Almrei v. Canada (Citizenship and Immigration)

Almrei v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2007-10-05
Neutral citation
2007 FC 1025
File numbers
DES-5-01
Decision Content
Date: 20071005
Docket: DES-5-01
Citation: 2007 FC 1025
Ottawa, Ontario, October 5, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
HASSAN ALMREI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and background
[1] Hassan Almrei is a 33-year-old foreign national and a citizen of Syria who has been detained since October 19, 2001 pursuant subsection 82(2) of the Immigration and Refugee Protection Act (the Act) having been named in a security certificate issued by the Minister of Citizenship and Immigration and the Solicitor General of Canada. He now applies for judicial release from detention under conditions, except for the stay-at-home of the principal supervising surety, similar to those governing the release of three recent detainees under security certificates, namely Messrs Harkat, Jaballah and Mahjoub. Since April 24, 2006, he has been detained at the Kingston Immigration Holding Centre (KIHC). He is the only detainee there now. The other detainees Messrs. Harkat, Mahjoub, and Jaballah were released from detention by judges of this Court.
[2] The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (the Ministers) oppose his release from detention. The Ministers say he represents a substantial risk to national security and coupled with his risk of flight and he should not be released. He is a substantial risk to national security because he espouses the philosophy of Osama Bin Laden which promotes violent acts of terrorism against civilian populations in Western countries, including Canada. In addition, the Ministers submit the surety package proposed by Mr. Almrei to ensure compliance with release conditions is not comparable to those put in place in other similar cases. In particular, they submit none of the four sureties proposed are acceptable and the main feature of that surety package, his being home alone for substantial periods of time, has never been endorsed by any designated judge of this Court.
[3] Mr. Almrei counters testifying he rejects the philosophy of Osama Bin Laden as being contrary to the teaching of Islam. He recognizes he participated in jihad in Afghanistan and Tajikistan but argues this jihad was legitimate because it aimed at liberating Muslim countries from the Soviet occupiers or the surrogate government the Soviets put into place in 1992 after they left Afghanistan in 1989. Mr. Almrei readily agrees that Al-Qaeda is a terrorist organization bent on attacking and killing innocent civilians. His point is that he is no part at all of Al-Qaeda, its affiliates or its Network He argues the security package he is willing to abide by is effective principally because of the GPS features in the bracelet he would be required to wear and is the best package he can put forward having no relatives in Canada
Background
[4] This is his third application for judicial release from detention. The first two applications for release were dismissed by designated judges of this Court. These previous applications were made pursuant to subsection 84 (2) of the Immigration and Refugee Protection Act (the Act). This section is no longer in force having been struck down by the Supreme Court of Canada’s decision in Adil Charkaoui/Hassan Almrei and Mohammed Harkat v. The Minister of Citizenship and Immigration &The Minister of Public Safety and Emergency Preparedness, cited as 2007 SCC 9 issued on February 23, 2007. Mr. Almrei now makes his third release application pursuant to section 83 of the Act re-written by the Supreme Court of Canada to apply to foreign nationals as well as to permanent residents.
[5] Since the age of seven, Mr. Almrei grew up in Saudi Arabia after his family fled Syria; his father has been a member of the Muslim Brotherhood in Syria and feared reprisal from the Syrian government. Mr. Almrei arrived in Canada on the 2nd of January, 1999 and was recognized as a Convention Refugee in June of 2000. He cannot be removed from Canada to Syria or any other country where he might face persecution or torture unless, pursuant to section 115 (2) of the Act, the Minister is of the opinion he should not be allowed to remain in Canada on the basis he is a danger to national security. He is not married and has no relatives in Canada. His family largely remains in Saudi Arabia.
