Jaballah, Re

Jaballah, Re
Court (s) Database
Federal Court Decisions
Date
2006-10-16
Neutral citation
2006 FC 1230
File numbers
DES-04-01
Notes
Digest
Decision Content
Date: 20061016
Docket: DES-04-01
Citation: 2006 FC 1230
BETWEEN:
IN THE MATTER OF a certificate pursuant to
Section 40.1 of the Immigration Act, R. S. C. 1985,
c.I-2, now deemed to be under s-s 77(1) of the
Immigration and Refugee Protection Act, S. C. 2001, c. 27:
AND IN THE MATTER OF the referral of that
Certificate to the Federal Court of Canada;
AND IN THE MATTER OF Mahmoud JABALLAH,
REASONS FOR ORDER AND DETERMINATIONS
MACKAY D.J.
1. Introduction
[1] These are reasons for an order now issued arising from my review of a security certificate dated August 13, 2001, stating that the respondent, Mahmoud Es Sayyid Jaballah, a foreign national, is inadmissible to Canada on security grounds. That certificate set out the joint opinion of the Minister of Citizenship and Immigration (MCI) and the then Solicitor General of Canada that Mr. Jaballah is inadmissible.
[2] The order now issued sets out my determinations. The first is that the Ministers’ security certificate is reasonable within s.-s. 80(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended (IRPA). Reasons for that are set out in Parts 2 to 9. The second, for reasons set out in Part 10, is that the discretion of the MCI in removing him from Canada, in relying on the security certificate as a removal order, is limited, and he may not be deported to any country where there is a serious risk to his life or of torture or cruel and unusual treatment.
[3] The following headings with initial paragraph numbers for discussion of each, may assist in providing an overview of these reasons:
Paragraph
1. Introduction 1
2. The legislative regime and the Ministers’ concerns 7
3. Immigration circumstances of Mr. Jaballah 16
4. Particular features of these proceedings 21
5. Information and evidence before the Court, and
efforts to ensure disclosure 24
6. Acceptance or variation of certain findings of
the Court in its 2003 decision 31
7. Review of the evidence and information for the
Ministers’ concerns 37
8. Statutory security grounds for inadmissibility 64
9. Reasonableness of the security certificate 71
10. The duty and discretion to remove Mr. Jaballah
from Canada 72
[4] The most recent chronology of events and decisions in this proceeding is found in Appendix A to the decision Re Jaballah 2006 FC 346, [2006] F.C.J. No. 404 (QL) (March 16, 2006), as supplemented by items listed as 18 to 23 in Annex A to these Reasons. That Annex lists decisions or other proceedings, in this and related cases concerning the two security certificates concerning Mr. Jaballah and his detention under them. The Annex gives an overview of the proceedings, the details of which I do not review in these reasons unless they are significant for the issue of the reasonableness of the Ministers’ certificate.
[5] These proceedings have been prolonged and, since the certificate issued, Mr. Jaballah has been detained in custody pursuant to paragraph 40.1(7)(b) of the Immigration Act, R.S.C. 1985, c. I-2 as amended (the 1985 Act) and s-ss. 82(2) and 83(3) of the IRPA.
[6] Throughout the proceedings counsel and the Court have dealt with basic issues that concern the relations between a foreign national, Mr. Jaballah, and the state, Canada, in light of fundamental principles of justice and the Canadian Charter of Rights and Freedoms. Those issues are to be resolved, recognizing the roles of Parliament, the Executive and the Courts in our democracy, as matters of immigration law, balancing Mr. Jaballah’s claims to remain in Canada and the Government of Canada’s claim and responsibility to determine who among foreign nationals may be admitted to this country.
2. The legislative regime and the Ministers’ concerns
[7] The certificate, issued under s. 40.1 of the 1985 Act which then governed this proceeding, was referred to this Court for a determination whether the certificate is reasonable under para. 40.1(4)(d) of the 1985 Act, now s-ss. 77(1) and 80(1) of IRPA. Since then the Solicitor General of Canada has been succeeded in office by the Minister of Public Safety and Emergency Preparedness. That Minister and the Minister of Citizenship and Immigration are referred to herein as “the Ministers”. Since then also, the 1985 Act has been repealed and replaced on June 28, 2002 by IRPA, which provides by s. 190 that
190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
190. La présente loi s’applique, dès l’entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu’aux autres questions soulevées, dans le cadre de l’ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n’a été prise.
