Malik decision

Immigration and Refugee Board of Canada

Immigration Division

Commission de l'immigration et du statut de rfugi du Canada

Section de limmigration

ID File No. / No de dossier de la SI : 0003-B5-00397

Client ID No. / No ID client : XXXX-XXXX

Public Hearing Subject to Restrictions and Publication Ban Audience publique

Reasons and Decision - Motifs et dcision

Between The Minister of Public Safety and Emergency Preparedness Le ministre de la Scurit publique et de la Protection civile Entre

And et Person(s) Concerned Jahanzeb MALIK Intress(e)(s) Date(s) of Hearing 12 May 2015

20 May 2015 Date(s) de laudience

Place of Hearing Toronto Lieu de laudience Date of Decision 5 June 2015 Date de la dcision Panel A. Laut Tribunal Counsels for the Minister

J. Lourenco J.Oliveira

Conseil du ministre

Counsel for the Person(s) Concerned

A. Farooq Barrister and Solicitor

Conseil(s) pour lintress(e) / les intress(e)(s)


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IN THE MATTER OF the Immigration and Refugee Protection Act and an Admissibility

Hearing concerning Jahanzeb MALIK.

REASONS FOR DECISION

[1] These are the reasons for a decision rendered under paragraph 45(d) of the Immigration

and Refugee Protection Act (IRPA) in relation to an Admissibility Hearing concerning Jahanzeb

Malik.

[2] The Minister of Public Safety and Emergency Preparedness, has alleged that Jahanzeb

Malik is inadmissible to Canada, in a report prepared pursuant to subsection 44(1) of IRPA and

dated March 6, 2015. It is alleged that he is a permanent resident who is inadmissible on security

grounds for engaging in terrorism, pursuant to paragraph 34(1)(c) of the IRPA and for being a

danger to the security of Canada, pursuant to paragraph 34(1)(d) of the IRPA.1

[3] The subsection 44(1) report alleges that Mr. Malik planned to conduct a violent attack

against a United States government building and other targets in the financial district of Toronto,

which could have resulted in the death and/or serious injury of persons as well as the destruction

of property. The report further alleges that he attempted to recruit and radicalize another person

for the purpose of that person aiding and participating in this terrorist attack.

[4] The report was reviewed by the Ministers Delegate and a referral of the matter to the

Immigration Division was signed on March 6, 2015. A request for an admissibility hearing was

forwarded, along with the report and referral on April 13, 2015. The disclosure of supporting

documents describing the basis for the allegations was made on April 14, 2015 and May 6,

2015.2

1 Exhibit M-1A, pp. 2-3. 2 Exhibit M-1A, pp. 1, 4.


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The Standard of Proof and Admission of Evidence

[5] Section 33 of the Immigration and Refugee Protection Act provides that:

The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred are occurring or may occur.

[6] The applicable standard of proof to assess the evidence and establish the allegations under

paragraph 34(1)(c) and paragraph 34(1)(d) is that set out in section 33 of the IRPA, to be the

standard reasonable grounds to believe. The Supreme Court of Canada in the Mugesera

decision considered the reasonable grounds to believe standard under the IRPA.

114 The first issue raised by s. 19(1)(j) of the Immigration Act is the meaning of the evidentiary standard that there be reasonable grounds to believe that a person has committed a crime against humanity. The FCA has found, and we agree, that the reasonable grounds to believe standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities: Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), at p. 445; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at para. 60. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: Sabour v. Canada (Minister of Citizenship & Immigration) (2000), 9 Imm. L.R. (3d) 61 (F.C.T.D.).3

[7] The jurisprudence focuses the panel on making findings of fact based on compelling and

credible information. The IRPA focuses the panel on making findings of fact based on evidence

found to be credible and trustworthy in the circumstances of the case. The inadmissibility

provisions in question are found within the provisions set out in s. 34-37 of the IRPA, which are

subject to a common standard of proof and have many common effects on those found described.

The panel finds, based on the findings of the Courts, that all of these sections have a similar

purpose and intent. In interpreting s. 33, the common evidentiary standard applied to these

sections, the Supreme Court found, in Mugesera, that Parliament intended that the acts described

by these sections be subject to extraordinary condemnation. These inadmissibility provisions of

3 Mugesera v. Canada (Minister of Citizenship and Immigration) 2005 SCC 40.


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IRPA have consistently been found to have the purpose of protecting Canadian society by

denying entry to or facilitating the removal of persons who constitute a risk to society or to the

security of Canada because of their conduct.4

[8] The Minister has the burden of proving that there are reasonable grounds to believe that

Jahanzeb Malik is inadmissible under the IRPA.

The Evidence and Findings

[9] The evidence presented and being considered in this decision includes the brief testimony

under affirmation from the subject of the proceedings, Jahanzeb Malik. Mr. Malik responded

only to some of the questions posed to him by counsel for the Minister and the panel. He refused

to continue to testify, despite repeated invitations from the panel to continue, caution by the

panel of possible negative inferences regarding his credibility and caution by the panel regarding

possible prosecution under s. 127(c) of IRPA. The testimony under affirmation of an RCMP

officer who had extensive interactions with Mr. Malik during an undercover assignment was

heard. The officer was identified and sworn before the panel. The proceedings were held in

public and observed by members of the media and other interested persons who heard the

substance of this testimony. The officers identity is the subject of a publication ban made by the

panel and he will be referred to in these reasons as the undercover officer. Counsel for the

Minister filed documentation which was marked as Exhibit M-1, volumes A-E.

[10] Counsel for Mr. Malik did not file any documentary evidence, or call any witnesses. Mr.

Maliks refusal to testify included refusing to respond to any questions that his own counsel may

have asked him. Mr. Maliks counsel did cross examine the undercover officer and made oral

submissions to the panel. Counsel made a statement that Mr. Malik is caught in a process where

4 Mugesara, ibid; Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada

(Minister of Citizenship and Immigration), 2005 SCC 51 (CanLII), [2005] 2 SCR 539; Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326 (CanLII), [2007] 3 FCR 198; Singh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 417 (CanLII), [2006] 3 FCR 70; Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (CanLII), [2007] 1 FCR 409; Nazifpour v. Canada (Minister of Citizenship and Immigration), 2007 FCA 35 (CanLII), [2007] 4 FCR 515.


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his hands are tied. The panel has the jurisdiction to find that there is insufficient credible

evidence or legal justification for finding that he is a person described by the allegations. The

decision not to present evidence, summons evidence, present witnesses, fully answer questions

or make further arguments available to him was freely made by Mr. Malik. It was this choice, not

the processes afforded by the Act, which limited Mr. Maliks defence. The process set out under

the Act offers him very broad opportunities to know the case against him and present his case,

which he chose not to utilize.

[11] The rules governing the admission and consideration of evidence which are applied by the

Board exist for a clear purpose. Persons seeking status in Canada must meet a variety of

thresholds in order to successfully prove their case before the Board. The rules applied under the

IRPA make it possible for a person fleeing persecution, coming from a country with no

government or little formal documentation to present a successful case. The rules of evidence

provide for a fair and efficient process to examine admissibility. The rules of evidence allow the

Board to deal with and properly evaluate such cases on a daily basis. While these rules apply to

the admission of the Ministers evidence they would equally have applied to the admission of

any evidence Mr. Malik chose to present. The rules comply with the principles of fundamental

justice and the Charter of Rights and Freedoms.5

The Credibility of the Notes and Testimony of the Undercover Officer

[12] The majority of the evidence which specifically relates to Mr. Maliks circumstances is

contained in the notes and testimony of the RCMP undercover officer assigned to interact with

Mr. Malik. Mr. Malik became the subject of a police investigation. A decision was made to

gather evidence by using and undercover officer. At that time Mr. Malik was employed installing

flooring. A house was rented which is referred to in the evidence as the `prop house`. In order to

initiate the interaction the officer was instructed to contact Mr. Malik, say he was calling in

response to an add Mr. Malik had placed and hire him to install flooring in the prop house. The

5 Mugesera, supra, Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c.11.


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officer first contacted him on September 24, 2014 and interacted with him on 70 occasions, the

last occurring on March 8, 2015. It is the undercover officers testimony and notes, recording

statements made to him by Mr. Malik, which primarily form the basis of the case against Mr.

