Harkat, Re

Harkat, Re
Court (s) Database
Federal Court Decisions
Date
2005-03-22
Neutral citation
2005 FC 393
File numbers
DES-4-02
Notes
Digest
Decision Content
Date: 20050322
Docket: DES-4-02
Citation: 2005 FC 393
BEFORE THE COURT:
IN THE MATTER OF a certificate signed pursuant to
subsection 77(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, (the "Act");
AND IN THE MATTER OF the referral of that certificate
to the Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;
AND IN THE MATTER OF Mohamed HARKAT
REASONS FOR ORDER
DAWSON J.
[1] The Solicitor General of Canada and the Minister of Citizenship and Immigration (together the "Ministers") have signed a certificate in which they state that Mohamed Harkat is a foreign national who is inadmissible to Canada on security grounds. As required by subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") the certificate has been referred to the Court for determination as to whether the certificate is reasonable. These are my reasons for determining the certificate to be reasonable and for dismissing Mr. Harkat's challenge to the constitutional validity of the applicable legislation.
[2] The sections of the Act which are relevant to these reasons are sections 33 and 34 and sections 76 through 81. They are set out in the Appendix to these Reasons.
[3] In these reasons, I first address the procedural steps taken in order to disclose to Mr. Harkat as much information as possible in order for him to be reasonably informed as to the matters that gave rise to the security certificate and to allow him to place relevant confidential information before the Court. I then deal with Mr. Harkat's challenge to the constitutional validity, applicability or effect of sections 78 through 80 of the Act. Following that, I consider the statutory scheme, the applicable standard of proof, what it is that the Ministers are required to prove, and the applicable legal principles. Next, I outline the allegations concerning Mr. Harkat, as set out in the summary provided to him. I then turn to review the evidence, the manner in which the Court dealt with the confidential information before it, and my analysis of the evidence. Finally, I consider Mr. Harkat's submission that the Ministers breached their obligations as articulated by the Supreme Court of Canada in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3.
Table of Contents Paragraph Number
1. Procedural Steps Regarding Disclosure of Information [4]
2. The Constitutional Issues [23]
3. The Statutory Scheme, The Standard of Proof, What
the Ministers Must Prove and Applicable Legal Principles [35]
4. The Nature of the Allegations Concerning Mr. Harkat [48]
5. The Public Evidence [50]
(i) Mr. Harkat's testimony [51]
(ii) Mrs. Sophie Harkat's testimony [65]
(iii) Mr. Cretes' testimony [68]
(iv) Mr. Marchessault's testimony [71]
6. The Confidential Information [80]
(i) The need to keep certain security information confidential [81]
(ii) Disclosure in other cases [90]
(iii) Principles relevant to the assessment of confidential
information [93]
7. Analysis of the Evidence [102]
(i) Mr. Harkat's testimony and credibility [105]
(ii) Abu Zubaida [115]
(iii) Mr. Marchessault and the Documents about
the Competency and Efficiency of CSIS [124]
(iv) Theresa Sullivan's Involvement in the CSIS Investigation [136]
(v) Conclusions on the Evidence [142]
8. Did the Ministers breach their obligation as articulated by the
Supreme Court in Ruby v. Canada (Solicitor General)? [145]
9. Conclusion [149]
PROCEDURAL STEPS REGARDING DISCLOSURE OF INFORMATION
[4] The following information, describing the steps taken by the Court that led to the public hearing held to allow Mr. Harkat an opportunity to be heard, is reflected in a series of public Orders and Directions issued by the Court. Nonetheless, it is helpful, I believe, to review that chronology here.
[5] The security certificate was referred to the Court on December 10, 2002. Pursuant to the obligation imposed by section 78 of the Act, I examined the security intelligence report upon which the certificate was based within seven days of the referral of the certificate to this Court. That report consisted of a narrative prepared for the Ministers. Contained within the narrative were a large number of footnotes that referred to other documents which, in turn, were contained in a number of reference indexes that accompanied the narrative. Those accompanying documents contain the detailed information upon which the security intelligence report is based. In total, the narrative and reference indexes comprise 10 volumes.