[8] Provisions of IRPA relevant in this proceeding are reproduced in Annex B, with notations to comparable provisions of the 1985 Act where that seems appropriate. The Court’s role under IRPA in considering the Ministers’ certificate is set out in Division 9 of that Act, in ss. 76 to 87. The primary role of the judge designated to consider the certificate is set out in s.80 of IRPA.
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.
(3) The determination of the judge is final and may not be appealed or judicially reviewed.
80. (1) Le juge décide du caractère raisonnable du certificat et, le cas échéant, de la légalité de la décision du ministre, compte tenu des renseignements et autres éléments de preuve dont il dispose.
(2) Il annule le certificat dont il ne peut conclure qu’il est raisonnable; si l’annulation ne vise que la décision du ministre il suspend l’affaire pour permettre au ministre de statuer sur celle-ci.
(3) La décision du juge est définitive et n’est pas susceptible d’appel ou de contrôle judiciaire.
[9] In the course of these proceedings I have previously determined that the decision, made September 23, 2005, on behalf of the Minister of Citizenship and Immigration to refuse Mr. Jaballah’s application for protection under IRPA, was lawful pursuant to s-s. 80(1) (see: Re Jaballah, 2006 FC 346, March 16, 2006). These reasons concern the other issue to be determined under s-s. 80(1) of IRPA, whether the certificate of the Ministers is reasonable.
[10] The certificate before the Court is the second one issued by the Ministers in respect to Mr. Jaballah on similar grounds. The first one dated March 31, 1999, was referred to this Court and considered by my colleague, Mr. Justice Cullen. He determined, on November 2, 1999, that the certificate before him was unreasonable and it was quashed (see (Canada) Minister of Citizenship and Immigration v. Jaballah, [1999] F.C.J. No. 1681 (TD) (QL) (hereinafter “Jaballah No.1”). Thereupon Mr. Jaballah, who had been detained after the certificate was issued, was released from detention.
[11] Less than two years later, on August 13, 2001, the second certificate, now before this Court, was issued. It sets out the Ministers’ conclusion that Mr. Jaballah is inadmissible to Canada on security grounds, as a person described in paragraphs 19(1)(e)(ii), 19(1)(e)(iv)(B), 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the 1985 Act. The summary information statement dated August 14, 2001 disclosed to him on August 22, sets out that the grounds for that conclusion, there described as the belief of “the Service” (i.e. the Canadian Security Intelligence Service), are that Mahmoud Jaballah:
1. will, while in Canada, engage in or instigate the subversion by force of the government of Egypt (see sub para. 34(1)(b) IRPA);
2. is a member of the Al Jihad (AJ), an organization that there are reasonable grounds to believe will engage in or instigate the subversion by force of the government of Egypt, and will engage in terrorism (see sub para. 34(1)(f) IRPA);
3. is and was a member of the AJ, an organization that there are reasonable grounds to believe is, or was engaged in terrorism (see sub para. 34(1)(f) IRPA); and
4. has engaged in terrorism (see sub para. 34(1)(c) IRPA).
The references here to paragraphs of s-s. 34(1) are to provisions of IRPA, comparable to those in the 1985 Act, within which, in my opinion, the specified grounds are included as security grounds for determining inadmissibility to Canada.
[12] The factual bases alleged by the Ministers’ case concerning Mr. Jaballah, drawn from the summary statements and elaborating information and evidence, in my opinion, may be described thus.