Malik. The officers evidence has been very carefully assessed. The panel must first assess

whether the officers testimony and notes are a credible record of his interactions with Mr.

Malik. If satisfied that this evidence is a credible record, then the panel must assess whether Mr.

Maliks statements and actions credibly reflect his personal history, his beliefs, and if his

statements may reasonably be used to predict his intended future actions. Having thoroughly

reviewed all of the evidence, the panel finds that the officers notes and testimony meet this test.

The panel therefore relies on this evidence in making findings of fact and drawing conclusions.

[13] Prior to his first interaction with Mr. Malik the officer was given no information about

Mr. Malik or why he was being investigated. The lack of information given to the officer lends

credibility to his evidence as his interactions with Mr. Malik were not influenced by

preconceptions. The officer was given the outline of his cover story. If he was asked he was to

say that he was a Bosnian national who had lost his family in the war, had fought on the Muslim

side in the war and knew how to make explosives. He was not instructed to advise Mr. Malik of

this information unless asked. He was never instructed to recruit Mr. Malik or to offer Mr. Malik

any inducement to take part in a criminal or terrorist conspiracy.6

[14] The notes were taken by an experienced police officer who took steps to ensure that they

were an accurate record of his interactions with Mr. Malik. The officer took his initial notes at

the time that his conversations with Mr. Malik were taking place. In doing so, the panel finds that

the officer was able to almost immediately and accurately note the most important aspects of his

conversations with Mr. Malik. The notes and the officers recollections were then used to

provide a more complete record of the conversations, including hand gestures and written

messages that could not have been captured by a recording device. The initial notes are

consistent with the notes which were expanded to form a complete record of their interactions.

6 Transcript May 20, 2015, pp. 18-24, pp. 52-54.


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[15] The officers testimony is consistent with the evidence contained in the notes, with the

exception of minor details. The officer in his testimony stated that Mr. Malik told him that he

had brainwashed his Turkish student to persuade him to agree to travel to Libya. The notes do

not contain the term brainwashed. The notes do contain Mr. Maliks description of persuading

his student to travel to Syria to fight, getting him a visa for Yemen, and booking his ticket. Mr.

Malik expresses his frustration that the student backed out at the last minute because of his

family and because Satin attacked the students faith. The panel does not find this statement

significant in assessing the officers evidence as a whole.

[16] After October 10, 2014, the officer also had on his person at least one recording device

intended to record his conversations with Mr. Malik and provide a verbatim record of what was

said. Transcripts and recordings of these conversations were not offered by either party as

evidence at this hearing. Neither party has possession of control of the recordings or transcripts.

Attempts to record the conversations on October 28, 2014 and January 5, 2015 were not

successful. Therefore, no confirmation of the information recorded by the officer on these dates

is possible. The undercover officer did not have control of the recordings and has not heard them.

He was unable to offer an explanation for why these particular recordings were not available.

Counsel for Mr. Malik did not ask the panel to summons any person who does have control of

the recordings, or who might be able to explain the absence of these records or otherwise seek to

compel their production. Counsel did argue that absent the recordings, the credibility of the

officers notes cannot be fairly assessed. Counsel argues that without the ability to hear Mr.

Maliks tone of voice when praising ISIS, promoting Jihad and planning an attack on civilians it

is impossible to tell if he was serious. He argues that without transcripts it is impossible to tell if

the information about Mr. Maliks statements was accurately recorded in the notes.

[17] Counsel asks the panel to find that the characteristics of the notes which make them

credible evidence are insufficient to accept them as evidence or assign them significant weight.

He argues that the officers evidence should be rejected as a whole because other evidence of the

interactions between the officer and Mr. Malik exists, which could have assisted in the

evaluation of the credibility of the evidence. The panel finds no basis for doing so. While


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recordings or transcripts of the conversations would have been relevant and would have been

considered if they were offered, neither party offered to provide them as evidence or sought to

compel their production as evidence.

[18] The panel finds it appropriate to evaluate the credible evidence which was entered at the

hearing. The panel is not bound by the best evidence rule. The Federal Court has found in

several cases that rejecting evidence based on the application of rules which are inapplicable in

this context is an error. The Division is bound the make decisions based on the evidence found to

be credible and trustworthy. The evidence presented in this case by the Minister has met this

standard. The panel finds that the officers testimony and notes provide compelling and credible

evidence of what occurred during his interactions and conversations with Mr. Malik over a five

month period. The panel accepts this evidence as a credible record of Mr. Maliks statements,

intentions and actions while interacting with the undercover officer during this period.7

[19] The panel also finds that the notes are compelling and credible evidence of Mr. Maliks

personal history, his beliefs, and that the statements he made to the officer may reasonably be

used to predict Mr. Maliks future actions. The panel is persuaded that Mr. Malik trusted the

officer and accepted his cover story as genuine. The panel finds that Mr. Maliks statements to

the officer were therefore meant to be credible and taken seriously. Mr. Malik stated in his

second conversation with the officer that CSIS had questioned his friend after he returned from

Libya. He stated he had hired a lawyer to fend off CSIS. He frequently expressed his concern

about being watched by the authorities, about his phone being monitored, about CSIS placing

agents in Mosques, and CSIS offering to pay informants. He discussed how the Toronto 18 had a

CSIS spy in their group. He said he was reluctant to express his views fully on the Internet

because he did not know who he was talking to. He said that he did not keep anything

incriminating on his computer hard drive and had an encrypted password. He initially only

communicated about his plans to set off an explosive device in writing. It is clear that Mr. Malik

7 Sittampalam v. Canada (Minister of Citizenship and Immigration), [2007] 3 FCR 198, 2006 FCA 326

(CanLII), Canada (Minister of Employment and Immigration) v Dan Ash (1988), 93 NR 33.


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believed he was being watched and attempted to be extremely cautious about his

communications.

[20] Therefore the extent to which he was willing to communicate his personal history of

fighting as a Mujahedeen, his Jihadist beliefs and plans carry out an attack to the officer is

evidence of how deeply he trusted the officer. Despite his extreme caution Mr. Malik expressed

his trust in the officer and his firm belief that the officer was not a spy. He expressed that they

might both face imprisonment if their plans were discovered. He stated that the authorities would

try to turn them against each other, but that they must trust each other and not provide

information to the authorities. Mr. Malik made statements to the officer that he knew might

expose him to imprisonment, deportation and other sanctions. He did not do so once, he repeated

these statements on numerous occasions over a five month period. He continued to do so, even

after the officer stopped meeting with him after his proposal that they conduct an attack in

Canada. He continued to do so when the officer directly expressed his concern that Mr. Malik

was a spy. He continued when the officer expressed grave concern about the nature of the

activities that Mr. Malik proposed they engage in.

[21] Mr. Malik devoted himself for five months to recruiting the officer as a fellow Jihadist,

indoctrinating the officer in his belief system and inciting him to assist Mr. Malik in carrying out

his planned attack. Mr. Maliks social media postings supporting Jihad and his trip to Libya to

fight Jihad are consistent with his statements and actions when interacting with the officer. Mr.

Malik went to considerable effort to buy the officer a Quran in the Bosnian language within eight

days of their first meeting. Mr. Malik conducted extensive lessons for the officer in his

philosophy and supported his views by showing lectures by a variety of persons including Anwar

Al-Awlaki. Mr. Malik repeatedly showed the officer examples of how his belief in Jihad could

not only be expressed publically, but also put into action. He repeatedly provided examples of

terrorist attacks and praised the actions of his brothers in killing civilians. Reading the notes as

a whole, it is clear that Mr. Malik viewed himself as the teacher of the officer and that he

gradually sought to persuade him to adopt Mr. Maliks worldview as it related to true Islam


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and Jihad. Mr. Malik clearly sought to persuade and indoctrinate the officer for the purpose of

using his skills with explosives.

