Re Jaballah

Re Jaballah
Court (s) Database
Federal Court Decisions
Date
2016-05-26
Neutral citation
2016 FC 586
File numbers
DES-6-08
Notes
A correction was made on March 10th, 2017.
Reported Decision
Decision Content
Date: 20160526
Docket: DES-6-08
Citation: 2016 FC 586
Amended: 20160624
BETWEEN:
IN THE MATTER OF a Certificate Signed
Pursuant to Subsection 77(1) of the Immigration and Refugee Protection Act (IRPA)
and
AND IN THE MATTER OF the Referral of a Certificate to the Federal Court Pursuant to
Subsection 77(1) of the IRPA;
and
AND IN THE MATTER OF
MAHMOUD ES-SAYYID JABALLAH
AMENDED REASONS FOR JUDGMENT
HANSEN J.
[1] Mr. Mahmoud Es-Sayyid Jaballah, [Respondent] is named in a February 22, 2008 security certificate signed by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness [Ministers] pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or Act]. In the certificate, the Ministers state their opinion that the Respondent is inadmissible to Canada on security grounds described in paragraphs 34(1)(b), (c), (d) and (f) of the Act. Specifically, it is the Ministers’ opinion that there are reasonable grounds to believe the Respondent will, while in Canada, engage in or instigate the subversion by force of the government of Egypt; has engaged in terrorism; is a danger to the security of Canada; and was and is a member of Al Jihad [AJ], an organization that has engaged in terrorism. In accordance with the IRPA, the security certificate was referred to the Court to determine whether it is reasonable. In these reasons, I conclude that the security certificate filed by the Ministers is not reasonable and will be set aside. Classified reasons will also be issued and will include the information that cannot be disclosed for reasons of national security.
[2] Over the course of this proceeding, the original Security Intelligence Report [SIR] presented to the Ministers in support of the security certificate in February 2008 and the Public Summary of the SIR [PSIR] provided to the Respondent have undergone a number of revisions, in particular, in 2010, 2012, 2013 and in June and August 2014. In these reasons, the references to the SIR and the PSIR, unless otherwise indicated, are to the most recent version dated August 21, 2014. This is the third security certificate issued against the Respondent.
[3] The Respondent, an Egyptian national, was born in Al-Shrqia, Egypt, on January 7, 1962. On May 11, 1996, he, his spouse and four children, travelling on a false Saudi passport, arrived in Canada. He claimed refugee protection on the ground that he was wanted by Egyptian authorities on charges of inciting violence and that he would be killed if he returned to Egypt. Shortly after his arrival, the Respondent was the subject of a Canadian Security Intelligence Service [CSIS or Service] investigation. This investigation led to the first security certificate issued against the Respondent in March 1999 at which time the Respondent was arrested and detained. The Court quashed this certificate in November 1999 and the Respondent was released from detention.
[4] In August 2001, a second security certificate naming the Respondent issued and he was again arrested and detained. In May 2003, the Federal Court of Appeal set aside this Court’s determination that the certificate was reasonable and remitted the matter to this Court for reconsideration. In October 2006, the Court found that the second certificate was reasonable. Between the time of his arrest in August 2001 and October 2006, the Respondent’s attempts to secure his release were unsuccessful. Shortly after the Court’s determination that the certificate was reasonable, the Respondent brought another application for his release. In February 2007, before this application was concluded, the Supreme Court of Canada in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350 [Charkaoui I] held that the provisions in the IRPA dealing with the detention of foreign nationals violated section 9 and subsection 10(c) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] and declared the security certificate provisions in the Act to be of no force or effect. However, the Court suspended the declaration of invalidity for one year. In April 2007, the Court released the Respondent on conditions that, as the Court described, “equate to house arrest”. It is noted that since that time there have been a number of reviews of the terms and conditions of his release that have resulted over time in a significant lessening of the stringency of the original terms and conditions of release.
[5] In February 2008, with the coming into force of Bill C-3, the relevant provisions of the Act were amended and the second security certificate was quashed by operation of law. The third security certificate, the subject of the within proceeding, was issued later that month.
