Date: 20020308
Docket: DES-8-01
Neutral citation: 2002 FCT 263
BETWEEN:
IN THE MATTER OF
a certificate under section 40.1 of the
Immigration Act, R.S.C., 1985, c. I-2 (the Act);
IN THE MATTER OF
the referral of that certificate to the Federal Court
of Canada under section 40.1(3) of the Act;
AND IN THE MATTER OF
Mourad IKHLEF
FACTS
[1] On December 6 and 7, 2001, the Solicitor General of Canada (the Solicitor General) and the Minister of Citizenship and Immigration (the Minister), respectively, signed a certificate stating that they were of the opinion that Mourad Ikhlef is a person described in subparagraph 19(1)(e)(iii), clauses 19(1)(e)(iv)(B) and 19(1)(e)(iv)(C), subparagraph 19(1)(f)(ii) and clause 19(1)(f)(iii)(B) of the Immigration Act.
[2] The two ministers based their opinion on a security intelligence report.
[3] On December 12, 2001, a senior immigration officer detained Mr. Ikhlef under paragraph 40.1(2)(b) of the Immigration Act.
[4] On December 12, 2001, an immigration officer served Mr. Ikhlef with a notice under paragraph 40.1(3)(b) stating that a certificate had been filed and that it was being referred to the Federal Court.
[5] On December 13, 2001, the Minister referred a copy of the certificate to the Federal Court under paragraph 40.1(3)(a) of the Immigration Act for a determination as to whether the certificate should be quashed.
[6] On December 18, 2001, I examined the security intelligence report at a hearing held in camera and also heard the other evidence and information that was presented to me by the applicants in the absence of Mourad Ikhlef and his counsel.
[7] At the end of the hearing, I ordered that Mr. Ikhlef be provided with a statement summarizing the available information so that he could be reasonably informed of the circumstances that resulted in the Minister issuing the certificate, and to provide Mr. Ikhlef with a reasonable opportunity to be heard by the Federal Court in this matter, in accordance with paragraphs 40.1(4)(b) and (c) of the Immigration Act.
[8] As a result of a telephone conference with the lawyers involved, the hearing that was initially scheduled for January 9, 2002, was postponed to January 30, 2002, and set down for three days. The hearing then continued on February 19 and 20, 2002, in order to complete the testimony, after leave was given for two new witnesses, employees of the Canadian Security Intelligence Service, to be called.
[9] Ultimately, the hearing was adjourned to February 26, 2002, in Ottawa, to complete argument by counsel for the applicants on the evidence that was introduced in camera and kept confidential. Judgment on the case was then reserved.
[10] Although counsel for Mourad Ikhlef objected to part of the evidence not being disclosed to his client, and although, I have said in the past that holding hearings in camera and ex parte must be the exception in Canadian courts, I am of the opinion that, in accordance with paragraph 40.1(4)(a) of the Immigration Act, the evidence that was heard by and presented to the Court in the absence of the person concerned and his counsel cannot be disclosed to them since that would be injurious to national security and to the safety of persons.
[11] I think it is worth recalling that, in accordance with the provisions of paragraph 40.1(4)(d) of the Immigration Act, after providing the person named in the certificate with a reasonable opportunity to be heard, the Court must determine whether the certificate filed by the two ministers is reasonable on the basis of the evidence and information available. If I find the certificate not to be reasonable, I may quash the certificate issued by the two ministers.
RELEVANT LEGISLATION
[12] Subsection 19(1) of the Immigration Act states:
| 19. (1) No person shall be granted admission who is a member of any of the following classes: |
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19. (1) Les personnes suivantes appartiennent à une catégorie non admissible : |
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| (a) persons, who are suffering from any disease,disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer, |
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a) celles qui souffrent d'une maladie ou d'une invalidité dont la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, dont l'avis est confirmé par au moins un autre médecin agréé, conclut : |
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| (i) they are or are likely to be a danger to public health or to public safety, or |
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(i) soit que ces personnes constituent ou constitueraient vraisemblablement un danger pour la santé ou la sécurité publiques, |
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| (ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services; |
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(ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé; |
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| (b) persons who there are reasonable grounds to believe are or will be unable or unwilling to support themselves and those persons who are dependent on them for care and support, except persons who have satisfied an immigration officer that adequate arrangements other than those that involve social assistance, have been made for their care and support; |
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b) celles dont il y a des motifs raisonnables de croire qu'elles n'ont pas la capacité ou la volonté présente ou future de subvenir tant à leurs besoins qu'à ceux des personnes à leur charge et qui ne peuvent convaincre l'agent d'immigration que les dispositions nécessaires - n'impliquant pas l'aide sociale - ont été prises en vue d'assurer leur soutien; |
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| (c) persons who have been convicted in Canada of an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more; |
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c) celles qui ont été déclarées coupables, au Canada, d'une infraction qui peut être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans; |
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| (c.1) persons who there are reasonable grounds to believe |
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| c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger :(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or |
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(i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction, |
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| (ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be; |
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(ii) soit commis un fait - acte ou omission - qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait; |
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| (c.2) persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code or Controlled Drugs and Substances Act that may be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; |
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c.2) celles dont il y a des motifs raisonnables de croire qu'elles sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée à des activités faisant partie d'un plan d'activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d'une infraction au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l'étranger un fait - acte ou omission - qui, s'il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national; |
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| (d) persons who there are reasonable grounds to believe will |
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d) celles dont on peut penser, pour des motifs raisonnables, qu'elles : |
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| (i) commit one or more offences that may be punishable under any Act of Parliament by way of indictment, other than offences designated as contraventions under the Contraventions Act, or |
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(i) soit commettront une ou plusieurs infractions qui peuvent être punissables par mise en accusation aux termes d'une loi fédérale, autre qu'une infraction qualifiée de contravention en vertu de la Loi sur les contraventions, |
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| (ii) engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment; |
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(ii) soit se livreront à des activités faisant partie d'un plan d'activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d'une infraction qui peut être punissable par mise en accusation aux termes d'une loi fédérale; |
