Judgments

DES-5-01

2004 FC 420

Hassan Almrei (Applicant)

v.

The Minister of Citizenship and Immigration and Solicitor General for Canada (Respondents)

and

Canadian Broadcasting Corporation (Intervener)

Indexed as: Almrei v. Canada (Minister of Citizenship and Immigration) (F.C.)

Federal Court, Blanchard J.--Toronto, November 25, 26, 2002, January 20, June 24, 25, November 24, 25, 27, 28, 2003, January 5, 6 and 7, 2004; Ottawa, March 19, 2004.

Citizenship and Immigration -- Exclusion and Removal -- Removal of Refugees -- Applicant, citizen of Syria, Convention refugee since 2000 -- Detained in October 2001 as threat to national security -- Certificate filed by Ministers determining applicant inadmissible person under Immigration Act, s. 19(1), found reasonable -- Application for order under Immigration and Refugee Protection Act, s. 84(2) for release from detention -- Test to be applied under s. 84(2) two-fold, not met herein -- Court not satisfied applicant will not be removed from Canada within reasonable time -- Also not convinced release from detention will not pose danger to national security, to safety of any person -- Application dismissed.

Constitutional Law -- Charter of Rights -- Life, Liberty and Security -- Immigration and Refugee Protection Act, ss. 82(2) and 84(2) complying with principles of fundamental justice referred to in Charter, s. 7 -- Rights under Charter, s. 7 not violated.

Constitutional Law -- Charter of Rights -- Criminal Process -- Cruel and unusual treatment, punishment -- Immigration and Refugee Protection Act providing for continued detention of applicant unless order made pursuant to s. 84(2) -- Detention under reasonable conditions not constituting cruel and unusual treatment, punishment prohibited by Charter, s. 12 -- Rights under Charter, s. 12 not violated.

This was an application for an order, pursuant to subsection 84(2) of the Immigration and Refugee Protection Act (IRPA), releasing the applicant from detention. The applicant, a citizen of Syria, entered Canada in January 1999 and was recognized as a Convention refugee by the Immigration and Refugee Board on June 2, 2000. The applicant was detained on October 19, 2001 pursuant to a certificate, issued on October 16, 2001. The certificate indicated that, in the opinion of the Minister of Citizenship and Immigration and the Solicitor General of Canada, the applicant was an inadmissible person as described in subsection 19(1) of the former Immigration Act. According to the Canadian Security Intelligence Service, the applicant was a member of an international network of extremist groups and individuals who follow and support the Islamic extremist ideals of Usama bin Laden. The matter was referred to the Federal Court of Canada in accordance with subsection 40.1(3) of the former Act for a determination as to the reasonableness of the certificate. In a decision dated November 23, 2001, Madam Justice Tremblay-Lamer found the certificate to be reasonable and a deportation order issued against the applicant several months later. On September 23, 2002, the applicant filed a motion for a 120-day review of his detention pursuant to subsection 84(2) of IRPA.

Held, the application should be dismissed.

The test set out in subsection 84(2) to determine whether the applicant should be released is two-fold. The judge designated to hear the application must be satisfied that the foreign national "will not be removed from Canada within a reasonable time" and that the person's "release will not pose a danger to national security or to the safety of any person".

As to the first part of the test, the reference to a period of 120 days in subsection 84(2) reflects Parliament's intent that removal should occur expeditiously once a certificate has been determined to be reasonable. What is "reasonable time" will depend on the facts and circumstances of each case. In the case at bar, the conditions of the applicant's ongoing detention, pending Court proceedings which have been initiated or will be initiated by the applicant, and delays effecting removal attributable to the Minister and the applicant, were considered to determine what was a "reasonable time". A careful review of the history of the proceeding revealed that the uncertainty with respect to the applicant's removal was in large part due to past, pending and contemplated Court challenges initiated on his behalf. While some of the delays were attributable to the Minister, as Madam Justice Dawson stated in Canada (Minister of Citizenship and Immigration) v. Mahjoub, "where a risk of torture is asserted by a person who has been found to be a Convention refugee, more time, rather than less, will reasonably be required to ensure that the principles of fundamental justice are not breached." In the case at bar, a second danger opinion by the Minister of Citizenship and Immigration under subsection 115(2) of the IRPA had to be issued because of serious errors made in the first danger opinion, causing further delay. This delay was mitigated to a certain extent by the special circumstances of the coming into force of the IRPA, and the seriousness of the issues to be determined. In the particular circumstances of the case, it could not be said that the delays attributable to the Minister's delegate on their own were sufficient to warrant a negative finding on the first question in the subsection 84(2) inquiry. Much of the delay was necessary for the due process required for applications brought by the applicant during the proceeding. The applicant's efforts to resist removal by initiating numerous Court proceedings contributed significantly to the total time he has been held in detention. In Ahani v. Canada (Minister of Citizenship and Immigration) (2000), the Federal Court of Appeal decided that, in the evaluation as to whether a person will be removed within a reasonable time, an individual is free to take the steps available to him at law to remain in Canada, but, if he does, he could not then complain of delay. As such, it could be said that the applicant holds the key to his own release. He could put an end to his detention at any time by agreeing to leave the country. The Supreme Court of Canada's decision in Suresh v. Canada (Minister of Citizenship and Immigration) did not change the applicability of Ahani in these circumstances. Suresh is not inconsistent with prior case law. As to the conditions of the applicant's detention, although they are certainly not ideal, there was uncontradicted evidence to the effect that they are necessary for his own protection within the institution. Although a factor to be considered, the circumstances of the applicant's detention were insufficient to warrant his immediate release from detention. For these reasons, the applicant did not satisfy the Court that he would not be removed from Canada within a reasonable time.

As to the second part of the test, the Court was not satisfied that releasing the applicant from detention would not pose a danger to national security or to the safety of any person. The Supreme Court of Canada dealt with the phrase "danger to the security of Canada" in Suresh. It stated that while the phrase must be given a "fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat." Its observations with respect to what constitutes a "danger to the security of Canada" are applicable to detention review proceedings. Therefore, for purpose of the within proceeding, evidence which grounds an objectively reasonable suspicion of substantial threatened harm would establish a danger to national security. The onus is on the applicant seeking release, to satisfy the Court on a balance of probabilities, that his or her release will not pose a danger to national security or safety of any person. In the present case, there was abundant evidence before the Court in the public summaries and the confidential security intelligence reports which grounded an objectively reasonable belief that the applicant's release would pose a danger to national security. The evidence adduced by the applicant was insufficient to neutralize the evidence which gave rise to the objectively reasonable belief that the applicant's release would pose a danger. In particular, the applicant's testimony before the Court was found not to be credible. Blanchard J. also made the following determinations: (1) the applicant used clandestine methodologies; (2) he supported the extremist ideals expressed by Usama bin Laden; (3) he was not credible with respect to his Arab-Afghan connections; (4) he was not credible with respect to his involvement in jihad; and (5) he was involved in a forgery ring with international connections that produced false documents. The posting of cash sureties would not address the danger that would be posed by the applicant's release. The latter did not meet the onus upon him of satisfying the Court, on a balance of probabilities, that his release from detention would not pose a danger to national security or to the safety of any person.

As to the breach of the applicant's rights under the Canadian Charter of Rights and Freedoms, the continued detention of the applicant was not contrary to sections 7 and 12 of the Charter. The applicant's continued detention is permitted by legislation that has been found to be constitutionally valid. Subsections 82(2) and 84(2) comply with the principles of fundamental justice referred to in section 7 of the Charter, and detention, under reasonable conditions, does not constitute cruel and unusual treatment or punishment prohibited by section 12 of the Charter. In this case the applicant's detention was preventative as opposed to punitive; solitary detention was required for the applicant's own protection; it was open to the applicant at any time to put an end to his detention by agreeing to leave the country; and the applicant was being detained under reasonable conditions. It would be premature to find that the applicant's detention would be of indefinite duration as such a finding will depend on the outcome of pending and intended Court proceedings. For these reasons, the applicant's continued detention under these circumstances did not amount to cruel and unusual treatment, or punishment and therefore did not violate sections 7 and 12 of the Charter.

statutes and regulations judicially

considered

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], ss. 7, 12.

Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 57(1) (as am. idem, s. 54).

Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(e)(iii) (as am. by S.C. 1992, c. 49, s. 11), (iv)(C) (as am. idem), (f)(ii) (as am. idem), (iii)(B) (as am. idem), 27(2)(a) (as am. idem, c. 49, s. 16), 32(6) (as am by R.S.C., 1985 (4th Supp.), c. 28, s. 11), 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. 77(1), 78, 81(a), 82(2), 84(2), 115(2).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6.

cases judicially considered

followed:

Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 24 Admin. L.R. (3d) 171; 77 C.R.R. (2d) 144; 7 Imm. L.R. (3d) 1; 261 N.R. 40 (F.C.A.); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 152; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; Ahani v. Canada (1996), 37 C.R.R. (2d) 181; 201 N.R. 233 (F.C.A.).

applied:

Canada (Minister of Citizenship and Immigration) v. Mahjoub, [2004] 1 F.C.R. 493; (2003), 238 F.T.R. 12 (F.C.); Ahani v. Canada, [1995] 3 F.C. 669; (1995), 32 C.P.R. (2d) 95; 100 F.T.R. 261 (T.D.); Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 970 (T.D.) (QL); Ahani v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 49; 49 Imm. L.R. (2d) 86 (F.C.T.D.); R v Shayler, [2002] 2 All ER 477; Jaballah v. Canada (Minister of Citizenship and Immigration), 2004 FC 299; [2004] F.C.J. No. 420 (QL); Charkaoui (Re), 2003 FC 1419; [2003] F.C.J. No. 1816 (QL).

considered:

Almrei (Re) (2001), 19 Imm. L.R. (3d) 297 (F.C.T.D.); Almrei v. Canada (Minister of Citizenship and Immigration), 2003 FC 1394; [2003] F.C.J. No. 1790 (QL); Almrei v. Canada (Minister of Citizenship and Immigration), 2003 FC 1523; [2003] F.C.J. No. 1940 (QL); Almrei v. Canada (Attorney General), [2003] O.J. No. 5198 (S.C.J.) (QL).

referred to:

Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; (1994), 24 C.R.R. (2d) 276; 85 F.T.R. 99; 30 Imm. L.R. (2d) 33 (T.D.).

APPLICATION for an order pursuant to subsection 84(2) of the Immigration and Refugee Protection Act that the applicant should be released from detention. Application dismissed.

appearances:

Barbara L. Jackman for applicant.

Donald A. MacIntosh for respondent Minister of Citizenship and Immigration.

Toby J. Hoffmann for respondent Solicitor General of Canada.

Daniel J. Henry for intervener.

solicitors of record:

Barbara L. Jackman, Toronto, for applicant.

Deputy Attorney General of Canada for respondents.

Canadian Broadcasting Corporation/Société Radio Canada for intervener.

The following are the reasons for order and order rendered in English by

[1]Blanchard J.: The applicant, Mr. Almrei, seeks an order releasing him from detention pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (hereinafter referred to as IRPA). Release under subsection 84(2) requires a determination that the applicant "will not be removed from Canada within a reasonable time" and that the person's "release will not pose a danger to national security or to the safety of any person".

A. BACKGROUND FACTS

[2]The applicant, Mr. Almrei, is a citizen of Syria. He grew up in Saudi Arabia and came to Canada via Jordan in January 1999. Upon arriving in Canada, Mr. Almrei claimed protection as a Convention refugee [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6]. On June 2, 2000, after an oral hearing before the Immigration and Refugee Board, he was recognized as a Convention refugee.

