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Immigration and

Refugee Board of Canada

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

Immigration Division

ID File No. / No de dossier de la SI :


Client ID No. / No ID client :

0003-B5-00397
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

And
Person(s) Concerned

Date(s) of Hearing

Place of Hearing

Date of Decision

Panel

Counsels for the


Minister

Counsel for the


Person(s) Concerned

Entre

et
Jahanzeb MALIK

Intress(e)(s)

12 May 2015
20 May 2015

Date(s) de
laudience

Toronto

Lieu de
laudience

5 June 2015

Date de la
dcision

A. Laut

J. Lourenco
J.Oliveira

A. Farooq
Barrister and Solicitor

Tribunal

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

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


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
2

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


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

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

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.

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


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.

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


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

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.

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


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.

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

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


[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
6

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


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

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.

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


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

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


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
9

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.
Exhibit M-1A, p. 5, p. 154, p. 167, Transcript May 12, 2015 pp. 11-13.

10

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


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.

11

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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 AlSharia 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
12
13

Exhibit M-1C
Exhibit M-1E, p. 19, p. 28, pp. 44-46, pp. 52-54, p. 119. p. 350.
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
15

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

14

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


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.

15

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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
16

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


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.
17

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

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 nonbelievers 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.

18

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


[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.

19

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


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

20

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


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 AlAwlaki. 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
21

Exhibit M-1E, pp. 41-56.


Exhibit M-1E, pp. 57-130.

21

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


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

22

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

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.

23

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


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
25
26

Exhibit M1-E, pp. 139-183.


Exhibit M-1E, pp. 184-283, Exhibit M-1D, pp. 65-78.
Exhibit M-1E, pp. 296-303

24

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


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 AlMagdisi 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.

25

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


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 alLibi 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
29
30

Exhibit M-1E, pp. 317-324.


Exhibit M-1E, pp. 343-352.
Exhibit M-1E, pp. 353-363.

26

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

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
27

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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
28

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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.
29

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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
30

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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
31

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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
32

Suresh v. Canada (M.C.I.) [2002] 1 S.C.R. 3.


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
34

Suresh, paragraph 88.


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. The panel finds that there
is credible and compelling evidence that provides a serious and objective basis for finding that
Mr. Malik planned to cause serious injury or death to persons in Canada. The panel further finds
that Mr. Malik planned to cause serious harm to the maintenance of essential services by
disrupting economic activity in Canada.
[81]

The panels has found that Mr. Maliks statements to the undercover officer were credible

and compelling evidence. Mr. Malik detailed his past engagement in violence in Libya. He
sought to recruit the officer and counselled him to assist in his plan to carry out an act of
violence against persons in Canada. The plan he intended to carry out would clearly have
resulted in serious injuries or death. The plan could also have caused serious damage to a
building in the financial district of Toronto and disrupted economic activity. While it is true that
Mr. Malik is free to hold any opinions, political, religious or otherwise, that he chooses to, in
Suresh, the Supreme Court enunciates that there are limits to how this freedom may be
expressed. The panel finds that Mr. Malik went well beyond holding a set of beliefs which
contemplated and justified violence to actually committing acts of violence in Libya and
planning acts of violence in Canada. The commission, planning and counseling of acts of
violence are not a protected forms of expression.35

35

Suresh, paragraph 107 states: It is established that s. 2 of the Charter does not protect expressive or
associational activities that constitute violence: Keegstra, supra. This Court has, it is true, given a broad
interpretation to freedom of expression, extending it, for example, to hate speech and perhaps even threats of
violence: Keegstra; R. v. Zundel, [1992] 2 S.C.R. 731. At the same time, the Court has made plain that the
restriction of such expression may be justified under s. 1 of the Charter: see Keegstra, at pp. 732-33. The
effect of s. 2(b) and the justification analysis under s. 1 of the Charter suggest that expression taking the form
of violence or terror, or directed towards violence or terror, is unlikely to find shelter in the guarantees of the
Charter.