[6] The security certificate issued in respect of Mr. Almrei was reviewed by my colleague Justice Tremblay-Lamer who, on November 23, 2001, concluded it was reasonable (her reasons are reported at 2001 FCT 1288). Mr. Almrei chose not to testify before her. She held at paragraph 31 of her reasons:
“The confidential information, which I am unable to disclose, strongly supports the view that Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Osama Bin Laden and that Mr. Almrei is involved in a forgery ring with international connections that produce false documents.” [Emphasis mine]
[7] A security certificate found reasonable by a designated judge of the Federal Court carries with it two consequences. First, the certificate is conclusive proof the person named therein is inadmissible to Canada and, second, the certificate is a removal order that may not be appealed and that is in force without the necessity of holding or continuing an examination or an admissibility hearing.
[8] His first release application was dismissed by my colleague Justice Blanchard on March 19, 2004, whose reasons are found at 2004 FC 420. Justice Blanchard determined Mr. Almrei failed to satisfy him on either branch of subsection 84(2) of the Act because he would be removed from Canada within a reasonable time and his release would pose a danger to national security, which danger could not be contained by the release conditions then being proposed. His decision was upheld by the Federal Court of Appeal (the FCA) 2005 FCA 54, but the FCA’s decision was set aside by the Supreme Court of Canada on constitutional grounds on appeals by Adil Charkaoui, Hassan Almrei and Mohamed Harkat, cited above.
[9] Mr. Almrei’s second attempt at judicial release came before my colleague Justice Layden-Stevenson. On December 5, 2005, prior to the Supreme Court of Canada’s release of its judgment in Charkaoui/Almrei/Harkat, above, she denied his release from detention, (2005 FC 1645). She was of the view Mr. Almrei had met the first branch of the subsection 84(2) test, concluding he had established that his removal was “not imminent; it was not a done deal and will not occur within a reasonable time”. However, she decided Mr. Almrei had not satisfied her on the second branch holding he constituted a danger to national security which danger could not be contained by the imposition of strict conditions of release. I note she made her determination largely based on the public record but was supported in her conclusions by her review of the confidential material filed on behalf of the Ministers.
[10] As stated, this application for release from detention is made pursuant to amended section 83 of the Act which now reads:
(1) No later than 48-hours after the beginning of detention of a permanent resident or a foreign national, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require.
(2) The permanent resident or foreign national must be brought back before a judge at least once in the six-month period following each proceeding review and any other times that the judge may authorize
(3) A judge shall order the detention to be continued if satisfied that the permanent resident or foreign national continues to be a danger to national security or the safety of any person, or is unlikely to appear at a proceeding or for removal.
[Emphasis mine]
[11] Expanding a foreign national’s detention review rights was not the only change brought by the Supreme Court of Canada in the above-noted decision. Two other significant encroachments were made to the certificate scheme (the scheme) in the Act.
[12] First, in the area of detention review and in the context of its discussion whether extended periods of detention under the scheme violated Charter sections 7 and 12 guarantees, the Chief Justice of Canada, on behalf of a unanimous Court, at paragraph 110 of her reasons answered the question in the negative, provided there was in place “a process that provides regular opportunities for review of detention”, taking into account the following non-exclusive factors:
• Reasons for detention;
• Length of detention;
• Reasons for the delay in deportation;
• Anticipated future length of detention, and;
• Availability of alternatives to detention.
These guidelines are applicable to Mr. Almrei’s application for judicial release from detention being considered by this Court.
[13] When the Supreme Court of Canada released its judgment on February 23, 2007, only Mr. Almrei and Mr. Mahmoud Es-Sayyid Jaballah remained in detention pursuant to the security certificate scheme. The other affected persons had previously been released on conditions under the then sections 83 or 84(2) of the Act. Those persons are Mr. Charkaoui, Mr. Harkat and Mr. Mahjoub. Mr. Mahjoub was released by Justice Mosley on February 15, 2007 (reasons cited as 2007 FC 171). After the Supreme Court of Canada rendered its decision, Justice Layden-Stevenson, applying the Supreme Court of Canada’s guidelines, released pursuant to amended section 83 of the Act, Mr. Jaballah from detention under very strict and onerous conditions of release (see Mahmoud Jaballah v. The Minister of Public Safety & Emergency Preparedness, et al., 2007 F.C. 379, issued on April 12, 2007).
