matter was under reserve since June 2, 2010. A summary of information was forwarded to Mr. Harkat and public counsel as a result of an exchange of correspondence between the Ministers’ counsel, special advocates and the Court (see Oral Communication dated September 1, 2010).
[20] In accordance with the legislation and Charkaoui #2, full access to the bank of information in the hands of CSIS with regard to Mr. Harkat and other Intelligence information has been given to those involved in the closed hearings. It gave them access to targets, individuals of concern, methodologies and methods of operation, exchanges of information with foreign agencies, investigative reports, potential names of human sources, etc. It also gave a view of how the Canadian Security Intelligence Service (“CSIS”) operates internally when gathering and assessing information. This type of information is very sensitive.
[21] During this proceeding, Mr. Harkat was represented by three public counsel and two special advocates. Five counsels acted on behalf of the Ministers; only three of them were involved in closed hearings. The special advocates were present during all the public hearings and did intervene occasionally on a number of public matters.
4. Brief review of the Reasonableness hearing - summaries, communications and orders
[22] The public hearings on the reasonableness of the certificate of Mr. Harkat were held on November 4, 2008, from January 18 to February 12, 2010 and from March 8 to March 11, 2010. Public and closed oral submissions were heard between May 25 and June 1, 2010. Closed hearings were held on and off from September 2008 to May 2010. Two witnesses testified publicly on behalf of the Ministers in the public hearings. One of them was recognized as an expert witness.
[23] The respondent, Mr. Harkat, testified. In addition, seven witnesses testified on his behalf, out of which five were given standing as expert witnesses on a variety of subject matters. Another expert witness did not testify but his report was entered as an exhibit.
[24] Close to 20 witnesses have been cross-examined in closed hearings on a number of subject matters, such as the reasonableness of the certificate, the polygraph issue, the assessment of danger, Charkaoui #2 disclosure issues, human sources, etc. As a result, communications and directives have been disclosed to Mr. Harkat in order to inform him of what was discussed in camera, without disclosing information that could be injurious. As well, the special advocates requested to communicate with public counsel and other people on 18 occasions. Such requests were granted on more than 12 occasions. A compilation of all the judgments, orders, communications, directives and summaries is included at Appendix B.
5. Factual allegations made against Mr. Harkat and disclosure of evidence
[25] The security certificate is supported by a Classified Security Intelligence Report (“CSIR” or “TS SIR”) from which a Public Security Intelligence Report (“PSIR” – ex. M5) was filed on February 22, 2008, and provided to Mr. Harkat. This document was available at the time the two special advocates were appointed and a period of at least one month was available to allow discussion with Mr. Harkat and his public counsel prior to the period they became privy to the classified information. From then on, the special advocates needed to secure judicial authorization to communicate since they had access to the TS SIR. A Revised Public Security Intelligence Report (“RPSIR” – ex. M7), the result of an ongoing process of reviewing the classified information in closed hearing with all involved, which brought the disclosure of additional information, was provided on February 6, 2009. Generally, the RPSIR alleges that prior to and after arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activity as a member of the terrorist entity known as the Bin Laden Network (“BLN”). The allegations and evidence disclosed by the Ministers are as follows:
(a) Prior to arriving in Canada in October 1995, Harkat was an active member of the Bin Laden Network and was linked to individuals believed to be in this Network. He was untruthful about his occupation in Pakistan as he had concealed from Canadian authorities his activities in support of Islamist extremist organizations;
(b) In Algeria, Harkat was a member of the Front Islamique du Salut (“FIS”), a legal political party at the time. Harkat acknowledged his support for the FIS from 1989. After being outlawed in 1992, the FIS created a military wing, the Armée islamique du salut, which supported a doctrine of political violence, and was linked with the Group islamique armé (“GIA”). The GIA supported a doctrine of depraved and indiscriminate violence, including against civilians. When the FIS severed its links with the Group islamique armé (“GIA”), Harkat indicated that his loyalties were with the GIA. Harkat’s decision to align himself with the GIA is an indication of support for the use of terrorist violence;
(c) Harkat was associated with Ibn Khattab;
(d) The Algerian Mohammad Adnani (a.k.a. Harkat), a former soldier in Afghanistan, was a member of the Egyptian terrorist organization Al Gamaa al Islamiya (“AGAI”);
(e) After arriving in Canada, Harkat engaged in activities on behalf of the Bin Laden Network using methodologies typical of sleepers;
(f) In support of clandestine activities, members of the Bin Laden Network use false documents. When Harkat arrived in Canada he was in possession of two passports, a Saudi Arabian passport and an Algerian passport. The Saudi Arabian passport bearing the name Mohammed S. Al Qahtani was declared and was verified as fraudulent. Saudi passports were determined to be the passports of choice for Muslim extremists entering Canada because prior to 2002, Saudi passport holders did not require a visa to travel to Canada;