34

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[82]

The panel finds that, while in Libya, Mr. Malik engaged in acts of violence as a

Mujahedeen as part of a group affiliated with Al Qaeda. He stated that he fought using small
arms, RPGs, a machine gun mounted on a vehicle and by planting IEDs. All of these devices
are intended to and can cause serious injury or death. The targets of these attacks have not been
specifically identified as civilians and it is not necessary to address this question in this decision.
Mr. Malik repeatedly stated that while he was in Libya he took part in attacks on government
forces. The panel finds that his engaging in attacks on these forces pose a serious indirect threat
to the security of Canada. Attacks committed against the military forces other governments by
permanent residents of Canada fighting on behalf of terrorist groups lessen the security of
Canadians and permanent residents travelling outside of Canada. Mr. Malik praised and
participated in the worldwide recruitment of Jihadists by ISIS and other groups, the training of
persons willing to commit violence by these groups, and the use of the Internet to incite acts of
violence in countries throughout the world. International travel is increasingly subject to
restrictions as a result of these activities by Jihadist groups. Governments are forced to enact
restrictions to protect their citizens from returning Jihadist`s. The effect of Mr. Malik engaging in
Jihad, attacking the military of Libya and then returning to Canada indirectly includes raising the
scrutiny of other citizens and residents of Canada. In the long term it is likely to raise restrictions
imposed on travel for citizens and residents of Canada. Mr. Malik states that he was exposed to
such scrutiny himself while travelling through Turkey and returning to Canada. In his case this
scrutiny was justified, given the type of acts he engaged in. However, the legitimate concerns
raised by these activities also increase the possibility that other persons will be scrutinized and
detained without justification. The panel finds these acts raise a serious possibility of an adverse
effect on Canada and that Mr. Malik therefore is a serious threat to the security of Canada.36
[83]

The panel finds that Mr. Malik was willing to travel to Libya, and engage in acts of

violence intended to cause serious injury or death. He did so as an expression of his Jihadist
ideology and his beliefs that violence in the path off Allah is justified. The panel finds that this is
credible and compelling evidence that he seriously intended to carry out the plan he described to
the undercover officer.
36

Exhibit M-1B.

35

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[84]

The panel finds that his extensive efforts to persuade the officer over a five month period

that his Jihadist ideology justified attacks on civilians is credible and compelling evidence that he
seriously intended to carry out the plan. The panel finds that caution and degree of secrecy with
which he engaged in the preparation of the attack is credible and compelling evidence that he
seriously intended to carry out his plan. The panel finds that Mr. Malik came to believe that the
officer had the ability to help him actually carry out the attack, because of his military training
and experience. The panel finds that Mr. Malik acted on this belief first by seeking to
emotionally engage the officer. He then sought to persuade the officer that his point of view was
supported by the Quran. Mr. Malik sought to convince the officer that he was prepared to
sacrifice his life in the path of Allah, by recounting his history as a Mujahedeen. He advocated
killing non-believers. He played videos and provided materials from fellow Jihadist`s to support
his beliefs. He played increasingly violent videos to test the officers reaction. When he was
satisfied that the officer accepted his belief system Mr. Malik proposed his plan.
[85]

The panel finds that the detailed conception of the plan is credible and compelling

evidence which demonstrates that Mr. Malik seriously intended to carry out the attack. Mr.
Malik decided on the target. He made that choice by contemplating the impact of an attack on
that target on the persons who would likely be injured or die and on the Canadian economy. Mr.
Malik chose an accomplice who he believed had sufficient experience with and access to
explosives to make his plan a reality. Mr. Malik discussed with his accomplice the type and
power of the explosives he wished to use, the panel finds that he intended to bring down a
building. The choices made by Mr. Malik demonstrate that he was not only willing, but
intended to cause significant damage to the property attacked. He intended to cause serious
injury or death to the persons occupying the property or in the area.
[86]

Mr. Malik chose the means of transportation for the explosive device, his own car. Mr.