[14] The second area of substantial impact on the scheme concerns the provisions of the security certificate scheme which mandates a designated judge of this Court, either with respect to a determination whether a security certificate was reasonable or on a review of detention pursuant to the Act, to consider confidential evidence submitted by the Ministers in-camera and ex parte, i.e. without disclosure to the named person or his counsel. The Supreme Court of Canada found these provisions to be a violation of section 7 of the Charter because they did not provide adequate measures to compensate for the non-disclosure and the constitutional problems it caused. As a result, the Supreme Court of Canada found the Act’s “procedure for the judicial confirmation of certificates and review of the detention violates section 7 of the Charter and has not been shown to be justified under section 1 of the Charter.” The Chief Justice of Canada “declared the procedure to be inconsistent with the Charter, and hence, of no force or effect”. However, in order to give Parliament time to amend the law, it suspended this declaration for one year from the date of its judgment.
[15] Paragraph 140 of Charkaoui/Almrei/Harkat, deals with the suspension of the declaration:
“However, in order to give Parliament time to amend the law, I would suspend this declaration for one year from the date of this judgment. If the government chooses to go forward with the proceedings to have the reasonableness of Mr. Charkaoui’s certificate determined during the one-year suspension period, the existing process under the IRPA will apply. After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates have been deemed reasonable) will lose the “reasonable” status that has been conferred on them, and it will be open to them to apply to have the certificates quashed. If the government intends to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament. Likewise, any detention review occurring after the delay will be subject to the new process.”
[16] As noted, the Supreme Court did not suspend its declaration of invalidity of subsection 84(2) of the Act. In terms of this detention review the result is that the procedure for taking in and assessing confidential evidence by the Court are those in place under the Act before the Supreme Court issued its declaration of invalidity.
[17] Prior to the hearing of this application for judicial release I inquired of both counsel whether, in the circumstances, it would be appropriate for the Court to appoint an amicus curiae to vet the confidential material. Counsel for Mr. Almrei declined the invitation on the grounds it would unduly delay the hearing of this application for Mr. Almrei’s release. Counsel for the Ministers made no comment on the Court’s suggestion.
Applicable legal principles
[18] Counsel for Mr. Almrei and counsel for the Ministers were largely in agreement on the applicable legal principles flowing from the Charkaoui/Almrei/Harkat Supreme Court of Canada decision. I enumerate them below.
[19] First, under subsection 83(3) of the Act, the Ministers bear the initial evidentiary burden of establishing Mr. Almrei “continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.” (see paragraph 100 in Charkaoui/Almrei/Harkat, above).
[20] Second, Mr. Almrei’s detention review is governed by the guidelines enunciated by the Supreme Court of Canada in its recent decision. These factors are set out at paragraphs 110 through 121 in Charkaoui/Almrei/Harkat, above, and I quote:
110. I conclude that extended periods of detention under the certificate provisions of the IRPA do not violate ss. 7 and 12 of the Charter if accompanied by a process that provides regular opportunities for review of detention, taking into account all relevant factors, including the following:
(a) Reasons for Detention
111. The criteria for signing a certificate are "security, violating human or international rights, serious criminality or organized criminality" (s. 77). Detention pursuant to a certificate is justified on the basis of a continuing threat to national security or to the safety of any person. While the criteria for release under s. 83 of the IRPA also include the likelihood that a person will appear at a proceeding or for removal, a threat to national security or to the safety of a person is a more important factor for the purpose of justifying continued detention. The more serious the threat, the greater will be the justification for detention.
(b) Length of Detention
112. The length of the detention to date is an important factor, both from the perspective of the individual and from the perspective of national security. The longer the period, the less likely that an individual will remain a threat to security: "The imminence of danger may decline with the passage of time": Charkaoui (Re), 2005 FC 248, at para. 74. Noël J. concluded that Mr. Charkaoui could be released safely from detention because his long period of detention had cut him off from whatever associations with extremist groups he may have had. Likewise, in Mr. Harkat's case, Dawson J. based her decision to release Mr. Harkat in part on the fact that the long period of detention meant that "his ability to communicate with persons in the Islamic extremist network has been disrupted": Harkat, at para. 86.