1. He is believed to be a member of a terrorist organization, the Egyptian terrorist group Al Jihad, an organization
a. with a history of violent activities in Egypt, intended to overthrow the government there, and in terrorist activities abroad;
b. that is closely associated with Al Qaida in Osama Bin Laden’s network, seeking to rid middle east countries of western influence and to attack western societies.
c. In turn, Al Qaida activities, including terrorist attacks in Pakistan, East Africa, Yemen, New York, Bali, and attacks emulating its operations when undertaken by others in Madrid, in London, and recently under investigation in Toronto and London, leave little doubt that international terrorism, whether directly fostered by Al Qaida or emulating it, presents a major threat to society, particularly in Western countries. At least two statements issued by Al Qaida leaders have indicated that Canada is a country of interest for terrorist attack.
d. Both the Egyptian Al Jihad and Al Qaida have been designated, by P.C. SOR/2002-284 of July 23, 2002, issued by the Governor General in Council pursuant to s-s. 83.05(1) of the Criminal Code as amended by S.C. 2001, c.41, s.4, as entities about which “there are reasonable grounds to believe, have knowingly carried out, attempted to carry out, participated in or facilitated terrorist activity…”
2. He is believed to have engaged in terrorism, in Egypt, and subsequently, including serving to relay communications between AJ cells, particularly those engaged on August 7, 1998 in the bombing of United States embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. Telephone numbers associated with Mr. Jaballah in Canada are believed to have been linked to Islamic extremists, in this country and abroad.
3. He is believed to have followed “a travel pattern consistent with the profile of an Islamic Mujahedin extremist - one who left Egypt to fight in Afghanistan, trained in Yemen, and may have fought in Chechnya”. In the 1990’s Yemen and Azerbaijan were known havens and training bases for Islamic terrorists. Moreover, it is believed that he spent a period of time in Afghanistan. He cannot readily return to Egypt without facing the prospect of further prosecution, detention, or worse treatment.
4. He has been associated with numerous known, senior participants in AJ and in other terrorist or Al Qaida activities, including persons in Canada and abroad.
[13] There is no dispute about the activities of the AJ and Al Qaida. Not all of the above allegations are directly relevant to the key issues here. In the course of argument on the merits of the certificate, counsel for the Ministers, responding to a query from opposing counsel, specified that the Ministers in this case were not relying upon, or seeking to establish, “subversion”. I understand that to mean that the Crown does not seek to establish the allegations that Mr. Jaballah “will … engage in or instigate the subversion by force of the government of Egypt” (the first of the Service’s alleged beliefs), or that the Al Jihad (AJ) “will engage in or instigate the subversion by force of the government of Egypt” (part of the second of the Service’s alleged beliefs).
[14] With this modification, statutory concerns of the Ministers, are simplified to these:
A. that Mr. Jaballah is and was a member of the Al Jihad (AJ), an organization that there are reasonable grounds to believe is or was or will engage in terrorism, matters which fall within subparagraph 34(1)(f) of IRPA; and
B. that Mr. Jaballah has engaged in terrorism, a matter within subparagraph 34(1)(c) of IRPA.
[15] I return to these allegations and the suggested statutory security grounds for inadmissibility later in these Reasons before dealing with the reasonableness of the certificate.
3. Immigration circumstances of Mr. Jaballah
[16] Mr. Jaballah and his family arrived in Canada in May 1996. The family originated in Egypt where Mr. Jaballah, his wife and his three older children are citizens. The family left Egypt in July 1991 for Saudi Arabia on a religious pilgrimage. They did not return to their home because of concern about the treatment by Egyptian authorities of Mr. Jaballah, who claims he had faced recurring arrests and detention seven times, solely because he was a devout Muslim fundamentalist. He was tortured on some occasions, and so was his wife, who had also been detained on a few of those occasions and once was so mistreated that she is said to have had a miscarriage. After three months in Saudi Arabia the family moved to Peshawar, Pakistan, in 1991. There both Mr. Jaballah and his wife obtained teaching positions, she in a school operated under the Saudi embassy, a school where Mr. Jaballah later taught for a year after serving first as a teacher and then as the principal at a school in Peshawar run by the International Islamic Relief Organization.
[17] In August 1994, concerned that Egyptians and other Arab nationals would be returned to their own countries from Pakistan, Mr. Jaballah says that he travelled alone, using a false Iraqi passport, to Yemen where he remained for a year. When he had not been able to obtain regular employment in his teaching profession, Mr. Jaballah says that, using the same passport, he moved on to Azerbaijan. There he remained for about eight months, without success in finding regular employment. He claims he supported himself in Yemen and in Azerbaijan mainly from savings arising from his teaching in Pakistan for three years.