[22] The panel finds that the officers cover story about his personal losses and military

background twenty years before were of interest to Mr. Malik because he saw an opportunity to

exploit the officers personal history to gain access to the officers skills with explosives. Mr.

Malik introduced the topic of fighting as a Mujahedeen and Jihad himself. He went to great

lengths to persuade the officer that being a true Muslim means dying for Islam. He expressed his

support for ISIS and Al Qaeda only a few hours after he began talking to the officer. In doing so,

he took a risk that he might be reported to the police. The fact that he was willing to take this risk

tends to show how serious he was. The information that Mr. Malik continued to convey at each

meeting was constructed to persuade the officer to adopt Mr. Maliks Jihadi beliefs. He played

extremely and increasingly violent videos to desensitize and incite the officer to take part in

violence. He made detailed inquiries to learn the extent of the officers abilities with explosives.

He expressed his support for terrorist attacks carried out in Canada and Europe against civilians

in order to learn how the officer would react to the idea of assisting Mr. Malik in carrying out

such an attack. From their first meeting, Mr. Malik sought to indoctrinate the officer in his belief

system. He ultimately sought to test how far his student would be willing to travel along the path

to Jihad and violence that Mr. Malik planned to follow.

[23] Counsel for Mr. Malik also argues that it is not possible to ascertain the degree of

influence the officers cover story and statements had over Mr. Maliks statements. He argues

that the officers cover story led Mr. Malik to express beliefs that he would not likely have

expressed independently and does not hold. For the reasons expressed above, the panel finds the

officers evidence credible. There is virtually no support for counsels argument in the evidence.

Mr. Malik has refused to testify and either deny making or explain the statements attributed to

him. The statements made by Mr. Malik to the officer are consistent with his statements in social

media and thus are corroborated by other evidence. There is no evidence that Mr. Malik was

coerced into making these statements or promised benefits that might induce him to make false


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statements. The undercover operation conducted in this case bears no resemblance to the Mr.

Big operations which have attracted significant concern from the Courts.8

[24] Mr. Maliks statements, as recorded by the officer are almost entirely internally

consistent, repeated and detailed. While Mr. Malik does exaggerate at some points, the evidence

as a whole is credible. He discussed fighting as a Mujahedeen in Libya repeatedly and provided

many details which are consistent with objective evidence about Jihadist groups and conditions

in Benghazi. He discussed in detail his Jihadist ideas and provided support for them from a

variety of sources. He explained in detail, on multiple occasions, his plan to set off an explosive

device to bring down a building in the financial district of Toronto. He focused on finding a

willing and able accomplice over a five month period. He provided his chosen accomplice, the

officer, with an enormously detailed explanation of the basis for and implications of his Jihadist

philosophy. The panel has found that Mr. Maliks statements and actions credibly reflect his

personal history, his beliefs, and if his statements may reasonably be used to predict his intended

future actions.

Mr. Maliks Statements about Libya

[25] Jahanzeb Malik is a 33-year-old citizen of Pakistan. He was born in Pakistan, and first

came to Canada as a student in April 2004. He married and was sponsored by his spouse. He was

granted admission as a permanent resident on February 23, 2009. He is not a Canadian citizen.

Mr. Malik returned to Pakistan from June 2009 until September 2009 and again from December

2010 until January 2011. His parents reside in Pakistan. He returned to Canada after making

these trips. These facts are not in dispute.9

[26] On November 16, 2012, Mr. Malik was issued a visa by the Islamic Republic of Libya

valid for one month from the date of entry. The sponsoring agency is listed as the Institution of

Language and IT in Benghazi Libya. On November 24, 2012, Mr. Malik was granted admission

8 R. v. Hart, 2014 SCC 52 (CanLII), Ioannidis v. Canada (Minister of Employment and Immigration) [1982]

F.C.J. No. 145, [1983] 1 F.C. 369. 9 Exhibit M-1A, p. 5, p. 154, p. 167, Transcript May 12, 2015 pp. 11-13.


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at Benghazi airport. On February 12, 2013, Mr. Malik was issued a visa by the Transnational

Council of Libya. The purpose of this visa is not clear. On February 15, 2013 he departed Libya

and travelled to Pakistan. He left Pakistan on April 2, 2013 and was granted admission to Canada

on April 3, 2013. The purpose of this trip, Mr. Maliks activities in Libya and his statements

about those activities are the subject of considerable dispute.10

[27] Mr. Malik made extensive statements to the undercover officer about his travel to Libya.

He made brief statements when interviewed after his arrest. He briefly testified about his travel

to Libya under affirmation at this hearing on May 12, 2015. The objective context for evaluating

these statements is the evidence contained in his passport regarding Mr. Maliks travel to Libya

and the evidence about conditions in the area of Benghazi during that time period. This includes

the evidence regarding the existence and activities of terrorist groups in the Benghazi area while

Mr. Malik was present. In light of what is objectively known, the panel will assess Mr. Maliks

contradictory statements about the amount of time he spent in Libya, his purpose for going and

the activities he engaged in while there.

[28] In February 2011, the revolutionary council formed in Libya seeking to overthrow the

government of Mummar Gadaffi. In March 2011, NATO forces began a campaign of airstrikes

against Libyian government forces. In August 2011, Tripoli, the capital city of Libya, came

under control of the revolutionary council. In October 2011, Mummar Gadaffi was killed. Libya

has remained in a state of civil war with the elected government controlling only portions of the

territory since 2012. A wide variety of armed militias, tribal groups, Al Qaeda affiliated groups

and more recently ISIS affiliated groups have attacked government and civilian targets, causing

deaths, injuries and damage to property.

[29] Since 2011, large parts of the eastern territory of Libya, including Benghazi and Dharma,

have either been under the control of Jihadist groups or have been subject to repeated battles for

control between these groups and government forces. On June 7-8, 2012 Anser al-Sharia, a local

Libyian Jihadist group affiliated with Al Qaeda held a meeting of 15 militias in Liberation

10 Exhibit M-1A, pp. 147-166.


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Square in Benghazi. On September 11, 2012, the United States consulate in Benghazi was

attacked; the American ambassador and three other persons were killed. It was later determined

that the attack was carried out by Anser Al-Sharia. The objective evidence shows that Anser Al-

Sharia and other Jihadist militias inspired by Al Qaeda operated training camps and carried out

attacks in the Benghazi area prior to and during the period that Mr. Malik was in Libya. This

included recruitment and training of the nationals of other countries as fighters.11

[30] Mr. Malik told the undercover officer that he entered Libya during the revolution, and

married a Libyan national who was then killed by the Gadaffi governments forces. Mr. Malik

advised the officer that he remained in Libya and joined a local Al Qaeda inspired group. Mr.

Malik initially advised the undercover officer that he was present as a member of the group that

attacked the American consulate in Benghazi on September 11, 2012. He advised that the

American ambassador was not killed directly by the group attacking the consulate, but instead

suffocated in a fire in the compound. He said the compound was attacked as it was being used by

the CIA. He later altered this statement and advised the officer that he was not present and did

not know who was responsible for the attack. There are no stamps or visas in his passport

corroborating that he entered or left Libya during this period. There is no record that he travelled

internationally and returned to Canada during this period.12

[31] Mr. Malik later provided much more detailed information about his travel to Libya. He

advised the undercover officer that he had prayed, sold his belongings, quit his job and decided

to go to Libya to Kill or get killed. He stated that he mostly learned to fight on the go while

in Libya as a Mujahedeen. The undercover officer testified that Mr. Malik informed him that he

fought on behalf of Al Qaeda. Mr. Malik stated that he and another brother were stranded on the

top of a roof for two days while fighting in Benghazi. He had only some bread and a bottle of

water with him, but Allah saved him.13

11 Exhibit M-1C 12 Exhibit M-1E, p. 19, p. 28, pp. 44-46, pp. 52-54, p. 119. p. 350. 13 Exhibit M-1E, pp. 52-54, pp. 80-83.