[6] Thereafter, I heard the viva voce testimony of, and questioned, a representative of the Canadian Security Intelligence Service ("CSIS" or the "Service") about the compilation and preparation of the security intelligence report and how disclosure of the information contained in both the narrative and the accompanying reference indexes would be injurious to national security, or to the safety of any person. Having considered such testimony, I provided Mr. Harkat with a summary of the narrative and with copies of some of the documents contained in the reference indexes that, in my opinion, enabled Mr. Harkat to be reasonably informed of the circumstances that gave rise to the issuance of the security certificate. In total, six volumes of material were provided to Mr. Harkat. The principle applied in order to provide the summary and accompanying documents to Mr. Harkat was that all of the information and documents placed before the Court should be disclosed to Mr. Harkat, except where evidence satisfied me that the disclosure of information or documents would be injurious to national security or to the safety of any person. For the balance of these reasons, I will refer to the non-disclosed portions of the narrative and the non-disclosed documents as the "confidential information".
[7] On three subsequent occasions the Ministers requested, pursuant to subsection 78(e) of the Act, that the Court receive information in the absence of Mr. Harkat and his counsel.
[8] The first request was made on March 24, 2003. Pursuant to that request, on April 2, 2003, I received relevant information provided in confidence, in March of 2003, by a foreign agency to the Service, and heard evidence from a representative of the Service as to why disclosure of the information would be injurious to national security. After hearing such evidence, I required CSIS to seek the consent of the foreign agency to the disclosure of the information to Mr. Harkat, and adjourned the subsection 78(e) application for that purpose. The Court reconvened on April 22, 2003 and received advice that consent had been received from the foreign agency for the release of the most salient information. In the result, that information was put in a summary provided to Mr. Harkat with the Court's order of April 22, 2003. This information was to the effect that the Service was advised by a foreign agency that "Abu Zubaida was able to identify [Mr. Harkat] by his physical description and his activities, including that he operated a guest house in Peshawar, Pakistan in the mid-1990's for mujahedeen travelling to Chechnya".
[9] The second request was made on July 21, 2003 at the commencement of the hearing held in order to provide Mr. Harkat with an opportunity to be heard with respect to his alleged inadmissibility. The Court, as obliged by subsection 78(e) of the Act, adjourned to an in camera session, in the absence of Mr. Harkat and his counsel. The information provided by counsel for the Ministers related to, and described, two contacts between Mr. Harkat and the Service. I was satisfied that the information was relevant. Contained within the information provided to the Court was information which would disclose the identity of certain individuals and disclose matters related solely to operational detail. In my view, based on the information provided to me, release of that portion of the information would have been injurious to national security or to the safety of any person. Accordingly, a summary was prepared and provided to Mr. Harkat which contained all of the information provided to the Court, except the information related to the identification of certain individuals and operational detail.
[10] Mr. Harkat on two occasions sought further disclosure of information. On March 4, 2003, I heard a motion brought by Mr. Harkat seeking disclosure of:
a. A list of all names of individuals and their notes who had direct or indirect dealings with Harkat who work directly for or on behalf of CSIS or any other intelligence agency;
b. The complete immigration file for Harkat;
c. The evidence as it relates to Mr. Abu Zubaida, including witness statements and interviews notes;
d. The evidence as it relates to Harkat's alleged presence in Afghanistan including any witness statements, photographs, wiretaps and other electronic or postal interceptions, and interview notes;
e. The evidence as it relates to Harkat's alleged association with those who support international extremist networks, and his assistance to Islamic extremists, including witness statements, wiretaps and interview notes.
[11] For reasons delivered in writing on March 7, 2003, the motion was dismissed (Harkat (Re) (2003), 231 F.T.R. 19).
[12] On July 23, 2003, in the course of providing Mr. Harkat with the opportunity to be heard, he again requested disclosure in order to more precisely define the case to be met. For reasons reported as Harkat (Re) (2003), 243 F.T.R. 161, I gave leave to Mr. Harkat to deliver questions in writing for the purpose of clarifying any matter set out in the summaries provided to him. Such questions were to be served and filed on or before August 8, 2003. Counsel for Mr. Harkat did not provide such questions until his new counsel, Mr. Copeland, delivered more than 231 questions by letter dated July 8, 2004, and subsequent correspondence. The history of delay on the part of Mr. Harkat from July 2003 to June 2004 is reviewed at paragraph 52 of the Court's reasons delivered on December 10, 2004, reported as Harkat (Re), 2004 FC 1717; [2004] F.C.J. No. 2101. That history need not be repeated here.