[18] Meanwhile his family had remained in Peshawar, including a fourth child who had been born there. His wife continued to teach and to support the family on her earnings. In March 1996 he returned to Pakistan, and with his family moved to Azerbaijan, using a false Saudi Arabian passport, and thence, he and his family travelled to Turkey, on to Germany, and finally to Canada. After arriving in Toronto in May 1996 he claimed Convention refugee status for himself, his wife and four children. Since their arrival in Canada two other children have been born to Mr. Jaballah and his wife.
[19] On March 4, 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board (the “CRDD”) decided that Mr. Jaballah and his family born abroad were not Convention refugees. That decision was then the subject of a successful application for leave and for judicial review which set aside the negative CRDD decision on September 28, 2000, after the first security certificate had been issued and quashed. The refugee claim was referred back for reconsideration by a differently constituted panel (see: Jaballah v. Canada (Minister of Citizenship and Immigration), 2000 F.C.J. No. 1577, (2000) 196 F.T.R. 175).
[20] Rehearing of Mr. Jaballah’s refugee claim by the CRDD was scheduled for August 16, 2001, the day after Mr. Jaballah was arrested under the second security certificate. That hearing was adjourned. The refugee claim was subsequently dismissed so far as Mr. Jaballah was concerned, but on April 9, 2003 so far as it concerned his wife and four children born abroad the claim was allowed. Thus, while Mr. Jaballah remains a foreign national, his wife and four children (born abroad) are Convention refugees, and the two youngest children are Canadians.
4. Particular features of these proceedings
[21] Before the decision on the refugee claim, when the second security certificate was issued in mid-August 2001 and referred to this Court, I was designated to hear the matter, pursuant to then s‑s. 40.1(4) of the 1985 Act, now ss. 76 and 77 of IRPA. As earlier noted, since August 15, 2001 Mr. Jaballah has been detained, first for six weeks or so at Millhaven, a federal penitentiary, then until April 24, 2006 at Toronto West Detention Centre, a maximum security provincial remand centre, and since late April 2006 he has been at a newly established Immigration Detention Centre at Kingston.
[22] At all Court hearings when he was at the Toronto Centre, and thereafter when he testified, Mr. Jaballah was present in the Court. On two occasions, June 28 and September 11-14, 2006 he attended hearings for observation purposes, as he elected, by audio visual link, from the courtroom in Toronto to the Immigration Detention Centre at Kingston. Those occasions were without witnesses, for the purpose of receiving submissions of counsel for the parties.
[23] The proceedings arising from the 2001 certificate have gone through three phases, somewhat overlapping in time but differing in purposes. From August 2001 to May 2003, the initial phase concerned the reasonableness of the certificate. Then, after Mr. Jaballah declined to respond to the information before the Ministers, the certificate was found to be reasonable, a decision set aside by the Court of Appeal in July 2004. The second phase, from October 2003 to March 2006 concerned primarily applications by Mr. Jaballah for release from detention, and reviews of decisions on behalf of the M.C.I. refusing Mr. Jaballah’s application for protection. The third phase, from February to September 2006, has been concerned to complete testimony and argument regarding the reasonableness of the Ministers’ security certificate, and to consider a number of preliminary interlocutory motions raised on behalf of Mr. Jaballah which were heard from February to June, 2006.
5. Information and evidence before the Court, and efforts to ensure disclosure
[24] The opinion certified by the Ministers is based in part upon “information”, defined in s.76 of IRPA as meaning “security or criminal intelligence information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them”, and in part upon evidence or other sorts of information in the normal sense, including testimony and documents submitted by or on behalf of Mr. Jaballah or the Ministers. For purposes of these Reasons I use the word “information” to refer to information as defined in the Act, and I use the word “evidence” to relate to documents and testimony submitted by the parties on the public record of this case. Much if not all of the information of a security or criminal intelligence nature has remained in the Court as a confidential record, not released to Mr. Jaballah or his counsel. I note that by Direction dated February 13, 2002, the record in Jaballah No. 1, concerning the first security certificate, was admitted as evidence in these proceedings, though any information then held in confidence remained so. Further, the records from his applications for refugee status and for protection were before the Court in the exercise of its review responsibility.