(g) Harkat used aliases such as Mohammed M. Mohammed S. Al Qahtani Abu Muslim, Abu Muslima, Mohammad Adnani, Mohamed Adnani, Abu Muslim, Mohammed Harkat, and Mohamed – the Tiarti, and concealed them in order to hide his identity and his real activities on behalf of the Bin Laden Network;
(h) Harkat kept a low profile as he needed status in Canada following which he would be “ready”. He was a sleeper who entered Canada to establish himself within the community to conduct covert activities in support of Islamist extremism;
(i) Harkat used security techniques and displayed a high level of security consciousness to avoid detection;
(j) Harkat concealed his previous whereabouts, including the period that he spent in Afghanistan. Harkat also concealed his links with Islamist extremists, including his relationship with persons in Canada, in part to disassociate himself from individuals or groups who may have supported terrorism;
(k) Harkat maintained links to the financial structure of the Bin Laden Network and concealed these links. He had access to and received, held or invested money in Canada originating from the Bin Laden Network. He also had a relationship with Hadje Wazir, a banker Harkat knew from Pakistan, who is believed to be the same individual as Pacha Wazir – an individual involved in terrorist financing through financial transactions for Ibn Khattab and the Bin Laden Network;
(l) Harkat assisted Islamist extremists in Canada and their entry into Canada, and concealed these activities. Harkat counselled Wael (a.k.a. Mohammed Aissa Triki) on his processing through Canadian immigration including denying knowledge of anyone living in Canada, and contacting Harkat once cleared through immigration. Harkat spoke to Abu Messab Al Shehre while he was in London, U.K. Al Shehre was searched upon arrival in Canada and found to be in possession of various documents (i.e. a shopping list of munitions and weapons) and paraphernalia (i.e. weapons or parts thereof), including a head banner usually worn by Islamist extremists when in combat, and believed to be covered with written Koranic verses. Al Shehre was detained and Harkat visited him in jail, but denied any previous contact; and
(m) Harkat had contacts with many international Islamist extremists, including those within the Bin Laden Network, and other numerous Islamist extremists, including Ahmed Said Khadr and Abu Zubaydah.
[26] As part of the RPSIR, the appendices contain a brief description of organizations or individuals such as Al-Qaeda, the Groupe Islamique Armé (“GIA”), Ibn Khattab and Ahmed Said Khadr. It also includes six CSIS summary interviews with Mr. Harkat from May 1, 1997 to September 14, 2001, as well as 13 summaries of conversations (the “K conversations”). These summaries relate to Mr. Harkat, either as a participant or as the subject of the conversation, from September 1996 to September 1998. They are offered by the Ministers as evidence in support of the allegations. The disclosure of such evidentiary information had never been done before. Through careful editing, the content of these conversations was extracted from CSIS’s book of information and was set out as exhibits. All counsel involved in the closed hearings made that possible. Finally, the RPSIR also has public information relied upon and immigration documents concerning Mr. Harkat. That type of evidence explains the Ministers’ view of Mr. Harkat’s situation.
[27] As a result of the ongoing review of the classified information during the closed hearings, more detailed factual allegations and evidence were provided to Mr. Harkat and filed publicly on April 23, 2009 (see ex. M10):
(a) Harkat operated a “guesthouse” in a suburb of Peshawar, Pakistan. There is information to suggest that the guesthouse may be linked to Ibn Khattab, and was used by mujahideen who were on their way to or from training camps in Afghanistan with the facilitation of Harkat;
(b) There is information that demonstrates that Harkat had access to sums of money when he required it. After he arrived in Canada, Harkat received money from contacts abroad; and
(c) There is information to the effect that Harkat worked for the same organization (Human Concern International) as Ahmed Said Khadr and was acquainted with Khadr before Harkat came to Canada. Also, there is information to suggest that Harkat was entrusted with specific tasks on behalf of Khadr.
[28] The special advocates took the position that such information had to be disclosed in order to properly inform Mr. Harkat. Documents properly prepared on the basis of sensitive information made that possible. On February 10, 2009, the Ministers filed a Supplementary Classified SIR, from which a Supplementary Public SIR (ex. M11) was extracted, alleging that:
(a) From 1994 to 1995 Abu Muslim (a.k.a. Harkat) was an active jihadist in Peshawar who was in the service of Ibn Al Khattab, not Al-Qaeda, for whom he ran errands and worked as a chauffeur;
(b) From 1994 to 1995 one of HARKAT’s friend’s was Dahhak. In February 1997, HARKAT contacted an individual in Pakistan whom he addressed as Hadje Wazir. Identifying himself as Muslim from Canada, HARKAT asked Wazir whether he knew Al Dahhak. Wazir advised in the negative. It is believed that Dahhak, Al Dahhak and Abu Dahhak (aka Ali Saleh Husain) are the same person, and that this person is associated to Al Qaeda; and
(c) While in Pakistan, HARKAT was known to have had shoulder length hair and a noticeable limp.