[6] Since the signing of the certificate in February 2008, this case has evolved significantly both in terms of the evidentiary record and the allegations against the Respondent. This is largely attributable to orders made on motions brought by the Respondent, the Ministers’ decisions to withdraw information dependent upon all protected human sources and certain other pieces of information, and other evidentiary rulings made during the course of the hearing. Two orders in particular illustrate the change in the record over time. In August 2011, the Court excluded certain evidence on the basis that the information was inadmissible pursuant to paragraph 83(1)(h) and subsection 83(1.1) of the IRPA by reason of there being reasonable grounds to believe the information was obtained as a result of torture.
[7] Subsequently, the Respondent brought an application for an order pursuant to subsection 24(1) of the Charter staying the within proceeding or, alternatively, for an order excluding all summaries relied on by the Ministers for which the original investigative materials had been destroyed, including but not limited to, summaries of intercepted communications, interviews, and physical surveillance [the abuse of process motion]. At this point, it should be noted that the evidence on this motion was heard in conjunction with the evidence in relation to the reasonableness of the security certificate. However, by agreement, the submissions of the parties and the Special Advocates were not made until the last two weeks of March 2013 after the Ministers had closed their case on the reasonableness of the security certificate.
[8] The Respondent grounded the abuse of process motion on the Service’s breach of its obligation to retain and disclose original investigative materials in its possession and the delay in disclosing the public summaries of the materials; the Ministers’ reliance on information that had been excluded in this proceeding; the interception of his solicitor-client communications and the misuse of those communications; and the delay in this matter and his prolonged and repeated subjugation to judicial proceedings while confined and, subsequently, under stringent conditions of release.
[9] On September 17, 2013, the Court issued the following order with reasons that followed on October 3, 2013:
1. All summaries relied on by the Ministers of intercepted oral communications for which the original recordings have been destroyed are excluded from the evidence in the within proceeding.
2. All summaries relied on by the Ministers of intercepted facsimile communications for which the original intercepts have been destroyed are excluded from the evidence in the within proceeding. For greater clarity, those facsimile communications for which the content purports to be quoted in its entirety in the operational report are not excluded.
3. All summaries relied on by the Ministers of intercepted mail are excluded from the evidence in the within proceeding. However, intercepted mail for which the content purports to be quoted in its entirety in the operational report is not excluded; addresses taken from intercepted mail that appear to be recorded in full in the operational report are not excluded; information in operational reports from intercepted mail in relation to the quantity and title of publications is not excluded.
4. The Ministers shall prepare edited versions of the Security Intelligence Report and the Public Summary of the Security Intelligence Report that reflect the above exclusions.
5. The decision on the motion for a stay of proceedings in relation to those grounds other than the destruction of original investigative materials is reserved.
[10] Before turning to the case itself, it is convenient to observe that the manner in which the hearing unfolded, that is, the abuse of process motion was heard and decided after the Ministers closed their case, added another layer of complexity to this case. This is because the Ministers’ case was advanced on the basis of the record that existed prior to the exclusion order on the abuse of process motion. Additionally, in the public hearing, the witnesses testified by reference to the October 2010 PSIR and in the closed hearing, the witnesses testified by reference to the September 2012 SIR. The testimony of the Ministers’ witnesses is, and understandably so, based, in part on and replete with references to evidence that was subsequently excluded.
[11] In the present case, the allegations of inadmissibility based on the grounds found in paragraphs 34(1)(b), (c) and (d) of the IRPA are inextricably linked to the ground of inadmissibility in paragraph 34(1)(f), membership in a terrorist organization. As such, the central issue in this proceeding is whether there are reasonable grounds to believe the Respondent was or is a member of a terrorist organization. Before turning to the allegations underpinning the assertion of membership in a terrorist organization, it is necessary to deal with the standard of proof and the role of “reasonable inference”.
[12] Section 33 of the IRPA provides that the facts constituting inadmissibility under section 34 are facts for which there are reasonable grounds to believe have occurred, are occurring or may occur. The facts may also arise from omissions unless otherwise provided. In Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114, [2005] 2 SCR 100, the Supreme Court of Canada articulated the meaning of the “reasonable grounds to believe” standard of proof as requiring “something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities”. The Court explained that “[i]n essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information”.
