In ‘grey zone’ of national security, suspects face no charges but can’t leave Canada

Samy Nefkha-Bahri was denied a Canadian passport for national security reasons. Handout

To Canadian national security officials, Samy Nefkha-Bahri is a supporter of “armed jihad abroad,” who had “dubious associations” and wanted to take part in “combat in Syria.”

Classified government reports obtained by Global News allege he led a group that was preparing to travel “for the purpose of participating in the activities of a terrorist group.”

But instead of arresting and charging the Montreal resident, federal officials grounded him: they denied him a passport “to prevent the commission of a terrorism offence.”

The case is one of a handful that show how Canada’s national security agencies have been dealing with those they suspect may be terrorist threats.

Read more: ‘Match. Denied’ — Secret documents show why CSIS put 2 Canadians on no-fly list

Rather than charging them with terrorism, federal authorities have blocked them from leaving Canada by harnessing the no-fly list, peace bonds and the denial of passports.

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“It is totally unreasonable,” Nefkha-Bahri told Global News. “These tactics are extremely problematic.”

Citing national security concerns, Public Safety Canada would not disclose the number of Canadians refused passports over terrorism concerns, or how many were on the no-fly list.

But while such cases are highly-secretive, some have become public through appeals to courts, opening a window to what an expert called the “grey zone” of national security.

Government documents prepared to deny passport to Samy Nefkha-Bahri. Stewart Bell/Global News

A 33-year-old data scientist, Nefkha-Bahri denied the allegations. He has appealed the government’s refusal to issue him a passport to the Federal Court.

In the case, he argued that denying him a passport was a violation of his right to enter and leave Canada. The case was stayed in January while the parties attempted to reach an out-of-court deal.

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Nefkha-Bahri declined to provide details of those discussions, but said he was confident he would ultimately receive a Canadian passport after going a decade without one.

Responding to questions from Global News, he said he had never supported al-Qaeda or ISIS. “Muslims are the first victims of these criminals,” he said.

Fighting terror by banning travel

Instead of charging ISIS supporter Aaron Driver, seen in video at an RCMP press conference, police filed a peace bond against him. He was later killed while attempting a bombing in Ontario.
Instead of charging ISIS supporter Aaron Driver, seen in video at an RCMP press conference, police filed a peace bond against him. He was later killed while attempting a bombing in Ontario. THE CANADIAN PRESS

Clipping the wings of terror suspects is part of Canada’s terrorism prevention strategy, and is meant to disrupt so-called extremist travellers, but it has backfired in the past.

Unable to leave the country, several have instead carried out attacks in Canada, resulting in the shooting death of a Canadian soldier in Ottawa, a vehicle attack that killed another in Quebec and the wounding of a cab driver in a bombing in Strathroy, Ont.

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The policy doesn’t make sense to Nefkha-Bahri.

“On one side, some law-abiding citizens are deprived of their rights without due process for years,” he said.

“On the other side, these tactics have the result of keeping some few dangerous people who turned out to be real committed terrorists with us.”

Public Safety Canada spokesperson Nic Defalco called terrorism “complex and resource intensive” and said a different standard was needed to lay charges than to put suspects on a no-fly list.

“It is possible that an investigation has not obtained sufficient information to support a prosecution but there still remains a threat to Canada,” he said.

Read more: A Canadian family struggles after daughter killed in Nairobi terrorist attack

The government’s classified reports on Nefkha-Bahri allege that cutting him off from his passport was necessary to prevent him from “engaging in the commission of a terrorism offence.”

The same justification was used to decline a passport to Ayan Jama, who was then an Edmonton resident, alleging she was a member of the Somali terrorist group Al Shabaab and an ISIS supporter.

In Somalia, Jama was married to a British Al Shabaab terrorist killed in a 2012 drone strike, according to a government report. Instructions on how to build a bomb were allegedly found on her computer.

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She also “participated in the recruitment and radicalization of a Canadian, whose eventual travel overseas to Syria was encouraged and partially financed by her,” the report alleged.

Wreckage on the outskirts of the Somali capital Mogadishu, Feb. 16, 2022. The attack by the al-Shabab extremist group killed five people and wounded 16, police said. (AP Photo/Farah Abdi Warsameh).