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[32] Mr. Malik stated that he was given military training by this group for two weeks in a

small city 5-6 km from Benghazi. In addition to physical conditioning, he stated that he was

trained in the use of and used AK47 and M-16 rifles, but preferred the AK47 as it shoots even

when wet. He was taught the six basic shooting positions. He showed the officer how he holds a

rifle and stated that he could shoot holding a rifle on either shoulder. He stated that he was

trained in the use of and used Rocket Propelled Grenade Launchers. He stated that he was trained

in the use of and operated a heavy machine gun mounted on the back of a vehicle. He stated this

machine gun had triggers on both handles and had to be fired in short bursts due to the power of

the gun. He stated that he used improvised explosive devices and explosives. The devices he

used were controlled by a remote trigger.14

[33] Mr. Malik stated that he fought with Mujahedeen from all over the world, and that he had

learned enough Arabic that he was used by the commander to translate orders given in Arabic for

the English speaking Mujahedeen fighters. He stated that he became the right hand man of the

commander of the English speaking Mujahedeen. He attended a meeting of four commanders

and proposed a strategy to defend a road used to run supplies. He said Gadaffis forces attacked,

but shortly gave up the attack due to the efficient defence he had proposed. He said he gained a

reputation and nickname amongst the Mujahedeen because of his role in these events. He said

that he saw a lot of dead bodies in Libya. He said that the Mujahedeen die with a smile and that

their bodies smell good because they know that they have died for Allah and will go to Heaven.

He stated that the bodies of non-believers stink because they believe only in the physical world

and the Angel of Death has or rip their souls from their bodies. He stated that he continued to

communicate with Mujahedeen who had fought with in Libya and showed the officer a text

message from a person who he said he fought with who was now fighting in Syria.15

[34] Mr. Malik told the undercover officer that he left Libya and went to Pakistan. He stated he

had difficulty with Turkish officials because he had travelled to Libya so he shaved his beard

into a goatee. He showed the officer pictures of himself on his cell phone with a full beard before

14 Exhibit M-1E, pp. 44-46, pp. 52-54, pp. 80-83, pp. 322-324. 15 Exhibit M-1E, pp. 44-46, pp. 52-54, pp. 68-70, pp. 80-83.


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he travelled and a goatee at the time he returned to Canada. Contrary to his testimony, this shows

that Mr. Malik had photos of himself on his cell phone from this period until at least October

2014. Mr. Malik stated that he was questioned by CSIS about his activities in Libya when he

returned to Canada in April 2013.

[35] Mr. Malik was arrested by CBSA on March 9, 2015 and advised of the allegations that he

engaged in terrorism and poses a danger to the security of Canada. He was advised that these

would be subject to a hearing and could lead to his deportation from Canada. He spoke to a

police officer and was given the opportunity to speak to counsel. He advised the officer that he

had travelled to Libya for three, four, or five months. He stated that he had gone to make money

by teaching English and because he was interested in marrying a Libyian woman. He said he

took a language teaching course online that took 100 hours and got a Tefrol or Tesel certificate.

He said that he made $2,400 Canadian and that his housing expenses were paid. He stated that he

liked the beaches and the Mediterranean Sea. He stated that Libya was a war ridden third world

country, that is very different from Canada. He said that this was a good opportunity to make

money because not a lot of people were going there.16

[36] On April 14, 2015, Mr. Malik and his counsel were provided with disclosure materials

which included the RCMP summary of the investigation of Mr. Malik and a transcript of the

interview conducted after his arrest. No documents or witnesses have been produced to respond

to the allegations made in these documents.

[37] On May 12, 2015, Mr. Malik briefly testified and responded to very limited questions

about his travel to Libya. He stated that he travelled to Libya about two years ago for a job

opportunity teaching English as a second language. He stated he had taken a course online for 10

hours and received a TESL certificate about seven months to a year before he left. He stated that

another person who took the course with him told him about the job opportunity. He did not

recall the name of the institution he taught at, but pointed out that it was mentioned in the visa at

page 156 of Exhibit M-1A. He then stated it was Mahad al Ausa in Arabic. He stated that he

16 Exhibit M-1A, pp. 77-79.


15

taught six Arabic speaking students at this school in Benghazi every other day and tutored a

private student every day. He testified that he was paid in cash, a total of 1,200 Dinars or about

$900 Canadian. He stated his housing was provided for free. He stated he took a lot of strolls

around the Mediterranean and took photographs of himself and the city on his phone. He stated

his phone was damaged at an unknown time after he returned to Canada. He stated he did not

send any of the photos to his family in Canada or Pakistan. He stated he did not download any of

the photos to another device. He stated his passport showed he was in Libya for two months and

19 days. He stated that he applied for jobs teaching at two other schools in Benghazi and

provided the Principles names.17

[38] The panel finds that some of Mr. Maliks statements made to the undercover officer are

not credible as they are internally contradictory and not supported by the objective evidence. Mr.

Malik claimed that he was present in Libya during the revolution, married a Libyan woman who

was killed and took part in the attack on the consulate in Benghazi. He stated that he was part of

the Benghazi attack and then later stated he was not. There is no evidence in his passport or in

any other source that shows he travelled to Libya or anywhere else during this time period. This

portion of the testimony is likely not credible. This raises a question which is significant in

assessing Mr. Maliks testimony as a whole. Mr. Malik has offered no explanation for these

statements. What was he trying to accomplish by inventing this story and telling the officer that

he had been a Mujahedeen for two years? Why would he invent a wife and claim she died? Why

would he claim to have taken part in the attack on the consulate in Benghazi if he was not in

Libya until two months later? Counsel for Mr. Malik argues that the fact that this portion of Mr.

Maliks is not credible should lead the panel to infer that none of his statements supporting Jihad,

stating that he fought in Libya, or planning to set off an explosive device in downtown Toronto

are credible.

[39] The evidence does objectively show that Mr. Malik travelled to Benghazi Libya from

November 24, 2012 until February 15, 2013. Mr. Maliks initial explanation for this trip in his

conversations with the undercover officer was that he went to Libya to fight as a Mujahedeen.

17 Transcript May 12, 2015, pp. 19-31.


16

Only after he was arrested did Mr. Malik offer another explanation for this trip. He now claims

that he was teaching English language classes.

[40] Mr. Maliks statements when he was arrested are inconsistent with his testimony about his

activities in Libya. When he was arrested, he claimed that he spent 100 hours obtaining his

teaching certificate, that he was paid $2,400 Canadian to teach, and that he also went to Libya

because he wished to marry a woman from Libya. In his testimony, he contradicted even these

simple statements. He testified that he spent 10 hours obtaining his certificate, that he was paid

1,200 Dinars or about $900 Canadian in total to teach and made no mention of wanting to marry

anyone. Mr. Malik claims that he went to Libya to make money, but he is unable to consistently

recall even approximately how much he made. He now claims that he was paid an amount not

even equivalent to the cost of an airline ticket. It is implausible that he would travel to a place he

had no prior connection to, which was experiencing significant civil conflict in order to lose

money. The contradictions in his evidence and the implausibility of his claimed motivation lead

the panel to find that his story is not credible. This supports the conclusion that Mr. Malik was

motivated to travel to Libya for the reason he repeatedly stated to the officer, to fight as a

Mujahedeen.

[41] Mr. Malik has provided no objective evidence to contradict his statements to the officer

and show that he was simply teaching in Libya. He cannot say from what organization he

obtained a teaching certificate, there is no copy. He says he had a contract with the school he

taught at, there is no copy. He testified he could not recall the name of the school. The name he

read from his passport does not remotely match the name on his visa. He did not name his

supervisor, fellow teachers, or students. He did name two persons who he claims to have asked

for another teaching job. He has provided no evidence from either of them supporting this claim.

He has provided no photographs of himself in Benghazi, although he says he took photographs

on his phone. The panel did not find his explanation that his phone broke to be credible. If the

photos showed him engaged in teaching and tourism it is likely that he would have shared photos

with his family and friends, and downloaded them. The panel draws an adverse inference from

the fact that Mr. Malik has produced no photographs of himself engaged in the peaceful activities


17

he now claims to have engaged in while in Libya. He more likely had photos on his phone of

himself engaged in the Jihadist activities he described to the officer which he does not wish to

produce as evidence.