[25] Six volumes of evidence underlying the Ministers’ opinion were filed in the public record and were released to Mr. Jaballah in August 2001, together with a summary statement in accord with paragraph 78(h) of IRPA, intended to reasonably inform him of circumstances giving rise to the certificate. Neither the information disclosed nor the summary statement included anything that in my opinion, if disclosed, would be injurious to national security or to the safety of any person (as required by para. 78(h) IRPA).
[26] The summary statement issued in August 2001 was supplemented and amended in various ways. By Direction of February 5, 2002 the Court identified “new” evidence not available to the Ministers before November 2, 1999 when Jaballah No. 1 was decided, that had been released to Mr. Jaballah in August 2001. A statement comparing summaries released to him in the 1999 certificate case and in this case was also provided to him then. This followed upon testimony concerning the perspective on what information was “new”, which was the principal subject of the examination and cross-examination of Mike, a CSIS officer, at public hearings in December 2001. Later, a supplementary summary statement, dated November 18, 2003, was issued, as approved by the Court, in relation to Mr. Jaballah’s first application for release from detention.
[27] In the course of hearings concerning his second application for release, in September 2005, Mr. Jaballah testified for the first time in proceedings arising from the second certificate. In his cross-examination, documents produced as exhibits by counsel for the Ministers, in particular certain records of long distance telephone calls and charges, were added to the public record. Further, at various hearings counsel for Mr. Jaballah and for the Ministers introduced additional documents to the public record. A second CSIS officer testified on behalf of the Ministers in September 2005, in hearings in relation to Mr. Jaballah’s second application for release from detention and then, as had been the case when Mike testified in December 2001, a number of documents were also introduced through his examination.
[28] There was in evidence before me, the testimony of Mr. Jaballah and his wife in September 2005 in relation to his application for release and the affidavits and testimony of persons in support of Mr. Jaballah at public hearings in regard to his two applications to be released from detention in 2003 and 2005, including willing bonds persons if he were to be released. Both Mr. Jaballah and his wife testified in response to the Ministers’ certificate and summaries, after leave was granted at his request, and their testimony was heard in May and in July 2006.
[29] Finally, the summary statement of August 2001 and that of November 2003 were amended on two occasions, in November 2005 and in June 2006 following separate reviews by the Court of the confidential information that had not been disclosed to Mr. Jaballah. The amendments introduced, while not extensive, ensured that with the passage of time any information that could be disclosed, was. Only information which if disclosed would, in my opinion under paragraph 78(h) of IRPA, be injurious to national security or the safety of persons, despite the passage of time, remained in the Court’s confidential file.
[30] Thus the volume of information and evidence before the Court is significant. Much of the information and evidence added since August 2001 concerns updates or perspectives on the information and evidence that was before the Ministers at the time they certified their opinion. Not all of the information and evidence in the record is relevant to the reasonableness of the security certificate. The essence of that opinion is set out in the summary statement of August 2001 as modified by the summary of November 2003 and again by Order of June 8, 2006. The modifications include updating information, mainly about persons named in the first summary statement, and their whereabouts and activities after August 2001. Events in the world since the certificate issued in August 2001 have changed. There is heightened concern about international terrorism in much of the western world since the tragedies in New York and Washington on September 11, 2001. Some background events, not dealing directly with Mr. Jaballah, are the subjects of documents, testimony and argument submitted to the Court by the parties, and the Court recognizes widely known developments on the basis of judicial notice, but not in respect of matters relating directly to Mr. Jaballah.
6. Acceptance or variation of certain findings of the Court in its 2003 decision
[31] Certain of the Court’s determinations in its 2003 decision Re Jaballah, 2003 FCT 240, [2003] 4 F.C. 345, [2003] F.C.J. No. 822 (T.D.)(QL) warrant brief comment before I turn to consider the evidence and argument on matters of concern underlying the Ministers’ security certificate. While the 2003 determination that the certificate was reasonable was set aside by the Court of Appeal (Re Jaballah, 2004 FCA 257, [2004] F.C.J. No. 1199 (C.A.)(QL), other determinations in the 2003 decision with some significance for this decision, were accepted by the parties and the Court. I set those out briefly here, noting whether the determination was accepted by the parties, or accepted as varied by the Court, with reference to paragraphs in the 2003 decision, or to relevant directions by the Court.
[32] These are the determinations of note.