But she has not been charged with any crimes, and has appealed her passport refusal to the Federal Court. Her appeal was dismissed on Jan. 13 because her passport ban had expired and she could re-apply.

On March 1, the government was ordered to pay Jama $10,000 to reimburse her for court costs stemming from her challenge of her passport case. She had wanted $25,000.

Such cases suggest “there’s a lot more happening in terms of terrorist activity in Canada than the number of arrests or the number of terrorist attacks would lead us to believe,” said Jessica Davis, president of Insight Threat Intelligence.

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“These kinds of cases are important for Canadians to see because they give a bit of a glimpse behind the curtain of national security investigations, and demonstrate how difficult and lengthy and time-consuming they can be,” said Davis, a former Canadian Security Intelligence Service analyst.

No-fly list, peace bonds also used to ground suspects

Baghat Singh Brar. Public Safety Canada

Business partners Bhagat Singh Brar and Parvkar Singh Dulai have also appealed to the court, in their case to get off the no-fly list after the Canadian government alleged they are “facilitators” of Khalistani extremism.

The government has accused Brar of “fundraising in support of terrorist attacks overseas,” as well as “attack planning and facilitation, including weapons procurement, to conduct attacks in India.”

Neither faces any charges in Canada. They have denied the allegations and their appeals are still underway. The allegations appear in Public Safety Canada reports publicly filed in the case.

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In another ongoing Federal Court appeal, Zaynab Khadr, eldest daughter of the late al-Qaeda financier Ahmed Khadr, has challenged the government’s decision to put her on Canada’s no-fly list.

Terrorism peace bonds are an additional tool used against suspects without formally charging them. In such cases, police can ask the court to impose restrictions on suspects on the grounds they might otherwise commit terrorist crimes. The conditions typically include surrendering passports and travel bans.

A woman who was held at a camp for ISIS detainees in Syria was arrested on a terrorism peace bond upon her return to Canada in November, as were two minors and two former prison inmates in Ontario caught with al-Qaeda literature and bomb manuals on their phones.

Not charged but can’t leave

Although he is fighting for a passport, Nefkha-Bahri, who completed a master’s degree in statistics on the eve of the COVID-19 lockdown, said he was “not a big traveller.”

“I live a pretty tranquil life,” he said. “But it is important to be free and feel free to move. I learned the hard way the importance of having more than one citizenship. The general conclusion is that there are no rights in Canada.”

Nefkha-Bahri was born in Montreal to parents of Tunisian origin, and went to medical school at the Université de Sherbrooke, but said he regretted the decision and spent “a lot of time” online.

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“I used to discuss on some online forums frequented by people who had some sympathy for some terrorist groups for the sake of debating about Wahhabism, which I am against,” he said.

Montrealer Samy Nefkha-Behri has been fighting in court for a passport.
Montrealer Samy Nefkha-Behri has been fighting in court for a passport. Researchgate

A redacted version of Public Safety Canada documents released as a result of Nefkha-Bahri’s court case said he first came under investigation for allegedly using campus computers to visit “anti-American and pro-Al-Qaeda websites.”

A scan of his social media accounts showed his Facebook friends “had profile pictures associated with Al Qaeda,” and he had liked a Facebook page with the ISIS flag as its profile photo.

“Obviously, surfing the web tells nothing conclusive about one’s opinions,” the Montrealer countered. “It is ludicrous that liking a page on Facebook or visiting a website, which is absolutely legal, is used as an argument to deprive someone of his right.”

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The reports said a national security investigation concluded that a “select group” that included Nefkha-Bahri “desired to travel to Syria to participate in the ongoing conflict.”

A “group of individuals, led by Nefkha-Bahri, was observed several times at a Montreal area shooting range,” the documents alleged.

Read more: Canada’s secretive policy on ISIS detainees closes door to repatriation

On May 21, 2012, Nefkha-Bahri met with the RCMP integrated national security enforcement team (INSET) and allegedly said he knew he “wanted to go to Syria to fight.”

“He would rather travel with others to participate in combat in Syria, but was considering going alone. He stated that he had friends who were considering leaving for Syria to fight,” the documents added.

“He stated wanting to travel to fight in Libya during the Kaddafi rebellion and that it was the main reason Nefkha-Bahri got his firearm acquisition permit in the first place; and he stated that he trained at Le Club de tir le Ruisseau Noir in Terrebonne, Que.”