[13] The Ministers’ case, as they acknowledge, is in large measure based on reasonable inferences. The Ministers contend that when viewed in their totality, these inferences establish the evidence the “cumulative impact” of which “leads to the inference that there are reasonable grounds to believe that the Respondent was a member of the AJ and engaged in terrorism.”
[14] In Osmond v Newfoundland (Workers’ Compensation Commission), 2001 NFCA 21, [2001] NJ No 111, the Newfoundland Court of Appeal provides helpful instruction regarding the drawing of reasonable inferences. At paragraphs 134 and 135, the Court stated:
134 This Court, in its judgment on appeal in Willard Miller, which is being filed concurrently with this decision, has stressed that an inference is different from speculation. [To that extent, I would not agree with the use of the word “speculative” in the quotation from Ison in the Nancy Miller case, supra]. Drawing an inference amounts to a process of reasoning by which a factual conclusion is deduced as a logical consequence from other facts established by the evidence. Speculation on the other hand is merely a guess or conjecture; there is a gap in the reasoning process that is necessary, as a matter of logic, to get from one fact to the conclusion sought to be established. Speculation, unlike an inference, requires a leap of faith. As noted in Canadian Pacific Railway v. Murray [1932] S.C.R. 112 the dividing line between a conjecture or guess on the one hand and an inference on the other is often a very difficult one to draw. Nevertheless, there is a fundamental difference that requires a distinction to be made. As I observed in R. v. Hillier (L.) et al (1993), 109 Nfld. & P.E.I.R. 92 (NFSC, TD), at para. [93] in another context:
An inference is ... a very different thing, qualitatively, from a guess or suspicion and a suspicion does not acquire evidentiary character just because there are a number of similar suspicions related to the case. For an inference to be drawn it must be grounded in some other proven facts.
135 In Jones v. Great Western Railway (1930), 47 T.L.R. 39 (H.L.) cited with approval in Canadian Pacific Railway v. Murray, the distinction was put thus:
A conjecture may be plausible but it is of no legal value, for its essence is that of a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is ... always a matter of inference.
[15] Similarly, the British Columbia Supreme Court in British Columbia v Abitibi-Consolidated Co of Canada, 2005 BCSC 409, [2005] BCJ 655 stated, at paragraph 15:
An inference is a “conclusion reached by considering other facts and deducing a logical sequence from them”, Black’s Law Dictionary, 7th ed. page 781. Or, in the case of evidence, it is “in the legal sense, … a deduction from evidence, and if it is a reasonable deduction it may have the validity of legal proof”, Montreal Tramways Co. v. Leveille, [1933] 4 D.L.R. 337 at 350 (S.C.C.).
Thus, it can be seen that to have the “validity of legal proof” a reasonable inference must be based on known, that is, established facts.
[16] Lastly, the designated judge must always be mindful of the Supreme Court of Canada’s instruction in Charkaoui I at paragraph 39. It reads:
First, an active role for the designated judge is justified by the language of the IRPA and the standards of review it establishes. The statute requires the designated judge to determine whether the certificate is “reasonable”, and emphasizes factual scrutiny by instructing the judge to do so “on the basis of the information and evidence available” (s. 80(1)).
[17] Moreover, as the Court observes at the same paragraph, the IRPA requires the designated judge to engage in a searching review of the information and the evidence in determining the reasonableness of the certificate. In Jaballah (Re), 2010 FC 79 at paras 46-47, Justice Dawson explained that this will require the designated judge to weigh the evidence in support of the allegations and to determine which facts are accepted. If the preponderance of the evidence is contrary to the Ministers’ allegation, there can be no reasonable grounds for the allegation (see also: Mahjoub (Re), 2013 FC 1092 at para 44).