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| (e) persons who there are reasonable grounds to believe |
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e) celles dont il y a des motifs raisonnables de croire qu'elles : |
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| (i) will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, |
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| (i) soit commettront des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada,(ii) will, while in Canada, engage in or instigate the subversion by force of any government, |
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(ii) soit, pendant leur séjour au Canada, travailleront ou inciteront au renversement d'un gouvernement par la force, |
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| (iii) will engage in terrorism, or |
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(iii) soit commettront des actes de terrorisme, |
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| (iv) are members of an organization that there are reasonable grounds to believe will |
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(iv) soit sont membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle : |
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| (A) engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, |
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(A) soit commettra des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada, |
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| (B) engage in or instigate the subversion by force of any government, or |
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(B) soit travaillera ou incitera au renversement d'un gouvernement par la force, |
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| (C) engage in terrorism; |
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(C) soit commettra des actes de terrorisme; |
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| (f) persons who there are reasonable grounds to believe |
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f) celles dont il y a des motifs raisonnables de croire qu'elles : |
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| (i) have engaged in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, |
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(i) soit se sont livrées à des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada, |
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| (ii) have engaged in terrorism, or |
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(ii) soit se sont livrées à des actes de terrorisme, |
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| (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in |
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(iii) soit sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée : |
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| (A) acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, or |
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(A) soit à des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada, |
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| (B) terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; |
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(B) soit à des actes de terrorisme, le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national; |
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| (g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence; |
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g) celles dont on peut penser, pour des motifs raisonnables, qu'elles commettront des actes de violence de nature à porter atteinte à la vie ou à la sécurité humaines au Canada, ou qu'elles appartiennent à une organisation susceptible de commettre de tels actes ou qu'elles sont susceptibles de prendre part aux activités illégales d'une telle organisation; |
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| (h) persons who are not, in the opinion of an adjudicator, genuine immigrants or visitors; |
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h) celles qui, de l'avis d'un arbitre, ne sont pas de véritables immigrants ou visiteurs; |
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| (i) persons who, pursuant to section 55, are required to obtain the consent of the Minister to come into Canada but are seeking to come into Canada without having obtained such consent; |
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i) celles qui cherchent à entrer au Canada sans avoir obtenu l'autorisation ministérielle requise par l'article 55; |
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| (j) persons who there are reasonable grounds to believe have committed an offence referred to in any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; |
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| j) celles dont on peut penser, pour des motifs raisonnables, qu'elles ont commis une infraction visée à l'un des articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre;(k) persons who constitute a danger to the security of Canada and are not members of a class described in paragraph (e), (f) or (g); or |
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k) celles qui constituent un danger envers la sécurité du Canada, sans toutefois appartenir à l'une des catégories visées aux alinéas e), f) ou g); |
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| (l) persons who are or were senior members of or senior officials in the service of a government that is or was, in the opinion of the Minister, engaged in terrorism, systematic or gross human rights violations, or any act or omission that would be an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.
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l) celles qui, à un rang élevé, font ou ont fait partie ou sont ou ont été au service d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou à un fait - acte ou omission - qui aurait constitué une infraction au sens des articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national. |
[13] Moreover, subsections 40.1(4), (5), (5.1) and (6) of the Immigration Act provide:
| 40.1(4) Judicial consideration of certificate (4) Where a certificate is referred to the Federal Court pursuant to subsection (3), the Chief Justice of that Court or a judge of that Court designated by the Chief Justice for the purposes of this section shall |
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40.1(4) Examen judiciaire (4) Lorsque la Cour fédérale est saisie de l'attestation, le juge en chef de celle-ci ou le juge de celle-ci qu'il délègue pour l'application du présent article : |
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| (a) examine within seven days, in camera, the security or criminal intelligence reports considered by the Minister and the Solicitor General and hear any other evidence or information that may be presented by or on behalf of those Ministers and may, on the request of the Minister or the Solicitor General, hear all or part of such evidence or information in the absence of the person named in the certificate and any counsel representing the person where, in the opinion of the Chief Justice or the designated judge, as the case may be, the evidence or information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons; |
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a) examine dans les sept jours, à huis clos, les renseignements secrets en matière de sécurité ou de criminalité dont le ministre et le solliciteur général ont eu connaissance et recueille les autres éléments de preuve ou d'information présentés par ces derniers ou en leur nom; il peut en outre, à la demande du ministre ou du solliciteur général, recueillir tout ou partie de ces éléments en l'absence de l'intéressé et du conseiller le représentant, lorsque, à son avis, leur communication porterait atteinte à la sécurité nationale ou à celle de personnes; |
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| (b) provide the person named in the certificate with a statement summarizing such information available to the Chief Justice or the designated judge, as the case may be, as will enable the person to be reasonably informed of the circumstances giving rise to the issue of the certificate, having regard to whether, in the opinion of the Chief Justice or the designated judge, as the case may be, the information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons; |