[13] On June 30, 2004, on my own motion, I issued a Direction to the parties as follows:
Some time has passed since the Court examined the information on which the security certificate was based ("information") in order to consider whether disclosure of all or part of that information would be injurious to national security or to the safety of any person.
Counsel for the Ministers are requested to advise as to their availability during the weeks of July 19 and 26 for the purpose of reviewing the information in private with the Court, in the absence of Mr. Harkat and his counsel, for the purpose of determining if as a result of the effluxion of time any further summary of the information or evidence may be provided to Mr. Harkat. The anticipated duration would not exceed one day.
[14] In consequence, I sat on July 26, 2004 in camera and in the absence of Mr. Harkat and his counsel, heard evidence from a representative of the Service, and questioned the representative about whether any further portion of the confidential information could be disclosed to Mr. Harkat without posing an injury to national security or endangering the safety of any person. The hearing was adjourned to permit further inquiries to be made by the Service. I then heard further evidence on August 27, 2004 and the matter was further adjourned. Under the Court's order of October 4, 2004, an additional summary statement was provided to Mr. Harkat. This summary related to a person named Odeh who was trained as a terrorist in Afghanistan, and implicated in the bombing of the U.S. Embassy in Nairobi.
[15] Such disclosure was not viewed by counsel for Mr. Harkat as being significantly pertinent, and I did advise Mr. Harkat that I would make no finding adverse to Mr. Harkat on the basis of any information that may have been provided by Odeh. The disclosure was made because it represented a portion of the confidential information that subsequently could be released because the information could now be found in open source material.
[16] It was after I commenced that second review of the confidential information that the Court received Mr. Copeland's questions referred to earlier in these reasons.
[17] The questions posed by Mr. Copeland to some extent went beyond clarifying matters set out in the summary (as contemplated by the Court's order) and instead went to ensuring that information considered relevant by Mr. Harkat was put before the Court. To illustrate, the following questions were posed by Mr. Copeland:
17. Please advise Justice Dawson of any evidence the Service might have to support the allegation that my client was involved in helping Islamic extremists while he was in Pakistan?
[...]
30. The number of Islamic extremists my client has assisted in Canada.
31. Please advise me as to the dates and locations when such assistance is alleged to have been provided;
32. Please provide Justice Dawson with the names of those Islamic extremists;
33. and all evidence establishing the assistance my client provided to them?
[18] No objection was taken to the scope of the questions and I considered it appropriate for Mr. Harkat to ask such questions for the purpose of ensuring information he considered relevant or necessary was placed before the Court.
[19] Thereafter, on July 28, 2004, the Court received another request from the Ministers, pursuant to subsection 78(e) of the Act, that the Court sit to hear evidence or information in camera, in the absence of Mr. Harkat and his counsel. The information sought to be adduced in camera was said to be evidence to describe the nature and specifics of the injury to national security or to the safety of persons that would result if answers to certain of the questions posed by Mr. Copeland were given to Mr. Harkat or his lawyer.
[20] As a result of that request, on August 27, 2004, I sat in camera and in the absence of Mr. Harkat and his counsel to receive the written answers to all of the questions posed by Mr. Harkat, to hear the viva voce evidence of a representative of the Service, and to question under oath the Service's representative. Where the information sought by Mr. Harkat was already contained in the confidential information, the representative drew my attention to where within the record the information was located. Where the information was not already before the Court, the representative confirmed the correctness of the answers provided in writing to the Court, expanded upon some answers so as to satisfy me as to the completeness of the answers, and testified (and answered questions from me) as to why the disclosure of many of the answers provided to the Court would be injurious to national security or the safety of any person. The hearing was then adjourned, pending receipt of some additional information to more fully respond to the questions.