113. A longer period of detention would also signify that the government would have had more time to gather evidence establishing the nature of the threat posed by the detained person. While the government's evidentiary onus may not be heavy at the initial detention review (see above, para. 93), it must be heavier when the government has had more time to investigate and document the threat.
(c) Reasons for the Delay in Deportation
114. When reviewing detentions pending deportation, judges have assessed whether the delays have been caused by the detainees or the government: Sahin, at p. 231 . In reviewing Mr. Almrei's application for release, the Federal Court of Appeal stated that a reviewing judge could "discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time": Almrei, 2005 FCA 54, at para. 58; see also Harkat, at para. 30. Recourse by the government or the individual to applicable provisions of the IRPA that are reasonable in the circumstances and recourse by the individual to reasonable Charter challenges should not count against either party. On the other hand, an unexplained delay or lack of diligence should count against the offending party.
(d) Anticipated Future Length of Detention
115. If there will be a lengthy detention before deportation or if the future detention time cannot be ascertained, this is a factor that weighs in favour of release.
(e) Availability of Alternatives to Detention
116. Stringent release conditions, such as those imposed on Mr. Charkaoui and Mr. Harkat, seriously limit individual liberty. However, they are less severe than incarceration. Alternatives to lengthy detention pursuant to a certificate, such as stringent release conditions, must not be a disproportionate response to the nature of the threat.
117. In other words, there must be detention reviews on a regular basis, at which times the reviewing judge should be able to look at all factors relevant to the justice of continued detention, including the possibility of the IRPA's detention provisions being misused or abused. Analogous principles apply to extended periods of release subject to onerous or restrictive conditions: these conditions must be subject to ongoing, regular review under a review process that takes into account all the above factors, including the existence of alternatives to the conditions.
118. …
119. Section 84(2) governs the release of foreign nationals. It requires the judge to consider whether the "release" of the detainee would pose a danger to security. This implies that the judge can consider terms and conditions that would neutralize the danger. The judge, if satisfied that the danger no longer exists or that it can be neutralized by conditions, may order the release.
120. Section 83(3), which applies to permanent residents, has a slightly different wording. It requires the judge to consider not whether the release would pose a danger as under s. 84(2), but whether the permanent resident continues to be a danger. An issue may arise as to whether this difference in wording affects the ability of the judge to fashion conditions and hence to order conditional release. In my view, there is no practical difference between saying a person's release would be a danger and saying that the person is a danger. I therefore read s. 83(3), like s. 84(2), as enabling the judge to consider whether any danger attendant on release can be mitigated by conditions.
121. On this basis, I conclude that for both foreign nationals and permanent residents, the IRPA's certificate scheme provides a mechanism for review of detention, which permits the reviewing judge to fashion conditions that would neutralize the risk of danger upon release, and hence to order the release of the detainee. [Emphasis mine]
[21] Third, counsel for the Ministers and Mr. Almrei agree Mr. Almrei could bring his third release application unconstrained by the requirements imposed by the Federal Court of Appeal in Almrei, above, namely: the existence of new evidence or the existence of a material change from a previous release application. Both counsel agreed the FCA’s pre-conditions for hearing another application for release were overtaken by the Supreme Court of Canada’s view expressed at paragraph 123 of its reasons. I agree with the submissions of counsel on this point. At paragraph 123 of her reasons, the Chief Justice of Canada wrote:
“In summary, the IRPA, interpreted in conformity with the Charter, permits robust ongoing judicial review of the continued need for and justice of the detainee's detention pending deportation. On this basis, I conclude that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate s. 7 or s. 12 of the Charter, provided that reviewing courts adhere to the guidelines set out above. Thus, the IRPA procedure itself is not unconstitutional on this ground. However, this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter.”
[Emphasis mine]
Put another way, Mr. Almrei’s third application for release from detention is a new application which the reviewing judge must consider afresh and de novo based on the evidence before him/her having regard, however, to judicial comity in respect of prior judicial findings of other colleagues in proceedings in which Mr. Almrei was involved. Such findings should be followed in the absence of strong reasons to the contrary. I will analyse the concept of judicial comity later in these reasons.