[18] Returning to the inadmissibility ground found in paragraph 34(1)(f) of the IRPA, the Ministers claim the Respondent was and is a senior member of AJ, also known as the Egyptian Islamic Jihad [EIJ], a terrorist organization which advocates the use of violence as a means to establish an Islamic state in Egypt, and which is “closely linked” to Al Qaeda. As such, the Respondent is inadmissible to Canada pursuant to paragraph 34(1)(f) of the Act. In support of the assertion of membership in AJ, the Ministers rely on evidence about the Respondent’s activities prior to his arrival in Canada in May 1996. The Ministers also rely on the Respondent’s activities after he arrived in Canada, including: dissemination of propaganda and recruitment; the contact the Respondent maintained with AJ leadership and members in other countries; his ongoing contact with several Islamic extremists; his contact with AJ leadership in the period surrounding the East Africa bombings; and use of clandestine methodology. Reliance is also placed on an Interpol Red Notice issued in relation to the Respondent regarding outstanding charges in Egypt for being a member of a terrorist organization.
[19] According to the Personal Information Form [PIF] the Respondent filed in support of his refugee claim, he is a devout Muslim who fled Egypt after being persecuted, detained and tortured by the Egyptian authorities in connection with his religious and political beliefs. He attended the University of Zagazig between 1981 and 1985 where he was affiliated with a group from the mosque led by Badr, a professor at the university. He states that he was first arrested when he was 19 years old, after the assassination of Anwar al-Sadat in 1981. Following his arrest, he was detained without charge for two years. During this detention, he was interrogated and tortured. Following his release, he was approached by Egyptian security officers who asked him to collect information about people who spoke out against the government, but he refused. He was rearrested and detained several more times over the course of the next decade. At times, his spouse, Husna al-Mashtouli, was also detained and tortured. He was arrested and detained a final time on September 1, 1990 for six months. The Respondent states that he attempted to leave Egypt three times before finally being permitted to leave to make a pilgrimage to the holy sites in Saudi Arabia. He left Egypt for Saudi Arabia with his family in or around July 1991 and did not return.
[20] A brief description of how the Respondent came to the Service’s attention will provide a backdrop for the Service’s subsequent investigation and the conclusions that were drawn. In the course of its investigation, the Service obtained information from a variety of sources including open sources, human sources, technical sources obtained under the authority of section 21 of the Canadian Security Intelligence Services Act, 1985, c C-23 [CSIS Act], and domestic and foreign agencies.
[21] Although the Respondent’s identity was not yet known, at the end of May 1996, he was observed in the company of an individual under the Service’s surveillance. Subsequently, at the end of June 1996, the Service observed the Respondent in a Toronto park with Hassan Farhat, Kassem Daher, Mustafa Krer, and three other adult males along with a number of children. Shortly after, the individual the Service observed at the end of May and in the park was identified as the Respondent and he became a person of interest to the Service.
[22] Within a few days, the Service had the Respondent’s statement to a Citizenship and Immigration Canada officer [CIC officer] upon his arrival in Canada, at which time he surrendered the false Saudi passport on which he and his family were traveling and provided the officer with his true identity. The Respondent stated that he purchased the false Saudi passport from Abu Abdallah, a 35-year-old Iraqi he met in Pakistan.
[23] The Respondent told the CIC officer that he left Egypt on January 12, 1991 and was in Pakistan from December 1 to August 30, 1994 on a work visa. From this latter date to September 30, 1995, he was in Yemen illegally and then he was in Azerbaijan illegally until May 4, 1996. On May 11, 1996, he transited illegally through Germany and arrived in Canada on the same day. According to the passport, it was issued on August 2, 1995 at Tarif, Saudi Arabia and it contained the following stamps:
− August 8, 1995, a United Kingdom single entry visa valid until February 8, 1996 issued in Riyhad, Saudi Arabia
− October 16, 1995, Karameh, Jordan entry stamp
− October 23, 1995, Pakistan single entry visa valid until January 22, 1996
− November 1, 1995, Jordan exit stamp
− November 1, 1995, Islamabad, Pakistan entry stamp
− March 25, 1996, Pakistan single entry visa valid until September 24, 1996
− April 7, 1996, Karachi, Pakistan international airport exit stamp
− April 7, 1996, Azerbaijan single entry visa valid until May 7, 1996
− May 4, 1996, Georgia single entry visa valid until June 4, 1996
− May 6, 1996, Artvin, Turkey entry stamp
− May 11, 1996, Istanbul, Turkey exit stamp
As an aside, it appears that there is also a May 4, 1996 Azerbaijan exit stamp that was not included in the reporting about the contents of the passport.