[29] This information became public as a result of numerous requests made by the special advocates and eventually with the collaboration of the Ministers’ counsel. As a result of the review of the Intelligence files as dictated by Charkaoui #2, more detailed information was disclosed to Mr. Harkat:
1996
Contacts with Mohammed Aissa Triki:
In September 1996. Harkat discussed with acquaintances the upcoming visit to Canada of his Tunisian friend, Wael who used the name of Mohamed Issa for his visit to Canada. (Wael is believed identical to Mohammed Aissa Triki). Harkat counselled “Wael” on his processing through Canadian Immigration. Harkat advised Triki to tell his story as it is and not to lie. Then, Harkat advised Triki to deny knowledge of anyone in Canada and instructed Triki to contact Harkat once he had cleared Canadian immigration. Triki, who claimed to have $45,000.00 dollars when he arrived in Montreal in September 1996, travelled directly to Ottawa, and took up residence with Harkat.
Triki left Toronto on October 23, 1996, carrying a false Saudi passport bearing the name Mohamed Sayer Alotaibi. Later, in November 1996, it was learned that Harkat would reimburse an individual for any out standing telephone call bills made by Triki while in Canada.
Immigration process:
In October 1996, it was learned that Harkat did not want to be associated with anybody until he had finished with his Immigration process.
Finance:
In November 1996, during a conversation between Harkat and an individual, the latter asked how much Harkat was willing to pay to purchase a car. Harkat advised that money was not an issue for him. He furthered that he would pay up to $8,000.00 dollars for a car in good shape. In December 1996, Harkat advised an individual that he would pay $7,650.00 for the car. When asked if he had the money ready, Harkat replied that his friend at the school where he learns English had guaranteed the money for him. Harkat furthered that the money was in the States, and he would be transferring the money.
Contacts with Abu Messab Al Shehre:
In November 1996, Abu Messab Al Shehre spoke to Harkat from London, United Kingdom. Al Shehre addressed Harkat as “Abu Muslim” and asked how the “brothers” were doing. When Al Shehre said that Harkat might remember him as “Abu Messab Al Shehre of Babi”, Harkat, who identified himself as Mohamed, quickly said that Abu Muslim was not there. When asked, Harkat told Al Shehre that he did not know where Abu Muslin was, and said he did not know when Abu Muslim would be returning. In concluding, Al Shehre said sorry to bother you, Sheikh Mohamed. Later, in November 1996, Harkat received an apology on behalf of Abu Messab Al Shehre for the use of Harkat’s alias, Abu Muslim. Harkat tried to avoid being called Abu Muslim. In December 1996, Harkat revealed to an individual that he knew Al Shehre very well and that Al Shehre was his friend.
On his arrival in Canada in December 1996, Al Shehre’s effects were searched by officials of Revenue Canada Customs and Excise (RCCE), now known as the Canada Border Services Agency (CBSA). In his possession were various documents and paraphernalia, including a shopping list of munitions and weapons (for example, Kalashnikov rifle, RPG (rocket propelled grenade)) and instructional documents on how to kill. Among the weapons seized by RCCE during their search were a nanchuk (a prohibited weapon under the Criminal Code (of Canada)), a garrotte, and a samurai sword (Wazi). Also found were a shoulder holster (reported to be for a Russian-made gun), a balaclava and a head banner usually worn by Islamist extremists when in combat, believed to be covered with written Koranic verses. As a result, Al Shehre was detained by RCCE.
Throughout this period, Harkat was regularly in contact with certain acquaintances in order to keep abreast of Al Shehre’s situation. Harkat urged one of them to find money to pay Al Shehre’s lawyer, and suggested that that person contact Al Shrehre’s brother abroad and ask him for money. Harkat kept himself abreast of Al Shehre’s situation until the latter’s deportation on May 29, 1997, to Saudi Arabia, where he was arrested on May 30, 1997.
1997
Immigration process:
In February 1997, Harkat informed some acquaintances that he had been accepted as a refugee, and that he was now able to apply for landed immigrant status.
Contact with Hadje Wazir:
In February 1997, Harkat contacted an individual in Pakistan whom he addressed as Hadje Wazir. Identified himself as “Muslim” from Canada. Harkat proceeded to inquire about “Khattab” (believed to be identical to Ibn Khattab) or any of his “people”. Wazir replied that Khattab had not shown up for a long time but his people had. At this point, Harkat asked if Wael (believed to be identical to Mohammed Aissa Triki) was visiting Wazir on a regular basis. Wazir advised in the positive. Harkat furnished his telephone number and asked to be contacted by Wael. Harkat further asked that his telephone number be provided either to Wael or any brother who showed at Wazir’s Centre to do transactions. Harkat went on to explain that he also used to do transactions at Wazir’s Centre.
In August 1997, Harkat said that he intended to travel to where Hadje Wazir was residing and ask him for money. Harkat added that he could easily get money from Hadje Wazir.
Contacts with Ahmed Said Khadr:
In March 1997, Harkat said he had met Ahmed Said Khadr at the Islamic Information and Education Centre (IIEC) in Ottawa and would meet him again shortly.
Links with Abu Zubaydah:
In March 1997, Harkat discussed financial arrangements with an acquaintance in Ottawa who stated that