[22] Fourth, the concept of what constitutes “a danger to national security” is that expressed by the Supreme Court of Canada in Suresh v. The Minister of Citizenship and Immigration et al. [2002] 1 S.C.R. 3 at paragraph 90:
“These considerations lead us to conclude that a person constitutes a "danger to the security of Canada" if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be "serious", in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.”
[Emphasis mine]
[23] Fifth, the determination of whether the terms and conditions of release will mitigate the danger to national security of Canada posed by a detainee is to be gauged on the balance of probabilities.
[24] Sixth, a finding that a security certificate is reasonable does not translate automatically to a finding that the person is a danger to the security of Canada (see Suresh, above, at paragraph 83).
The case for the Ministers
[25] On June 18, 2007, the Canadian Security Intelligence Service, (the Service) on behalf of the Ministers, filed a public summary approved by the Court setting out their position with respect to Mr. Almrei’s possible judicial release from detention. After meeting the Court in-camera, the Service filed, on July 10, 2007, an expanded public summary dated July 6, 2007 providing additional public disclosure. The positions set forth by the Ministers’ in the public summary were:
1. The Canadian Security Intelligence Service (the Service) believes that the release of Hassan Almrei (Almrei) from detention will be injurious to the national security and to the safety of persons;
2. Almrei’s adoption of the extremist ideology espoused by Osama Bin Laden, his participation in jihad, his connections with other who share the extremist ideology of Osama Bin Laden, and his participation in an international document procurement network demonstrate that Almrei’s application must be denied;
3. Almrei has the ability and capacity to facilitate the movement of individuals in Canada and abroad who share the extremist ideology espoused by Osama Bin Laden and would commit terrorist acts. While Almrei’s detention may have diminished the severity of the threat posed by him, it has not negated it;
4. The procurement of travel and identity documents continues to be essential for the undetected movement of individuals engaging in terrorism worldwide. Almrei’s release would place him in a position to re-establish his fraudulent document activities;
5. The Service does not believe that any conditions of release can address the danger to the national security or to the safety of persons that Almrei’s release will pose. [Emphasis mine]
[26] In support of the Ministers’ position, the Service identified the following indicators of Mr. Almrei’s adherence to and promotion of extreme Islamic ideals espoused by the Bin Laden Network (the Network) and by Osama Bin Laden, the head of Al-Qaeda, the Network’s central core which marks Mr. Almrei as a danger to the security of Canada:
(a) His admitted participation in jihad as reflected in his declaration of November 10, 2002, contained at Tab 5 of Volume 1 of the Reference Index in the Ministers’ public record, coupled with his testimony before Justices Blanchard and Layden-Stevenson, the essential details of which are:
• In 1990, at the age of 16, he first travelled to Pakistan intending to go to Afghanistan to fight the vestiges of the former Soviet occupier who left in 1989 and the Communist puppet government it installed in 1990 which fell in 1992 at the hands of the Mujahidin Coalition forces. He did not reach Afghanistan because he contracted malaria. During his stay in Pakistan the Ministers say he resided in a guest house controlled by Al-Qaeda;
• In 1991, at the age of 17, his travel to Afghanistan staying for several months during his summer vacations. He attended a military camp of Afghani mujahidin forces under the command of Abdul Sayyaf where he acknowledges he received training in the use of an AK-47;
• In 1992, again during his summer vacations, returning to the same Sayyaf camp in Afghanistan;
• In 1994, a four to five month visit return trip to Afghanistan to do a new jihad in Tajikistan with ibn-Khattab and his attendance in his camp at Khunduz;
• In 1995 a return to Khunduz where he engaged in scouting Russian positions in Tajikistan and ultimately crossing the border and establishing with commander ibn-Khattab a camp there;
• In 1996 or 1997 other returns to Pakistan in the context of his honey business.