[3]Mr. Almrei was detained on October 19, 2001, pursuant to a certificate signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada (the Ministers) in accordance with subsection 40.1(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31] of the Immigration Act, R.S.C., 1985, c. I-2 (the former Act). The certificate which issued on October 16, 2001, was based on a security intelligence report received and considered by the Ministers. The certificate indicated that, in the opinion of the Minister of Citizenship and Immigration and the Solicitor General of Canada, the applicant was a person described in subparagraph 19(1)(e)(iii) [as am. by S.C. 1992, c. 49, s. 11], clause 19(1)(e)(iv)(C) [as am. idem], subparagraph 19(1)(f)(ii) [as am. idem] and clause 19(1)(f)(iii)(B) [as am. idem] of the former Act. These subparagraphs and clauses provide as follows:

19. (1) No person shall be granted admission who is a member of any of the following classes:

. . .

(e) persons who there are reasonable grounds to believe

. . .    

(iii) will engage in terrorism, or

(iv) are members of an organization that there are reasonable grounds to believe will

. . .

(C) engage in terrorism;

. . .

(f) persons who there are reasonable grounds to believe

. . .

(ii) have engaged in terrorism, or

(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in

. . .

(B) terrorism,

except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;

[4]Following the issuance of the certificate, the matter was referred to the Federal Court of Canada in accordance with subsection 40.1(3) [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4] of the former Act for a determination as to the certificate's reasonableness pursuant to subsection 40.1(4) [as enacted idem] of the former Act. A hearing in the absence of Mr. Almrei and his counsel was conducted on October 24, 2001, over which Madam Justice Tremblay-Lamer, a designated judge of the Federal Court of Canada, presided. Following the hearing, Justice Tremblay-Lamer approved a summary of the information made available to her in camera. The summary was released to the applicant in order that he could be reasonably informed of the circumstances giving rise to the issuance of the certificate, pursuant to subsection 40.1(4)(b) of the former Act. Mr. Almrei was also provided with the opportunity to respond to the statement summary, which was to occur in an open hearing on November 13, 2001. On that date, counsel acting on behalf of Mr. Almrei requested an adjournment on the grounds that they had just been retained by Mr. Almrei and that they had been denied access to their client. The adjournment was granted and the hearing resumed on November 19, 2001. Upon resumption of the hearing, new documents were filed by the Ministers resulting from a computer search by the RCMP. These documents included numerous images of Usama bin Laden and other Al-Qaida members, including Mohammed Atta, alleged to have planned the highjacking, pictures of a plane cockpit, a security officer badge, copies of passports, and military weapons. Mr. Almrei's counsel then presented a motion requesting that the testimony of Mr. Almrei be heard in camera and requesting that the Court hold a voir dire to determine whether Mr. Almrei's testimony could be heard in camera. This motion was dismissed and Mr. Almrei elected not to testify.

[5]In her decision on the reasonableness of the certificate, dated November 23, 2001, Madam Justice Tremblay-Lamer noted that Mr. Almrei's failure to testify constituted a failure on his part to avail himself of his opportunity to be heard. Therefore, the only evidence before her was that presented at the October 24, 2001, hearing in the absence of Mr. Almrei and his counsel pursuant to paragraph 40.1(4)(a) of the former Act, and she concluded at paragraph 31, that on that evidence:

The confidential information . . . 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 produces false documents.

[6]The security certificate issued against the applicant was therefore found to be reasonable (Almrei (Re) (2001), 19 Imm. L.R. (3d) 297 (F.C.T.D.)).

[7]On December 5, 2001, Mr. Almrei was served with notice that the Minister of Citizenship and Immigration would be seeking an opinion that Mr. Almrei constituted a danger to the security of Canada, which, if rendered, would permit the removal of Mr. Almrei to Syria. The applicant replied to the Minister's notice on January 28, 2002. The Minister made further disclosure in relation to the notice on October 15, 2002, and the applicant replied to this further disclosure on November 12, 2002.

[8]A deportation order issued against Mr. Almrei on February 11, 2002. The order issued pursuant to subsection 32(6) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11] of the former Act, following an inquiry in which it was determined that the applicant was a person described in paragraph 27(2)(a) [as am. by S.C. 1992, c. 49, s. 16] of the former Act. This subsection and this paragraph provide:

27. (1) . . .

(2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who

(a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c);

. . .

32. (1) . . .

(6) Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), the adjudicator shall, subject to subsections (7) and 32.1(5), make a deportation order against that person.

[9]Mr. Almrei filed a motion in the Federal Court for a 120-day review of his detention pursuant to subsection 84(2) of the IRPA on September 23, 2002. An ex parte in camera hearing, in the absence of Mr. Almrei and his counsel, occurred on November 18, 2002, to review updated information provided to the Court by the Ministers in response to Mr. Almrei's motion for release. I considered submissions and evidence as to whether and why the disclosure of this updated information would be injurious to national security, and upon being satisfied that the information was relevant and that its disclosure would be injurious to national security, I approved for release a summary of the information. The summary was released to counsel for the applicant on November 19, 2002. This summary allowed Mr. Almrei to be reasonably informed about the updated information without disclosing any information that, in my view, would be injurious to national security or to the safety of any person.

[10]The public hearing in respect of Mr. Almrei's motion for an order releasing him from detention began on November 25, 2002. Evidence in respect of the first part of the subsection 84(2) test, whether the applicant would be removed in a reasonable time, was given by the applicant and by two witnesses on behalf of the Ministers. On November 26, 2002, the applicant and the Ministers made submissions on this first part of the subsection 84(2) test.

[11]On January 13, 2003, the Minister's delegate formed the opinion pursuant to paragraph 115(2)(b) of the IRPA that Mr. Almrei was a danger to the security of Canada and could be removed to Syria, his country of nationality. The Greater Toronto Enforcement Centre of Citizenship and Immigration Canada (CIC) was informed of the Minister's opinion and was told that it could begin making removal arrangements for Mr. Almrei. Mr. Almrei was notified of this decision on January 16, 2003. Mr. Almrei filed an application for leave and for judicial review of the decision of the Minister's delegate on January 17, 2003. On the same day, the applicant, fearing his removal imminent, filed a motion to stay the removal until his application for judicial review was considered and finally determined.

[12]The stay application was subsequently withdrawn by the applicant on the undertaking by the Minister of Citizenship and Immigration not to remove Mr. Almrei until the judicial review application was dealt with. As a consequence of the Minister of Citizenship and Immigration consenting to leave being granted on the judicial review application, the applicant agreed to suspend the detention review with the provision that the detention review hearing would resume on seven days notice by the applicant. A consent order issued to this effect on January 21, 2003.

[13]By letter dated April 23, 2003, the Minister of Citizenship and Immigration consented to the judicial review application, acknowledging that "the Minister's Delegate made serious errors in respect to the decision made pursuant to subsection 115(2)". Counsel for the applicant therefore requested that the detention review be brought back on pursuant to my order of January 21, 2003. Consequently, on May 16, 2003, I ordered that the judicial review be granted and that the detention review resume on June 24, 2003.

[14]The detention review proceeding continued on June 24 and 25, 2003, during which I heard from seven witnesses. Three of these witnesses (one on behalf of the Ministers and two on behalf of the applicant) testified as to whether removal would occur in a reasonable time. Four witnesses addressed their willingness to post sureties and contribute otherwise, to ensure Mr. Almrei's compliance with any conditions the Court might impose on his release.

[15]The Court also received two declarations, one from the applicant and one on behalf of the applicant from a declarant whose identity was ordered not to be disclosed. During this hearing, the applicant made a motion for an order (1) to seal evidence given by the applicant and to permit the applicant to testify in camera; and (2) to compel a Canadian Security Intelligence Service (CSIS or the Service) or Royal Canadian Mounted Police (RCMP) officer to appear to be examined by counsel for the applicant. The Canadian Broadcasting Corporation (CBC) was given third party standing in respect of the applicant's first request. The applicant was to provide written submissions in respect of the issues raised by July 31, 2003. Counsel for the Ministers and the CBC were to provide reply submissions by August 20, 2003.

[16]The applicant's submissions on these issues, along with submissions on the reasonableness of the time for removal, were filed on August 5, 2003. The Ministers and the third party filed their respective responses on August 27, 2003, and August 29, 2003, respectively. After reviewing these submissions and the evidence, an order and reasons for order issued on October 17, 2003, requiring certain information in the declarations of the applicant and the second declarant to be sealed, and requiring the Ministers to provide a CSIS officer for examination by the applicant. The order gave the applicant 20 days in which to serve and file submissions identifying the portions of the reasons of the order sought to be protected, and to file submissions identifying parts of the declarations to be expunged from the record. The Ministers and the intervener were given five days to reply. Submissions were received from the applicant on November 6, 2003, from the intervener on November 10, 2003, and from the Ministers on November 12, 2003. Further submissions were received from the applicant on November 14, 2003. Having regard to these submissions, orders were issued on November 21 and 24, 2003, whereby certain portions of the evidence arising therefrom were ordered not to be disclosed.

[17]In the meantime, on July 28, 2003, the applicant received notice that the Minister of Citizenship and Immigration would be making a determination pursuant to paragraph 115(2)(b) of the IRPA as to whether he should be removed from Canada on the basis that he poses a danger to the security of Canada. By letter dated August 18, 2003, the applicant requested an extension until September 2, 2003, to make submissions on the risk he faced if returned to Syria, to which the respondent Ministers consented.

[18]The parties were convened by telephone conference on September 16, 2003, to discuss resumption of the detention review. It was determined that November 24, 2003, was the earliest possible date for resumption of the hearing.

[19]On October 23, 2003, the Minister's delegate, the Director General of the Case Management Branch, CIC, made a determination pursuant to paragraph 115(2)(b) that the applicant would not be at risk of torture if returned to Syria and, in the alternative, if he would be at risk of torture if returned to Syria, his removal to torture was justified because of the risk he presented to the security of Canada. On October 30, 2003, the applicant filed an application for leave and for judicial review of the Minister's delegate's decision.

[20]On Friday, November 21, 2003, affidavit evidence was filed on behalf of the Ministers indicating that the applicant's removal date had been selected and removal was scheduled to occur within two and one-half weeks. On November 24 and 26, 2003, this Court heard from three witnesses who confirmed, on behalf of the Ministers, that the applicant's removal was imminent.

[21]Since Mr. Almrei's removal was imminent, the applicant requested a stay of the removal order pending the determination of his application for leave and for judicial review of the October 23, 2003, decision. The motion for stay of the removal was heard on November 26, 2003, and the detention review was adjourned pending the determination of that motion.

[22]By my order and reasons for order of November 27, 2003 [Almrei v. Canada (Minister of Citizenship and Immigration), 2003 FC 1394; [2003] F.C.J. No. 1790 (QL)], the deportation order dated February 11, 2003, was stayed pending the outcome of the application for leave and for judicial review. The detention review therefore resumed on November 27 and continued on November 28, 2003.

[23]When the detention review proceedings resumed, the Ministers produced one witness, a CSIS intelligence officer, in accordance with my order of October 17, 2003. The Court also heard from four witnesses who gave evidence as to the applicant's character and in respect of their willingness to ensure that Mr. Almrei complied with terms and conditions of release that might be imposed by the Court.