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b) fournit à l'intéressé un résumé des informations dont il dispose, à l'exception de celles dont la communication pourrait, à son avis, porter atteinte à la sécurité nationale ou à celle de personnes, afin de permettre à celui-ci d'être suffisamment informé des circonstances ayant donné lieu à l'attestation; |
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| (c) provide the person named in the certificate with a reasonable opportunity to be heard; |
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| c) donne à l'intéressé la possibilité d'être entendu;(d) determine whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available to the Chief Justice or the designated judge, as the case may be, and, if found not to be reasonable, quash the certificate; and |
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d) décide si l'attestation est raisonnable, compte tenu des éléments de preuve et d'information à sa disposition, et, dans le cas contraire, annule l'attestation; |
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| (e) notify the Minister, the Solicitor General and the person named in the certificate of the determination made pursuant to paragraph (d). |
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e) avise le ministre, le solliciteur général et l'intéressé de la décision rendue aux termes de l'alinéa d). |
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| 40.1(5) Evidence (5) For the purposes of subsection (4), the Chief Justice or the designated judge may, subject to subsection (5.1), receive, accept and base the determination referred to in paragraph (4)(d) on such evidence or information as the Chief Justice or the designated judge sees fit, whether or not the evidence or information is or would be admissible in a court of law. |
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40.1(5) Preuve (5) Pour l'application du paragraphe (4), le juge en chef ou son délégué peut, sous réserve du paragraphe (5.1), recevoir et admettre les éléments de preuve ou d'information qu'il juge utiles, indépendamment de leur recevabilité devant les tribunaux, et peut se fonder sur ceux-ci pour se déterminer. |
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| 40.1(5.1) Information obtained in confidence from foreign governments (5.1) For the purposes of subsection (4), (a) the Minister or the Solicitor General of Canada may make an application, in camera and in the absence of the person named in the certificate and any counsel representing the person, to the Chief Justice or the designated judge for the admission of information obtained in confidence from the government or an institution of a foreign state or from an international organization of states or an institution thereof; |
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40.1(5.1) Renseignements secrets obtenus de gouvernements étrangers (5.1) Pour l'application du paragraphe (4)_: a) le ministre ou le solliciteur général du Canada peuvent présenter au juge en chef ou à son délégué, à huis clos et en l'absence de l'intéressé et du conseiller le représentant, une demande en vue de faire admettre en preuve des renseignements obtenus sous le sceau du secret auprès du gouvernement d'un État étranger, d'une organisation internationale mise sur pied par des États étrangers ou de l'un de leurs organismes; |
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| (b) the Chief Justice or the designated judge shall, in camera and in the absence of the person named in the certificate and any counsel representing the person, |
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b) le juge en chef ou son délégué, à huis clos et en l'absence de l'intéressé et du conseiller le représentant : |
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| (i) examine that information, and |
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(i) étudie les renseignements, |
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| (ii) provide counsel representing the Minister or the Solicitor General of Canada with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the person named in the certificate on the grounds that the disclosure would be injurious to national security or to the safety of persons; |
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(ii) accorde au représentant du ministre ou du solliciteur général la possibilité de lui présenter ses arguments sur la pertinence des renseignements et le fait qu'ils ne devraient pas être communiqués à l'intéressé parce que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes; |
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| (c) that information shall be returned to counsel representing the Minister or the Solicitor General of Canada and shall not be considered by the Chief Justice or the designated judge in making the determination referred to in paragraph (4)(d), if |
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| c) ces renseignements doivent être remis au représentant du ministre ou du solliciteur général et ne peuvent servir de fondement à la décision visée à l'alinéa (4)d), si :(i) the Chief Justice or the designated judge determines (A) that the information is not relevant, or (B) that the information is relevant and should be summarized in the statement to be provided pursuant to paragraph (4)(b) to the person named in the certificate, or |
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(i) soit le juge en chef ou son délégué détermine que les renseignements ne sont pas pertinents ou, s'ils le sont, devraient faire partie du résumé mentionné à l'alinéa (4)b), |
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| (ii) the Minister or the Solicitor General of Canada withdraws the application; and |
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(ii) soit le ministre ou le solliciteur général retire sa demande; |
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| (d) if the Chief Justice or the designated judge determines that the information is relevant but should not be disclosed to the person named in the certificate on the grounds that the disclosure would be injurious to national security or to the safety of persons, the information shall not be summarized in the statement provided pursuant to paragraph (4)(b) to the person named in the certificate but may be considered by the Chief Justice or the designated judge in making the determination referred to in paragraph (4)(d). |
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d) si le juge en chef ou son délégué décide qu'ils sont pertinents mais que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes, les renseignements ne font pas partie du résumé mais peuvent servir de fondement à la décision visée à l'alinéa (4)d). |
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| 40.1(6) No appeal (6) A determination under paragraph (4)(d) is not subject to appeal or review by any court. |
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40.1(6) Aucun appel (6) La décision visée à l'alinéa (4)d) ne peut être portée en appel ni être revue par aucun tribunal. |
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ISSUE
[14] Is the certificate stating that the two ministers are of the opinion that Mourad Ikhlef is a person described in subparagraph 19(1)(e)(iii), clauses 19(1)(e)(iv)(B) and 19(1)(e)(iv)(C), subparagraph 19(1)(f)(ii) and clause 19(1)(f)(iii)(B) of the Immigration Act reasonable?
ANALYSIS
[15] The following two decisions clearly circumscribe the role of the Federal Court.
[16] In Re Baroud, (1995) 98 F.T.R. 99 (T.D.), Mr. Justice Denault stated, at page 104:
Therefore, the role of this court is not to substitute its decision for that of the Minister and the Solicitor General nor is it to find that they were correct in their assessment of the evidence presented to them but rather to find whether or not, based on the information and evidence presented to this court, the Ministers' certificate is a reasonable one.
[17] The parameters that the Minister had to observe with respect to the expression "reasonable grounds for believing" have been defined by the Federal Court of Appeal. In Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.), Mr. Justice Thurlow stated on that point, at pages 225 and 226:
... where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression "reasonable grounds for believing" implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. In a close case the failure to observe this distinction and to resolve the precise question dictated by the statutory wording can account for a difference in the result of an inquiry or an appeal.