(b) His Arab-Afghan connections. The Service believes Mr. Almrei’s release from detention will allow him to re-establish connections with Arab-Afghans who fought jihad in Afghanistan and who support the Islamic extremist ideals of Osama Bin Laden including ibn-Khattab’s followers, Abdul Sayyaf, Nabil Al Marabh, Hoshem Al Taha and Ahmed Al Kaysee. The public summary describes who these individuals are. Ibn-Khattab is a seasoned Mujahidin commander who led jihad in Afghanistan and then in Tajikistan. He then subsequently led another jihad in Chechnya where, in 2002, he was killed by Russian forces. Russian authorities alleged Chechnyan rebels under his command were responsible for a series of bombings in various Russian cities in the summer of 1999 which resulted in the deaths of hundreds of civilians. Mr. Sayyaf, as mentioned, was a leader of the mujahidin coalition which fought the Soviet occupier and its Afghani transplant. Mr. Nabil Al Marabh is an individual who Mr. Almrei met in Khunduz, Afghanistan in 1994 at ibn-Khattab’s camp and for whom Mr. Almrei arranged the procurement of a false passport while he was in Canada. He is said to be in jail in Syria having been deported from the U.S. Hoshen Al Taha is the name of the individual whom Mr. Almrei said he was going to visit in Canada when he applied in Saudi Arabia for a visitor’s visa to come to Canada. Mr. Ahmed Al Kaysee is an individual who did jihad in Afghanistan. He met Mr. Almrei at the airport when Mr. Almrei first came to Canada.
(c) Mr. Almrei’s involvement in false documentation. The Service believes Mr. Almrei is involved in a forgery ring with international connections that produce false documents. As public support of this allegation, the public summary notes his personal use of false travel documents, his arranging for the false documentation for Mr. Al Marabh, the fact he testified he knew individuals in Montréal who could obtain false documents, his acknowledgment he has a reputation in the community for obtaining false documents, his travel in 1998 to Thailand to befriend an individual who was involved in human smuggling and his continued contact with that individual to discuss false passports after he came to Canada, his association with Ibrahim Ishak for whom he arranged a marriage of convenience in Toronto and to whom Mr. Almrei referred for the procurement of false identification documents. Mr. Ishak was arrested in Detroit in possession of several packages of identity and other documents for sale including passports for individuals other than himself.
(d) Mr. Almrei’s use of clandestine methodology. The Service alleges Mr. Almrei has used clandestine techniques and based on such use, is of the view if Mr. Almrei were released from detention it would be difficult to ensure that he abide by any conditions that may be imposed upon him.
(e) His release on terms and conditions. The Service does not believe that any terms and conditions will address the danger to national security that Mr. Almrei’s release will pose. It states he has admitted on several occasions he lied to Canadian officials, to his own lawyer, that he refused to testify before Madam Justice Tremblay-Lamer and he was found by Justices Blanchard and Layden-Stevenson not to be credible demonstrates that he will not abide by any terms and conditions that could be imposed upon him. It cites the disappearance of individuals in the United Kingdom who were subject to control orders which show that conditions which intend to restrict the movements of individuals who support Islamic extremism or terrorism are not effective.
(f) The Service concludes by stating Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Osama Bin Laden. It states these individuals have and will continue to rely on the procurement of false documents that will allow them to plan and execute terrorist operations, and Mr.Almrei’s release will place him in a position to assist these individuals.
[27] The Ministers’ case was supported by oral and documentary evidence presented in public and in in-camera sessions. The Ministers called one witness in the pubic session: J.P., a Service Intelligence Officer who had testified previously before Justice Layden-Stevenson in Almrei. J.P. also testified before her in Jaballah and before Justice Noël in Charkaoui. The Ministers also called only one witness for the in-camera sessions.