[24]During these continued proceedings, the applicant made an argument that section 78 of the IRPA had no application to detention review proceedings. The applicant requested permission to make written submissions as to the applicability of section 78 of the IRPA to the within proceedings, and submissions were received from the applicant on December 5, 2003, from the Ministers on December 10, 2003, and from the applicant in reply on December 12, 2003. An order and reasons for order issued on December 29, 2003 [Almrei v. Canada (Minister of Citizenship and Immigration), 2003 FC 1523; [2003] F.C.J. No. 1940 (QL)], in response to these submissions, in which I concluded that section 78 of the IRPA applied to detention review hearings pursuant to subsection 84(2) of the IRPA.

[25]The detention review hearing resumed on January 5, 2004, and concluded on January 7, 2004, during which the Court heard from the applicant and from three witnesses on behalf of the applicant. These witnesses gave their views as to whether the applicant poses a danger to national security or to the safety of any person.

[26]The applicant and the Ministers were to have filed written submissions on January 26, 2004, and February 2, 2004, respectively. The applicant's submissions were received on February 2, 2004. Counsel for the applicant requested a further extension of time to file her reply submissions and was granted until February 18, 2004, to file these reply submissions.

B. LEGISLATIVE FRAMEWORK AND APPLICABLE LEGAL PRINCIPLES

[27]Subsection 84(2) of the IRPA sets out the test to be met before a foreign national can be released from detention. It provides as follows:

84. . . .

(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.

[28]Subsection 84(2) is substantially similar to subsections 40.1(8) [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4] and (9) [as enacted idem] of the former Act. The test to be applied remains a two-fold test, and the judge designated to hear the application must be satisfied that the foreign national "will not be removed from Canada within a reasonable time" and that the person's "release will not pose a danger to national security or to the safety of any person". As Justice Dawson noted in Canada (Minister of Citizenship and Immigration) v. Mahjoub, [2004] 1 F.C.R. 493 (F.C.) (hereinafter Mahjoub), at paragraph 16, the wording with respect to the first part of the subsection 84(2) test is identical to that found in the former Act in subsection 40.1(9), and the wording with respect to the second part of the subsection 84(2) test differs only in that the term "will not pose a danger to national security" is used instead of the phrase "would not be injurious to national security", and reference is made to the safety of "any person" instead of the safety of "persons".

[29]In Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 24 Admin. L.R. (3d) 171 (hereinafter Ahani (2000)), the Federal Court of Appeal decided that, in the evaluation as to whether a person will be removed within a reasonable time, an individual is free to take the steps available to him at law to remain in Canada, but, if he does, he could not then be heard to complain of delay. This is the same reasoning that was used by Justice McGillis in Ahani v. Canada, [1995] 3 F.C. 669 (hereinafter Ahani (1995)), at page 695, Justice Rothstein, then of the Trial Division, in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 970 (T.D.) (QL), at paragraphs 6-8, and Justice Denault in Ahani v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 49 (F.C.T.D.) (hereinafter Ahani (1999)), at paragraph 23, and which was later adopted by Justice Dawson in Mahjoub. The applicant submits that the reasoning used in these cases by the Federal Court of Appeal and the Trial Division is "just wrong and cannot be followed by this Court", because the reasoning is premised on a view of the statutory scheme that is in error, in light of the Supreme Court of Canada's decision in Suresh v. Canada (Ministrer of Citizenship and Immigration), [2002] 1 S.C.R. 3 (hereinafter Suresh).

[30]The applicant sets out in his submissions the particular grounds upon which he bases his assertion that the decision in Ahani (2000) is wrong or cannot be supported because of the decision in Suresh. First, the applicant submits that Parliament did not intend for people who are subject to security certificates to remain in custody until removed, as is allegedly stated in Ahani (2000), at paragraph 12. Secondly, the applicant submits that there is nothing in the legislation to suggest that Parliament intended that persons not removed within the 120-day period continue to be detained. This is argued to be in conflict with the statement at paragraph 13 of Ahani (2000) that "release under subsection 40.1(9) cannot be an automatic or easy thing to achieve." Thirdly, the applicant submits that the Court of Appeal in Ahani (2000) was in error to expect the applicant to lead new evidence of a significant change in circumstances, in order to be released. The applicant submits that the same decision determined that different standards of proof apply to the security certificate reasonableness hearing and the release application consideration, and that the decision is therefore internally inconsistent. In addition, it is argued that Ahani (2000) is contrary to the Supreme Court of Canada's reasoning in Suresh in this respect. Fourthly, the applicant submits that Justice Linden's statement in Ahani (2000) that an applicant who is the subject of a security certificate is not entitled to a presumption of innocence is "odd" or misplaced. Fifthly, the applicant submits that, contrary to the reasons in Ahani (2000), at paragraph 18, the right to seek an effective remedy is part of the statutory process enacted by Parliament, and cannot be counted against the applicant in the determination as to whether removal will take place within a reasonable time. In the applicant's submission, the right to seek an effective remedy is entrenched by the 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] (the Charter), and if Parliament intended that a person's removal be predicated on her not taking steps to protect herself from removal to torture, Parliament would not have provided for a statutory review mechanism, nor would Parliament have left intact the jurisdiction of this statutory court to grant stays against removal. The applicant notes that the decision in Ahani (2000) is not consistent with decisions in Suresh and in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.) in this regard.

[31]The decision in Ahani (2000) is one of the Federal Court of Appeal. As such, I would necessarily be bound by the reasons therein, unless I was convinced that a change in the legislation or, as per the applicant's suggestion, the Supreme Court of Canada's decision in Suresh deemed this jurisprudence to be no longer applicable in the circumstances.

[32]I am not persuaded by the applicant's arguments that Suresh has changed the applicability of Ahani (2000) in these circumstances. On the contrary, I agree with the reasons of Madam Justice Dawson in Mahjoub that there is no basis to depart from the reasons and decision of the Federal Court of Appeal in Ahani (2000). In Mahjoub, the learned Justice concluded at paragraph 19 that she had "not been persuaded that the wording now found in subsection 84(2) of the Act is, by virtue of the decision of the Supreme Court of Canada in Suresh, to be construed in a significantly different fashion than the similar provisions in the former Act". She found "great similarity" in the language in the two provisions and noted that the applicable passages relied on in Suresh were not written in the context of a detention review. She acknowledged that the comments of the Supreme Court with respect to the nature of the evidence required to establish "a danger to the security of Canada" to be of guidance in interpreting the phrase "danger to national security". She concluded, however, and I agree, that Suresh is not inconsistent with prior jurisprudence.

[33]One of the arguments advanced on Mr. Almrei's behalf is that the Supreme Court in Suresh made it clear that the determination that the security certificate is reasonable does not automatically mean that the person presents a danger to the security of Canada or to the safety of any person. It was argued that the issuance and upholding of a security certificate is based on a reasonableness standard, i.e. that the person is "possibly" described and not "likely" described. As a consequence of the higher standard required on a detention review, it is argued that the legal principles set out by the Court of Appeal, in particular, in Ahani (2000) are not applicable to detention reviews under subsection 84(2).

[34]I agree with the applicant that a determination that a security certificate is reasonable is not conclusive proof that the person is a danger to the security of Canada. Paragraph 81(a) states that, if a certificate is determined to be reasonable, it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible. If satisfying the requirements of paragraph 81(a) automatically satisfied the requirements of subsection 84(2), the latter would be redundant. Further, Parliament has clearly set out two different standards of proof in respect of paragraph 81(a) and subsection 84(2), reasonable grounds and balance of probabilities, respectively. I am not persuaded, however, that there is anything in the Court of Appeal's decision in Ahani (2000) which is inconsistent with this conclusion or inconsistent with the determination in Suresh. In fact, Justice Linden recognized these two differing standards of proof at paragraph 16 of Ahani (2000):

. . .the onus of proof in this release application is on the person applying to be released. In my view, that onus must be met on the ordinary standard of proof in civil cases, the balance of probabilities. While Parliament has changed the normal standard of proof in the subsection 40.1(1) proceedings to "reasonableness" in paragraph 40.1(3)(d) [sic] and to "reasonable grounds" in section 19, it has not done so with regard to the release proceedings under subsection 40.1(8) to (10). Further, the word "satisfied" is used. Hence, in my view, there is no reason to think that the standard of proof should be anything other than the usual balance of probabilities standard.

[35]Therefore, I am unable to conclude that the Supreme Court of Canada's decision in Suresh undermines the import of the Federal Court of Appeal's decision in Ahani (2000). I am essentially in agreement with the reasoning and conclusions of Madam Justice Dawson in Mahjoub that jurisprudence under the former Act is applicable to determinations under the current legislative scheme, notwithstanding the decision in Suresh. As a consequence, I also conclude that the following legal principles derived from this jurisprudence, as described by Madam Justice Dawson, are applicable to detention review proceedings pursuant to subsection 84(2) of the IRPA.

i. The standard of proof is the ordinary civil standard.

ii. The Ministers have already discharged the onus upon them to establish the grounds for the initial detention.

iii. The certificate is conclusive proof that the person is inadmissible to Canada on grounds of security or any other ground listed in subsection 77(1) of the Act, or its predecessor section, and referenced in the certificate.

iv. Release under subsection 84(2) cannot be an automatic, because persons to whom subsection 84(2) applies have been found to be inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality.

v. A person cannot be detained indefinitely, at least without good reason. Therefore, review is available after 120 days and release is allowed, but only if the statutory criteria are met.

[36]I should also note that, earlier in this proceeding, I ruled that the provisions of section 78 of the IRPA are applicable to applications for judicial release under subsection 84(2) of the IRPA. At that time, I provided reasons for my ruling. Paragraphs 78(e) and (h) of the IRPA provide the process to be followed when considering evidence in the absence of the permanent resident or the foreign national named in the certificate, which would be injurious to national security or the safety of persons. Those paragraphs provide as follows:

78. The following provisions govern the determination:

. . .

(e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

. . .

(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed.

C. BASIS FOR DETENTION

[37]Mr. Almrei was detained in October 2001 pursuant to a security certificate signed in accordance with subsection 40.1(1) of the former Act. In accordance with paragraph 40.1(4)(b), the basis for the detention was set out, to the extent possible in a public document, in the "Statement Summarizing the Information Pursuant to Paragraph 40.1 of the Immigration Act", dated October 18, 2001. That summary reviewed the nature of the allegations against Mr. Almrei, the reasons for the issuance of the security certificate, and for the original detention.

[38]In that summary, the Service states that it has reason to believe that Mr. Almrei is a member of an international network of extremist groups and individuals who follow and support the Islamic extremist ideals espoused by Usama bin Laden. According to this summary, the Bin Laden network uses terrorism to further its goals of overthrowing secular Islamic governments in order to create Islamic states based on their extremist interpretation of Islamic law, and the network is associated with bombings of United States embassies, and suspected of involvement in the planning and execution of September 11, 2001, attacks against the United States.

[39]The Service also states in this summary that Mr. Almrei participated in jihad and has demonstrated a devotion to Usama bin Laden's cause. The summary alleges that a common bond is shared by individuals involved in the Usama bin Laden network based on time spent in training camps and on battlefields fighting in jihads under leaders associated with or sponsored by bin Laden, and it alleges that Mr. Almrei shares these bonds and has demonstrated his support of Usama bin Laden and his followers. The summary states that Service investigations have shown that Mr. Almrei is preoccupied with security and behaves in a clandestine fashion to avoid authorities detecting his activities, and that Mr. Almrei is associated with Arab Afghans connected to the Usama bin Laden network, including Nabil Al Marabh.