[18] This approach, which has been decided by the Court of Appeal, significantly lightens the burden of proof, having regard to the specific wording both of the Act and of the decision of the Court of Appeal in Jolly, supra. At pages 228 and 229, Thurlow J.A. added:
... Subsection 5(l) does not prescribe a standard of proof but a test to be applied for determining admissibility of an alien to Canada, and the question to be decided was whether there were reasonable grounds for believing, etc., and not the fact itself of advocating subversion by force, etc. No doubt one way of showing that there are no reasonable grounds for believing a fact is to show that the fact itself does not exist. But even when prima facie evidence negativing the fact itself had been given by the respondent there did not arise an onus on the Minister to do more than show that there were reasonable grounds for believing in the existence of the fact. In short as applied to this case it seems to me that even after prima facie evidence negativing the fact had been given it was only necessary for the Minister to lead evidence to show the existence of reasonable grounds for believing the fact and it was not necessary for him to go further and establish the fact itself of the subversive character of the organization. This, in the circumstances of this case, in my opinion, invalidates the Board's decision.
[19] In Canada (Minister of Citizenship and Immigration et al.) v. Iqbal Singh (1998), 151 F.T.R. 101 (T.D.) at page 103, Rothstein J., as he then was, adopted the comments made by the Court of Appeal in the above-mentioned case:
[para 2] In section 40.1 proceedings, determinations involving paragraphs 19(1)(e) and (f) require proof of the existence of "reasonable grounds to believe certain facts" as opposed to the existence of the facts themselves. Where there are reasonable grounds to believe that a person is a member of an organization, there must also be reasonable grounds to believe that the organization is engaged in subversion or terrorism. See Farah-Mahdavieh (1993), 63 F.T.R. 120 at paras. 11 and 12. Proof of reasonable grounds to believe requires that the evidence demonstrates an objective basis for the reasonable grounds. See R. v. Zeolkowski, [1989] 1 S.C.R. 1378 at 1385.
[para 3] The standard of proof is proof on a balance of probabilities. See Farah-Mahdavieh, supra and Al Yamani v. Canada (1995), 103 F.T.R. 105 at paras. 64 and 65.
[20] Those considerations were reiterated by Nadon J. in Canada (Minister of Citizenship and Immigration) v. Mahjoub, [2001] F.C.J. 1483 (T.D.), and in Manickavasagam Suresh v. Minister of Citizenship and Immigration, a decision of the Supreme Court dated
January 11, 2002, the Court stated, at paragraph 108:
The Minister's discretion to deport under s. 53 of the Immigration Act is confined, on any interpretation of the section, to persons who have been engaged in terrorism or are members of terrorist organizations, and who also pose a threat to the security of Canada. Persons associated with terrorism or terrorist organizations - the focus of this argument - are, on the approach to terrorism suggested above, persons who are or have been associated with things directed at violence, if not violence itself. It follows that so long as the Minister exercises her discretion in accordance with the Act, there will be no ss. 2(b) or (d) Charter violation.
[21] Moreover, at paragraphs 85-88, the Supreme Court said:
...we accept that a fair, large and liberal interpretation in accordance with international norms must be accorded to "danger to the security of Canada" in deportation legislation. We recognize that "danger to the security of Canada" is difficult to define. We also accept that the determination of what constitutes a "danger to the security of Canada" is highly fact-based and political in a general sense. All this suggests a broad and flexible approach to national security and, as discussed above, a deferential standard of judicial review. Provided the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister's decision.
The question arises whether the Minister must present direct evidence of a specific danger to the security of Canada. It has been argued that under international law the state must prove a connection between the terrorist activity and the security of the deporting country: Hathaway and Harvey, supra, at pp. 289-90. It has also been suggested that the travaux préparatoires to the Refugee Convention indicate that threats to the security of another state were not intended to qualify as a danger sufficient to permit refoulement to torture. Threats to the security of another state were arguably not intended to come within the term, nor were general concerns about terrorism intended to be sufficient: see Refugee Convention, travaux préparatoires, A/CONF.2/SR.16, at p. 8 ("Among the great mass of refugees it was inevitable that some persons should be tempted to engage in activities on behalf of a foreign Power against the country of their asylum, and it would be unreasonable to expect the latter not to safeguard itself against such a contingency"); see A. Grahl-Madsen, Commentary on the Refugee Convention, 1951 (1997), at p. 236 (" '[T]he security of the country' is invoked against acts of a rather serious nature endangering directly or indirectly the constitution (Government), the territorial integrity, the independence, or the external peace of the country concerned").
Whatever the historic validity of insisting on direct proof of specific danger to the deporting country, as matters have evolved, we believe courts may now conclude that the support of terrorism abroad raises a possibility of adverse repercussions on Canada's security: see Rehman, supra, per Lord Slynn of Hadley, at paras. 16 and 17. International conventions must be interpreted in the light of current conditions. It may once have made sense to suggest that terrorism in one country did not necessarily implicate other countries. But after the year 2001, that approach is no longer valid.
First, the 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 world-wide 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.
[22] In its decision, the Supreme Court went on to survey the authors worldwide who have written about the meaning of the word "terrorism". The Supreme Court ultimately concluded, at paragraph 98:
In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, that "terrorism" in s. 19 of the Act includes any "act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act". This definition catches the essence of what the world understands by "terrorism". Particular cases on the fringes of terrorist activity will inevitably provoke disagreement. Parliament is not prevented from adopting more detailed or different definitions of terrorism. The issue here is whether the term as used in the Immigration Act is sufficiently certain to be workable, fair and constitutional. We believe that it is.
[23] As well, with respect to the concept of "terrorism," Rothstein J. stated in Singh, supra, at page 111:
[para 52] The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of subparagraph 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term "member" to be given an unrestricted and broad interpretation. I find no support for the view that a person is not a member as contemplated by the provision if he or she became a member after the organization stopped engaging in terrorism. If such membership is benign, the Minister has discretion to exclude the individual from the operation of the provision.