(1) The Court accepts that in security certificate proceedings the principles of res judicata or abuse of process would preclude upholding a second security certificate with respect to a person, when a first certificate has been found to be unreasonable and is quashed, unless the second certificate is based upon new information and evidence, known only after the decision on the first. (2003 decision, paras. 72 to 74) (Accepted by parties.) The primary implication of this for this case is that matters dealt with in Jaballah No. 1 are not subject to review or reconsideration in this proceeding unless there is new evidence. In Jaballah No. 1 in 1999 Cullen J. found Mr. Jaballah to be a credible witness, a general finding I do not question, but that does not preclude my finding, on new information and evidence, that his testimony in regard to certain matters is not credible.
(2) The Court sets out the test for assessing whether information and evidence underlying the second certificate is new. (2003 decision, paras. 75 to 80) (Accepted by parties.)
(3) New and partly new information, available after November 2, 1999 when the first security certificate relating to Mr. Jaballah was quashed, is identified (2003 decision, paras. 81 to 89). (Accepted by parties.) Subsequently, new information and evidence, including testimony and documents of Mr. Jaballah, his wife and supporters, and on behalf of the Ministers, was received in applications for his release from detention and in his submissions in 2006 against the concerns of the Ministers’ and their certificate.
(4) A variation from factors stated in the 2003 decision was an erroneous reference in the reasons in 2003 to testimony of a CSIS officer as a source for the finding abroad of an address for Mr. Jaballah’s post office box in Toronto. This was corrected by Order dated July 14, 2006. (Accepted as varied by the Court.)
(5) Another variation, in the summary statement dated August 14, 2001, is an amendment, approved by the Court’s Order dated November 22, 2005, which clearly states the belief that “Mr. Jaballah served as a communications relay between AJ cells on August 7, 1998, the day of the bombing of United States embassies in Nairobi, Kenya and Dar es Salaam, Tanzania.” That belief remained in issue, but the amendment is clearly a variation from my 2003 comment at para. 49, that “There is no reference to these perceived communication links in the summary of the Ministers’ case…”, [i.e. links between Al Jihad/Al Qaida cells, particularly in or about August 1998 when the United States embassies in east Africa were targets of lethal car bombs on the same day]. In that decision I added that diagrams showing links between Mr. Jaballah in Toronto and certain known Al Qaida operatives or centres) were of no weight in evidence. That was accepted in closing submissions by counsel for the Ministers who acknowledged that the diagrams, introduced in evidence through testimony of Mike, a CSIS officer, were only used as illustrations of his oral evidence. I add that the status of the diagrams has no bearing on the issue of whether Mr. Jaballah served as a communications link between AJ cells.
(6) The decision of a PRRA officer, dated August 15, 2002, resulting from preliminary consideration of Mr. Jaballah’s application for protection, i.e. that there were substantial grounds for belief that, if removed from Canada to his native Egypt, Mr. Jaballah would face a risk of torture, and a risk to his life or of cruel and unusual treatment or punishment, was deemed by the 2003 decision (at paras. 20, 22) to be the report of the Minister (MCI) in relation to the risk facing Mr. Jaballah if he were returned to Egypt. That determination was not set aside by the Court of Appeal in its 2004 decision (supra, at para. 23). By this Court’s Order of July 7, 2005 that determination (of 2003) remained effective for purposes of reconsideration of the application for protection by the MCI as a stage in consideration of the reasonableness of the certificate. (Accepted by parties, although initially counsel for the Ministers urged that all aspects of this Court’s 2003 determination were effectively set aside by the 2004 decision of the Court of Appeal, a submission not accepted by this Court.)
(7) Mr. Jaballah’s opportunity to be heard regarding his inadmissibility, an opportunity assured by para. 78(i) of IRPA, but which he declined to exercise in 2003, was provided in these proceedings in 2006 in reconsidering the Ministers’ certificate. It was utilized by Mr. Jaballah, after leave was sought and granted for him to testify or to adduce evidence. He and his wife testified in May and July 2006, and argument on his behalf concerning the reasonableness of the certificate was heard in September 2006. In my opinion, he had a full opportunity, as provided by para. 78(i) of IRPA, to respond to the Ministers’ decision that he is inadmissible to Canada. I believe that opinion is accepted by counsel for the parties.