[40]In this summary, the Service alleges that terrorist groups rely on false travel documents to facilitate international travel, and that Mr. Almrei is involved in a forgery ring with international connections that produces such false documents. It notes that Mr. Almrei admitted having obtained three false Syrian passports from the Muslim Brotherhood and a false United Arab Emirates (UAE) passport in order to travel outside Saudi Arabia, and that, although Mr. Almrei claimed to have destroyed these documents, a search by CIC of his apartment on September 13, 2000, revealed a number of these documents, including the false UAE passport. The summary also alleges that Mr. Almrei's perfume and honey business provided him with the opportunity to travel to Pakistan in the early 1990s when mujahedin activity was taking place. The Service refers in this summary to media reports indicating that honey businesses were used to provide cover and funds for the Usama bin Laden network.

[41]Subsequent to Mr. Almrei's arrest and detention on October 19, 2001, the Service obtained further information substantiating its belief that Mr. Almrei's release would be injurious to national security. As indicated above (see Background Facts), following an in camera hearing on November 18, 2002, in the absence of Mr. Almrei and his counsel, I approved a summary of the additional information, which was released to the applicant on November 19, 2002. This second summary served to inform Mr. Almrei of the further information.

[42]In this second summary, the Service alleges that danger to the public from the Al-Qaida network has intensified and that individuals supporting Al-Qaida's ideology have amply demonstrated that they are still prepared to participate in Jihad against the West. The Service indicates in this summary that security agencies worldwide are concerned about the strong likelihood of future attacks already in the advanced planning and preparation stages, and that there is difficulty locating individuals involved in such activities who have assumed false identities, since Usama bin Laden has directed supporters on how to blend into western societies and prepare for further terrorist attacks. The summary includes examples of Canadian citizens whose whereabouts are unknown, but who the Service believes are using false identities to remain undetected.

[43]The second summary reiterates the Service's conclusion that Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Usama bin Laden, and their conclusion that Mr. Almrei is involved in a forgery ring with international connections that produces false documents. The summary alleges that Mr. Almrei's detention disrupted a significant logistical support service which could be available to Al-Qaida supporters in Canada and abroad, and it alleges that his release would place him in a position to re-establish his connections in the procurement of fraudulent documents.

D. ISSUES

[44]In order for the applicant to be released, subsection 84(2) of the IRPA requires that both of the following questions be answered in the affirmative:

1.     Will the foreign national not be removed from Canada within a reasonable time?

and

2.     Will Mr. Almrei's release pose a danger to national security or to the safety of any person?

[45]I will also consider the following question:

Is the continuation of Mr. Almrei's detention a breach of his rights under sections 7 and 12 of the Charter?

E. POSITIONS OF THE PARTIES

I.     Applicant's position

[46]Mr. Almrei is detained in solitary confinement at the Toronto West Detention Centre since October 19, 2001. The applicant submits that he will not be removed immediately and that, especially when taking into account the conditions, and in particular, the solitary nature of the detention, his detention has already exceeded a reasonable time. The applicant submits that further detention constitutes cruel and unusual treatment and is contrary to sections 7 and 12 of the Charter.

[47]On the second part of the subsection 84(2) test, the applicant submits that his release will not pose a danger to national security or to the safety of any person. He contends that the threat he may pose to national security or to the safety of any person is not "serious" as required by the Supreme Court of Canada in Suresh and the case against him does not allege involvement in violence or a risk of involvement in violence. In Mr. Almrei's submission, there is no evidence in the public record to support the contention that he supports Islamic extremist ideals espoused by Usama bin Laden, that he has or may take violent action against civilians, or that he is a religious extremist. Mr. Almrei contends that he participated in the jihad in response to a call from the mosques and government, and he denies having been trained to be a fighter or having been associated with bin Laden.

[48]With respect to the allegations that Mr. Almrei has connections with Arab Afghans, the applicant submits that no terrorism-related charges have been laid against any of the individuals cited by the Service in their public summaries. Mr. Almrei contends that his efforts to obtain false documents while in the Middle East are consistent with the reality of his circumstances, in that he was unable to obtain legitimate travel documents, and that his assistance to Al Marabh in obtaining a false passport does not mean that he is part of an international forgery ring. He submits that his involvement in a small honey business was not linked to Al-Qaida, and that his behaviour cannot be characterized as clandestine, as alleged, but even if it was clandestine, such behaviour is understandable given his awareness of ongoing CSIS investigations. Finally, Mr. Almrei denies allegations that he is linked to Al-Qaida through his participation with the Al Haramin charity. He submits that the allegations that Al-Qaida has infiltrated this charity do not extend to the whole organization or to the Saudi Arabia offices.

[49]Mr. Almrei submits that he should be released on terms and conditions. He agrees to abide by conditions set by the Court, and suggests, inter alia, that the Court require the deposit of sureties, regular reporting to the Immigration Reporting Centre, restricted travel to within 50 km of Toronto, no contact with anyone known or suspected of involvement with Islamic extremism, and surrender of all travel documents.

II.     Ministers' position

[50]In the Ministers' submission, the applicant has not demonstrated that he will not be removed within a reasonable time. The Ministers submit that the conditions of the applicant's detention are adequate and not contrary to the Charter, and that any alleged delay in the processing of the file is justified in light of significant changes to the legislative scheme and staffing reorganizations that affected carriage of Mr. Almrei's file within the Ministry. The Ministers also note that the analysis required by this file, that is, the weighing of risks to the applicant if he is returned to Syria against the danger he might pose to Canada, must be thorough and can be time-consuming.

[51]With respect to the second requirement of subsection 84(2), it is the Ministers' submission that the applicant has failed to demonstrate, on a balance of probabilities, that he is not a danger to national security or the safety of any person. The Ministers rely on the statement summaries described above, and on other evidence adduced in public and in private to support this conclusion. The Ministers submit that terms and conditions cannot prevent the applicant's return to the activities that are alleged against him, namely, involvement in an international forgery ring.

F. EVIDENCE

[52]At the outset, and having regard to the two distinct questions involved in the subsection 84(2) inquiry, I indicated my preference to consider the evidence on the first question prior to hearing any evidence on the second. However, as the proceeding evolved, and in light of the numerous delays incurred for various reasons, as reflected in the detailed chronology, I elected to receive all of the evidence before rendering a decision.

[53]In the proceeding, a number of hearings were conducted in camera, in the absence of the applicant and his counsel. At these hearings, the Court considered secret evidence. As stated above (see Legislative Framework and Applicable Legal Principles), I decided earlier in this proceeding that section 78 of the IRPA is applicable to applications for judicial release under subsection 84(2). Mr. Almrei acknowledged this decision in his written submissions, but included further and substantial submissions on what the Court should consider when evaluating secret evidence in the absence of the applicant and his counsel.

[54]The applicant cites the following as general principles relevant to the assessment of secret evidence:

· There is a presumption that persons tell the truth, unless there is good reason to doubt the truthfulness of the statements made.

· A conclusion as to dangerousness must be made on the evidence and cannot be based on speculation and conjecture.

· Evidence which is to be rejected as not credible or trustworthy must be rejected for valid reasons and in clear terms with reasons provided as to why it was found not to be so.

· Evidence which is credible and trustworthy cannot be ignored. While it is not necessary to note every piece of evidence in reaching a decision, there cannot be selective reliance on evidence presented to the detriment of the person concerned, nor can such material be ignored.

· Negative credibility findings in respect of aspects of evidence given by a witness need not result in a rejection of other aspects of the evidence given by that witness, unless the Court determines for valid reasons, that all of the evidence of a particular witness is not credible.

· Witnesses may have distinct and unique experiences which affect their perception of the facts. This does not negate the credibility of their evidence, as it would in fact not be normal if there were not some differences in recollection. It is proper to assess evidence, where there may be some inconsistencies, as to its "harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions"; and

· When considering the plausibility of the evidence, the decision maker must be aware of her own limitations in respect of understanding the dynamics, norms and practices in other cultures, which are foreign to the decision maker and about which the decision maker may know little or nothing.

[55]The applicant also made submissions on the degree of cogency required for evidence to be given legal weight. The applicant submits that evidence that creates only suspicion, surmise or conjecture is insufficient, and he points out that the more serious the consequences, the greater the care that is to be taken in assessing the evidence. In addition, the applicant submits that the burden of substantiating a negative conclusion is higher where the conduct is morally blameworthy, and the legal presumption, if any, is in favour of lawful conduct.

[56]Although the applicant recognizes that section 78 of the IRPA permits the Court to receive into evidence anything that is appropriate, the applicant submits that this does not permit the Court to give weight to evidence which is not established as being reliable, credible and trustworthy. The applicant outlined concerns about the quality of evidence that is received in camera in the absence of the applicant and his counsel and cautioned the Court against accepting such evidence without considering the source and general quality of the evidence. In particular, the applicant cautioned against reliance on hearsay, and since media and human rights reports amount to hearsay and cannot be properly challenged, cautioned against reliance on such reports, especially where the consequences to the applicant are severe, as they are in the immigration context when deportation is at issue. The applicant also noted the difficulties inherent in accepting evidence from parties to a conflict.

[57]In addition, the applicant submits that, where evidence has not been disclosed, the evidence should not be received by the Court without being tested by the Court, the Court being the only independent body involved in the in camera, ex parte hearing. The applicant notes that, in contrast to detention review hearings, the Security Intelligence Review Committee hearings do involve independent counsel, who cross-examine the witnesses. The applicant submits that there is a lack of transparency in detention review hearings since there is no indication that secret evidence is tested, and yet, to rely on such evidence without thoroughly testing it would be to "rubber stamp" the government's position. In the applicant's submission, this amounts to an "unfair imbalance" in such proceedings. Therefore, the applicant suggests a principled approach to testing and accepting evidence that includes ascertaining the original sources of information, identifying the nature of the interests of the original sources, and examining the direct sources or the people receiving the information to ascertain their reliability. The applicant submits that the Court should assess the interests of CSIS officers who present evidence and of any informant's interests, as well as their credibility, and should consider in these assessments any political divisions in the Arab community. In essence, the applicant submits that the Court must make a determination that undisclosed evidence is credible, trustworthy and capable of being given legal weight.

[58]I have determined earlier that the provisions of section 78 of the IRPA which govern the determination of the reasonableness of the certificate are also applicable to a detention review under subsection 84(2) of the IRPA. The designated judge is required by these provisions to ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge, if in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person. Assuring the security of such information and of the service that provides it is aptly discussed in R v Shayler, [2002] 2 All ER 477, at paragraph 25:

There is much domestic authority pointing to the need for a security or intelligence service to be secure. The commodity in which such a service deals is secret and confidential information. If the service is not secure those working against the interests of the state, whether terrorists, other criminals or foreign agents, will be alerted, and able to take evasive action; its own agents may be unmasked; members of the service will feel unable to rely on each other; those upon whom the service relies as sources of information will feel unable to rely on their identity remaining secret; and foreign countries will decline to entrust their own secrets to an insecure recipient (see, for example, A-G v Guardian Newspapers Ltd (No 2) . . . [1990] 1 AC 109 at 118, 213-214, 259, 265; A.-G. v Blake (Jonathan Cape Ltd, third party) . . . [2001] 1 AC 268 at 287.

The same basis for ensuring the security of Canada's intelligence service and its information remains applicable in the context of threats posed by international terrorists.

[59]Paragraph (j) of section 78 also provides the designated judge with broad discretion in respect of the evidence that may be received and considered. Paragraph (j) of section 78 provides that "the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence." Evidence received by a designated judge in the absence of the applicant and counsel is not tested in the usual way, that is to say by cross-examination by the party against whom it is being adduced. It is therefore left to the designated judge to test, question and challenge the evidence. Since the evidence must be received in the absence of the applicant or counsel it is incumbent on the designated judge to rigorously and critically scrutinize this evidence in reaching any determination regarding its relevance to the issues, its reliability and proper weight.

