Digests

Harkat (Re)

DES-4-02

2005 FC 393, Dawson J.

22/3/05

74 pp.

Reference to Court under Immigration and Refugee Protection Act (IRPA), ss. 77(1) for determination whether inadmissibility on security grounds certificate reasonable-- Certificate reasonable, challenge to constitutional validity of legislation rejected--Procedural steps regarding disclosure of information--Chronology of Court orders, directions--Judge examined security intelligence report upon which certificate based within seven days of referral--Narrative, reference indexes amounted to 10 volumes--Judge heard viva voce testimony, questioned Canadian Security Intelligence Service (CSIS) representative--Harkat given summary of narrative, copies of some documents so as to be reasonably informed-- Given some six volumes of material--Only information injurious to national security, any person's safety withheld-- On three subsequent occasions, Ministers asked Court to receive additional information in absence of Harkat, counsel-- First request was re: information from foreign agency--Harkat given summary after foreign agency consented--Information was to effect Harkat identified as having operated guest house in Pakistan for Mujahedeen on way to Chechnya--Second request was re: two contacts between Harkat, CSIS--Harkat given summary, omitting information on operational detail, identification of certain individuals--Other disclosure matters were subject of litigation: Harkat (Re) (2003), 231 F.T.R. 19 (F.C.T.D.); Harkat (Re) (2003), 243 F.T.R. 161 (F.C.); Harkat (Re), [2005] 2 F.C.R. 416 (F.C.)--Due to passage of time, Court convened hearing to consider whether any more information could be given Harkat--Harkat later given additional summary statement re: Odeh, terrorist implicated in bombing American Embassy at Nairobi--Court received yet another Ministerial request to hear evidence in camera--To help Harkat focus on case to be met, Court ruling would make no adverse finding based on information from Ahmed Ressam, Maher Arar or Odeh--Harkat serving notice of constitutional question--Order sought striking down IRPA, ss. 77-81--In written submission, relief sought refined to seek declaration ss. 78-80 violate fundamental justice, protected by Charter, s. 7, or modification of legislation's application to require appointment of Special Advocate (as in U.K.'s Special Immigration Appeals Commission process) to represent Harkat at ex parte, in camera proceedings--Charkaoui (Re), [2005] 2 F.C.R. 299 (C.A.) authority for proposition designated Judge does have power to consider constitutional question--Harkat's lawyer conceded Court bound by Ahani v. Canada, [1995] 3 F.C. 669 (C.A.), holding procedure under s. 40.1 of former Immigration Act satisfied fundamental justice principles--In Charkaoui, F.C.A. held process established by IRPA, ss. 77, 78 meets minimum fundamental justice requirements--F.C.A. also held appointment of special advocate or amicus curiae not needed to provide hearing in line with fundamental justice--Application for constitutional relief accordingly denied--Statutory scheme, standard of proof, what Ministers must prove, applicable legal principles --Review, exposition of statutory scheme, relevant case law--Only citizens have absolute right to enter, remain in Canada--Permanent residents have qualified right--Foreign nationals, permanent residents inadmissible if reasonable grounds to believe member of terrorist group--Permanent resident named in security certificate enjoys procedural rights not accorded foreign national--Proof of "reasonable grounds to believe" requires evidence demonstrating objective basis for reasonable grounds: mere suspicion, subjective belief not enough--Standard of proof is balance of probabilities--As for meaning of "terrorism", "member" of a group, see: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3--Allegations against Harkat--Concealed having supported Islamic extremists, went to Afghanistan--Member of bin Laden network (which includes Al-Qaida)--Network engages in terrorism to attain objective: establish Islamic states based on fundamentalist interpretation of Islamic law--Suspected of involvement in destruction of New York's World Trade Center in 2001--Al-Qaida operated terrorist training camps, guest houses in Afghanistan, Pakistan, Sudan--As many as 5,000 trained militants may have dispersed to 50 countries--Network uses "sleepers", suicide operatives--Harkat supporter of Front islamique du salut in Algeria--Told numerous lies to Canadian officials in attempt to disassociate himself from groups which support terrorism-- Associated with Abu Zubaida, a top lieutenant of Osama bin Laden--Harkat testified had never even met Abu Zubaida-- Public evidence reviewed--As to confidential information, reference to Canadian, foreign case law on necessity for keeping certain security information confidential--Security intelligence investigations directed to future events, attempting to predict them by discovering from past, present events patterns of occurrences, relationships--Must piece together apparently unrelated bits of information--Security intelligence investigation, unlike criminal investigation, not terminating when group member apprehended--Criminal law principles inapplicable to security certificate proceedings--Apparently non-sensitive, unrelated bits of information, if disclosed by Court, could provide insight into scope, progress of ongoing intelligence operation--Could reveal existence of leak from within organization, allowing taking of evasive steps--Could reveal certain activities not under investigation--Examples of type of information to be kept confidential--Since disclosure always situation specific, comparison with summaries provided in other security cases irrelevant--Principles relevant to assessment of confidential information set out by Blanchard J. in Almrei v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 327 (F.C.)