Malik discussed the placement of the explosive device, confirming that an explosive had to be
near the main pillars of a building to bring it down. Mr. Malik made the choice to detonate the
explosive using a switch which would result in him committing suicide by detonating the device.
36

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His characterization of the consequences of such an attack and his own death is consistent with
his Jihadist philosophy. He believed that this choice would be a sacrifice leading to his
acceptance into heaven, not a crime against civilians. Mr. Malik chose to leave the video
message explaining his acts and chose dictate the content of the message.
[87]

The threat posed by Mr. Maliks intended acts is significant. While the threat was not

immediate it was substantial. The panel finds there is compelling and credible evidence that Mr.
Malik posed a serious threat to the life of any person occupying or in the immediate area of the
building he planned to attack. Exploding a car bomb at the base of a building in an effort to
destroy the main pillars and bring the building down reasonably would have caused substantial
harm to many persons. The panel finds that Mr. Maliks intent to attack a building in the
financial district posed a serious threat to the provision of essential services by disrupting the
Canadian economy. Mr. Malik posed a direct threat to the physical security of Canadians and to
the Canadian economy. He posed an indirect threat by having travelled outside of Canada to
fight in Libya. Based on these findings the panel finds that Jahanzeb Malik poses a danger to the
security of Canada and is inadmissible pursuant to paragraph 34(1)(d) of IRPA.
Engaging in Terrorism
[88]

The Act does not provide a definition of terrorism. The panel finds that the Supreme

Court of Canada decision in Suresh v. Canada (M.C.I.) [2002] 1 S.C.R. 3 is applicable in this
proceeding. In Suresh, the Supreme Court provided a definition, though not exhaustive, of the
term terrorism that has remained authoritative in Canadian case law until the present day. At
paragraph 98 the Court found that:
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
37

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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.
[89]

In the Criminal Code of Canada, Parliament has provided a more detailed definition of

terrorist activity and terrorist group in subsection 83.01(1). Although these provisions apply
in another context they are instructive, as are the relevant provisions section 2 and subsection
464(a), counseling an offence that was not committed:
terrorist activity means (in part):
(b) an act or omission, in or outside Canada,
(i) that is committed
(A) in whole or in part for a political, religious or ideological purpose,
objective or cause, and
(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
(ii) that intentionally
(A) causes death or serious bodily harm to a person by the use of violence,
(B) endangers a persons life,
(C) causes a serious risk to the health or safety of the public or any segment
of the public,
(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
(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 of work that is not
intended to result in the conduct or harm referred to in any of clauses
(A) to (C),
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, but, for greater certainty, does not include
an act or omission that is committed during an armed conflict and that,
at the time and in the place of its commission, is in accordance with
customary international law or conventional international law applicable
to the conflict, or the activities undertaken by military forces of a state

38

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in the exercise of their official duties, to the extent that those activities
are governed by other rules of international law. (emphasis mine)
Person counselling offence

22.
Definition of counsel

(3) For the purposes of this Act, counsel includes procure, solicit or incite.

Counselling offence that is not committed


464. Except where otherwise expressly provided by law, the following provisions apply in
respect of persons who counsel other persons to commit offences, namely,

(a) every one who counsels another person to commit an indictable offence is, if the
offence is not committed, guilty of an indictable offence and liable to the same punishment to
which a person who attempts to commit that offence is liable; and

[90]

The panel relies on the definition of terrorism provided by the Supreme Court in Suresh.

For the purposes of this analysis it is only necessary to focus on whether Mr. Malik planned to
attack civilians for the purpose of intimidating a population. In this case, the panel finds that Mr.
Maliks intent to carry out the attack that he planned, and consideration of whether he knew or
reasonably should have known that this attack would cause death or serious injury are relevant
considerations. The panel will also address whether Mr. Malik counseled the officer to commit a
terrorist act by inciting him to do so. The concept of counselling an offence which is not
committed is distinct from conspiracy. The fact that the officer had no intention of actually
carrying out the attack distinguishes this case from a conspiracy, where the parties share a
common intent. Counseling requires that statements are intended to and likely to incite the
commission of an offence, in this case an act of terrorism. The Supreme Court considered this
question in the Mugesera decision and found:

39

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

In the case of the allegation of incitement to murder, the offence of counselling under
s. 464 (a) of the Criminal Code requires that the statements, viewed objectively,
actively promote, advocate, or encourage the commission of the offence. The
criminal act will be made out where the statements are (1) likely to incite, and (2) are
made with a view to inciting the commission of the offence. An intention to bring
about the criminal result will satisfy the requisite mental element for the offence.
Here, the allegation of incitement to murder that is not committed is well founded.
The IADs findings of fact support the conclusion that viewed objectively, the
message in Ms speech was likely to incite, and was made with a view to inciting
murder even if no murders were committed. M conveyed to his listeners, in
extremely violent language, the message that they faced a choice of either
exterminating the Tutsi, the accomplices of the Tutsi, and their own political
opponents, or being exterminated by them. M intentionally gave the speech, and he
intended that it result in the commission of murders. Given the context of ethnic
massacres taking place at that time, M knew his speech would be understood as an
incitement to commit murder.37
Did Jahanzeb Malik Engage in Terrorism?
[91]

All of the reasons relating to why the panel finds Mr. Malik to be a danger to the security

of Canada also apply to the panels assessment of whether he has engaged in terrorism and is
also described in paragraph 34(1)(c). It is clear from the above analysis that Mr. Malik planned,
and counseled acts which fall within the definition of Terrorism set out in the Suresh decision
and in the Criminal Code. The acts were intended to cause serious bodily harm or death, place to
safety of the public present in the area at serious risk, cause substantial property damage and
disrupt the economy. The panel will also address the additional elements of Mr. Maliks
intention and whether his intended targets were civilian targets.
[92]

The panel finds that Mr. Malik intended to carry out an attack against a civilian target for

ideological reasons. While Mr. Malik views his reasoning to be consistent with his religion the
panel has not been provided with any credible evidence that this is the case. The panel finds that
Mr. Maliks statements to the undercover officer and social media statements show that he
deeply believed in the ideology inspired by Anwar Al-Awlaki and sought to indoctrinate the

37

Mugesera, supra, paragraphs 63-64, 77-80.

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officer in this belief system. He sought to incite the officer to commit acts of violence by
rationalizing them as being consistent with his ideology. Mr. Malik stated that he believes that
there is one true Islam. He stated that to follow this ideology a Muslim must be prepared to die in
the path of Allah. He stated that where Muslims are attacked anywhere all Muslims are called
upon and justified in killing and causing terror in the hearts of their perceived enemies. He
expressed his beliefs, which reflect Al-Awlakis statements, that there are no civilians in
countries whose military forces attack Muslims, he believed that everyone who supports the
Canadian government through their taxes is an enemy and may be justifiably murdered.
[93]

Mr. Malik not only expressed his belief that there was justification in attacking civilians;

he believed that dying in such an attack provided a path to Heaven. He spent five months making
statements to the officer which were intended to incite and he believed likely to incite the officer
to assist him in carrying out the attack by building the bomb. He praised the examples of persons
who had fought as Mujahedeen for ISIS and Al Qaeda and died. He provided examples and
praised persons who had committed terrorist attacks and killed civilians. He provided examples
of persons who killed journalists and other civilians in France, Germany, Syria and Libya. He
praised the example he believed all of these persons set for other Muslims. He stated that his own
death in the path of Allah would set an example for other persons and for his own children. He
expressed the belief that his carrying out a suicide bombing in the financial district in Toronto
and killing civilians would be his sacrifice for all Muslims.
[94]

The panel finds that Mr. Malik planned to commit a terrorist act for an ideological

purpose and that he did so for the purpose of intimidating the public. He expressed his belief that
the attack would cause disruption for a week and bring the economy down. Clearly his intent was
to kill or injure civilians working in the building he chose as a target. The panel finds that his
statements are compelling and credible evidence that he was serious in this intent. The panel
finds that his estimate of the impact of such an attack is reasonable. Had Mr. Malik succeeded in
bringing down a building in the financial district he would not only have caused injury, death
and property damage. Mr. Malik would likely have succeeded in intimidating many persons

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working or travelling through the surrounding area. The panel finds that such intimidation would
have caused significant damage to Canadas economy.
[95]