[28] The Ministers’ public documentary evidence consisted of:
· The Ministers’ position with respect to Mr. Almrei’s application for judicial release dated July 6, 2007, supported by a reference index of three public volumes;
· A will-say statement of J.P. who testified;
· Unofficial transcript of the interview held by CSIS with Mr. Almrei on July 10 -11, 2003;
· Article by Peter L. Bergen entitled, The Osama Bin Laden I Know;
· Article by John Esposito entitled, Unholy War-Terror in the Name of Islam;
· Article from www.globalsecurity.org, on Ustad Abdul Rashul Sayyaf;
· Article entitled Killing in the Name of Islam by Messrs. Kiktorowicz and Kaltner;
· The Ministers’ further materials dated July 13, 2007, consisting of a number of articles;
· Three volumes of extracts from the transcripts of detention reviews involving Mr. Almrei; and one set of transcript extracts related to the detention review conducted by Justice Blanchard in November, 2003 and January, 2004. The extracts were of the testimony and cross-examination of J.P. who testified before me, as well as those of Hassan Almrei and two proposed sureties, Diana Ralph and Hassan Ahmed, all three testifying before me. The other set of transcripts relate to the proceeding before Justice Layden-Stevenson. The individuals mentioned in the previous sentence also testified before Justice Layden-Stevenson;
· Article entitled, The Far Enemy.
[29] Counsel on behalf of the Ministers, in the in-camera sessions, filed the following documentary evidence: a confidential version of the document prepared by CSIS entitled Information Pertaining to the Application for Release of Hassan Almrei, dated June 18, 2007 (hereinafter the SIR). This document was accompanied by three volumes of confidential information essentially placing before me the confidential material which had been before Justices Tremblay-Lamer, Blanchard and Layden-Stevenson. In addition, the CSIS SIR document contained additional confidential material not contained in the three volumes of the reference index. As will be seen below, I rejected the admissibility of this new or fresh evidence.
Mr. Almrei’s case
[30] The essence of Mr. Almrei’s position is to categorically deny he espouses the philosophy of Al-Qaeda characterized by the indiscriminate killing of civilians in the West or in the Middle East to achieve political or religious objectives. He argues Al-Qaeda’s actions are contrary to the teachings of Islam and its Prophet.
[31] He states Al-Qaeda’s actions cannot really be considered a jihad because it is not directed at liberating Muslim countries from foreign oppressors as was the case in Afghanistan. He states the killing of innocent civilians is not compatible with jihad properly understood in the Koran. Death through suicide bombing is alien to Islam, he says.
[32] He denies the guest house he first resided in Peshawar in 1990 was under the control of Al-Qaeda.
[33] He recognizes Osama Bin Laden participated in and supported the Mujahidin resistance triggered when the Soviet Union invaded Afghanistan in 1979. Shortly thereafter, Osama Bin Laden teamed up with Abdallah Azzam in 1984 to form the MAK which recruited fighters in Muslim countries to assist in liberating Afghanistan. Mr. Azzam was killed in Pakistan in November of 1989.
[34] He argues the Osama Bin Laden of the 1980’s to 1992 in Afghanistan was a different and a less radical person than the one who emerged in 1996 to issue his fatwa against the U.S., who lent his support to the Talibans and preached intolerance and hate.
[35] Mr. Almrei’s case also concentrated on several of the Arab-Afghans the Service said he associated with and who the Service submits support the extreme ideals of Osama Bin Laden and those of Al-Qaeda.
[36] In particular, he argues that the record shows Messers. Kattab and Sayyaf cannot be labelled as adherents to the Osama Bin Laden extremist views recognizing, however, that these two individuals held views of Islam which were conservative or of a fundamentalist nature but were not extreme in the way Mr. Bin Laden professed.
[37] His case was supported by oral and documentary evidence presented in public sessions. Mr. Almrei testified by video-conferencing from KIHC. He was cross-examined. His views of jihad were supported by the testimony of Doctor Badawi who was tendered as an expert but whose recognition as such I withheld on the grounds he did not meet the test of necessity as explained by the Supreme Court of Canada in its decision of Her Majesty the Queen v. Mohan [1994] 2 S.C.R. 9. Doctor Badawi testified as an ordinary witness.
[38] In his application for judicial release, Mr. Almrei lists:
• Erma Wolfe as the principal supervisory surety since it is in her basement apartment in Toronto he would reside. She is also prepared to put into place a performance bond of $3000.00. She testified before the Court.