[42] Mr. Maliks claim that he taught English in Libya at this time is not only inconsistent and

unsupported, it is implausible when examined in light of the objective evidence about conditions

in Libya at that time. Mr. Malik claimed in his testimony to be a simple Muslim, not interested in

conflict. Why would he go to Benghazi Libya, a place where he had no prior connections, at a

time when making such a trip posed a significant risk to his life? Why would he go to a place

where there was significant ongoing conflict, where Jihadist groups were attacking diplomats

and government workers on a regular basis? He had two young children; he made no money

from the trip, why would he risk his life? Mr. Malik has not provided answers to these questions.

[43] The panel finds that the explanation he offered to the undercover officer, that he went to

Libya to fight as a Mujahedeen, is the only one which credibly explains his actions and

statements. The panel accepts Mr. Maliks initial statements as compelling and credible evidence

of his reasons for travelling to Libya and his actions while he was in Libya. The panel finds that

Mr. Malik was motivated by his Jihadist beliefs to travel to Libya fight as a Mujahedeen or as he

put it to kill or get killed. Mr. Malik stated that he decided before leaving Canada that he

would go to Libya to fight Jihad. His visa was simply a means of entering Libya to accomplish

this purpose. Mr. Malik stated that he joined an Al Qaeda inspired group as a Mujahedeen; he

received arms training for two weeks in a town near Benghazi. This is consistent with the

objective evidence about conditions in the area and the activities or Ansar Al-Sharia in that area

at that time. The panel finds Mr. Maliks statements that he fought government forces in the

Benghazi area to be credible. The panel finds that he did so for a period of approximately two

months, which is consistent with his passport. The fact that he was ready to risk his life, to take

up arms to fight when he had no personal connection to Libya and to pass on these experiences

to the officer to persuade the officer to participate in an attack shows that Mr. Malik poses a

serious risk to Canada. He continued to demonstrate the serious risk he poses when he returned

to Canada.


18

Mr. Maliks Statements in Support of Jihad and Plans to Bomb a Canadian Target

[44] Mr. Malik made a variety of statements on social media supporting Jihadist groups and

distributing materials created by, or in support of these groups. He has not disputed that the

material captured from these public sources and entered into evidence represents a portion his

online activities.18 These posting are consistent with the extensive Jihadist materials shown or

provided to the undercover officer by Mr. Malik over a five month period. Mr. Malik spent

months trying to persuade the officer to become involved in helping him to bomb a target in

Canada. Mr. Malik almost immediately seized on the possibility of exploiting the officers

experience with explosives to attack a target in Canada. Mr. Malik sought to indoctrinate the

officer in his belief system, to persuade him that a true Muslim must be prepared to kill non-

believers and to die for his faith. He sought to persuade the officer that any person in Canada was

a legitimate target for death as they all supported the military. Mr. Malik planned the attack in

detail and sought to persuade the officer to take part. The panel finds that Mr. Malik intended to

carry out a car bombing attack in the financial district of Toronto and counselled the officer to

use his experience with explosives to provide necessary assistance to him.

[45] Mr. Malik was first contacted by the undercover officer on September 24, 2014. The

officer asked him to meet with the officer at the prop house to provide an estimate for installing

flooring. During his initial meeting with Mr. Malik on September 25, 2014, the officer had been

assigned two tasks by his handler. The first, contacting Mr. Malik and employing him to install

flooring in the prop house, was accomplished by the end of the first meeting. Even at their first

meeting Mr. Malik began to probe for personal information about the officer. He asked the

officer where he was from, he was told Bosnia. Mr. Malik asked the officer if he had any family,

he was told just a brother and his family. Mr. Malik asked the officer if he had participated in the

war in Bosnia, the officer said unfortunately yes, but he didnt like to talk about it.

18 Exhibit M-1A, pp. 108-146.


19

[46] At their second meeting on September 30, 2014, Mr. Malik continued to probe for

personal information. He asked the officer for more information about his family. The officer

said he was raised by his grandfather who was a Muslim. The officer stated that his immediate

family had been killed by Serbs during the genocide in Srebrenica. Mr. Malik asked the officer

which side he had fought on in the war, the officer stated that he had fought on the Muslim side.

Mr. Malik stated a lot of foreign fighters came to help the Muslims in Bosnia and that two good

friends of his had died. Mr. Malik then stated that he had had moved to Libya and a friend of his

had been questioned by CSIS about his activities when he returned. The officer then addressed

his second assigned task; he raised the idea that his friend will no longer be house sitting for him

while he is in Bosnia. Mr. Malik raised the idea that he would move into the prop house and pay

rent during this period, the officer agreed. During this conversation Mr. Malik continued to probe

for personal information and portrayed himself as someone who had shared in the officers sense

of loss as a result of the Bosnian war.

[47] At their third meeting on October 1, 2014, Mr. Malik revealed more information about

himself and his beliefs. He stated that he had married a woman in Libya, but that she had been

killed by Gadaffis forces. He said that he was in Libya during the revolution. He explained his

view that Islam is the only true religion and that true believers in Islam are ready to die in Gods

path. He said that a true Muslim is not afraid of prison or death as he will have time to pray in

prison and go directly to heaven if he dies for Allah. He approved of ISIS beheading a journalist.

He stated that western journalists are with the military and misrepresent ISIS actions. He stated

that that suicide bombings are not suicides, the officer said they are sacrifice and Mr. Malik

agreed. Mr. Malik compared Osama Bin Laden to Salahuddin and said Bin Laden had given $20

billion to support Muslims around the world. After discussing his beliefs with the officer for

eight hours, Mr. Malik asked the officer about his military background. The officer said that he

was trained in the engineering unit, and had trained in how to make explosives.19

[48] At their fifth meeting on October 3, 2014, Mr. Malik gave the officer a Quran and book of

prayers in the Bosnian language. He stated he went to a great deal of effort to find a Quran. He

19 Exhibit M-1E, pp. 5-34.


20

stated that he went to Libya to fight as a Mujahedeen. He said that he had fought with

Mujahedeen from all over the world, including Americans. He said that he had learned enough

Arabic to translate orders to the English speaking Mujahedeen.

[49] At their sixth meeting on October 5, 2014, Mr. Malik and the officer held an extended

conversation, talking for almost five hours. Mr. Malik began by talking about the Quran. The

officer said after the war that he had sinned and lost his way. Mr. Malik said God will forgive

him if he repents and becomes a true Muslim. Mr. Malik then explained that a true Muslim is

justified in killing in by fighting in the path of Allah. He said his own family had disowned him

and called him a terrorist when he told them that he was going to Libya to fight for Islam. They

told him true Islam is not about violence.

[50] Mr. Malik talked about being in Benghazi as a Mujahedeen and being present when the

American consulate in Benghazi was attacked. He said he went to Libya to kill or get killed.

He talked about using small arms and improvised explosive devices and explosives. The officer

then volunteered that he specialized in making explosives during the Bosnian war. Mr. Malik

said that is a really useful skill in hands of right man, and that he knows how to use, but not

make explosives. Mr. Malik said that he was right hand man of the commander for English

speaking Mujahedeen. He said that he attended a meeting of four commanders and proposed a

tactic to defend a road, which was then used to repel Gaddafi forces. This strategy got him a

reputation and a nickname among the Mujahedeen.

[51] Mr. Malik said that he then came back to Canada through Turkey and Pakistan. He

shaved his beard down to a goatee, so he would not be questioned. He said he was questioned

upon arrival in Canada by CSIS; and that he had gotten a lawyer to fend off CSIS. He said that

he had made arrangements for his Turkish student to go through Yemen to Syria to fight for

Islam, but the devil made his student give up at the last moment. Mr. Malik said that his primary

teacher about the truth of Islam was Anwar Al-Awlaki. He stated that he was using Facebook

and Twitter to spread the truth about the fight for Islam. He said that if he was arrested the


21

publicity would inspire 100 people to understand the truth. He said he cant travel to Syria to join

the fighting as he will be stopped by CSIS.20

[52] During their next few meetings, Mr. Malik continued his efforts to educate the officer in

his Jihadist views, to persuade him to follow those views and to probe the officers potential

usefulness as a partner in a bombing. He did this by discussing his beliefs that true Muslims must

be willing to die for Allah and are justified in killing non-believers. He played videos and

recordings of persons he considered to be credible Islamic philosophers such as Anwar Al-

Awlaki. He said that he had spoken to Al-Awlaki over the internet. Mr. Malik stated that the

officer should spread these beliefs to others even if those persons called him a terrorist, as Mr.