[24] When he entered Canada, the Respondent also had the following documents in his possession:
− three certificates from the International Islamic Relief Organization [IIRO], Pakistan office attesting to the Respondent’s work as a teacher and director of an orphanage in Pakistan;
− one certificate from the IIRO certifying that Mohamed Mohamed Abdallah was also a teacher at an orphanage in Pakistan;
− a certificate attesting to the Respondent’s work as a teacher on behalf of the Saudi Arabian Ministry of Education in Pakistan;
− a certificate attesting to the Respondent’s spouse’s work as a teacher on behalf of the Yemeni Ministry of Education in Pakistan from January 1993 to August 1994; and
− a torn piece of note paper with the following phrase, “I want to apply for political refugee condition”.
[25] Turning to the Respondent’s alleged activities before coming to Canada, the PSIR sets out the Service’s belief that the Respondent is an “Afghan war veteran” and the Service’s conclusion that he “spent an unidentified period of time in Afghanistan, and that his travel pattern was consistent with that of a mujahid extremist - one who left Egypt to fight in Afghanistan, trained in Yemen, may have fought in Chechnya, and cannot return to Egypt.” [PSIR paras 4 and 11].
[26] As counsel for the Ministers stated, in advancing this position, they must establish there are reasonable grounds to believe the Respondent was in Afghanistan and there are reasonable grounds to believe that while in Afghanistan, he participated in jihad and engaged in mujahedeen activities. In support of these allegations, the Ministers rely on the Respondent’s statements made during two Service interviews on March 5 and August 21, 1998, the information found in Exhibit 11, Tab A36, a letter the Respondent received from Peshawar, Pakistan in April 1997 and classified information. The Ministers also rely, in part, on the Respondent’s alleged travel on false Iraqi and Saudi passports to Egypt, Saudi Arabia, Pakistan, Yemen, Azerbaijan, Jordan and Turkey, successively. They contend that this travel pattern is consistent with the travel pattern of a “mujahid extremist”. Additionally, the Ministers submit that the Respondent’s presence in Pakistan was in furtherance of his senior membership in AJ and not simply for his employment as a teacher. As well, the Ministers argue that it may reasonably be inferred that the Respondent’s travels to Yemen and Azerbaijan were to further his AJ connections.
[27] Turning to the evidence in the public record regarding the Respondent’s travels, in support of the allegation that the Respondent was in Afghanistan, the Ministers rely primarily on the two Service interviews referred to above. The two investigators, Michel Guay and David, who conducted the first and second interviews respectively, testified on behalf of the Ministers.
[28] Mr. Guay joined the service in 1992 and worked as an analyst at CSIS’s headquarters. From early 1995 until the spring/summer of 1998, he was an investigator in the Toronto region working on the Sunni Islamic extremism desk. He was the first investigating officer on the Respondent’s file.
[29] Mr. Guay stated that he had very little, if any, independent recollection of the interview. Therefore, for the purpose of refreshing his memory before testifying in this proceeding, he reviewed his operational report of the interview which is a summary of the interview and the testimony he gave in 1999 in the first security certificate proceeding. As to the timing of the interview, Mr. Guay explained that the Service had acquired quite a bit of information about the Respondent’s contacts and activities in Canada, in particular, his contacts with individuals, some of whom were previously known to the Service. Thus, at that time, the purpose of the interview was to clarify the Respondent’s relationships with these individuals and to try to provide some context to the information that had already been collected.
[30] Mr. Guay testified that he brought an Egyptian interpreter to assist him with the interview. The interview lasted approximately an hour-and-a-half. As he had testified in 1999, he did not recall whether or not he took notes at the interview and added that he did not believe the interpreter took notes but he could not recall. He explained that generally speaking, note taking is something that would be avoided and he would only try to take notes when there was something of import or of significance to take down. He also stated that if there was something of specific interest, he would try to write it down as quickly as possible after the interview.