[24] I think it is also important to recall that on December 18, 2001, a few days before the Supreme Court rendered its decision in Suresh, supra, Parliament had passed the Act referred to as the "Anti-Terrorist Act," chapter c. 41 of the 2001 Statutes of Canada, which amended the Criminal Code and in particular section 83.01, in which Parliament has now provided several definitions that apply to the concept of "terrorism activity". In the first part of section 83.01, Parliament introduced into Canadian law offences that are described in various international conventions, and this will enable Canada to deal with the terrorist activities that were already defined in a number of international conventions signed more than thirty years ago, and to circumscribe the meaning of a terrorism activity under the Criminal Code of Canada. On that point, I will just quote subsection 83.01(1)(b) of the Act:
| "terrorism activity" means |
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"activité terroriste" |
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| (b) an act or omission, in or outside Canada, |
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b) soit un acte - action ou omission, commise au Canada ou à l'étranger : |
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(i) d'une part, commis à la fois : |
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| (A) in whole or in part for a political, religious or ideological purpose, objective of cause, and |
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| (A) au nom - exclusivement ou non - d'un but, d'un objectif ou d'une cause de nature politique, religieuse ou idéologique,(B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and |
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(B) en vue - exclusivement ou non - d'intimider tout ou partie de la population quant à sa sécurité, entre autres sur le plan économique, ou de contraindre une personne, un gouvernement ou une organisation nationale ou internationale à accomplir un acte ou à s'en abstenir, que la personne, la population, le gouvernement ou l'organisation soit ou non au Canada, |
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| (ii) that intentionally |
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(ii) d'autre part, qui intentionnellement, selon le cas : |
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(A) cause des blessures graves à une personne ou la mort de celle-ci, par l'usage de la violence, |
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| (B) endangers a person's life; |
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(B) met en danger la vie d'une personne, |
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(C) compromet gravement la santé ou la sécurité de tout ou partie de la population, |
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| (D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), OR |
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(D) cause des dommages matériels considérables, que les biens visés soient publics ou privés, dans des circonstances telles qu'il est probable que l'une des situations mentionnées aux divisions (A) à (C) en résultera. |
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| (E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage or work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C), |
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(E) perturbe gravement ou paralyse des services, installations ou systèmes essentiels, publics ou privés, sauf dans le cadre de revendications, e protestations ou de manifestations d'un désaccord ou d'un arrêt de travail qui n'ont pas pour but de provoquer l'une des situations mentionnées aux divisions (A) à (C). |
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| and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, ...
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Sont visés par la présente définition, relativement à un tel acte, le complot, la tentative, la menace, la complicité après le fait et l'encouragement à la perpétrations; ... |
TESTIMONY AT THE HEARING
[25] Mourad Ikhlef called several witnesses at the hearings that took place on January 30, 31, and February 1, 19, and 20, 2002. The ministers did not call any witnesses.
[26] Mr. Ikhlef called his brother, Nabil Ikhlef, who testified that he arrived in Canada in 1994, after Mourad, and that his refugee claim was rejected, but that he obtained permanent resident status in Canada nevertheless. That testimony did not add anything new to the testimony Mourad himself gave, other than that his intention seemed to be to suggest that even though he, his brother, Ressam, Mustapha, Adel Boumezbeur, and other Algerians had met frequently, he did not think this meant anything since they were merely getting together, having coffee and talking, and there was never any question of terrorist acts during those conversations.
[27] He admitted that he had stayed in Naples, Italy, for a while, but he denied meeting any other persons involved in supposedly terrorist networks, and stated that he did not meet his brother in Naples and that he left Italy in 1994. He also denied the information in an article that was published in Il Matino in Naples, which reported that he and his brother were in Naples and that both of them were allegedly members of the international Al Qaeda network, under the direction and inspiration of Osama Bin Laden.
[28] He also said that he had known Fatah Kamel who is currently being detained by the police in France; he had known him in Montréal and met him regularly. He added that they were from the same neighbourhood in Algeria.
[29] The second person to testify was Mr. Ikhlef himself, who told a little about his life before he immigrated to Canada. He said that he had been sentenced to death in Algeria for terrorism-related activities, and that he had found out about it from newspaper articles; obviously, he denied the facts that resulted in his conviction. He denied having gone to Afghanistan or to Bosnia, and said that he knew nothing about the Al Qaeda network, and nothing about weapons or explosives. He further said that the GIA in Algeria had started its operations several months after he came to Canada, and at the same time, said that he had never been involved in any terrorist action by the GIA.
[30] He admitted that he had often met Boumezbeur, Ressam, Kamel, Atmani and all the other individuals of Algerian origin who were in Montreal at that time. He said that people got together to talk and watch television, and that it was not about politics in particular, let alone terrorism, and that if there had been anything about conspiring to commit terrorist acts, he would never have stayed there, he would have simply left. He spoke at length of the events that had led to his departure from Algeria and his arrival in Canada. He said that he had approached the Algerian embassy to find out whether he qualified under the Loi de concorde civile,which allowed Algerian citizens to be granted an amnesty from the government in power if they returned to Algeria, but in the end decided that there were insufficient guarantees and that he didn't want to go back. When he was confronted with parts of the testimony given by Ahmed Ressam in New York, he claimed that he could not by any means be the person Ressam identified as having helped him prepare his terrorist attack at the time he entered the United States.
[31] In his opinion, Ressam was merely a petty thief, but he had never suspected, even remotely, that he could belong to a terrorist network. He confirmed that he had often gone to the series of apartments where Adel Boumezbeur and Ahmed Ressam had lived and where a number of members of the Algerian community often went to talk. Even though several of them had been arrested or convicted in various countries, including France, Algeria, the United States and England, and extradition requests had been made in respect of others, he himself continued to say that he was never involved, even remotely, in any conspiracy of any kind to commit terrorist acts. He testified that when he travelled to Vancouver with Ressam, he mainly wanted to go fishing, to see Vancouver's natural surroundings, and that Ressam went off on his own while he went sight-seeing.