[21] On October 19, 2004, I sat and received such additional information. On October 20, 2004, a Direction was issued to the parties that confirmed that I had received answers to all of the questions that had not been answered to Mr. Harkat on the ground of national security. I was satisfied that all permitted information had been provided to Mr. Harkat. In the course of this process the written confidential answers provided to the Court were revised twice to more fully respond to Mr. Harkat's questions.
[22] In addition to those steps I also endeavoured to assist Mr. Harkat to focus upon the case to be met by providing, by Direction dated October 4, 2004, an interim ruling that, having reviewed the confidential information, I would "make no finding adverse to Mr. Harkat on the basis of any information concerning Mr. Harkat which may have been provided by Ahmed Ressam or Maher Arar." Later, on October 20, 2004, a similar Direction was issued with respect to Odeh. The October 20, 2004, Direction also referenced question 82 posed by Mr. Copeland which sought further information about any allegation that Mr. Harkat trained in Afghanistan. The question was not publicly answered on grounds of national security. I directed that, "[i]n view of the allegations that Mr. Harkat has been in Afghanistan and that he concealed his travel to Afghanistan, Mr. Harkat ought to adduce whatever evidence is available to him that touches on whether he was ever in Afghanistan (whether at a training camp or not) and whether he concealed that".
THE CONSTITUTIONAL ISSUES
[23] In the Notice of Constitutional Question served on behalf of Mr. Harkat, it was stated that Mr. Harkat sought: an order striking down sections 77 through 81 of the Act as being unconstitutional; or, in the alternative, an order that adequately "enables [Mr. Harkat] to know the case he has to meet, and that entitles him to do so".
[24] In his written submissions filed in this proceeding and in oral argument, the relief sought by Mr. Harkat was refined. Mr. Harkat seeks a declaration that sections 78 through 80 of the Act violate principles of fundamental justice protected by section 7 of the Charter. In the alternative, Mr. Harkat asks the Court "to modify the application of the legislation so as to require that a Special Advocate, such as in the United Kingdom's SIAC [Special Immigration Appeals Commission] process, be appointed to represent [Mr. Harkat] in the ex parte in camera proceedings".
[25] In response, the Ministers argue that designated judges inquiring into the reasonableness of a security certificate do not have jurisdiction to render a decision in respect of the constitutionality of the applicable legislation. In the alternative, the Ministers submit that, if section 7 of the Charter is engaged, the legislation complies with the principles of fundamental justice under the Charter.
[26] These issues were argued prior to the release, on Friday, December 10, 2004, of the Federal Court of Appeal's decision in Charkaoui v. The Minister of Citizenship and Immigration, 2004 FCA 421; [2004] F.C.J. No. 2060. Accordingly, on Monday, December 13, 2004, I issued a Direction affording counsel the opportunity of addressing written submissions to the Court in consequence of that decision. Timelines for the filing of any such submissions were set out in the Direction. Further written submissions were filed on behalf of the Ministers, but not on behalf of Mr. Harkat.
[27] In those additional submissions, counsel for the Ministers conceded that the Court of Appeal's decision Charkaoui made it clear that designated judges do have the authority to consider constitutional questions. Counsel also submitted that, on the basis of the decision, Mr. Harkat's constitutional arguments should be dismissed.
[28] I agree that, in Charkaoui, the Court of Appeal settled the jurisdictional issue and held that designated judges may, on motion made before them, determine constitutional issues raised in the context of examining the reasonableness of a security certificate. I therefore move to consider the constitutional issues raised by Mr. Harkat.
[29] As to whether sections 77, 78 and 80 of the Act violate principles of fundamental justice protected by section 7 of the Charter, counsel for Mr. Harkat conceded in oral argument that those sections are so similar to the provisions found in section 40.1 of the former Immigration Act, R.S.C. 1985, c. I-2 ("former Act"), that I am bound by the decision of the Federal Court of Appeal in Ahani v. Canada (1996), 201 N.R. 233 (leave to appeal to the Supreme Court denied, [1996] S.C.C.A. No. 496) and that I would also be bound by the decision of the Court of Appeal, when released, in Charkaoui.
[30] In Ahani, the Federal Court of Appeal upheld the decision of Madam Justice McGillis, reported at [1995] 3 F.C. 669, that the procedure set out in section 40.1 of the former Act was in accordance with the principles of fundamental justice.