[31] The operational report has thirteen paragraphs, a number of which are not relevant for the purpose of the present discussion. This includes the first three paragraphs that touch on introductory matters; paragraphs five to nine that summarize Mr. Guay’s questions regarding the Respondent’s knowledge of and his relationships with a number of individuals and the Respondent’s frustration at the fact that his answers were not accepted; and paragraphs 12 and 13 which deal with the end of the interview.
[32] Paragraph 4 of the operational report reads:
The writer then informed JABALLAH that he was aware that JABALLAH had been involved in jihad activities overseas (including Afghanistan) before coming to Canada, and had been involved with individuals and groups who were attempting to bring down the Egyptian government. JABALLAH protested that although he had been arrested various times in Egypt, he had never been charged with anything by Egyptian authorities. The writer indicated that he wasn’t referring to activities in Egypt, but elsewhere. JABALLAH was silent.
[Ref. Ind. Tab 141]
[33] Mr. Guay explained that the statement he made to the Respondent in paragraph 4 would have been informed by the various reports he reviewed that showed the Respondent’s interests in AJ; in Ayman Al Zawahiri, his philosophy and observations during various interviews; and in the on-going situation in Afghanistan with the Taliban. He added that these and others would have led him to ask the Respondent about his activities in jihad overseas and that he was just attempting to gauge the Respondent’s reaction to the statement.
[34] Paragraph 10 of the operational report states:
The writer then asked JABALLAH why he spent approximately one year in Yemen as a part of his travels prior to coming to Canada. JABALLAH responded that he had been looking for work. The writer then asked about JABALLAH’s eight-month sojourn in Azerbaijan. Again, JABALLAH responded that he had been looking for work. When the writer expressed his incredulity that anyone would travel to these two countries simply in search of employment, JABALLAH responded that he had worked for various relief agencies, in support of Afghan refugees and victims of the Afghan conflict.
[emphasis added]
[35] Mr. Guay testified that at this point in the interview, the Respondent retrieved a paper from a closet for Mr. Guay to look at that indicated he had been working for a relief agency. As the paper was primarily, if not entirely, in Arabic and he could not read Arabic, he would have given it to the interpreter to read. He testified that given the purpose of the interview, the names of relief agencies and their locations were of very low importance at the time. As well, he stated that he did not take a copy or make any notation of anything in the document. Further, he could not recall if the document shown to him on cross-examination was the same letter that was shown to him during cross-examination in the 1999 hearing. At this juncture, it is observed that the Respondent’s attempt to show Mr. Guay a paper concerning his work for a relief agency is not recorded in the summary of the interview.
[36] At paragraph 11 of the operational report, it states:
JABALLAH was asked if he knew Dr. Ayman AL ZAWAHIRI. When JABALLAH did not recognize the name, the writer showed him a photograph of ZAWAHIRI. After closely studying the photograph, JABALLAH indicated that during his time at one of the refugee camps in Afghanistan (where he was a teacher) he had seen an individual who resembled the man in the photograph, but had never met the man. JABALLAH also indicated that determining identities was difficult because no one in Afghanistan used their real names.
[37] With reference to paragraph 11 of the operational report, during examination-in-chief, Mr. Guay was asked what significance, if any, he attached to the Respondent’s statement that he had been in Afghanistan. He replied:
Afghanistan was of particular interest to the Service, especially in this period. I mentioned previously that the Service’s evaluation or assessment of the Islamic extremist threat evolved from previous years.
…
So the presence of someone in Afghanistan, especially during that period from in ’79 to ’89, would have indicated had they been there they would have either been fighting or at least in support of the jihad against the Russians.