[32] On cross-examination, he reiterated that he had never known that Ressam or any of the individuals of Algerian origin with whom he had spent time in the various apartments where they were living in Montréal could have been involved in terrorist acts or in making forged documents. He admitted that he had gone to Vancouver, but said he had gone there to find work, and he had strongly suspected that Ressam, being a thief, was going to be committing petty thefts while there. He was not very clear about his personal relationship with Ressam. He said that Ressam was a close acquaintance but not really a friend since he was more of a loner. Oddly enough, even though he spent more than ten hours with Ressam on the plane, flying to and from Vancouver, they never talked about what they were planning on doing or what they actually did while they were in Vancouver.
[33] The witness was confronted with the personal information form that he filed at the time he made his claim for refugee status, which was filed and signed on November 1, 1993; in it, he did not say anything about his own death sentence, which had allegedly been imposed in about mid-September 1993, two months earlier. He stated that he was wanted and that his friend had been convicted, but he did not mention his own conviction. The reason he gave was somewhat far-fetched: he claimed that he did not have to mention it since it was the basis for his refugee claim. We cannot but be puzzled by that explanation, which is tortuous, to say the least.
[34] He nevertheless said that a lawyer had helped him prepare his personal information form, in the fall, before it was filed in November 1993, and that the two articles stating that he had been sentenced to death in Algeria were not filed with the Immigration and Refugee Board until the month of February 1994.
[35] The third witness was Abdel Boumezbeur, a taxi driver in Montréal. He is a Canadian citizen and the brother of Adel Boumezbeur, who is a childhood friend of Mourad and currently in prison in Algeria. He too used to socialize with the various individuals of Algerian origin who were previously mentioned, on rue Malicorne in Montréal. He had met Kamel and Ressam, and claimed that he was the one who had given Mr. Ikhlef the nickname "Mourad GIA", and that the nickname had spread. He said that he regretted it and that he had called him that simply because he had read in a newspaper that Mourad had been convicted in Algeria of being a member of the GIA, and that he had given him the name as a joke, but that seeing the consequences it had caused for Mourad, he now regretted it sincerely.
[36] He claimed that Mourad was like his younger brother and that he himself would very often go to rue Malicorne to talk with the other members of the community. He was well aware that Ressam had been convicted in the United States, and Kamel had been convicted in France, and that his brother had been convicted in France and is currently in prison in Algeria, and that an international warrant has been issued for his arrest. He also knew that Mustapha, who was also living on rue Malicorne, is currently in prison in England, but he claimed that he was never aware of anything that might connect those people with terrorist acts.
[37] He was also not aware that the apartment he had spent time in several times a week might have been used as what has been called the hub of forged passport operation.
[38] Another witness, whom we shall identify as "X," has been articling for two years in a law firm that is involved in, among other things, human rights in Algeria. We are told that there are two lawyers in that firm. Surprisingly, the witness said that he had been retained by Mr. Ikhlef's father and that he was shown a copy of the written judgment sentencing Mourad Ikhlef to death, but that unfortunately Mr. Chétouane, the other party who was also convicted in the same judgment, who had given a copy of the judgment to Mourad's father, had forbidden him to send or take a copy out of Algeria; consequently, the only proof that he has been sentenced to death in Algeria are the two newspaper articles, but the real evidence, the judgment sentencing him, is not available even though "X," an articling student in a law firm in that country, testified that he had seen it in the hands of Mr. Ikhlef's father in Algeria. Oddly enough, Mr. Ikhlef's father had never read that judgment, which had been rendered several years before that, over the telephone to his son, who did not seem to consider that document to be important.
[39] The witness explained the "Cour d'exception," which is responsible for hearing cases involving terrorist activities in Algeria, and said that the judges and jurors testify with their faces covered in order to avoid reprisals by the armed groups. He claimed that everyone, without exception, who appeared before that Court had first been tortured and had been in pre-trial detention, and that very few people were able to be acquitted. He went on to say that he was personally familiar with the case of Mr. Chalabi, who he said had been extradited from France to Algeria- this was in fact the only case with which he seemed to be personally familiar-and that it was the French secret service who had handed Mr. Chalabi over to the Algerian secret service. Mr. Chalabi was allegedly detained for about twenty days without being allowed to communicate with anyone. He stated that when he met him, his face bore marks that showed that he had been beaten but not tortured. Thus, within five minutes, the witness contradicted himself before me, and hoped to try to rescue himself by explaining that when non-governmental organizations (NGO) exerted international pressure, sometimes people were not tortured, so as to avoid offending the international community. The witness briefly described how the Cour d'exception operates, how the time frames are often indefinite. He then talked about the GIA and of the Islamic Salvation Front (FIS). He said that there are rumours in Algeria that the GIA is infiltrated by government security groups and that the authorities are involved in the attacks the GIA is blamed for. However, he did not introduce any evidence except for an article concerning a former army officer who was reported to have written a book on the abuses committed by the Algerian army.
[40] On cross-examination, the witness recalled from memory what was in the judgment convicting Mr. Ikhlef. He talked about forging an identity document, offering justification, and technical support; he replied that there had been no sabotage, and when he was confronted with the newspaper articles introduced by Mr. Ikhlef himself to substantiate his refugee claim, it was clear that the charges referred to in the articles were not the same as the charges referred to by the witness in his testimony. I remain sceptical of this witness's testimony, since he is an articling student in a law firm, he is not an expert, and he testified mainly to what he had heard rather than to what he had personal knowledge of. He was very vague. He said that he was unable to bring a copy of the judgment that convicted Mr. Ikhlef. He said that he had appeared in the special tribunal twice and then he confirmed that the "Cour d'exception" had been abolished in 1996 and replaced by a criminal court. He had appeared in the "Cour d'exception" allegedly with a card authorized by the senior lawyer in his office. However, he had never represented anyone in that court himself. Furthermore, how could he testify that he had appeared in the "Cour d'exception," which had been abolished four years earlier in 1996, when he had been articling in a law firm for two years-since 2000? I conclude that this testimony, which was very vague, confers very little weight, to my eyes, in respect of Mr. Ikhlef's specific situation.