--Same principles as in s. 84(2) detention review apply in determining reasonableness of security certificate--Examples of relevant inquiries, areas for examination by Court where confidential information is provided by human source--Relevant inquiries where confidential information provided by another intelligence agency would include foreign agency's human rights record, whether mere conduit for information from less reliable agency--Relevant inquiries where information obtained through technical sources (electronic surveillance)-- Regardless of source, questions should be posed as to existence of any exculpatory evidence--Judge must remain vigilant, mindful of obligation to probe reliability of evidence --Ministers required to address source of each item of information relied upon, reliability of each source of information, whether independent, corroborating information --Ministers providing, as confidential exhibit, chart depicting source of all information--After detailed review of entire record, Judge twice directed counsel to Ministers and a witness to re-attend in camera to answer certain questions-- Analysis of evidence--Reference to R. v. Sheppard, [2002] 1 S.C.R. 869 in which S.C.C. reaffirmed necessity for reasoned judgments as "central to the legitimacy of judicial institutions in the eyes of the public"--Requirement to given reasons concentrates judicial mind on difficulties presented--To ensure rigour in analysis, Judge prepared handwritten footnotes for inclusion in Court's confidential file--Three aspects of Harkat's testimony not having ring of truth-- Credibility undermined by admission twice lied to CSIS-- Beyond doubt Harkat lied under oath to Court in several important respects--Harkat suggested information obtained from Abu Zubaida by torture, therefore inadmissible-- Ministers say use of torture not proved on balance of probabilities--Harkat mentioned New York Times, Globe and Mail articles concerning guidance given CIA as to how far it could go in terms of extreme interrogation techniques in extracting information from Abu Zubaida--"Gonzales memorandum" prepared by American Justice Department, said acts had to be of "extreme nature to rise to level of torture . . . certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within meaning of" Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S. No. 36--Causing mental suffering permissible if not resulting in significant psychological harm enduring for months or years--Use of sensory deprivation techniques legitimate--In context of "current war against Al Qaeda . . . prosecution under Section 2340A may be barred because enforcement . . . would represent an unconstitutional infringement of the President's authority to conduct war . . . under the current circumstan-ces, necessity or self-defense may justify interrogation methods that might violate Section 2340A"--Harkat also pointed to statutory declaration by Mr. Watt of Centre for Constitutional Rights given opinion that, since September 11 attacks, "U.S. Executive Branch through a strained interpretation of applicable domestic and international law has approved detention practices and interrogation techniques that constitute torture"--U.S. officials, as well as using interrogation methods causing serious injury or death, have also resorted to "rendition" to other countries for torture-- Abu Zubaida said to have been captured in Pakistan, now held in Jordan--U.S. military official admitted America considering turning him over to foreign intelligence service that would employ more brutal techniques than those allowed in U.S.A.--He was shot during capture, medication for pain reportedly withheld as interrogation device--Court concluding hearsay material raised significant concern as to interrogation methods used on Abu Zubaida--Act, s. 78(j) gives judge flexibility to receive evidence normally inadmissible--Apart from torture issue, Court had no evidence as what Abu Zubaida actually said so unable to assess its weight--In all circumstances, no weight given to information provided by him--Reference to Security Intelligence Review Committee (SIRC) reports critical of CSIS, including mismanagement of Project Sidewinder (intelligence gathering as to efforts of Asian criminal gangs to influence Canadian politics, business), said to have harmed relations between CSIS, RCMP--CSIS's Sidewinder first draft report failed to meet most elementary standards of professional, analytical rigour--But no indication disagreements between CSIS, RCMP arising during course of Project Sidewinder caused, symptomatic of difficulties in other areas of inter-agency relationship--Judge read SIRC report on role of CSIS re: Maher Arar, prepared on basis of access to "top secret" information--SIRC report not supporting broad conclusion CSIS incompetent, inefficient, explaining single review not to be read as judgment of CSIS as a whole--Confidential information provided Court by CSIS generally reliable--Information speaks for itself, Court not having to rely on its evaluation by CSIS--On all evidence, Court satisfied Harkat supported terrorism as bin Laden network member, supports Groupe islamique armée (which seeks to establish Islamic state in Algeria, by use of violence), has assisted Islamic extremists who have come to Canada-- Harkat inadmissible as person described in IRPA, s. 34(1)(c), (f)--In earlier proceeding, Court rejected Harkat's arguments Ministers failed to make full, fair disclosure of Algerian political situation, improperly suggested false Saudi passports were passports of choice only for Islamic extremists-- Security certificates were reasonable--Immigration Act, R.S.C., 1985, c. I-2, s. 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31)--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 33, 34, 76-81 (ss. 76, 77, 79 (as am. by S.C. 2002, c. 8, s. 194)--Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S. No. 36--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.