[31] In Charkaoui, the Federal Court of Appeal found the process established in sections 77 and 78 of the Act fulfills the minimum requirements of the principles of fundamental justice (see, paragraph 122).
[32] In the result, the Federal Court of Appeal has authoritatively decided that the legislative scheme impugned in this proceeding by Mr. Harkat is constitutionally sound, and it conforms with rights protected by section 7 of the Charter.
[33] With respect to Mr. Harkat's argument that section 7 of the Charter requires the appointment of a special advocate, or amicus curiae, in Charkaoui, at paragraphs 123 through 126, the Court of Appeal found that the appointment of a special advocate was not required in order for the Court to provide a hearing that is in accordance with the principles of fundamental justice. By my written reasons, given for dismissing Mr. Harkat's motion that an amicus curiae be appointed (delivered on December 10, 2004 and reported at Harkat (Re), 2004 FC 1717), I gave reasons for my conclusion that there is nothing in the particular circumstances of this case that renders the Court incapable of properly balancing and protecting Mr. Harkat's right so as to provide a hearing that conforms to the principles of fundamental justice.
[34] In the result, Mr. Harkat's application for constitutional relief is dismissed.
THE STATUTORY SCHEME, THE STANDARD OF PROOF, WHAT THE MINISTERS MUST PROVE AND APPLICABLE LEGAL PRINCIPLES
[35] Before setting out the legal principles that are relevant to the determination of the reasonableness of a security certificate, it might be helpful to comment briefly on the statutory scheme found in the Act and some relevant jurisprudence. In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at page 733 the Supreme Court characterized the "most fundamental principle of immigration law" to be that "non-citizens do not have an unqualified right to enter or remain in the country". The Court went on to quote from its earlier decision, Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, that "[t]he Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so".
[36] Thus, Parliament has the right to enact legislation prescribing the conditions under which non-citizens are permitted to enter and remain in Canada and Parliament has done so in the Act. The Act is express that Canadian citizens have an absolute right to enter and remain in Canada upon satisfying an immigration officer as to their citizenship (subsection 19(1) of the Act). Permanent residents enjoy only a qualified right to enter and remain in Canada; for example, they must comply with any conditions imposed under the regulations enacted under the Act (section 27). Foreign nationals who are not permanent residents have no absolute right to enter and remain in Canada; for example, if granted temporary resident status they may enter and remain in Canada on a temporary basis, must comply with all conditions, must leave when required, and may re-enter Canada only if their authorization provides for re-entry (section 29). Both permanent residents and foreign nationals are inadmissible to Canada for such things as being a member of a group that there are reasonable grounds to believe engages in terrorism (section 34). A security certificate may only be issued in respect of a permanent resident or a foreign national (subsection 77(1)).
[37] Permanent residents named in a security certificate enjoy procedural rights not granted to foreign nationals. Permanent residents are not subject to mandatory detention while foreign nationals are (section 82). Permanent residents who are detained are entitled to regular reviews of their detention (sections 83 and 84).
[38] In this context, the hearing afforded to a person named in a security certificate by subsection 78(i) is designed to allow the person to respond to the allegation of the state that they are inadmissible with no right to remain in Canada.
[39] Turning to the principles that govern the determination of reasonableness, it is settled law that, in proceedings to determine the reasonableness of a security certificate, the Ministers are required to prove the existence of reasonable grounds upon which to believe certain facts. The Ministers are not obliged to prove the existence of those facts. See, for example, Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 at paragraph 2. In the present case, at issue is whether there are reasonable grounds to believe that Mr. Harkat is inadmissible for:
(i) engaging in terrorism; or
(ii) being a member of an organization that there are reasonable grounds to believe engages, or has engaged, or will engage in terrorism, or has or will engage in, or instigate, the subversion by force of any government.
[40] Proof of "reasonable grounds to believe" requires that evidence demonstrates an objective basis for the reasonable grounds. As the Court of Appeal observed in Charkaoui, supra, at paragraph 103, more than suspicion or a mere subjective belief is required in order for the "reasonable grounds" standard to be met.
[41] In Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 the Federal Court of Appeal, at paragraph 60, described the "reasonable grounds" standard as being a standard that, "while falling short of a balance of probabilities, nonetheless connotes a bona fide belief in a serious possibility based on credible evidence."