[41] The Court then heard witness "B," who is employed by the Canadian Security Intelligence Service (CSIS). That testimony did not shed any new light on the evidence that had already been heard, except for the fact that the Canadian Security Intelligence Service had prepared a security intelligence report that was based both on the evidence of which a summary, with the attachments, was given to Mourad Ikhlef, and on the evidence that had been kept confidential, since disclosure would be injurious to national security or to the safety of persons.
"REASONABLE GROUNDS TO BELIEVE"
[42] We must obviously keep in mind that the normal standards that apply in criminal law do not apply either to immigration matters in general or to proceedings under section 40.1 of the Immigration Act. The concept that there must be "reasonable grounds to believe" that the person is or was a member of an organization that there are "reasonable grounds to believe" will engage in terrorism or has engaged in terrorism is a concept that may seem very frustrating for the person concerned. However, we must also recall that Parliament has provided that the national security or the safety of persons involved might justify not disclosing a part of the evidence heard to the person concerned.
[43] Two recent decisions of the Federal Court of Appeal provide us with even more assistance as to the standard to apply when the Court is asked to determine whether there are "reasonable grounds to believe." First, Sing Chi Stephen Chiau v. Minister of Citizenship and Immigration, [2001] 2 F.C. 297 (C.A.), states, at paragraph 60:
As for whether there were "reasonable grounds" for the officer's belief, I agree with the Trial Judge's definition of "reasonable grounds" (supra, at paragraph 27, page 658) as a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes "a bona fide belief in a serious possibility based on credible evidence." See Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.).
[44] Counsel for Mourad Ikhlef suggested that at paragraph 61, the Court narrowed its comments concerning the nature of the evidence and that the standard of proof should be more demanding when the power exercised has a serious impact on an important individual right.
[45] With all due respect, I am not satisfied that this nuance in the judgment can justify deviating from the rule that had previously been established for interpreting section 19 of the Immigration Act. Even more recently, in Qu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1945 (C.A.), at paragraph 28, Richard C.J., writing for the Federal Court of Appeal, upheld the position that had been adopted in the preceding decision:
The standard of proof required in subparagraph 19(1)(f)(i) is one of "reasonable grounds." In Chiau v. Canada, [2001] 2 F.C. 297 (C.A.), this Court stated, at page 320, that "reasonable grounds" is a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes a bona fide belief in a serious possibility based on credible evidence.
CONCLUSION
[46] Said Atmani, Fatah Kamel, Adel Boumezbeur and Ahmed Ressam were all members of the same group of friends who met quite regularly in various apartments in Montréal. Mourad Ikhlef and his brother and Abdel Boumezbeur, all of whom testified at the hearing, also belonged to the group. It is worth noting that these four individuals, the ones named at the beginning of the paragraph, were found guilty by a French court of, inter alia, criminal association with a view to preparing an act of terrorism. Participation as an alleged member of a cell of the Armed Islamic Group (GIA) in Montréal must not be taken lightly.
[47] If I refer to the documentary evidence in the record which is also included in the statement summarizing the information that was given to Mr. Ikhlef, it seems that the GIA is an Algerian extremist group, one of the objectives of which is to overthrow the secular government of Algeria and replace it with an Islamic state. This campaign of violence was launched in 1992, after the victory by the Islamic Salvation Front (FIS) was nullified. The GIA worked hand in hand with the Islamic movement that originated in Afghanistan and terrorist acts, each one crueler than the others, multiplied throughout the 1990s and continue today. After fighting with the mujahedin in Afghanistan, the GIA soon got involved in international terrorism, which Osama Bin Laden set himself up as the sponsor, under the protection of the Taliban government in Afghanistan.
[48] Even the UN Security Council has strongly condemned that situation:
Strongly condemning the continuing use of the areas of Afghanistan under the control of the Afghan faction known as Taliban, which also calls itself the Islamic Emirate of Afghanistan (hereinafter known as the Taliban), for the sheltering and training of terrorists and planning of terrorist acts, and reaffirming its conviction that the suppression of international terrorism is essential for the maintenance of international peace and security, ...
Deploring the fact that the Taliban continues to provide safehaven to Usama bin Laden and to allow him and others associated with him to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations.
Reference: Adopted by the Security Council at its 4251st meeting on December 19, 2000.
[49] Also, in keeping with the resolution it had adopted, the UN Security Council published a list of organizations, groups and persons that are associated, directly or indirectly, with Bin Laden, and the GIA is unequivocally named on that list. It now seems clear that the members of the GIA received training and funds from Osama Bin Laden in Afghanistan, and this was confirmed by people who had taken part, including Ahmed Ressam.
[50] We now know that Osama Bin Laden started his recruiting and training operations as early as the beginning of 1994, while he was in Sudan, and that his first "trainees" were Algerians who were members of the GIA.
[51] Osama Bin Laden, the Al Qaeda network and the other networks of extremist groups are clearly identified in the information summary that was given to Mr. Ikhlef. Several terrorist attacks committed by those groups are also listed in the statement, with the corresponding references.
[52] Whether in the attacks on an American ship in Yemen or in the deadly attacks against the American embassies in Kenya and Tanzania, those terrorist networks are still the prime suspects.
[53] The fatal attacks recently committed by flying commercial airplanes into the twin towers of the World Trade Center in downtown New York and the Pentagon building betoken a cruel and unscrupulous strategy whose aim is to kill innocent civilians of all origins, and provide a glimpse of the cruelty and fanaticism of the members of those terrorist networks, which, alone, are capable of allowing human beings to attack innocent civilians this way. Again, Bin Laden, Al Queda and its related terrorist networks were the prime suspects in that case.