Maliks family had. Mr. Malik sought to bolster his credibility as a person willing to die for

Islam by repeatedly discussing his training and activities in Libya as a Mujahedeen. Mr. Malik

played videos of persons involved in terrorist attacks in Canada and explained why their actions

were justified. He played videos of persons who had travelled to Syria to join ISIS and explained

that their deaths would lead to a place in Heaven. He played a video of a Canadian, Abu Muslim,

who he said died in the path of Allah, and stated that he had truly understood Islam before his

death. He expressed his approval of the actions of ISIS and Al Qaeda and on multiple occasions

stated his desire to travel to Syria to continue to fight as a Mujahedeen. He played many videos

of ISIS brutally killing soldiers, journalists and others. In doing so, the panel finds that he was

seeking indoctrinate the officer into his belief system and to test the officers reaction to brutal

violence in order to determine if the officer would be willing to participate in his plan to kill

civilians.21

[53] On October 20, 2014 the officer explained that he had supervised blasting at his business

partners farm using dynamite. He stated that this had been necessary as the contractors did not

know how to make the proper calculation. Mr. Malik then talked about first attack on the World

Trade Centre and said the brothers did not know how to make the proper calculation. He and the

officer discussed the necessity of knowing where the main pillars of a building are if they are

20 Exhibit M-1E, pp. 41-56. 21 Exhibit M-1E, pp. 57-130.


22

going to be taken out by an explosive and cause the building to collapse. Mr. Malik then raised

the 9/11 attacks and attributed them to a CIA conspiracy designed to provide the United States a

reason for attacking Afghanistan and Iraq.22

[54] On October 28, 2014 the officer told Mr. Malik that he had sold his truck and transferred

the money to Bosnia to be distributed among war orphans. Mr. Malik stated he was worried that

the officer would do something and made a gesture of an explosion. Mr. Malik played a video of

a suicide bomber giving his last message while sitting in a military vehicle filled with explosives.

The bomber then exploded the vehicle. He showed two videos of ISIS fighters in Benghazi and

Iraq showing a large number of soldiers being executed by being shot in the back of the head.

The officer said that the last video was excellent. The panel finds that Mr. Malik had concluded

that he had found the right man to assist him in carrying out an attack. Mr. Malik demonstrated

this by saying that he wanted to ask the officer something but he was not going to talk about it,

he got a stack of writing paper and a pencil and the following exchange occurred.

Mr. Malik wrote: can you make explosive. The officer wrote: yes.

Mr. Malik wrote: what do we need. The officer wrote: target.

Mr. Malik wrote: doesnt matter. The officer wrote: calculation (The officer testified that

this was meant as a reference to earlier conversations where they had discussed the need

to calculate to proper amount of explosives to destroy a building).

Mr. Malik wrote: American Embassy, financial district, Bay St.

Mr. Malik wrote: what ingredients do we need.

The officer said aloud: I will make a list by Friday.

Mr. Malik then burned the sheets of paper on the stove.

The officer asked aloud: are you sure about this. Mr. Malik wrote: 90% sure 10% Allahs

will.

The officer said aloud: we should use the van. Mr. Malik wrote: we will use his car.

22 Exhibit M-1E, pp. 93-101


23

The officer asked: who is going to drive. Mr. Malik said: he will drive his car, but that he

wants a remote/button in the car to activate the explosives.

Mr. Malik then burned the sheets of paper on the stove.

[55] Mr. Malik said they will go for a drive to an undisclosed location like a sauna and openly

talk about this. Mr. Malik said we have to save each other by not talking to anyone about this and

when talking we cant have electronics or cell phones in our possession. Even when the battery is

taken out of a cell phone they can listen.23

[56] The officer testified that he had a recording device in his possession on this date, but

learned later that it did not function. Given that Mr. Maliks statements were almost all made in

writing and then destroyed an oral record could do little to confirm the officers notes. The panel

finds that the notes are consistent with those made at the time of the events. The notes were

completed based on the officers recollection and rough notes just over one hour after this

exchange was completed. The notes were prepared in contemplation that they could be compared

to a recording. The content of the notes is consistent with later statements made by Mr. Malik.

The panel finds that the notes constitute a credible account of this exchange and objectively

reflect Mr. Maliks intentions and plans.

[57] The officer did not seek to press Mr. Malik for further information about his plans. He did

not meet with him again until November 25, 2014. The officers instructions were to provide a

cover story claiming that his business partner died of a heart attack. Instead of attempting to

press Mr. Malik to raise the topic of carrying out an attack or inducing him to make statements

that he would not have made of his own accord, the officer and his handler waited for Mr. Malik

to raise the topic of bombing a civilian target again. Mr. Malik did so repeatedly over the next

three months. When they met for the first time after discussing the attack, both expressed

concerns that the other was a spy. The officer said that he was afraid that he would be arrested

after their discussion and had left town. Mr. Malik again stated that he was concerned that the

23 M-1E, pp. 131-138.


24

officer would go out and do something stupid. He said that CSIS could arrest him at any time

and he does not care. If his photo is published in the media at least 10 more people would follow

his example.24

[58] Mr. Malik returned to his pattern of seeking to recruit the officer to assist him with an

attack. He played further videos of ISIS fighters who died and said that he approved of their

deaths. He stated that the lectures of Anwar Al-Awlaki, particularly the Hereafter lectures

were his biggest inspiration in his search for the truth and provided these to the officer. He

played more videos of ISIS killing civilians. He played videos of the terrorist attacks in Ottawa

and Montreal and expressed his approval of the perpetrators. Mr. Malik justified the idea of

attacks on civilians by stating that there are no civilians in Canada as everyone pays taxes which

fund the military, which fights against Muslims. In doing so he closely echoed statements made

by Al-Awlaki justifying attacks on civilians in the United States.25

[59] Mr. Malik played a video of Abu Muslim calling on all Muslims living in Canada to join

the fight against non-believers by either fighting in Syria or by sharpening their knives or by

preparing their explosives. He showed a video of captured Syrian pilots being decapitated by

ISIS fighters with knives. He explained that Chapter 4 of the Quran contained an explanation of

what is to be done by Muslims when non-believers attack. He explained his belief that you

either kill them-sever their bodies, or chase them out.26

[60] On January 11, 2015, after the terrorist attacks on civilians in Paris and Germany, Mr.

Malik played the video left by one of the brothers who committed the Paris attack. He

explained that the targets chosen were good as they did damage, but more importantly had a big

impact on the public. Mr. Malik said he was thinking of going to Libya to fight using a

counterfeited passport. He then raised the possibility of attacking a target in Canada with an

explosive device. He said that he did not need to go to Libya, that it is easier to do something

here. He said the right people, with knowledge of guns and explosives have to meet and decide

24 Exhibit M1-E, pp. 139-183. 25 Exhibit M-1E, pp. 184-283, Exhibit M-1D, pp. 65-78. 26 Exhibit M-1E, pp. 296-303


25

what to do. He said there is nothing easier than to go to Canadian Tire or Home Depot and buy

everything you need for an explosive. He said he would have to have people he could trust not to

talk to anyone. He said if we decided to do that we would have to lead a normal lifestyle. He said

that the one who is more fluent would have to leave the video message explaining the reasons

behind the actions. He then read from the book Millat Ibrahim by Abu Muhammad Asim Al-

Magdisi who he said was the most prominent jihadist scholar. He highlighted the passage saying

non-believers should be hated, humiliated and killed and that believers should cause terror in

their hearts.27

[61] On January 13, 2015 the undercover officer told Mr. Malik that the way the brothers

held their guns during the Paris attack reminded him of his military training. Mr. Malik provided

more details about his training, including showing the officer how he holds a gun. Mr. Malik said

again that he was thinking of going to Syria through Turkey, the officer asked him if he had

changed his mind about doing something in Canada. Mr. Malik said he would need a good crew

and a plan. He said he only knew how to use mines, but not how to make explosives. The officer

said he could make a bomb with his eyes closed, but that he needs to let him know when they are

ready. Mr. Malik said they needed to push each other to be ready.