[33] The final variation in proceedings since the 2003 decision concerns the Court’s role in dealing with constitutional issues arising in these proceedings. Some issues of that nature were raised by then counsel for Mr. Jaballah in the initial phase in 2001. In the 2003 decision (para. 44) I wrote:
… I indicated that constitutional issues raised, so far as they were similar to those raised before Mr. Justice Nadon in Canada (Minister of Citizenship and Immigration) v. Mahjoub, (2001), 199 F.T.R. 190, 13 Imm. L.R. (3d) 33, if argued herein, would be dealt with as Nadon J. had done, unless this Court could be persuaded that he was clearly wrong. That included his determination that a judge considering a certificate issued under s. 40.1 of the 1985 Act has no authority to consider arguments about the constitutionality of that statutory provision, which has been found not to infringe ss. 7, 9, or subsection 10(c) of the Canadian Charter of Rights and Freedoms or paragraph 2(e) of the Canadian Bill of Rights (see: Ahani v. Canada, [1995] 3 F.C. 669, appeal dismissed (1996), 201 N.R. 233 (F.C.A.), leave to appeal refused, [1996] S.C.C.A. No. 496, [1997] 2 S.C.R. p. v.). While there was no further argument of constitutional issues before me, I note for the record that they were raised.
[34] The law on this matter was reconsidered by my colleague Justice Simon Noël in Re Charkaoui, [2004] 3 F.C.R. 32, 2003 FC 1419, appeal dismissed, 2004 FCA 421, 247 D.L.R. (4th) 405, [2004] F.C.J. No. 2060 (F.C.A.)(QL). In that case the learned judge dismissed an application for a declaration that ss. 77 through 83 of IRPA were unconstitutional. He held, and was subsequently supported by the Court of Appeal, that as a designated judge he had jurisdiction to dispose of the issues, constitutional or otherwise, arising in the context of an application for review of the reasons for detention of a permanent resident held under a ministerial warrant issued in proceedings concerning a security certificate, and he further held that the questioned provisions of IRPA were not unconstitutional.
[35] Decisions of the Court of Appeal, in Charkaoui, in Almrei and in Harkat, all dealing with constitutional issues in certificate cases were appealed to the Supreme Court of Canada and heard in mid-June 2006. The appeals have not yet been determined; and counsel for Mr. Jaballah in this case reserved certain constitutional questions, said to arise here, for possible later resolution depending upon the Supreme Court of Canada’s decisions. That reservation was acceptable to counsel for the Ministers and to the Court.
[36] The constitutional questions stated by counsel for Mr. Jaballah, considered under reserve in this matter, as set out by counsel’s letter of September 20, 2006, are the following:
A. The statutory regime for the issuance of a security certificate and for the determination of its reasonableness set out in s. 77 to 81 of the Immigration & Refugee Protection Act does not comply with the principles of fundamental justice in accordance with s. 7 of the Charter of Rights and Freedoms, including because:
i- the substance of the case against the person is presented by the Ministers on an ex parte and in camera and breaches the requirement that a person be entitled to know the case against her and be given a fair opportunity to respond, in particular in an instance where liberty is infringed at the instance of the state and the person put at risk of removal to torture;
ii- the absence of counsel for the person concerned, or even an independent amicus in the secret part of the hearing compromises the independent and impartiality of the designated judge such that it does not comply with the principles of fundamental justice;
iii- the ‘reasonable grounds’ standard is such a low threshold as to render any defence to the allegations that are known virtually illusory.
B. The statutory regime for the issuance of a security certificate and for the determination of its reasonableness, coupled with the mandatory and indefinite detention, set out in s. 77 to 85 of the Immigration & Refugee Protection Act contravene the equality rights of the applicant under s. 15 of the Charter in that they are applied only to non-citizens and in that this applicant has been subjected to them on the basis of racial religious profiling.
I note for the record my opinion that there is no evidence or information in this case, apart from critical comment on certificate cases generally, that Mr. Jaballah has been subject to the application of ss. 77 to 85 of the IRPA “on the basis of racial religious profiling”.
