Harkat, Re, 2010 FC 1241

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: June 02, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 1241;(2010), 380 F.T.R. 61 (FC)

Harkat, Re (2010), 380 F.T.R. 61 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. DE.014

In The Matter Of a certificate signed pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act")

In The Matter Of the referral of that certificate to the Federal Court of Canada pursuant to subsection 77(1) of the Act;

And In The Matter Of Mohammed Harkat

(DES-5-08; 2010 FC 1241)

Indexed As: Harkat, Re

Federal Court

Noël, J.

December 9, 2010.

Summary:

In 2002, Harkat was detained under a ministerial security certificate issued under the Immigration and Refugee Protection Act as a person inadmissible to Canada on grounds of national security. Numerous security certificate proceedings ensued. In 2006 he was released from detention on stringent conditions, which were substantially modified over time in favour of Harkat. Another security certificate was issued in 2008 when a new security certificate regime was implemented following the Supreme Court of Canada's rulings in Re Charkaoui. Harkat's case was referred to the court to determine the reasonableness of the 2008 certificate.

The Federal Court held that the issuance of the security certificate was reasonable. Therefore, the security certificate issued against Harkat on security grounds was upheld.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - The Federal Court stated that the security certificate reasonableness review process was not limited to an examination of the material that was before the Ministers when the certificate was issued, but additional evidence as well, such as documentary evidence, witness and expert evidence - The court noted, however, that any piece of evidence had to be ruled reliable and appropriate by the court - All evidence could be admitted and relied upon, even if it was inadmissible in a court of law - The court also noted that there was an exception (i.e., when there were reasonable grounds to believe that evidence was obtained through the use of torture as defined by section 269.1 of the Criminal Code, or cruel, inhumane or degrading treatment or punishment within the meaning of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, that evidence would be excluded) - See paragraphs 60 and 61.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - Section 33 of the Immigration and Refugee Protection Act provided that the facts that constituted inadmissibility under ss. 34 to 37 included facts arising from omissions and, unless otherwise provided, included facts for which there were reasonable grounds to believe had occurred, are occurring or may occur - The Federal Court discussed the "reasonable grounds to believe" standard in s. 33 - The court stated, inter alia, that that standard required something more than mere suspicion, but was less stringent than the criminal standard of "beyond a reasonable doubt" - See paragraph 63.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness (incl. role of designated judge) - A ministerial security certificate issued under the Immigration and Refugee Protection Act which named Harkat as a person who was inadmissible to Canada on grounds of national security was referred to the court for a reasonableness hearing - The Federal Court upheld the certificate - The court found that Harkat had not offered credible testimony to the court - His testimony was inconsistent and at times incoherent, implausible, if not contradictory - The Ministers' evidence showed that Harkat: had been involved in terrorist activities in Chechnya; had visited Afghanistan during a stay in Pakistan, contrary to his testimony; had links to an Islamic extremist group in Egypt; had used "sleeper agent" methods; had assisted two Islamist extremists in Canada; knew an individual related to Al-Qaeda; maintained contacts with Islamist extremists while in Canada; and that there were reasonable grounds to believe that he was a member of an entity that was part of the Bin Laden Network prior to his arrival in Canada and continued his involvement after coming to Canada - The court held that while the danger associated with Harkat had diminished over time, he still posed a danger to Canada, but at a lesser level.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness (incl. role of designated judge) - The Federal Court noted that in reasonableness review proceedings both parties would be provided "with an opportunity to be heard", but the burden of proof rested initially on the Ministers who alleged that, in their opinion, the subject of the certificate was inadmissible on the basis of security grounds - See paragraph 59.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness (incl. role of designated judge) - [See both Aliens - Topic 1560 ].

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - The Federal Court discussed what was meant by the term "terrorism" in the immigration context - See paragraphs 77 to 81.

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - The Federal Court discussed what was meant by the terms "member" or "membership" in a terrorist organization for purposes of the Immigration and Refugee Protection Act - See paragraphs 85 to 91.