• Diana Ralph and her partner Jean Hanson who now live in Ottawa agree to step into Erma Wolfe’s shoes when she is away from Toronto visiting, in particular, her grandchildren in Alberta. They are also prepared to put into place the sum of fifty thousand dollars as surety bail and the sum of ten thousand dollars as cash bail in order to ensure Mr. Almrei observes his conditions of release. They had previously been proposed as principal supervisory sureties when they lived in Toronto. Dr. Ralph testified before the Court.
• Hassan Ahmed, who lives in Toronto, is also proposed as a supervisory surety who would stand in for Erma Wolfe when she is away from home visiting her friends and family in and around the Metro Toronto. The sum of fifteen thousand dollars would be deposited into the Court in his name as cash bail. This money was collected from the Muslim community in Toronto through the efforts spearheaded by Iman Hindy. Mr. Ahmed had previously been proposed as an escort supervisor. He testified before me.
• Alexandre Trudeau is willing to post bail in the amount of five thousand dollars cash; and
• The following members of Parliament have offered support:
• Andrew Telegi, offering a surety of five hundred dollars;
• Alexa McDonough is willing to post a conditional cash surety bond in the amount of two hundred and fifty dollars; and
• Bill Siksay will post a surety of ten thousand dollars.
[39] In support of his release application, Mr. Almrei filed an affidavit in which he states at paragraph 27, “The terms of bail that will be proposed for me in order to permit my release from custody will be very similar to those imposed upon Mr. Harkat, Mr. Mahjoub, and Mr. Jaballah and will include the following aspects:
• Active GPS electronic monitoring;
• House arrest with limited approved outings with a surety;
• Geographic boundary restrictions;
• No contact except with persons approved by CBSA;
• No one can come into the house unless they are CBSA-approved;
• No computer access;
• No cell phone access;
• CBSA right to monitor phone calls and to enter the house at any time;
• CBSA right to check mail coming into the house;
•Stay away from airport, bus and train terminals;
• Keep the peace and be of good behaviour;
• Perhaps a non-association clause with certain named persons.
[40] During the hearings, video cameras outside Erma Wolfe’s house were also proposed. Mr. Almrei also stated from discussions he had with his counsel he believed “Mr. Harkat almost, whenever he is outside his home on an outing, is followed by the CBSA.”
[41] The documentary evidence filed in support of Mr. Almrei’s case consisted of:
· His application for judicial release made up of Mr. Almrei’s affidavit supported by the affidavits of proposed sureties namely, Diana Ralph, and her partner Alexandre (Sasha) Trudeau, Hassan Ahmed and Erma Wolfe, the principal supervising surety;
· Additional material relied upon by the applicant consisting of an extract of the Arar Commission Report, letters of support from three Members of Parliament and pictures of the basement apartment of the home of Erma Wolfe;
· Transcripts of evidence given by J.P. at the release hearings concerning Mr. Jaballah on October 6, 2006, and October 10, 2006;
· Transcript of proceedings heard by Justice Blanchard on January 5, 2004;
· Excerpts of an article entitled Blowing up Russia – the Secret Plot to Bring Back KGB Terror, by Alexander Litvinenko and Urie Felshteinsky;
· Excerpt of a book entitled Death of a Dissident – The Poisoning of Alexander Litvinenko and the Return of the JGB by Messrs. Goldfarb and Marina Litvinenko;
· Internet article entitled Background of the Tagik War, Cease-Fire in 1994;
· Transcript of P.G.’s evidence given at Mr. Harkat’s release hearing on November 3, 2005; and;
· Extract from Mr. Sageman’s book entitled Understanding Terror Networks.
Analysis
[42] As is seen from the Ministers’ position, the centerpiece of their concern with Mr. Almrei is his embrace of the radical extremist Islamic ideology espoused by Osama Bin Laden, whose external manifestation is international terrorism constituting a danger or threat to the security of Canada by the use of violence against persons or property for the purpose of achieving a political, religious or ideological objective wi