[60]In testing evidence which cannot be disclosed for security reasons, the designated judge must adopt a principled approach to the exercise. To that end the presence or absence of corroboration, consistency of the evidence, and whether it is hearsay, are among factors to consider. To test the reliability of the evidence the judge may probe into the credibility and reliability of the source of the information. This may be done by the designated judge putting questions directly to affiants and possibly to other persons. In addition the judge may question counsel representing the Service on their submissions.

[61]In the instant case, the above principles were applied to the hearings that were held in the absence of the applicant and his counsel. I examined the evidence and conducted the necessary inquiries to satisfy myself of the cogency of the secret evidence, its probative value, its reliability, and that it was appropriate in the circumstances. I then proceeded to assess its proper weight in light of all of the evidence. In the context of the legislative scheme I must work within, I am satisfied the secret evidence was properly considered in accordance with the above principles.

[62]In my reasons, I am obligated by law not to disclose any information which would be injurious to national security or to the safety of any person. In consequence, my reasons cannot be as complete as they would otherwise be with respect to why such information was either accepted or rejected in whole or in part.

I. Applicant's evidence

[63]Mr. Almrei testified and was cross-examined by counsel for the Ministers on two occasions. On the first occasion, November 25, 2002, Mr. Almrei testified as to the conditions of his detention at the Toronto West Detention Centre. He indicated that he continues to be held in solitary confinement in a nine-by-twelve-foot cell with a mattress, a sink, a toilet and two lights, one of which is on 24 hours per day. Mr. Almrei has no pillow or towel. He is permitted to go outside only every few days for a few minutes at a time, but is not given boots or a coat to wear outside in the winter. He is permitted to shower only every few days, and he has no contact with anyone except guards. Mr. Almrei has the Koran and is permitted some other reading materials, but educational programs are not made available to him, and visits and phone calls are restricted.

[64]Mr. Almrei testified a second time on January 6 and 7, 2004. On that occasion he described his travels and the reasons for his travels throughout the Middle East and to Thailand between 1990 and 1999, and his role, including the training he received, in the jihad in Afghanistan. Mr. Almrei described the images taken from his computer and explained, where possible, the sources of these images. Mr. Almrei explained his limited relationships and interactions with Nabil Al Marabh, Hoshem Al Taha, and Ahmed Al Kaysee. He explained how he came to be in possession of false UAE, Syrian and Yemeni passports, and he described his provision of a false Canadian passport for Nabil Al Marabh. Mr. Almrei testified that, if released, he would like to live with Diana Ralph.

[65]In cross-examination, Mr. Almrei described his involvement in various camps in Pakistan and Afghanistan and acknowledged that he lied to the Refugee Board about his travels to Afghanistan, and failed to tell the Service or Immigration officials about his role as an Imam in Afghanistan. Mr. Almrei described his work with the Muslim-African agency and for Al Haramin in Saudi Arabia, and he admitted that he failed to include information about this involvement in his statements to Immigration officials. He acknowledged that he obtained a false Canadian passport for Nabil Al Marabh for a profit, and admitted that, although he was not a close friend, Mr. Almrei went to visit Al Marabh in detention in Niagara Falls and loaned money to Al Marabh's uncle for his release. Mr. Almrei also described his meeting with "Ghaled", an individual he met in Thailand, and he acknowledged that Ghaled was a people smuggler. He also acknowledged that although he did not know Hoshem Al Taha, he included his name as a contact on an application for a Canadian visa.

[66]Dr. El Helbawy and Dr. El Fadl testified on behalf of the applicant and provided background information relating to the jihad in Afghanistan and the role of various people and organizations in that conflict.

[67]Dr. El Helbawy served as a spokesperson for the Muslim Brotherhood in the United Kingdom between 1995 and 1997, and he is involved in Muslim education. He gave evidence on the history of the conflict in Afghanistan and the involvement of the men who went to the conflict, including the training they may have received in various camps. Dr. El Helbawy also discussed his impression of Islamic extremism and the connection between extremism, Al-Qaida, and fighting in the jihad. In both direct and cross-examination, Dr. El Helbawy stated that he was not willing to conclude that Usama bin Laden was responsible for the World Trade Centre bombings or that he broke the rules of war until there was a proper trial and judgment to that effect. He commented on the roles of various individuals who were involved in the war, including Hekmadyar, Sayyef and Usama bin Laden. Dr. El Helbawy described the difficulties suffered by Arab youth when they returned to their countries after the war in various Middle Eastern countries. He provided background information on the Muslim Brotherhood and described the propensity of that organization to assist people like Mr. Almrei to get false passports.

[68]Dr. El Fadl is a visiting law professor at Yale and regularly teaches at U.C.L.A. law school. He has written extensively on Islamic and human rights issues, jihads, and the impact of September 11th on the Muslim community. Dr. El Fadl gave evidence on the role of the mujahedin in the response to the Soviet invasion in Afghanistan, and he described the assistance that was given to volunteers by governments of Middle Eastern countries to fight with the mujahedin. He described the involvement of those volunteers in the jihad and explained the plight of those who returned from Afghanistan to their various home countries in the Middle East. Dr. El Fadl explained the terms "extremist" or "radicalized" and gave evidence that the proportion of people who went to Afghanistan and of those who returned from Afghanistan who were "extremists" was quite small. Dr. El Fadl also gave evidence on Usama bin Laden's involvement in the wars in Afghanistan and the number of camps that have been attributed to him. He compared the information he was given about Mr. Almrei's involvement and actions with the involvement and actions of those who are linked with Al-Qaida and indicated that Mr. Almrei's profile, as he understood it, was not consistent with those of Al-Qaida members.

[69]Neither Dr. El Helbawy nor Dr. El Fadl knew Mr. Almrei in any personal capacity, and their testimony was based solely on information given to them by the applicant's counsel. I have no reason not to accept the evidence of Dr. El Fadl and Dr. El Helbawy in regard to the role of volunteers in the jihad, the involvement of particular individuals in that conflict, and the difficulties suffered by Arab youth when they tried to return home from Afghanistan. Whether or not the applicant fits a particular profile is something that must be decided on a weighing of all of the evidence.

[70]Mr. Frank Geswaldo and Mr. Peter Dietrich testified on behalf of the applicant in June 2003, and spoke to the conditions and circumstances of Mr. Almrei's detention at the Toronto West Detention Centre. Mr. Geswaldo is a security manager at the Toronto West Detention Centre. He described the conditions under which Mr. Almrei is being held, and he described the facilities to which Mr. Almrei has access, explaining that, although the institution tries to give detainees like Mr. Almrei daily showers and recreational time, this does not always happen due to staffing issues, lockdowns, and other circumstances in the institution. Mr. Geswaldo also explained the circumstances that led to Mr. Almrei being held in solitary confinement at that facility for the duration of his detention. He explained that Mr. Almrei was originally placed in solitary confinement, was allowed out "on the range" in November 2002, but was put back in solitary confinement for his own protection five days later, after an altercation with other prisoners.

[71]Mr. Dietrich, a Regional Program Adviser and acting Director of Enforcement Issues, Ontario Region, explained the role of the federal and provincial governments in the long-term detention of immigrants in Canadian remand facilities and indicated, in particular, that he is not aware of any formal agreements between these two levels of governments with respect to immigration detainees.

[72]Dr. Aly Hindy, Mr. Hassan Ahmed, Ms. Diana Ralph, Mr. Matthew Behrens and Mr. Frank Sholler testified to Mr. Almrei's character and to their willingness to contribute monetarily by posting bonds and otherwise to ensure compliance with any conditions the Court might impose on Mr. Almrei.

[73]Dr. Aly Hindy is a consultant, he is the Imam of the Salahaddin Mosque, and he is the Director of the Canadian Islamic Congress in Toronto. He described his ongoing personal and telephone contact with Mr. Almrei, but acknowledged that he did not know Mr. Almrei prior to his arrival in Canada. Dr. Hindy commented briefly and generally about the activities of the Muslim Brotherhood, the Al Haramin charity, and about certain Arab governments' encouragement of youth to fight against the Soviets in Afghanistan. He attested to his willingness to post a bond in the amount of $10,000 for Mr. Almrei's release, and indicated that other members of the community were ready to post $100,000 as a surety. Dr. Hindy initially indicated (at the June 24, 2003, hearing) that arrangements could be made for Mr. Almrei to stay with people from the mosque, with Dr. Hindy acting in a supervisory capacity, but at the November 27, 2003, hearing, Dr. Hindy accepted that Mr. Almrei's preference was to stay with Ms. Ralph. On cross-examination, Dr. Hindy admitted that he has also offered to post bail and prioritize supervision of applicants in other similar cases, namely, Mahjoub and Jaballah.

[74]Mr. Hassan Ahmed has been a friend of Mr. Almrei since Mr. Almrei came to Canada and has been in regular contact with Mr. Almrei for the last one and one-half years. In Mr. Ahmed's view, Mr. Almrei does not have views of a terrorist nature, and is, on the contrary, a good, religious person. Mr. Ahmed is in contact with Mr. Almrei's family.

[75]Ms. Diana Ralph is a professor of social work at Carleton University with a PhD in psychology. Ms. Ralph has been in regular contact with Mr. Almrei by phone and in person since June 2003 and she finds Mr. Almrei to be an honest and deeply spiritual person who is committed to peaceful resolution of conflict. She described Mr. Almrei as a devout Muslim, but stated that he has no animosity towards her, despite the fact that she is a Jewish, American, lesbian woman. Ms. Ralph is able to put up a surety in the amount of $10,000. She has recently renovated the apartment in her Toronto home specifically for Mr. Almrei, if he is released, and she involved him in various decisions with respect to the renovation. Ms. Ralph admitted that she did not know Mr. Almrei before he came to Canada, and she admitted that she does not know Arabic and would not know what Mr. Almrei was saying if he was speaking Arabic.

[76]Mr. Matthew Behrens volunteers with several community organizations: Homes Not Bombs, Toronto Action for Social Change, and Campaign to Stop Secret Trials in Canada. He is also a journalist and editor, and teaches seminars on social change using non-violent means. Mr. Behrens is involved in a number of security certificate cases including Harkat, Jaballah and Mahjoub. He and his family have been in contact with Mr. Almrei on an almost daily basis since June 2003, by way of personal visits and by telephone. Mr. Behrens describes Mr. Almrei as patient, persistent and compassionate. Mr. Behrens is a self-described "secular Jew" and has not heard Mr. Almrei express any anti-Semitic sentiments, nor does Mr. Behrens have any concerns about Mr. Almrei on the basis of the public documents filed with this Court. Mr. Behrens is willing to post $2,500 cash. Mr. Behrens does not speak Arabic, but proposed to exercise control over Mr. Almrei by regular contact, by telephone or in person.

[77]Mr. Behrens also testified on January 7, 2004, after having reviewed the temporary internet files on Mr. Almrei's computer. He gave evidence as to the type and names of various internet sites cached on Mr. Almrei's computer, and described a wide variety of pictures found on Mr. Almrei's computer that were in no way related to jihad, terrorism or Usama bin Laden, that were not included by the Ministers in their collection of images from this computer.

[78]Mr. Frank Sholler is active with the United Church community on human rights issues and is prepared to act as a bond-signer for Mr. Almrei. He is able to put up $10,000 with his house as surety for that sum. Mr. Sholler conceded that he did not know Mr. Almrei very well and would not be able to effect control over him.