Nefkha-Bahri told Global News he did not support terrorists and had made that clear.

“The reason why the government is not directly quoting me in that report is because there’s no way to construe my words as indicating that I support terrorism,” he said. “As for the claims of dubious associations, they are just RCMP fantasy.”

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He said those who attended the firearms range had not “joined any proscribed organization. All the guys that were around me were against al-Qaeda and ISIS.”

Warrant officer Patrice Vincent’s casket is brought into a cathedral in Longueuil, Que., Saturday, Nov. 1, 2014. Vincent was killed by extremist Martin Couture-Rouleau, whose passport had been seized after he tried to travel to Syria. THE CANADIAN PRESS/Ryan Remiorz

Two days after the meeting with RCMP, Nefkha-Bahri “attempted to leave for Turkey,” but was refused boarding at Montreal’s Trudeau airport, the government report said.

He allegedly told the Canada Border Services Agency his electronic devices contained “documents relating to jihad” and a search of his laptop turned up military training manuals as well as books and videos on “weapons and close combat fighting.”

“In the days that followed, Nefkha-Bahri made several inquiries asking if he could travel by other means of transportation and whether he was on a Canadian list that would restrict his ability to fly,” the documents alleged.

The RCMP arrested him on May 25, 2012 for participating in the activities of a terrorism group. His residence was searched and, during a police interview, he said he was only planning to vacation in France and Tunisia.

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He refused to say whether he planned to go to Syria, the documents added. He told Global News that was not his intention.

“Nefkha-Bahri did go on to ask investigators that if a person traveled to a country like Libya, for example, and entered combat against persons he considered enemies, would such an act be considered illegal,” according to the case documents.

“The investigators assessed that Nefkha-Bahri’s hypothetical question alluded to a version of his actual travel and his desire to know if his actions would invite legal consequences.”

But police released him without charges.

“I subsequently travelled with my Tunisian passport, but that was made so complicated by the U.S. no-fly list,” he told Global News.

A Canadian passport, July 23, 2015. THE CANADIAN PRESS/Sean Kilpatrick. SKP

Because Canadians can’t re-enter the country without a Canadian passport, the government issued him an emergency travel document allowing him to fly from Frankfurt to Halifax on Sept. 11, 2013.

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When he applied for a restricted firearms permit on Dec. 14, 2014, his firearms licence was revoked and police searched his residence, seizing two rifles and 1,560 rounds of ammunition.

He next came to police attention September 2015.

During the trial of a youth who robbed a Quebec store to raise money to join ISIS, Nefkha-Bahri “followed the Crown prosecutor when she left the courthouse,” the documents alleged.

“Using his bicycle, he blocked her on her way to the Metro and began to ask her questions,” the documents allege. He was charged with intimidating a justice system participant, but a judge acquitted him in June 2017.

A month later, Nefkha-Bahri applied for a new Canadian passport. Told his application was under review, he denied involvement in terrorist activity and said he had not intended to travel to Turkey when he left Canada in 2012. As for his social media, he said he accepted all Facebook requests.

“However, RCMP information demonstrates that Nefkha-Bahri has partnered over the past decade, either online or in person, with multiple individuals who have been sympathetic and/or supportive of one and/or more terrorist entities listed by Public Security,” the government documents alleged.

Read more: Toronto men caught with bomb-making manuals, al-Qaeda literature on phones, documents allege

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The RCMP is investigating Nefkha-Bahri for “participation or contribution to an activity of a terrorist group,” the documents said.

“In addition to the above, Public Safety Canada is relying on classified information which also indicates that the targeted person supports radical Islamist ideology and armed jihad abroad, in addition to maintaining links with people who raise national security concerns for Canada.”

Last March, a five-year passport ban was imposed on Nefkha-Bahri, but it was retroactive to the time he submitted his application in 2017, meaning it expires on July 19, 2022, after which he can re-apply.

He claimed the government had “slow-walked” his case, dragging it out without making a final decision on his passport so he couldn’t appeal it until it was too late.

“In short, in Canada, you are supposed to have the right to enter and leave the country,” he said. “But everything is made purposely complicated by the government so that we live actually in a state where it’s not really a right, more like a privilege that can be withdrawn whenever the government sees it fit.”

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