[42] Separate from the legal test to be met is the standard of proof. The standard of proof is proof on a balance of probabilities. See, Singh at paragraph 3 and the authorities cited therein.
[43] Where a security certificate asserts inadmissibility on more than one ground, each ground must be read disjunctively. If any one ground is established, the certificate is to be determined to be reasonable. See, Singh at paragraph 4 and Zundel (Re), 2005 FC 295 at paragraphs 16 and 17.
[44] As to the terms "terrorism" and the concept of being a "member" of a group, in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 98, the Court found that "terrorism" includes any "act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act".
[45] The term "member" is to be given an unrestricted and broad interpretation. See, Singh, at paragraph 52. "Member" may be equated with "belonging to" an organization. See Chiau, supra, at paragraph 57. See also: Poshteh v. Canada (Minister of Citizenship and Immigration, 2005 FCA 85; [2005] F.C.J. No. 381 at paragraphs 27 through 29.
[46] Finally, I note that section 33 of the Act provides that facts that constitute inadmissibility under section 34 of the Act "include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur".
[47] Having set out the legal principles which are to guide the inquiry into the reasonableness of security certificate, I turn to review the allegations made in respect of Mr. Harkat.
THE NATURE OF THE ALLEGATIONS CONCERNING MR. HARKAT
[48] As referred to above, the security certificate issued in respect of Mr. Harkat sets out the belief of the Ministers that Mr. Harkat is inadmissible to Canada on security grounds pursuant to paragraphs 34(1)(c) and 34(1)(f) of the Act. Those provisions make inadmissible to Canada a person who there are reasonable grounds to believe:
(i) has engaged, or will engage, in terrorism; and
(ii) was, or is, a member of an organization that there are reasonable grounds to believe has engaged, or will engage, in terrorism or an organization that has or will engage in, or instigate, the subversion by force of any government.
[49] It is the position of the Service, as set out in the summary of the confidential information, that:
1. Prior to arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activity, but he concealed from Canadian authorities that he had supported Islamic extremists and travelled to Afghanistan.
2. He is a supporter of Afghani, Pakistani and Chechen extremists.
3. Mr. Harkat supported terrorist activity as a member of the terrorist group known as the Bin Laden Network, which includes Al Qaida. Before and after he arrived in Canada Mr. Harkat was and is linked to individuals believed to be in this network.
4. Mr. Harkat is associated with organizations that support the use of political violence and terrorism.
5. 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, including the August 7, 1998 bombings of the United States' Embassies in Kenya and Tanzania, the October 12, 2000 bombing of the naval destroyer U.S.S. Cole in Yemen, and is suspected of being involved in the planning and execution of the September 11, 2001 World Trade Center and Pentagon attacks.
6. The Bin Laden Network, through Al Qaida, operated, and to some degree still operates, terrorist training camps and guest houses in Afghanistan, Pakistan and Sudan. The camps provide sanctuary, funds, military and counter-intelligence training including terrorist and guerrilla warfare techniques. The camps also teach the manufacture of explosive devices. It has been reported that as many as 5,000 militants may have been trained and dispersed to some 50 countries. One example of such a trainee is Ahmed Ressam. Mr. Ressam identified Abu Zubaida as the person who ran the Khaldun and Darunta training camps in Afghanistan where he trained. Mr. Ressam stated that Abu Zubaida arranged for his trip to Afghanistan, and provided him with Afghan clothes and an Afghan guide in order to take Mr. Ressam from Pakistan to the Khaldun camp.
7. The Bin Laden Network uses "sleepers" and suicide operatives in international terrorist operations. "Sleepers" are established in foreign countries for extended periods of time prior to a given operation being executed.
8. Mr. Harkat was a supporter of the Front islamique du salut ("FIS") in Algeria.
9. When the FIS severed its links with the Groupe islamique armée ("GIA"), he indicated that his loyalties were with the GIA. The GIA seeks to establish an Islamic state in Algeria through the use of terrorist violence, and it has engaged in civilian massacres. Mr. Harkat's decision to align himself with the GIA indicates his support for the use of terrorist violence.