[79]I find the testimony of Mr. Geswaldo and Mr. Dietrich to be credible and trustworthy and I accept their evidence. I also find the testimony of the applicant's character witnesses and proposed sureties to be credible and trustworthy, and I accept their evidence as part of the evidence to be considered. The probative value of this evidence is tempered by the fact that all but one of these character witnesses and proposed sureties have known Mr. Almrei only since his incarceration, and the remaining witness has known Mr. Almrei only since Mr. Almrei arrived in Canada.

II. Ministers' evidence

[80]The Ministers called Mr. Brian Foley, Ms. Maura DeLeonardis and Ms. Dianne Toikko to speak to the reasons for Mr. Almrei's prolonged detention. Mr. Foley is employed with the Intelligence Branch of the Department of Citizenship and Immigration. He described in detail the process directed by paragraph 115(2)(b) of the IRPA, including the notice requirements of this section and the numerous opportunities given to each of the parties to make and respond to submissions. He described the delays that arose in this case in relation to the paragraph 115(2)(b) process, noting in particular that (1) there was "new ground to cover" as a result of the new legislation; (2) time was required to enable the decision-maker to properly balance the risk of return of a person to their country and the danger that person poses to the security of Canada; (3) different analysts dealt with Mr. Almrei's file; and (4) there were changes in the structure within CIC, all of which contributed to the delay in the processing of Mr. Almrei's file. Ms. DeLeonardis, an enforcement officer at Citizenship and Immigration Canada, testified to the practical impediments to removal of an individual who is the subject of a removal order. Ms. Toikko is employed at Immigration Headquarters, in the section that deals with security certificates, and she described the various delays and the reasons for the delays in the assessment of Mr. Almrei's file, noting in particular that changes in the assignment of the file, changes in legislation and subsequent changes in policies and procedures affected the processing of the file.

[81]Pursuant to my order of October 17, 2003, a CSIS intelligence officer known only as "J.P." testified on November 27, 2003. J.P. described the organization and objectives of the Al-Qaida network and he summarized the Service's concerns about Mr. Almrei's involvement in the Al-Qaida network. On cross-examination, J.P. described in greater detail the activities and declarations of the Al-Qaida network, he described certain documentary sources used by the Service for information about the network, and he reiterated that the Service's main concerns about Mr. Almrei were his military training and his ability to forge documents. J.P. commented that Mr. Almrei's profile compared with the profile of Al-Qaida members, and indicated that there were "sufficient elements of a profile" in this case. J.P. also commented on the possibility that Mr. Almrei would participate in Al-Qaida operations in the future. He stated that, although Mr. Almrei might now be compromised for some operations, it was still possible that others involved in the network would think it worth the risk to contact him, depending on the particulars of the operation.

[82]I find that the Ministers' witnesses are credible and trustworthy, and I accept their testimony as part of the evidence to be considered.

G. ANALYSIS

1.     Will the foreign national not be removed from Canada within a reasonable time?

[83]The reference to a period of 120 days in subsection 84(2) reflects Parliament's intent that removal should occur expeditiously once a certificate has been determined to be reasonable. What is "reasonable time" will depend on the facts and circumstances of each case.

[84]On October 23, 2003, the Minister's delegate made a determination that Mr. Almrei would not be at risk of torture if returned to Syria and, in the alternative, if he would be at risk of torture if returned to Syria, his removal to torture was justified because of the risk he presented to the security of Canada. Mr. Almrei has filed an application for leave and for judicial review of this decision of the Minister's delegate. As of November 21, 2003, a date for the removal of Mr. Almrei had been selected and his removal to Syria was scheduled to occur within two and one-half weeks from that time. The specific date scheduled for removal was not disclosed for security reasons. Mr. Almrei sought and obtained a stay of the execution of the outstanding removal order pending final disposition of the underlying application for leave and for judicial review of the October 23, 2003, decision of the Minister's delegate.

[85]The chronology of events and the nature of the numerous proceedings before this Court since the filing of the within detention review lead me to consider the following circumstances in determining what is a "reasonable time" within the context of the first branch of the test for judicial release as contemplated in subsection 84(2) of the IRPA: (1) the conditions of Mr. Almrei's ongoing detention; (2) pending Court proceedings which have been initiated or will be initiated by Mr. Almrei; and (3) delays affecting removal attributable to the Minister and the applicant.

[86]The length of time Mr. Almrei has remained in detention since the certificate was determined to be reasonable, and the conditions of his detention are matters that are of great concern to the Court. However, a careful review of the history of the proceeding reveals that the uncertainty with respect to Mr. Almrei's removal is in large part due to past, pending and contemplated Court challenges initiated on his behalf.

[87]A certificate with respect to Mr. Almrei was issued by the Ministers on October 16, 2001, and was determined to be reasonable on November 23, 2001. On February 11, 2002, Mr. Almrei was found to be inadmissible under certain provisions of section 19 of the former Act. The Ministers' evidence is that matters were aggravated, with respect to delay, by the coming into force of new legislation governing such proceedings: the IRPA was enacted and the Immigration Act was repealed on June 28, 2002, and more time was required in the preparation of "danger opinions" because of the legislative changes and because of additional requirements under the new Act. In addition, because of internal restructuring, the Ministers' evidence is that Mr. Almrei's file did not receive the attention of an officer dedicated exclusively to his file.

[88]A first danger opinion by the Minister of Citizenship and Immigration under subsection 115(2) of the IRPA was issued on January 13, 2003. This decision was challenged by Mr. Almrei, and leave and judicial review of the decision were ultimately consented to by the Minister. Notice that the Minister would be seeking a second "danger opinion" was served on Mr. Almrei on July 28, 2003. On October 23, 2003, the Minister's delegate issued the second "danger opinion" referred to above. The Ministers submit that significant time was required in respect of each of the danger opinions to properly evaluate the potential risks inherent in removal, and in addition, significant time was required in respect of each of these danger opinions to enable Mr. Almrei to respond.

[89]Justice Dawson stated in Mahjoub, at paragraph 55, "that where a risk of torture is asserted by a person who has been found to be a Convention refugee, more time, rather than less, will reasonably be required to ensure that the principles of fundamental justice are not breached." I agree with this proposition.

[90]The Minister of Citizenship and Immigration admitted to having made "serious errors" in the first danger opinion, and for that reason, consented to Mr. Almrei's application for leave and for judicial review of the opinion. These errors therefore resulted in the need to process a second opinion, causing further delay. Although the Minister is at fault, by his own admission, I find that this delay is also mitigated to a certain extent by the special circumstances of the coming into force of the IRPA, and the seriousness of the issues to be determined. Therefore, although the Minister must accept some of the responsibility for certain delays incurred in the preparation of the "danger opinions", in the particular circumstances of this case, it cannot be said that the delays attributable to the Minister's delegate on their own are sufficient to warrant a negative finding on the first question in the subsection 84(2) inquiry.

[91]Reviewing the chronology of events and the nature of the numerous proceedings, it becomes evident that much of the delay was necessary for the due process required for applications brought by Mr. Almrei during the proceeding. Notwithstanding very articulate arguments by counsel for Mr. Almrei, the jurisprudence and applicable legal principles discussed earlier in these reasons provide that this time cannot support an argument of unreasonable delay. I am bound by this jurisprudence.

[92]In addition, I am cognizant of the Federal Court of Appeal's decision in Ahani v. Canada (1996), 37 C.R.R. (2d) 181 (hereinafter Ahani (1996)) in which Justice Marceau discussed the constitutionality of section 40.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31] of the former Act, and concluded (at paragraph 4) that it was constitutionally valid:

As to the second proposition, we are of the view that the section 40.1 context is, in no way, akin to a criminal context. In a criminal law context, we have an individual charged with breaking the criminal law of the land who faces punishment if the state succeeds in overcoming his presumption of innocence. In a section 40.1 context, we have an alien who may lose the qualified right to stay in Canada that he gained by being given refugee status, but whose liberty will not then be otherwise impeded. The principles and policies underlying both contexts are obviously totally different, and the standards of procedural safeguards required to satisfy the Charter must necessarily differ. It is true that the filing of the certificate has the immediate unfortunate effect of leading to the arrest and detention of the person concerned, a fate normally reserved to criminals, and this is, no doubt, the most sensitive aspect of the scheme. It must not be forgotten, however, that this detention is not imposed as a punishment, nor is its sole function to assure the presence of the person. Rather, it is principally a means of providing preventive protection to the Canadian public. And, in view of the test for the issuance of the certificate, that is to say the reasoned opinion of two ministers based on security information; in view of the fact that the scheme provides for the obligatory judicial scrutiny of the reasonableness of those opinions within an acceptably short period of time; in view, also, of the possibility given to the detained to put an end to the detention at any time by agreeing to leave the country; and in view, finally, of the type of prohibited class of individuals there are reasons to believe we are dealing with, that is to say individuals somehow associated with terrorism, it appears to us, as it appeared to the learned trial judge, that such preventive detention is not arbitrary, nor excessive.

[93]The learned Justice noted that under section 40.1, the detained person can put an end to the detention at any time by agreeing to leave the country. I agree that it is the applicant who holds the key to his own release: Mr. Almrei would be released tomorrow if he agreed to be removed from Canada. Mr. Almrei's efforts to resist removal by initiating numerous Court proceedings have contributed significantly to the total time he has been held in detention. While he has the right to bring lawful proceedings, he cannot argue: "that the removal is not taking place in a reasonable time, when the time necessary to hear all of the applications and appeals stretches into months and years" (Ahani (2000) [at paragraph 18]).

[94]As to the conditions of Mr. Almrei's detention, I recognize that he has been detained since October 19, 2001, and that he has spent all but five days in solitary confinement. I also recognize that Mr. Almrei has been and continues to be detained at a facility that is, according to Mr. Geswaldo, designed to house prisoners awaiting trial, serving short sentences or awaiting transfer to a penitentiary or reformatory after trial and sentencing. Due in part to the nature of this facility, Mr. Almrei has been permitted limited access to many amenities including showers, fresh air, books, clothing, shoes, and educational programs, and he has limited access to visitors and to the phone. I am also aware of the decision of Mr. Justice Gans of the Ontario Superior Court of Justice, wherein Justice Gans decided that Mr. Almrei should be provided with adequate footwear (Almrei v. Canada (Attorney General), [2003] O.J. No. 5198 (S.C.J.) (QL)).

[95]The conditions of the applicant's detention are certainly not ideal. However, I must be mindful that the legislative scheme provides for preventative detention upon issuance of a security certificate, and ongoing detention until release is ordered or removal is effected. Further, I am aware of uncontradicted evidence from Mr. Almrei that "solitary" detention is necessary for his own protection within the institution. Therefore, notwithstanding that the conditions of Mr. Almrei's detention are less than ideal, the circumstances of his detention, although a factor to be considered, are insufficient, in my view, to warrant his immediate release from detention.

[96]For the above reasons, I am unable to find that Mr. Almrei will not be removed from Canada within a reasonable time.

2.     Will Mr. Almrei's release pose a danger to national security or to the safety of any person?

[97]Mr. Almrei has not satisfied me that he will not be removed from Canada within a reasonable time. Given that the requirements of subsection 84(2) of the IRPA are conjunctive, it is not necessary that I consider the second statutory criteria. However, in view of Mr. Almrei's lengthy detention and the fact that much of this time was spent in solitary confinement, I will nevertheless consider the second element of the statutory criteria for release.

[98]The Ministers take the position that Mr. Almrei is a member of a network of extremist individuals who support the extremist ideals espoused by Usama bin Laden. The Ministers contend that Mr. Almrei's support for bin Laden, his association with individuals connected to the bin Laden network, and his involvement in a document forgery ring with international connections demonstrate that he is a danger to national security or to the safety of any person.