[62] Mr. Malik asked the officer what damage would 1 kg explosive cause; the officer said that

he needed to know the target before telling him what quantity of explosive they needed to use.

Mr. Malik said that he does not want it to be just a suicide, but to have an impact. Mr. Malik

reminded the officer that he is not forcing him to partake and that being arrested could be a

consequence. Mr. Malik then played a martyrdom video message left by Amedy Coulibaly, one

of the persons who carried out the attacks in Paris. The officer asked Mr. Malik what they would

say in the video message if they did it. Mr. Malik said that he would clearly state the reasons

why they did it by accounting for all of the bombings of Islamic countries. He said he would not

say anything about the officer. He said such a message should not be personal and must be

inspirational to all of the Muslims in the world. He said that he would not declare allegiance to a

particular organization, such as ISIS, but would say he is doing it for all Muslims in the world.

27 Exhibit M-1E, pp. 304-310.


26

Mr. Malik laid out his plan to conduct an attack using explosives and leave a suicide video

explaining the rationale in concrete specific detail.28

[63] On January 28, 2015, Mr. Malik discussed an attack on a hotel in Tripoli. He explained

the motives of the brothers who carried out the attack. He said that Abu Anas al-Libi was

responsible for planning the 1998 bombing attack on American Embassy in Tanzania. In 2013

al-Libi was arrested by Americans and had recently died in custody. He said that the death of al-

Libi motivated the brothers to attack the hotel. He said that people are exposed to Allahs

message, but ignore it. Mr. Malik said that everything in this system/society operates around

money so hitting the financial district would cause a real damage and at least one week long

disruption. During that time economy would be brought down. Mr. Malik repeated his intent to

attack the financial district three months after he had first raised this possibility and explained

what he believed would be the significant impact of doing so.29

[64] On January 31, 2015 the officer and Mr. Malik talked about the officers trip to Sudbury.

The officer said he had to get more explosives from his partners storage magazine as it does not

comply with the regulations for storing explosives. Mr. Malik wanted to know how powerful the

explosives were. He asked, for example, if the officer could bring down the prop house with

these explosives. The officer said yes. Mr. Malik played a video of the execution of Japanese

journalist by ISIS and a video of Egyptians declaring loyalty to Abu Bakr el-Baghdadi, the head

of ISIS. Mr. Malik said that we are not too old to fight here. Mr. Malik said if caught he will go

to prison and will continue preaching. He said either his death or arrest will set good example for

his children. Mr. Malik said that because of new CSIS powers we cannot fly to Syria to fight for

ISIS, but can fight here like our brothers did in Paris. Mr. Malik said Muslims migrating to

non-believer countries must continue to fight for Islam, not adapt to the country.30

28 Exhibit M-1E, pp. 317-324. 29 Exhibit M-1E, pp. 343-352. 30 Exhibit M-1E, pp. 353-363.


27

The Credibility of Mr. Maliks Statements and the Panels Findings

[65] A significant issue in this hearing is whether Mr. Malik credibly, seriously stated his

beliefs and intentions to the undercover officer and whether his statements reflect an objective

intent to carry out the acts he described. Counsel for Mr. Malik argues that he was not serious,

that he exaggerated and was untruthful in some of his statements and that therefore none of his

statements can be relied on. In essence he argues that Mr. Malik spent an enormous amount of

time over a five month period constructing and repeating an elaborate series of fabrications that

do not represent his beliefs and cannot be used to reasonably infer his future actions. This

submission raises many questions which Mr. Malik was not prepared to answer in his testimony

and to which he has provided no credible objective response.

[66] If Mr. Malik was not serious about his statements why would he spend a significant

amount of his free time over a five month period lecturing the officer about his own Jihadist

philosophy, providing references from the Quran to support his beliefs and explaining how

killing civilians is justified? Why would he spend a significant amount of time buying the

officer a Quran, showing the officer videos made by Jihadist Imams, and providing him with

books espousing Jihadist philosophy? Why would he repeatedly express his strong support for Al

Qaeda and ISIS? Why would he repeatedly play videos of brutal acts committed by these groups

and explain how they were justified? Why would he repeatedly play videos of terrorist acts

carried out against civilians and use videos left by their perpetrators to explain why they were

justified? Why would he engage in any dialogue whatsoever about planning to create, transport,

and detonate an explosive device to kill persons in Toronto? Why would he discuss a plan that

involved him committing suicide and leaving a video message explaining the reason for the

attack?

[67] The panel finds that Mr. Malik exaggerated when he told the officer that he spent two

years in Libya and fought in the Benghazi attack, however he has not explained why he told the

officer that he did? The panel finds that Mr. Malik was not truthful when he told the officer that


28

he married in Libya and lost his spouse in an attack by the government forces, however he has

not explained why he told the officer that he did? The panel accepts the Ministers submission

that he sought to present himself as a credible spokesperson and teacher of Jihadist philosophy in

his discussions with the undercover officer. In doing so, the panel finds that he was, on occasion,

not truthful about himself in an effort to be more persuasive in his attempt to recruit the officer to

participate in Jihad. The panel finds that Mr. Malik sought to increase the degree of influence he

would likely be able to assert over the officers beliefs and actions by presenting himself as

someone who had suffered personal losses, like the officer claimed to. The panel finds that Mr.

Malik sought to increase his credibility as a spokesperson for Jihad by claiming that he had

fought for a long period and taken part in a well-known attack. The panel does not accept that

there is any basis for finding that Mr. Maliks statements as a whole should be found lacking in

credibility.

[68] The panel finds that Mr. Malik joined an Al Qaeda affiliated group in Libya and fought as

a Mujahedeen. The panel finds that Mr. Malik engaged in the planning of an attack and

counseled the officer to assist him in carrying out the attack. The panel finds that Mr. Malik

intended to carry out this attack by car bombing a building in the financial district of Toronto.

Nothing in the evidence suggests that Mr. Malik was not serious about the plan he formed. The

evidence shows that he genuinely held the beliefs which motivated him to conceive this plan and

that he had the willingness to carry it out. He spent a great deal of time over five months seeking

to persuade the officer that he was sincere in his Jihadist beliefs, that the plan to bomb a civilian

target was credible and in trying to persuade the officer to cooperate with him in carrying it out.

He presented himself to the officer as a person well versed in Islam and explained in depth the

justification for his belief that an attack on civilians in Canada was justified.

[69] Mr. Malik sought to persuade the officer that dying during an attack carried out against

non-believers in a country that had attacked Muslims was an act in the path to Allah. He sought

to persuade the officer that such a death would make one Shaheed and lead straight to a place in

Heaven for the attacker and his family. He sought to raise his credibility by presenting himself as

a person who had already gone to Libya to fight as a Mujahedeen, who had fought, faced death


29

and was prepared to do so again. He likely exaggerated the length of his stay in Libya to make

himself seem more credible and to tie himself to the attack on the American consulate in

Benghazi. The Benghazi attack had a lot of impact in the press and participation in it would have

tended to impress the officer if he was interested in fighting as a Mujahedeen. Mr. Malik

presented himself as a person who was not afraid of death, the authorities or prison. He stated

that he would deliver the suicide bomb to the target himself using his own car, detonate the

bomb, leave the video explaining the reasons and that his death or imprisonment would provide a

good example to his children and inspire others.

[70] Mr. Malik canvased the officers ability to be useful to him in carrying out his plan,

questioning him about his ability to make proper calculations and create an explosive device

which would bring down a building. He stated that the ability to make an explosive device was

an important skill in the hands of the right man. Mr. Malik admitted that he was unable to carry

out such an attack on his own as he did not know how to make an explosive device. He expended

enormous efforts to radicalize and recruit the right man to assist him in carrying out the attack.