Mr. Malik did not name a particular person or group of persons as his target. The panel

finds that his statements provide compelling and credible evidence that he intended to bomb a
building occupied by civilians. Mr. Malik made it clear that he intended to attack either the
United States Consulate Building or an unnamed building in the Financial District/Bay Street. He
made no mention of attacking a building occupied solely by personnel of the Canadian Military
or by any persons who might even arguably be found to be combatants as that term is properly
understood under International law. Mr. Malik is a citizen of Pakistan, no situation of armed
conflict governed by International Law exists between Canada and Pakistan. Mr. Malik is not a
soldier.38
[96]

Mr. Malik intended to ensure that his attack had as much impact as possible. He approved

of the impact of the terrorist attacks in Paris and sought to emulate them by planning to kill
civilians. He did not intend to attack an unoccupied building, quite the contrary. Mr. Malik made
it clear that he regards all Canadians who pay taxes as supporters of the military and legitimate
targets. The panel finds that Mr. Malik planned to kill or cause serious injury to innocent
civilians.
[97]

Mr. Malik travelled to Libya to fight as a Mujahedeen. He did so because he believes that

he is called to fight Jihad and kill non-believers who attack Muslims. He returned to Canada and
was inspired by his beliefs and other terrorist attacks to plan to commit an act of violence in
Canada. He was willing to die during an attack on civilians because he believes this to be a direct
path to Heaven. He believes his death would set a good example for others who might be
inspired to commit further acts of violence. He planned to carry out an attack against an office
building in the financial district of Toronto. He planned to drive his own car to the building and
explode the bomb near the main pillars in an attempt to bring the building down. He knew that
this would likely cause serious injury or death to the occupants of the building, significant
38

Geneva Conventuions Act, R.S.C., 1985, c. G-3, SCHEDULE IV, (Section 2).

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property damage. He intended to intimidate the population who work in the financial district. He
believed that the attack would cause such disruption that it would bring the Canadian economy
down. He planned to leave a video message explaining his motives for the attack.
[98]

Mr. Malik was limited in his ability to cause death or property damage because he does

not know how to make an explosive device. He spent five months seeking to incite the officer to
assist him in carrying out the attack. His statements to the officer were made for the purpose of
creating conditions which would allow him to persuade the officer to build the explosive device.
Mr. Malik planned to carry out all of the other acts himself, but admitted that he could not build
the bomb. He spent months explaining to the officer why his Jihadist beliefs justified killing
civilians and inciting the officer to share his beliefs. He provided videos explaining his Jihadist
beliefs, showed videos of terrorist attacks and explained their justification. He repeatedly
explored the officer`s abilities to create an explosive device and incited him to use those abilities.
He repeatedly discussed possible sources for explosives, including those which might be
available to the officer. The panel finds that Mr. Malik believed he was justified in committing a
terrorist act, and counselled the undercover officer to engage in an act of terrorism. Mr. Malik
planned to commit and counseled the officer to assist in a suicide car bombing of an office
building for the purpose of causing death, or serious bodily injury to civilians and disrupting the
economy. Mr. Malik was motivated to do so by his Jihadist ideology and planned to do so for the
purpose of intimidating the population. He planned to leave a video message explaining how the
attack was justified by attacks on Muslims.

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[99]

The panel finds that Jahanzeb Malik is not a Canadian citizen. He is a permanent resident

of Canada. For all of the reasons above, the panel finds that Jahanzeb Malik poses a danger to the
security of Canada and has engaged in terrorist activity. The panel finds that he is described in
paragraphs 34(1)(c) and 34(1)(d) of the Immigration and Refugee Protection Act. The panel
therefore makes the required deportation orders against Jahanzeb Malik as required by s.
229(1)(a) of the regulations

(signed)
A. Laut
5 June 2015
Date

Judicial Review Under section 72 of the Immigration and Refugee Protection Act, you may make an
application to the Federal Court for judicial review of this decision, with leave of that Court. You may
wish to get advice from counsel as soon as possible, since there are time limits for this application.

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