Aliens - Topic 1747.2

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons who are a danger to the security of Canada - Section 34(1) of the Immigration and Refugee Protection Act provided that a permanent resident or a foreign national was inadmissible on security grounds for "(d) being a danger to the security of Canada" - The Federal Court discussed what was meant by being a danger to the security of Canada - The court stated that according to the Supreme Court of Canada in Suresh v. Canada (2002), "'danger to the security of Canada' must be given 'a fair, large and liberal interpretation in accordance with institutional forums', that 'the determination of what constitutes' such danger 'is highly fact-based and political in a general sense', and that this 'suggests a broad and flexible approach to national security' (see para. 85). The Supreme Court also mentioned that the threat need not be direct and could be related to distant events that may indirectly harm Canadian security (see paras. 87 and 88)" - Further, the elements of globality and transnationality of terrorism were relevant to the Supreme Court in Suresh - See paragraph 84.

Words and Phrases

Danger to the security of Canada - The Federal Court discussed the meaning of the phrase "danger to the security of Canada" as used in s. 34(1)(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraphs 82 to 84.

Words and Phrases

Member of a terrorist organization - The Federal Court discussed the terms "member" or "membership" of a terrorist organization for purposes of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 - See paragraphs 85 to 91.

Words and Phrases

Terrorism - The Federal Court discussed what was meant by the term "terrorism" in the immigration context - See paragraphs 77 to 81.

Cases Noticed:

Charkaoui, Re (2004), 328 N.R. 201; 2004 FCA 421, refd to. [para. 16].

Almrei v. Canada (Minister of Citizenship and Immigration) (2005), 330 N.R. 73; 2005 FCA 54, refd to. [para. 17].

Charkaoui, Re (2007), 358 N.R. 1; 2007 SCC 9, refd to. [para. 18].

Charkaoui, Re (2008), 376 N.R. 154; 2008 SCC 38, refd to. [para. 22].

Jaballah, Re (2010), 363 F.T.R. 160; 2010 FC 224, refd to. [para. 42].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 51].

R. v. Klassen (R.E.) (2003), 179 Man.R.(2d) 115; 2003 MBQB 253, refd to. [para. 52].

Almrei, Re (2009), 355 F.T.R. 222; 2009 FC 1263, refd to. [para. 57].

Zündel, Re (2005), 259 F.T.R. 36; 2005 FC 295, refd to. [para. 57].

Mahjoub, Re (2010), 373 F.T.R. 36; 2010 FC 787, refd to. [para. 61].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 2002 SCC 1, refd to. [para. 77].

Baroud, Re (1995), 98 F.T.R. 99 (T.D.), refd to. [para. 78].

Suresh, Re (1997), 140 F.T.R. 88 (T.D.), refd to. [para. 78].

Soe v. Canada (Minister of Citizenship and Immigration) et al. (2007), 313 F.T.R. 265; 2007 FC 671, refd to. [para. 79].

Ikhlef, Re (2002), 223 F.T.R. 233; 2002 FCT 263, refd to. [para. 80].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2006), 304 F.T.R. 222; 2006 FC 1457, refd to. [para. 83].

Canada (Minister of Citizenship and Immigration) et al. v. Singh (Iqbal) (1998), 151 F.T.R. 101 (T.D.), refd to. [para. 85].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 332 N.R. 374; 2005 FCA 85, refd to. [para. 86].

Ahani v. Canada (1998), 146 F.T.R. 223 (T.D.), refd to. [para. 87].

Kanendra v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 546; 2005 FC 923, refd to. [para. 87].

Husein v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 662 (T.D.), refd to. [para. 89].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al. (2006), 354 N.R. 34; 2006 FCA 326, refd to. [para. 90].

Jaballah, Re (2006), 301 F.T.R. 102; 2006 FC 1230, refd to. [para. 91].

Gebreab v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 409 N.R. 196; 2010 FCA 274, refd to. [para. 91].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 33 [para. 56]; sect. 34(1)(c), sect. 34(1)(d), sect. 34(1)(f) [para. 55].

Counsel:

Andre Seguin, David Tyndale, Bernard Assan, Amina Riaz and Gordon Lee, for the Ministers;

Matthew Webber, Norman Boxall, Leonard Russomanno, for Mohamed Harkat;

Paul Cavalluzzo and Paul Copeland, as special advocates.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa Ontario, for the Ministers;

Webber Schroeder and Bayne Sellar Boxall, for Mohamed Harkat;

Paul Cavalluzzo and Paul Copeland, special advocates.

This matter was heard on numerous dates from November 2008 to June 2, 2010, by Noël, J., of the Federal Court, who delivered the following reasons for judgment on December 9, 2010.