10. Mr. Harkat has lied to Canadian officials about his:
1. period of work for a relief company in Pakistan;
2. travel to Afghanistan;
3. association with those who support international extremist networks;
4. use of aliases; and
5. assistance to Islamic extremists.
Such lies were for the purpose, in part, of disassociating himself from individuals or groups who support terrorism, or who may have participated in the Bin Laden Network.
11. Mr. Harkat has assisted Islamic extremists who have come to Canada.
12. Mr. Harkat has associated with Abu Zubaida since the early 1990s. Abu Zubaida was one of Osama bin Laden's top lieutenants since the 1990s. In March 2003, the service was advised that Abu Zubaida was able to identify Mr. Harkat by his physical description and his activities, including the fact that Mr. Harkat operated a guest house in Peshawar, Pakistan in the mid 1990s for mujahedeen travelling to Chechnya.
13. Mr. Harkat has been in contact with other individuals known to be involved in Islamic militant activities.
THE PUBLIC EVIDENCE
[50] Counsel for the Ministers led no evidence in public. Counsel for Mr. Harkat called Mr. Harkat, his wife Sophie Harkat, Mr. Warren Cretes and Mr. Jean-Luc Marchessault. Counsel also filed a statutory declaration completed by Steven Watt (an American lawyer who is the International Human Rights Fellow with the Center for Constitutional Rights). Mr. Watt's work since November 2001 has focussed on the detention and interrogation policies and practises of the United States government since September 11, 2001. Finally, counsel for Mr. Harkat filed a number of documents consisting largely of correspondence, newspaper articles, excerpts from annual reports of the Security Intelligence Review Committee ("SIRC") and court documents.
(i) Mr. Harkat's testimony
[51] In his testimony, Mr. Harkat denied the matters alleged in the summary. He specifically denied that he has knowingly supported or assisted Islamic extremists and denied being linked in any way to anyone in the Bin Laden Network. Mr. Harkat testified that he never associated with, or met with, Abu Zubaida. Mr. Harkat stated that he has never been in Afghanistan, never lived in Peshawar and never operated a guest house in Peshawar for mujahedeen. Mr. Harkat testified that he never supported the GIA.
[52] Mr. Harkat described completing high school in Algeria, and the circumstances relating to his involvement with the FIS that led him to flee from Algeria to Saudi Arabia, in April of 1990, during his first year of university. What follows is a summary of the balance of Mr. Harkat's testimony.
[53] The visa Mr. Harkat obtained for Saudi Arabia only permitted him to stay there for 15 days. His money began to run out, and he was given a phone number for someone in Jedda associated with the Muslim World League. While in Mecca, Mr. Harkat telephoned this person and explained his situation. Mr. Harkat was told to come to Jedda and the person, whose name Mr. Harkat does not recall, would try to help him. On arrival in Jedda, Mr. Harkat was told by this person that he would call the Muslim World League in Pakistan to see if they needed someone, and the person would also try to obtain a visa for Pakistan for Mr. Harkat. In the meantime, Mr. Harkat was to leave his passport, return to Mecca, and telephone after five days.
[54] After five days, Mr. Harkat called the person in Jedda who told him to come back to Jedda because the Muslim World League had a job for him. On arrival in Jedda, Mr. Harkat learned that he would leave the next day for Pakistan. He did not know what his job in Pakistan would involve. Mr. Harkat was given his ticket and travel documents and the following day flew from Jedda to Islamabad and then travelled by van to Peshawar. The next morning, Mr. Harkat was taken to the office of the Muslim World League in Peshawar where he met Abu Dahr and his subordinate, "engineer Abdullah".
[55] Abu Dahr and engineer Abdullah told Mr. Harkat that he would be responsible for a warehouse located between Islamabad and Peshawar known as Hai Al-Mohajereen (the Migrant's District) located in Babbi. Mr. Harkat described Hai Al-Mohajereen to be a refugee camp containing 100,000 people. Mr. Harkat was to be responsible for going, with a driver, to pick up things such as tents, oil, rice, dates, and blankets in Peshawar and then take such food and supplies to the warehouse for storage. Abu Dahr explained to Mr. Harkat that the Muslim World League wanted "somebody Arabic" to do this job, otherwise the supplies would be stolen and sold. Three Afghanis worked for Mr. Harkat.