Mr. Malik clearly believed that he had found the right man, one with both the skills, and once he

enlightened him, the willingness to carry out a terrorist bombing on a civilian target. He believed

that he had been so successful in persuading the officer to carry out an attack that he became

concerned that the officer would act out of emotion and proceed to set off an explosion without

him.

[71] When he reached a point where he believed he had succeeded in persuading the officer to

follow him, Mr. Malik proposed his plan. He carefully raised the idea of carrying out a suicide

bombing in writing and destroyed the evidence. In doing so, the panel finds that he sought to

lessen the risk of the plan being exposed before it could be carried out. The panel finds that this

demonstrates clearly that Mr. Malik was serious about carrying out the bombing. Mr. Malik

discussed the type of explosive to be used and how to obtain it. He stated that it would be easy to

buy materials from a Hardware store to construct a bomb. Mr. Malik also discussed the dynamite

that he believed the officer had access to as a simple, realistic means to carry out attack. The

officer accessing dynamite from a storage site provided an easily accessible source of explosives.


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The panel accepts that Mr. Malik was serious in seeking to obtain explosives. He discussed the

means to transport the explosives to the target, rejecting the idea proposed by the officer of using

his van and deciding that they would use Mr. Maliks car. He discussed on more than one

occasion what he considered to be a suitable target and his reasons for making this choice. He

admired the choice made by the terrorists who attacked civilians in Paris, saying that their targets

had a significant impact, that they focused a lot of attention on the attack and the video message

left by an attacker. He stated that he wished to attack either the United States Consulate or a

building in the financial district of Toronto. He reasonably expected that an attack in the

financial district would significantly disrupt Canadas economy.

[72] Mr. Malik planned the actual execution of the attack in significant detail. This further

persuades the panel that his intentions were credible and that he intended to carry out the attack

he planned. The panel accepts that Mr. Malik believed himself to be able to carry out the attack,

provided he had the officers assistance in building the bomb. He stated that he would drive the

car and set off the bomb through a switch in the car. He discussed this plan with the officer who

stated that he had experience in creating this type of device, that the bomb would be no problem.

He repeatedly discussed the amount of explosives necessary, asking what damage 1 kg of

dynamite would cause and discussing the necessity to place explosives at key pillars in a

building to cause it to collapse.

[73] Mr. Malik stated that he did not want his death to be simply a suicide, but a sacrifice

which would have an impact. This is entirely consistent with the beliefs he expressed while

seeking to recruit and radicalize the officer over a five month period. The panel finds Mr.

Maliks statements made to the officer a credible expression of his intended actions and finds

that Mr. Malik was objectively serious about these beliefs and carrying out the plan that they

inspired him to create. Mr. Malik discussed what he believed would be a suitable video message

to leave to explain the attack. He decided that he would be the appropriate person to leave the

message as he was able to more clearly explain his ideas. He decided that the message would not

name the individuals involved. He decided that the message would state that the attack had been

carried out for all Muslims against those who attacked Muslims. He explained that no one in


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Canada could be regarded as a civilian as everyone paid taxes to support the military which

attacked Muslims. He decided that the video would not link the attack to any particular group,

although he fully supported both ISIS and Al Qaeda.

[74] Mr. Malik raised the idea of committing an attack more than once over a period of several

months. Although he temporarily backed off, after the officer broke off contact and told him he

was afraid Mr. Malik was a spy, he did not drop the idea. Mr. Malik continued to reinforce his

Jihadist teachings by showing the officer more materials promoting the murder of civilians in the

name of Islam. When he believed he had reached a point when the officer was ready Mr. Malik

again raised the idea of attacking the financial district, he discussed how powerful explosives

would need to be and the details of the video explaining the attack. This shows that Mr. Malik

was prepared to be patient, to overcome obstacles and to persist in planning the attack. This

further supports the panels conclusion that Mr. Maliks statements are credible and objectively

serious.

[75] The panel ultimately believes Mr. Maliks statements. When asked by the officer if he

was sure about his plan to bomb civilians Mr. Malik stated that he was 90% sure and that 10 %

was Allahs will. Mr. Malik made it very clear that he was willing to carry out what he perceives

to be Allahs will including being will to murder civilians and to die to carry it out. The panel

accepts his initial claims that he went to Libya to kill or be killed and fought as a Mujahedeen

as credible and objective evidence. Mr. Malik made it very clear that he believes it is Allahs will

that civilians may be murdered if their country attacks Muslims and that those who do so will

achieve Shaheed.

[76] Mr. Malik repeatedly stated his belief that, as a true Muslim he must continue the fight for

Jihad that he had personally started by travelling to Libya and fighting as a Mujahedeen. He

repeatedly stated that he wished to go to Syria to continue to fight, but believed he would be

stopped by CSIS. He repeatedly expressed his admiration for Jihadists who had attacked targets

in Canada and other Western countries. He repeatedly stated his belief that his Jihadist purpose

could be fulfilled by carrying out a suicide car bombing of a target in the financial district in


32

Toronto. He believed that the officer had experience with and access to explosives which would

permit such an attack to be carried out successfully. He spent five months seeking to indoctrinate

the officer in his Jihadist beliefs and counseling him to take part in the attack by building the

bomb. He spent months discussing the attack in significant detail. He chose a target he believed

would have impact by killing civilians and disrupting the economy. He chose to deliver the

explosives in his car and to commit suicide by detonating them. He chose to leave the video

message explaining the reasons for the attack, decided on what the content would be and that the

attack would not be aligned with any group. The evidence provides credible and compelling

reasons to find that Mr. Malik planned and intended to carry out an attack by car bombing a

building in the financial district in Toronto.

Danger to the Security of Canada

[77] The Act does not define the phrase danger to the security of Canada as per paragraph

34(1)(d) of the IRPA. The Supreme Court considered arguments regarding a proper definition

and whether the term was unconstitutionally vague in the decision in Suresh v. Canada.31 The

Court determined that the phrase danger to the security of Canada can be meaningfully defined

and is not improperly vague. In Suresh the Court found:

a fair, large and liberal interpretation in accordance with international norms must be accorded to danger to the security of Canada in deportation legislation and that 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 security32

The Court discussed the links between international terrorism and the phrase and

concluded: 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 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, Canadas national security may be promoted by reciprocal cooperation between Canada and other states in combating international terrorism. These considerations lead us to conclude that

31 Suresh v. Canada (M.C.I.) [2002] 1 S.C.R. 3. 32 Suresh, paragraph 85.


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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. (emphasis mine)33

The Court concluded by defining the phrase in the following terms: 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.34 (emphasis mine)

[78] These findings focus the panels analysis on acts which create a real and serious

possibility of an adverse effect for Canada. The threat may be direct or indirect. The threatened

harm must be substantial, not negligible. The threat must be based on evidence and grounded on

an objectively reasonable suspicion. The threat need not be immediate, possible future risks must

be considered. In this case these principles and the factual findings made above are sufficient;

there is no need to consider the broader implications of the definition.

Does Jahanzeb Malik Pose a Danger to the Security of Canada?

[79] The panel must be persuaded, to meet the reasonable grounds requirement, that there is

sufficient credible and compelling evidence to establish an objective basis for the belief that the

allegation is well-founded. By virtue of section 33 of the IRPA, there is no temporal requirement

attached to this allegation so it could be a past, present or future danger. The panel is satisfied,

based on the evidence before me that there are reasonable grounds to establish that Jahanzeb

Malik is a danger to the security of Canada and therefore described pursuant to paragraph

34(1)(d).

33 Suresh, paragraph 88. 34 Suresh, paragraph 90.


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[80] The panel must focus on whether there is a serious objective basis for finding that Mr.

Malik threatened substantial harm to Canadian Security. The panel finds that Canadian Security

includes, but is not limited to, the security of Canadians to be free from attacks which could

cause significant injury or death. The panel also finds that Canadian Security includes

maintaining essential services such as engaging in economic activity. T

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