[99]The evidence before the Court, both public and secret, deals essentially with whether Mr. Almrei poses a danger to national security as opposed to a danger to the safety of any person. The Supreme Court of Canada dealt with the phrase "danger to the security of Canada" in Suresh. The Supreme Court stated that while the phrase must be given "a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat." The Court went on to conclude at paragraph 90 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.

[100]The Supreme Court also commented on the level of proof required to establish that certain activities constitute a "danger to the security of Canada". The Court observed at paragraph 88 of Suresh that support for terrorism abroad raises the possibility of adverse repercussions on Canada's security for the following reasons:

First, global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activity. Second, terrorism itself is a worldwide phenomenon. The terrorist cause may focus on a distant locale, but the violent acts that support it may be close at hand. Third, preventive or precautionary state action may be justified; not only an immediate threat but also possible future risks must be considered. Fourth, Canada's national security may be promoted by reciprocal cooperation between Canada and other states in combating international terrorism. These considerations lead us to conclude that to insist on direct proof of a specific threat to Canada as the test for "danger to the security of Canada" is to set the bar too high. There must be a real and serious possibility of adverse effect to Canada. But the threat need not be direct; rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security.

[101]While Suresh was written in the context of deportation proceedings of a Convention refugee, its observations with respect to what constitutes a "danger to the security of Canada" are, in my view, applicable to detention review proceedings pursuant to subsection 84(2) of the IRPA. Therefore, for the purpose of the within proceeding, evidence which grounds an objectively reasonable suspicion of substantial threatened harm would establish a danger to national security. In accordance with the legal principles established by the jurisprudence, discussed earlier in these reasons, the onus is on the applicant seeking release, to satisfy the Court on a balance of probabilities, that his or her release will not pose a danger to national security or the safety of any person. In Ahani (2000), the Court of Appeal observed at paragraph 14 that "[n]ormally, one would expect that an individual would have to show some significant change in circumstances or new evidence not previously available to obtain his release", and that to hold otherwise would be to accord the appellant a hearing de novo, which is not contemplated in the legislation. The Court also found that since a certificate is conclusive proof that the appellant is inadmissible for egregious reasons, the applicant is not entitled to the presumption of innocence.

[102]It follows, in the present case, that the evidence considered by Madam Justice Tremblay-Lamer in determining the reasonableness of the certificate is necessarily part and parcel of the evidentiary basis in the within proceeding. Her findings and conclusions constitute conclusive proof that Mr. Almrei is inadmissible on the grounds referenced in the certificate.

[103]In concluding that the certificate signed by the Ministers is reasonable, Madam Justice Tremblay-Lamer found at paragraph 31 of her reasons (see Background Facts) that the confidential information strongly supported the view that Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Usama bin Laden and that Mr. Almrei is involved in a forgery ring with international connections that produces false documents.

[104]The learned Judge also observed, in her reasons for decision [at paragraph 30], that "Mr. Almrei's decision not to testify constitutes a failure on his part to avail himself of his opportunity to be heard. Thus, the only evidence before me is that presented at the hearing held pursuant to paragraph 40.1(4)(a) of the IRPA on October 24, 2001."

[105]The nature of the public evidence on this motion is summarized earlier in these reasons. The Ministers' evidence on this motion consists of both evidence adduced in public and evidence and information considered in camera in the absence of Mr. Almrei and his counsel. With respect to this secret evidence, a summary was provided to Mr. Almrei so that he could be reasonably informed of the allegations against him. This summary of updated information adduced by the Ministers, essentially reiterates information provided in an earlier summary issued by Madam Justice Tremblay-Lamer that Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Usama bin Laden. The summary also notes that the actions of Al-Qaida have demonstrated that the danger to the public from that network has intensified, since the issuance of the first summary of secret information, and that supporters of Al-Qaida are still prepared to participate in a jihad against the West.

[106]On his motion for release, Mr. Almrei testified and was cross-examined on two occasions. I propose to review his evidence and in particular his testimony with respect to the following elements, which essentially form the basis of the Ministers' allegations against him, namely: (i) false documentation; (ii) his participation in jihad, (iii) his Arab-Afghan connections, (iv) his alleged support for Usama bin Laden and (v) his alleged clandestine behaviour. In so doing, I will weigh Mr. Almrei's testimony against the Ministers' evidence.

(i) false documentation

[107]Mr. Almrei's states that he is not a forger and procurer of false passports. He testified that his experiences regarding false documentation were limited to obtaining documents to facilitate his own travels, and on one occasion, assisting Nabil Al Marabh in obtaining a false Canadian passport. He argues that his efforts to obtain false passports for himself are consistent with his circumstances as a refugee claimant. He admits his wrongdoing and claims that he did not follow through with any other requests for false passports. He explains his contact with Thailand as being consistent with his status as a refugee claimant seeking a safe haven. He states that the fact he helped Al Marabh does not mean he is part of an international forgery ring and that, in any event, he did not make the passports, but only knew who to contact. He claims that there is no evidence that the people he helped, including Al Marabh, were in any way involved with nefarious activities and that none were charged with a criminal offence.

[108]The Ministers rely on the following public evidence with respect to the allegation that Mr. Almrei is involved in an international forgery ring with international connections that produces false documents:

1. Mr. Almrei knew individuals in Montréal who could obtain false documents.

2. He profited from procuring a passport for Mr. Al Marabh.

3. He had a reputation in the community for being able to obtain false passports.

4. He is not credible because he could not recall why Al Marabh wanted a false passport, nor who gave him the name of his Montréal contact.

5. He acknowledged that procurement of false passports is wrong and illegal.

6. He travelled to Thailand and befriended a human smuggler and continued to have contact with him after coming to Canada.

[109]The Ministers also rely on information adduced in camera in the absence of Mr. Almrei or his counsel. This information cannot be disclosed publicly, since it has been determined that its disclosure would be injurious to national security. However, as noted earlier in these reasons, public summaries have been approved and delivered to Mr. Almrei to reasonably inform him of the allegations against him by this secret evidence.

[110]I have carefully canvassed the secret evidence as to its relevance, its reliability and the presence or absence of corroboration. Having done so, I conclude that the assertions made by Mr. Almrei with respect to his limited involvement in the preparation and procurement of false documents are not credible. Based on all of the evidence, I find, on a balance of probabilities, that Mr. Almrei is involved in a forgery ring with international connections that produces false documents.

(ii) his participation in jihad

[111]Mr. Almrei testified that he went to Afghanistan because, like many young Arab men, he was encouraged to do so by the clergy in the mosques and Arab Governments, including the Government of Saudi Arabia, who offered financial incentives to young Arab men to participate in the "jihad". Mr. Almrei testified that he was not trained as a fighter and was not associated with Usama bin Laden. He argues that only a small percentage of those who went to Afghanistan became "radicalized" and he was not one of them. He explained that he failed to disclose his travels to Afghanistan because he feared he would be found to be exaggerating his refugee claim and would be found to be not credible. Mr. Almrei's evidence is that he went to Afghanistan as an Imam and was not involved in fighting. He admits that while in Afghanistan, he volunteered to go on two scouting missions under the command of Ibn Khattab and that he stayed at Khattab's guest house. He argues that this does not mean he was involved in combat. Mr. Almrei affirmed his willingness to fight in a jihad but attested that this does not mean that he did or that he was trained to fight. In essence, Mr. Almrei states that there is no evidence of his involvement in violence or extremism and states that he simply does not fit the profile of a terrorist or an individual linked to Al-Qaida or other extremist organizations. Counsel argues that the evidence of Dr. El Fadl and Dr. El Helbawy supports this contention.

[112]The Ministers allege that the evidence clearly establishes that Mr. Almrei was prepared to engage in combat and his involvement in jihad put him in a community of individuals who support Usama bin Laden. The Ministers further contend that Mr. Almrei's evidence with respect to his involvement in jihad is not credible because he failed to disclose his role as Imam to authorities in making his refugee claim, he funded his own travels to Afghanistan, and could not remember the names of other camps in Jalalabad.

[113]It is, however, on the strength of the secret evidence that I find Mr. Almrei not to be credible with respect to his alleged involvement in jihad. I have carefully canvassed the secret evidence on this issue, as to its relevance, its reliability and the presence or absence of corroboration. Having done so, I conclude, on a balance of probabilities, based on all of the evidence, that the assertions made by Mr. Almrei with respect to his involvement in jihad are not credible. I accept the Ministers' assertions with respect to Mr. Almrei's involvement in jihad.

(iii) Arab-Afghan connections

1.     Ibn Khattab

[114]Ibn Khattab was an associate of Usama bin Laden, trained in the use of long-range weapons and was alleged to have been responsible for bombings in Russia in 1999 which resulted in the deaths of hundreds of civilians. Mr. Almrei admitted that he served under Khattab's command in Afghanistan and stayed at his guest house. While in Afghanistan, Mr. Almrei allegedly went on two scouting missions with Khattab.

[115]Mr. Almrei's evidence is that the allegations of Khattab's acts of violence postdate his contacts with him. Mr. Almrei submits that he did not maintain contact with Khattab after coming to Canada, and had not supported him financially. Mr. Almrei further states that there is no evidence that Usama bin Laden and Khattab were working together.

2.     Nabil Al Marabh

[116]Al Marabh was allegedly involved in jihad, obtained a false Canadian passport and was detained for contravening immigration laws. The Ministers contend that Mr. Almrei's testimony regarding the nature of his association with Al Marabh is not credible. They argue that while Mr. Almrei maintains that Al Marabh was not a close friend, he nevertheless helped him obtain a false Canadian passport, provided Al Marabh's uncle, Ahmed Shehab, with a loan for Al Marabh's Citizenship and Immigration release bond, and visited Al Marabh while he was in detention. The Ministers also contend that it is implausible that Mr. Almrei would not recognize Al Marabh at their first meeting in Canada, at the print shop in Toronto, given that they stayed in the same guest house and had known each other in Afghanistan.

[117]Mr. Almrei's evidence is that Al Marabh is not a close friend and that the help he gave Al Marabh must be understood in the proper cultural context. Both were Syrian nationals, and therefore from a small community in Canada. Mr. Almrei argues that it should not be viewed as implausible that such individuals visit one another in jail and help with a release bond. With respect to the false passport he provided to Al Marabh, Mr. Almrei argues that this does not mean he was a close friend or that he would obtain a passport for a terrorist if released from detention. Finally, Mr. Almrei contends that there is no evidence of terrorism charges laid against Al Marabh, and even if he was a terrorist, this doesn't mean that Mr. Almrei knew that or helped him because of it.

3.     Hoshem Al Taha

[118]Mr. Almrei denies knowing Al Taha even though, while in Saudi Arabia, he included Al Taha's name in his visa application. Mr. Almrei testified that the name was provided to him by a friend who assisted him with the application, and that Mr. Almrei phoned Al Taha from his cell phone in the Canadian embassy at Riyadh and obtained his address to include on the application. Mr. Almrei argues that there is nothing implausible about the fact that Al Taha, a person he did not know, would let him use his name for the purpose of obtaining a visa, particularly when someone from the same "Arab" community is trying to flee to safety. Further, Mr. Almrei argues that there is nothing in the public record to suggest that Al Taha is a terrorist.

[119]The Ministers argue that Mr. Almrei's testimony regarding Hoshem Al Taha is not credible. They do not believe that, although Mr. Almrei and his friend who assisted him in preparing his visa application were not friends of Al Taha, they were able to contact and speak with him.