7. Review of the evidence and information for the Ministers’ concerns
[37] There is no question about the terrorist activities of the Egyptian Al-Jihad (AJ) or Al Qaida, as appears from widely available public sources provided to the Court. Moreover, interrelations between the two organizations have become more closely integrated at least internationally, and the leadership of the AJ in recent years has played a major role within the Al Qaida network. Dr. Ayman Al Zawaheri, and other senior leaders of the AJ, have played leadership roles within Al Qaida. Al Zawaheri for example, has been Osama Bin Laden’s principal spokesperson and apparent second in command in recent years.
[38] Counsel for Mr. Jaballah suggested there is no current evidence that the AJ still exists, but that is irrelevant when the evidence is that it did exist in the 1980s and 1990s, years when Mr. Jaballah was active. In any event, both organizations continue to be designated in Canada, by P.C. S0R/2002-284, dated July 23, 2002, pursuant to ss. 83.05(1) of the Criminal Code as amended by S.C. 2001, c.41, s.4, as entities that there are reasonable grounds to believe, have knowingly carried out, attempted to carry out, participated in or facilitated terrorist activity.
[39] The only question for this Court, concerning the AJ or Al Qaida, is whether there are reasonable grounds to believe that Mr. Jaballah is, or was a member of either one, or of any terrorist organization. He has consistently denied this. Yet, there is evidence and information upon which, in my opinion, a reasonable observer would find grounds to believe that he was, or is a member of a terrorist group, and of the AJ.
[40] The first evidence of this nature, new to the Ministers since the decision in Jaballah No.1 in early November 1999, is an Interpol notice concerning a fugitive wanted for prosecution in Egypt. The person named is Mahmoud Said, also known as Mahoumoud Al Sayed Gaballah Said. The notice bears a picture and fingerprints from 1989. In the 2003 decision, I described the notice thus:
An Interpol notice, published July 13, 1999, which reached CSIS, acting for the Solicitor General, only on November 29, 1999, concerning an individual identified as Mahmoud Said, also known as Mahoumoud Al Sayed Gaballah Said, who was wanted by the Government of Egypt under a warrant alleging that he was a member of a terrorist organization responsible for planning and logistics, the supply of weapons and explosives to, and the escape of, active terrorists. In August 2000 CSIS was provided with a certified comparison by an RCMP expert, of fingerprints taken in 1996 by Immigration Canada on his arrival in Canada of Mahmoud Es-Sayyid Jaballah, the respondent, and prints provided by the Government of Egypt to Interpol for its July 1999 notice. That certified comparison indicates that both sets of fingerprints are those of the same person. Absent any explanation, the clear inference is that Mr. Jaballah is the person whose fingerprints were circulated with the Interpol notice and further, that Mr. Jaballah is the person subject to a warrant for arrest in Egypt.
[41] The description in the notice of the fugitive is not apt for reference to Mr. Jaballah in some respects. The date of birth is different from that claimed by Mr. Jaballah, the faculty from which the fugitive graduated at the University of Zagazig is said to be Arts whereas Mr. Jaballah claims to have graduated from the Faculty of Biology, but the occupation given for the fugitive is “teacher”, the same as Mr. Jaballah’s. There is also an unexplained anomaly in passport numbers stated in the notice.
[42] Despite these differences, I find that the person intended by the Interpol notice is the respondent, Mahmoud Jaballah. In testimony in 2006, he acknowledged the picture on the notice is of him though he denies involvement in alleged terrorism activities, and he has no explanation for the certificate of the R.C.M.P. fingerprint expert that the fingerprints displayed in the notice are the same as fingerprints taken from Mr. Jaballah on his arrival in Canada in 1996.
[43] For our purposes, the notice is significant in two other respects. The fugitive (Mr. Jaballah) is wanted in Egypt on a charge of membership in a terrorist organization under Egyptian criminal law no. 58/1937. For that offence, upon conviction, the maximum penalty possible is said to be the death penalty. By further Interpol notice dated 24/3/2003, received in Canada later in 2003, Egyptian authorities acknowledge that is the maximum possible penalty, but it is said “the maximum probable penalty is hard labour for life”.
[44] For Mr. Jaballah, counsel urged that no weight should be given by the Court to the Interpol notice, or if any were given, it should simply be taken as confirmation that the Government of Egypt was continuing