[Transcript June 12, 2012, pages 114 to 116]
[38] In terms of the accuracy of the operational report, given that it was only a summary of the interview, on cross-examination Mr. Guay observed that as the Respondent’s answers were essentially denials or indications of already known information, there was very little new information and very little to recall. Mr. Guay added that, as was his practice, he sent the draft of the operational report to the interpreter to ensure the accuracy of the reporting and that nothing of significance had been omitted. Mr. Guay acknowledged that at that time he was not particularly interested in what the Respondent was doing when he said he was in Pakistan nor did he ask any follow-up questions about his time in Afghanistan. He also acknowledged that the report was a summary of what is believed to be salient in terms of the “section 12 [of the CSIS Act] interest”.
[39] David, the second investigator to interview the Respondent, joined CSIS in 1991 and in 1994, he was deployed to the Toronto regional office where he worked as an investigator for five-and-a-half years. He succeeded Mr. Guay as the investigator on the Respondent’s file.
[40] He explained that the timing of the interview was driven by external events, in particular, the August 20, 1998 US cruise missile attacks in Sudan and on training camps in Afghanistan in retaliation for the August 7, 1998 bombings of the US embassies in East Africa. The concern was whether AJ was planning retaliatory action. Thus, the primary purpose of the interview was to collect information about any AJ plans for retaliation. Second, the goal was to try to corroborate information that had been collected through other investigative methodologies and to gather additional information.
[41] David testified that the interview started around midnight and lasted about three-and- a-half hours. He had an Arabic interpreter to assist him with the interview. He essentially held the same view as Mr. Guay about note taking during an interview.
[42] The operational report of the interview has thirteen paragraphs. In general, the Respondent was asked to comment on the US bombing of targets in Afghanistan and Sudan and was asked questions concerning other names he had used in the past, his relationships with various individuals, and his overseas contacts. The Respondent was also asked about his contact with an individual in the UK named Daoud. The Respondent indicated that he may have spoken to an individual by this name when calling the International Office for the Defence of the Egyptian People [IODEP], which he described as a humanitarian organization. Relevantly, he then produced a letter from the IODEP attesting to his mistreatment by the Egyptian authorities. The following excerpts from the operational report are also relevant to this discussion. They read:
6. JABALLAH was shown a photograph of Ayrnan AL ZAWAHRI, leader of Egyptian AL JIHAD. JABALLAH stated that he did not recognize the photograph, nor had he ever met AL ZAWAHIRI in person. JABALLAH also denied ever having been in telephone contact with AL ZAWAHRI. …
10. The writer asked JABALLAH whether he had ever met Usama (Osama) BIN LADEN. JABALLAH denied ever meeting BIN LADEN in Afghanistan or anywhere else. JABALLAH insisted that he was in Afghanistan as a teacher and did not participate in the Jihad. JABALLAH produced a document in Arabic attesting to the fact that he worked as a teacher in Afghanistan. JABALLAH noted that what he knows of BIN LADEN, he learned through recent media coverage.
13. … JABALLAH asked the writer - in what appeared to be a hypothetical manner- what would happen if he did, in fact, know some of the individuals mentioned during the interview without being aware of their specific backgrounds. The writer stated that this would be the time to raise the issue. JABALLAH, upon reflection, declined the offer.
[Ref. Ind. Tab 142]
[43] Turning first to the Ministers’ submission that there are reasonable grounds to believe the Respondent was in Afghanistan, the Ministers point to the Respondent’s acknowledgement in the March 5 and August 21, 1998 Service interviews that he had been in Afghanistan working as a teacher and had spent time in a refugee camp there. The Ministers also rely on a public summary found at Exhibit 10, Tab A36. It states: “Service investigation revealed that Mr. Jaballah travelled to both Afghanistan and Pakistan in 1991.”
[44] The Ministers claim the Respondent gave contradictory information in the interviews regarding his recognition of Zawahiri’s photograph. The Ministers state that, during the first interview when he was shown a photograph of Zawahiri he stated that he “met” a person who resembled Zawahiri at a refugee camp in Afghanistan. However, the Ministers misstate what was purportedly said during the interview. According to the operational report, the Respondent stated that during his time at one of the refugee camps in Afghanistan “he had seen an individual who resembled the man in the photograph, but had never met the man.” During the second interview when he was shown a photograph of Zawahiri, the Respondent stated he did not recognize the photograph and had never been in telephone contact with or met Zawahiri in person. The Ministers note that at the end of the interview, the Respondent asked David what would happen if he did know some of the people mentioned in the interview without knowing their background. The Ministers argue that this illustrates the inconsistencies in the Respondent’s answers: on the one hand, denying that he had any overseas contacts and on the other, asking what would happen if he did know some of the individuals.