[56] The warehouse was a four and one half hour drive from the Afghan border. In all the time Mr. Harkat was in Pakistan, he never travelled to, or over, the border into Afghanistan.
[57] Mr. Harkat worked for the Muslim World League from May 1990 to mid-1994. He left his employment because he was not able to renew the documentation that allowed him to move within Pakistan, and because the flow of relief supplies from Saudi Arabia was diminishing.
[58] While with the Muslim World League, Mr. Harkat had an identification card which identified him as an employee of the Muslim World League. The card had his picture on it, and the names "Muhammad Harkat" and "Abu Muslima" appeared on the card. "Abu Muslima" was a nickname given to Mr. Harkat. Later, when in Canada, Mr. Harkat denied to CSIS representatives that he had ever used the name Abu Muslima. Mr. Harkat denied this because, in his words, "maybe they were looking for someone else. Scared".
[59] In order to come to Canada, Mr. Harkat purchased a false Saudi passport because no entry visa was required for persons travelling to Canada on a Saudi Arabian passport. Had he travelled on his Algerian passport, a visa would have been required. On the first occasion Mr. Harkat tried to leave Pakistan using his false passport, he was turned away because officials observed that his passport was forged. Two or three weeks later, Mr. Harkat left Pakistan using his Algerian passport. He travelled to Malaysia because no visa was required to travel there. Five days later, he took one of the first available flights, flying business class, from Kuala Lumpur to London, England, and then on to Toronto. His travel was financed by the $18,000 U.S. which he had saved while working in Pakistan.
[60] On arrival in Toronto, Mr. Harkat claimed refugee status and disclosed to authorities that he had both a false Saudi passport and an Algerian passport. He was allowed to leave the Toronto airport and told to return within 21 days with a translator. Mr. Harkat then called "Taher" who was a taxi driver living in Ottawa that Mr. Harkat had met in Pakistan. Taher arranged to meet Mr. Harkat at the Ottawa bus depot on his arrival in Ottawa. Mr. Harkat then took the bus to Ottawa. Taher met him and took Mr. Harkat to a mosque where Mr. Harkat met a man called Ibrahim who allowed Mr. Harkat to stay with him for one or two weeks. Subsequently, when CSIS asked Mr. Harkat if he had ever seen Taher before he arrived in Canada or whether he had any previous relationship with Taher, Mr. Harkat answered "no". This was said, by Mr. Harkat, to be because Taher had asked him not to mention his name to CSIS.
[61] Mr. Harkat arranged for an acquaintance to drive him back to Toronto so that he could report to immigration authorities as required. At the last minute, the acquaintance decided not to go to Toronto and advised Mr. Harkat that Mr. Harkat's roommate, Ahmed Berseigi, was driving Ahmed Khadr to Toronto, so he would drive Mr. Harkat to Toronto as well. Mr. Harkat said that he did travel in a van to Toronto with Mr. Berseigi and Mr. Khadr. As for any discussion between Mr. Harkat and Mr. Khadr during the drive, Mr. Harkat said that when Mr. Khadr found out that Mr. Harkat had worked in Pakistan, he asked Mr. Harkat if he knew Mr. Khadr's name. Mr. Khadr also told Mr. Harkat that when he went to see the immigration authorities, he should just tell the truth. Aside from that, the two did not speak and Mr. Berseigi and Mr. Khadr spoke to one another throughout the trip, largely in Egyptian which Mr. Harkat did not understand. In any event, Mr. Harkat was not paying any attention because he was pre-occupied with his looming meeting with immigration authorities. Mr. Harkat had never before met Mr. Khadr and never saw him again.
[62] Mr. Harkat went on to testify that he had been questioned by CSIS about his knowledge of a Mr. Al-Shehri. Mr. Harkat explained that he once met with a Mr. Al-Shehri while Mr. Al-Shehri was in the Innes Road detention center in Ottawa. This meeting occurred after Mr. Harkat's then lawyer, Mr. Cretes, asked him to help see that Mr. Al-Shehri hired Mr. Cretes "because there is money on it". Mr. Harkat was also to sug