[54] The information summary that was given to Mr. Ikhlef describes Bin Laden's network and operating methods in detail. It shows the tactics used by the members and, in particular, the way in which individuals such as Ahmed Ressam use the other members of the network, who are often referred to as "sleepers," to help them set up the logistics needed so they can commit their crimes. This may include forging documents, obtaining forged passports, committing theft, setting up sophisticated electronic equipment, raising money to fund terrorist operations, and all of the various assistance that was provided in the months or even years leading up to the actual attacks.
[55] The information summary also outlined the activities of the Algerian Armed Islamic Group (GIA) and the terrorist acts that have been committed from 1994 to the present.
[56] According to Mr. Ikhlef, this was a case of mistaken identity: it is as if he was always in the wrong place at the wrong time, and if it was sheer coincidence that most of his friends, whom he saw on a daily basis throughout the 1990s in Montréal and in Vancouver, are now behind bars or have been convicted of various crimes in France, England, Algeria, and the United States.
[57] While the saying "Tell me who your friends are, and I will tell you who you are" has no legal application, let alone legal force, it has at least enabled the Canadian authorities to take a closer look at Mr. Ikhlef's actions in recent years and reach the conclusions we have seen.
[58] The obscure explanation Mr. Ikhlef gave as to the origin of his nickname "Mourad GIA" is also perplexing, as is the alleged mistake made by his friend who is now terribly sorry for giving his friend a nickname like that. It is strange, to say the least, that Mr. Ikhlef seemed to dismiss out of hand the fact that a French court had sentenced Boumezbeur, his childhood friend, to five years imprisonment, in absentia, for criminal association with a view to preparing an act of terrorism and for complicity in forgery and using forged documents, and that Boumezbeur himself was identified as a member of Ahmed Ressam's cell, which was connected with Bin Laden's network. In his testimony, Mr. Ikhlef admitted that he had spent a lot of time with Boumezbeur, but strangely enough, continued to say that there was never anything between them about either preparing or premeditating the terrorist acts for which the accusations that led to convictions were laid.
[59] Counsel for the Solicitor General and the Minister filed a large quantity of documentary evidence, part of which was kept confidential for reasons of national security and the safety of persons. I have examined the evidence gathered and have no doubt that Mr. Ikhlef's relationships with the individuals referred to earlier, in both Montréal and Vancouver, and his relationships outside Canada were not at all what he tried to tell us at the hearing.
[60] There was no mistaken identity; there are indeed reasonable grounds to believe that Mr. Ikhlef was and still is a member of an organization that there are reasonable grounds to believe will engage in terrorism and is therefore a person described in clause 19(1)(e)(iv)(C) of the Immigration Act. Mr. Ikhlef is also a person who there are reasonable grounds to believe will engage in terrorism and is therefore a person described in subsection 19(1)(e)(iii). Moreover, Mourad Ikhlef is a person who there are reasonable grounds to believe has engaged in terrorism and is therefore a person described in subsection 19(1)(f)(ii); and he was and still is a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism and is therefore a person described in clause 19(1)(f)(iii)(B).
[61] The ministers did not file sufficient evidence with respect to clause 19(1)(iv)(B), and that ground must therefore be rejected.
[62] It is my personal conviction that Mourad Ikhlef did not tell the truth in his testimony and that the evidence he presented with regard to his actions since he entered Canada disclosed only very little of what he has actually done since he has been in Canada, and particularly about the deeper reasons that motivated his actions.
[63] The information that I had the opportunity to consider in camera and that I am not at liberty to disclose unequivocally supports the opinion that there are reasonable grounds to believe that Mourad Ikhlef was and still is a member of a terrorist group whose ramifications extend to the other terrorist organizations referred to earlier, inducing the organizations connected with Osama Bin Laden. The blatant contradictions that I had to consider, and particularly his ambiguous relationship with Ahmed Ressam, who was recently convicted for terrorist activities in the United States, are troubling and establish beyond a shadow of a doubt that Mourad Ikhlef deliberately intended to deceive the Court.
[64] As Rothstein J. said so well in Singh, supra, at paragraph 52, a membership card in good standing is not required in order to belong to a terrorist organization; there is sufficient evidence of the community of interests and thoughts and the regular meetings with persons who were pursuing the same goals and preparing terrorist acts to establish that Mourad Ikhlef was involved in the activities of a terrorist group.
[65] In my opinion, based on the evidence and information that was presented to me, the certificate filed by the Minister and the Solicitor General is reasonable. The conclusions that have been reached by the courts and particularly by Rothstein J . in Singh, supra, establish that each of the grounds relied on under section 19(1) must be read disjunctively. The ministers have presented sufficient evidence with respect to four of the five provisions of section 19(1).
O R D E R
[66] Accordingly, for all of the foregoing reasons, I conclude that the certificate filed by the Minister and the Solicitor General is reasonable, on the basis of the evidence and the information available to me.
Pierre Blais Judge
OTTAWA, ONTARIO
March 8, 2002
Certified true translation
Sophie Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: DES-8-01
STYLE OF CAUSE: IN THE MATTER OF a certificate under
section 40.1 of the Immigration Act
IN THE MATTER OF the referral of that certificate
to the Federal Court of Canada under
section 40.1(3) of the Act
AND IN THE MATTER OF Mourad IKHLEF
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 30 and 31, and February 1, 19, and 20, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: March 8, 2002
APPEARANCES:
Daniel Roussy FOR THE APPLICANT
Daniel Vaillancourt
Claude F. Archambault FOR THE RESPONDENT
Roxane Hamelin
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR THE APPLICANT
Claude Archambault & Associés FOR THE RESPONDENT
Montréal, Quebec