[45] The Ministers point out that Zawahiri was not known to have spent time in a refugee camp in Afghanistan. In stating that he may have met an individual who resembled Zawahiri’s photograph at a refugee camp in Afghanistan, the Respondent was trying to provide an explanation for the reason he knew Zawahiri. Additionally, the Respondent did not list Afghanistan as one of the countries in which he had resided in his PIF and yet he told Mr. Guay and David that he had been a teacher in Afghanistan. Further, at his Immigration and Refugee Board [IRB] hearing on June 15, 1998, when being examined by the Ministers’ representative, he denied being associated with the “Returnees from Afghanistan” or with any other group.
[46] The Ministers dispute the Respondent’s position that Mr. Guay and David were mistaken when they reported that the Respondent said he was in Afghanistan. They maintain that there is simply no evidence that either Mr. Guay or David, who were experienced intelligence officers accompanied by experienced interpreters, misunderstood the Respondent. The Ministers stress that in contrast to their position, the Respondent is asking the Court to draw an inference based on speculation without any evidence. They, however, are simply asking the Court to accept the Respondent’s statements contained in the evidence. The Ministers also question how the Respondent could teach in Afghanistan when he does not speak any of the languages spoken there.
[47] The Respondent submits that the far more plausible inference is that Mr. Guay and David were mistaken in their understanding that he had said he lived in Afghanistan. The Respondent says it is noteworthy that in the operational report of the first interview, if one reads the last two lines in the immediately preceding paragraph 10, it records the Respondent as stating that “he had worked for various relief agencies, in support of Afghan refugees and victims of the Afghan conflict.”
[48] The Respondent notes that the interview was conducted with the assistance of an interpreter. He claims the reporting at paragraph 11 that “he indicated that during his time at one of the refugee camps in Afghanistan (where he worked as a teacher)” could quite consistently relate to his earlier statement regarding his work for “Afghan refugees and victims of the Afghan conflict”. It is also argued that it would be odd for the Respondent to be so forthcoming when his statements were at odds with his PIF and his testimony at the IRB hearing. It is contended that it is a matter of simple confusion arising from the more than one meaning that could be given to the statement “I worked in an Afghan refugee camp”. It is pointed out that there were no follow-up questions, such as: did you participate in the conflict while you were there; who were you with; where were you; and where did you travel.
[49] The Respondent submits that neither David nor Mr. Guay made contemporaneous notes, both were reliant on an interpreter and the late hour at which the second interview was conducted heightened the possibility of error. During cross-examination, David was shown a document from the IIRO written in Arabic (in the Respondent’s possession when he entered Canada), a document that would be entirely consistent with what the Respondent stated in his PIF and before the IRB. David agreed that it was possible an error had been made, however, in fairness, he also stated that he stood by his operational report.
[50] Lastly, it is argued that the Ministers’ position regarding the Respondent’s alleged presence in Afghanistan is grounded on circular reasoning. That is, the Ministers’ assertion that the Respondent is a member of AJ is, in part, based on his alleged travel to Afghanistan. However, at the same time, the Service’s conclusion that the Respondent travelled to Afghanistan is based, in part, on the belief that he is a member of AJ.
[51] As set out above, the Ministers allege the Respondent was in Afghanistan for an unidentified period of time. According to the PSIR, the testimony and the submissions of counsel, the allegation is that the Respondent was in Afghanistan between November 1991 and June 1994.
[52] With respect to the Service interviews, there are some matters that call into question the reliability of the information contained in the operational reports. During his testimony, David stressed that the overarching purpose of an interview is to collect information and to corroborate information. He explained that corroboration in the context of intelligence gathering includes the coll