4.     Ahmed Al Kaysee

[120]Mr. Almrei testified that Al Kaysee was a good friend who picked him up at the airport upon his arrival in Canada. Mr. Almrei acknowledged that Al Kaysee was in Afghanistan but argues that there is no evidence on the public record that Al Kaysee has been charged or detained in connection with terrorism.

[121]Secret evidence was led with respect to Ibn Khattab, Nabil Al Marabh, Hoshem Al Taha and Ahmed Al Kaysee and their alleged connections and/or associations with Mr. Almrei. I have carefully canvassed the secret evidence as to its relevance, its reliability and the presence or absence of corroboration. Having considered all of the evidence, I conclude, on a balance of probabilities, that the assertions made by Mr. Almrei with respect to his relationship with Ibn Khattab and Nabil Al Marabh are not credible. I further conclude, on a balance of probabilities, that Mr. Almrei's testimony with respect to his relationship and association with Al Taha and Al Kaysee is implausible.

(iv) support for Usama bin Laden

[122]Mr. Almrei testified that he did not support Usama bin Laden's violent philosophies nor the events of September 11, 2001. Mr. Almrei testified that he did not believe that bin Laden was responsible for the events of September 11, 2001, but he argues that he should not be found to be a danger to national security because of this belief. Mr. Almrei states that there is no public evidence that he supports the extremist ideals espoused by Usama bin Laden.

[123]The Ministers contend that Mr. Almrei is not credible with respect to his evidence on his lack of support of bin Laden. Firstly, the Ministers argue that a designated judge has conclusively determined that Almrei supports extremist ideals espoused by Usama bin Laden. Secondly, a book of images of Bin Laden, of the jihad and weapons taken from Mr. Almrei's computer support their contention. Mr. Almrei argues that the computer images seized from his computer are not conclusive of anything except that he was interested in the news and events in that part of the world. The evidence of Matthew Behrens, who accessed Mr. Almrei's computer, establishes that Mr. Almrei accessed many more sites on the internet than those adduced in evidence by the Ministers. Many of these sites were not related to terrorism, jihad or Usama bin Laden.

[124]Secret evidence was adduced with respect to Mr. Almrei's support for Usama bin Laden. I have carefully canvassed the secret evidence as to its relevance, its reliability and the presence or absence of corroboration. Having done so, and on the basis of all of the evidence, I conclude, on a balance of probabilities, that the assertions made by Mr. Almrei with respect to his support for Usama bin Laden not to be credible. I further conclude, on a balance of probabilities, based on the public and secret evidence, that Mr. Almrei supports the extremist ideals espoused by Usama bin Laden.

(v) clandestine behaviour

[125]The Ministers allege that Mr. Almrei has a preoccupation with security and uses clandestine methodology to disguise his actions from law enforcement and intelligence officials. Mr. Almrei argues that his cautious behaviour can be explained. He contends that particular circumstances justify his behaviour: he is under an ongoing investigation by CSIS; there is mistrust of the Service in the Muslim community; and since September 11, 2001, Muslims are perceived to be targeted. Mr. Almrei argues that all of these factors explain and justify his behaviour.

[126]Secret evidence was adduced with respect to Mr. Almrei's clandestine behaviour. I have carefully canvassed the secret evidence as to its relevance, its reliability and the presence or absence of corroboration. Having done so, and on the basis of all of the evidence, I conclude, on a balance of probabilities, that the assertions made by Mr. Almrei with respect to his "clandestine behaviour" to be unfounded and not credible. I further conclude, on a balance of probabilities, based on the public and secret evidence, that Mr. Almrei used clandestine methodologies.

[127]I have considered the totality of Mr. Almrei's counsel's submissions carefully. I am satisfied that there is abundant evidence before the Court in the public summaries and the confidential security intelligence reports which grounds an objectively reasonable belief that Mr. Almrei's release would pose a danger to national security. The evidence adduced by Mr. Almrei is insufficient to neutralize the evidence which gives rise to the objectively reasonable belief that Mr. Almrei's release would pose a danger.

[128]I have also considered whether there are conditions of release capable of addressing that threat. Counsel for Mr. Almrei requests that I consider releasing Mr. Almrei on terms and conditions similar to those imposed by the Court in Suresh. The suggested terms are:

1. Persons such as Diana Ralph, Matthew Behrens and Aly Hindy deposit with the respondent Minister amounts to be fixed by the Court, which sums shall remain with the respondent for the Government of Canada until such time as the Government of Canada removes the applicant from Canada, at which time the money, with interest, shall be returned to the person or persons who have deposited the said monies.

2. Mr. Almrei, while out of detention, shall report once per week to the Immigration Reporting Centre at 6900 Airport Road, or whenever and wherever directed by an immigration official on a day and at a time as determined by a representative of the respondent.

3. Mr. Almrei shall reside at the residence of Diana Ralph . . . Toronto.

4. In the event that Ms. Ralph should, for whatever reason, change her address, Mr. Almrei must advise the CIC in advance and obtain the respondent's permission to change his residence.

5. Mr. Almrei, during the time of his release, shall keep the peace and be of good behaviour.

6. Mr. Almrei shall remain within 50 kilometres of the Toronto city limits and cannot go outside this area without permission of the CIC.

7. Mr. Almrei shall not have direct or indirect contact with any persons whom he knows or suspects to be or have been involved with any extremist Islamic organization.

8. Mr. Almrei shall not be involved directly or indirectly in any activities, including protests, demonstrations, or rallies related to the support of Islamic extremism.

9. Mr. Almrei shall surrender to Canadian Immigration authorities his passport and all other travel documents while out of detention (if he has any such documents).

10. Mr. Almrei agrees in writing to abide by these terms and conditions while out of detention, then he is to be released from detention.

[129]I have found Mr. Almrei's testimony before this Court not to be credible. I have also made the following determinations with respect to Mr. Almrei: (1) that he used clandestine methodologies; (2) that he supports the extremist ideals expressed by Usama bin Laden; (3) that he is not credible with respect to his Arab-Afghan connections; (4) that he is not credible with respect to his involvement in jihad; and (5) that he was involved in a forgery ring with international connections that produces false documents.

[130]I am satisfied that, should Mr. Almrei be released, there is a strong likelihood that he will resume his activities and become re-acquainted with his connections in the forgery ring and those Arab-Afghans connected to the Usama bin Laden network. Having regard to the nature of the threat posed, I have not been satisfied by Mr. Almrei that the proposed, or similar conditions, would be effective to ensure that his release would not pose a danger to national security or to the safety of any person.

[131]I have also weighed the evidence of the proposed sureties. Most of the sureties have not known Mr. Almrei for very long, and indeed all of them have only come to know him since his incarceration. I have no reason to doubt their honesty and integrity as law abiding citizens. Despite their best efforts and intentions, I have not been satisfied that the posting of cash sureties would address the danger that I believe would be posed by Mr. Almrei's release.

[132]It follows that Mr. Almrei has not met the onus upon him of satisfying the Court, on a balance of probabilities, that his release from detention will not pose a danger to national security or to the safety of any person.

3.     Is the continuation of Mr. Almrei's detention a breach of his rights under sections 7 and 12 of the Charter?

[133]Subsection 57(1) [as am. by S.C. 2002, c. 8, s. 54] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. by S.C. 2002, c. 8, s. 14)], as amended, requires that, if the constitutional validity, applicability or operability of an Act of Parliament is in question before the Federal Court, the Act shall not be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the Attorney General of each province. The applicant did not file notice of a constitutional question. Therefore, the applicant is not challenging the validity or applicability of any section of the Act. However, in his submissions on the reasonableness of his detention, the applicant contends that "he has been subjected to cruel and unusual treatment and that any further detention would be a breach of his rights under sections 7 and 12 of the Charter of Rights and Freedoms. Continued detention for twenty-seven months in solitary confinement is cruel and unusual treatment in the context of this case." The applicant submits that justification for detention must be based on an objective standard, and that solitary confinement where not warranted on the facts can constitute cruel and unusual treatment or punishment. In this case, solitary confinement is allegedly not justified by any misconduct on the applicant's part, but on the lack of proper arrangements for long term immigration detainees. Further, the applicant submits that he was not given the reason for his segregation during the first year of his detention.

[134]The applicant has been in solitary confinement since October 2001, a total of about 28 months. He was briefly released from solitary confinement in November 2002 pursuant to a successful habeas corpus application. I understand that his placement back in solitary confinement five days later was a direct result of altercations with other prisoners, and it was Mr. Almrei's uncontradicted evidence that solitary confinement was required to ensure his personal safety within that institution.

[135]Sections 7 and 12 of the Charter provide:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

. . .

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[136]I accept that the jurisprudence relating to section 40.1 of the former Act remains relevant to provisions of the IRPA, as was determined by Justice Dawson in Mahjoub. I find that Justice Marceau's discussion in Ahani (1996), excerpted at paragraph 92 of these reasons, and his conclusion on the constitutionality of section 40.1 of the former Act are therefore relevant and applicable to the issue at hand. In addition, I find that there are particular circumstances in this case that warrant a finding that the continued detention of the applicant is not contrary to section 7 or 12 of the Charter.

[137]The applicant's continued detention is permitted by legislation that has been found to be constitutionally valid. In Ahani (1996), the Court of Appeal upheld Madam Justice McGillis' finding that section 40.1 of the former Act did not violate the principles of fundamental justice (Ahani (1995)). In the recent decision of Jaballah v. Canada (Minister of Citizenship and Immigration), 2004 FC 299; [2004] F.C.J. No. 420 (QL), Justice MacKay referred to the Federal Court of Appeal's decision in Ahani (1996), and the decision of Justice Noël in Charkaoui (Re), 2003 FC 1419; [2003] F.C.J. No. 1816 (QL), and concluded that subsections 82(2) and 84(2) comply with the principles of fundamental justice referred to in section 7 of the Charter, and that detention, under reasonable conditions, does not constitute cruel and unreasonable treatment or punishment prohibited by section 12 of the Charter. I am in general agreement with the reasoning advanced in these decisions.

[138]The IRPA provides for the continued detention of Mr. Almrei unless the designated judge orders his release pursuant to subsection 84(2). I find the following factors to be determinative of the third and final issue raised by the applicant. The applicant's detention is preventative, as opposed to punitive, in two respects. As discussed in Ahani (1996), the applicant is being detained not for punishment, but to provide "preventative protection to the Canadian public". In the particular circumstances of this case, solitary detention would not have been required, at least in the latter part of this detention, save for the need to protect the applicant within the institution. It was the applicant's own uncontradicted evidence that solitary detention was required for his own protection. Finally, the applicant, in these circumstances, holds the key to his release. It is open to him at any time to put an end to his detention by agreeing to leave the country. Mr. Almrei has elected to challenge his removal, and he has every right to do so. However, as long as he remains in Canada, he is subject to the provisions of IRPA, including those that provide for his continuing detention.

[139]I have considered the specific conditions and duration of Mr. Almrei's solitary detention. In the circumstances, I find that he is being detained under reasonable conditions.

[140]At this time, I cannot find that Mr. Almrei's detention will be of indefinite duration. That will depend on the outcome of pending proceedings before this Court and the outcome of any intended proceedings that may be instigated by the applicant or the Ministers.

[141]Therefore, in the circumstances of this case, I do not find that Mr. Almrei's continued detention, under the conditions in which he is currently being detained, to be cruel and unusual treatment, or punishment. In consequence, his rights under sections 7 and 12 of the Charter are not violated.

Conclusion

[142]For the above reasons, I dismiss the motion for statutory release.

ORDER

THIS COURT ORDERS:

1. The application by Mr. Almrei for release from detention pursuant to subsection 84(2) of the IRPA is dismissed.