Harkat (Re)

Harkat (Re)
Court (s) Database
Federal Court Decisions
Date
2020-06-19
Neutral citation
2020 FC 715
File numbers
DES-5-08
Decision Content
Date: 20200619
Docket: DES-5-08
Citation: 2020 FC 715
Ottawa, Ontario, June 19, 2020
PRESENT: The Honourable Madam Justice Roussel
BETWEEN:
IN THE MATTER OF a certificate signed
pursuant to subsection 77(1) of the Immigration and Refugee Protection Act [IRPA];
AND IN THE MATTER OF the referral of that
certificate to the Federal Court of Canada pursuant to subsection 77(1) of the IRPA;
AND IN THE MATTER OF Mohamed HARKAT
REASONS FOR ORDER
ROUSSEL J.
I. Overview
[1] The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness [Ministers] are asking the Court to vary the terms and conditions of Mohamed Harkat’s release. They assert that Mr. Harkat has committed two (2) breaches by changing his email password without informing the Canada Border Services Agency [CBSA] and by deleting a number of his emails without their consent. In addition, they seek to clarify the terms and conditions relating to Mr. Harkat’s use of a mobile telephone and computer for employment purposes.
[2] Mr. Harkat opposes the Ministers’ motion. He maintains that he has not breached the conditions imposed by the Court, at least not knowingly, and he seeks a further relaxation of his terms and conditions of release.
[3] For the purposes of the Ministers’ motion, it is not necessary to provide a full account of the facts, procedural history and variations brought to Mr. Harkat’s terms and conditions of release. It is sufficient to mention that Mr. Harkat is the subject of a security certificate under section 77 of the IRPA. The certificate was determined to be reasonable by this Court in 2010 (Harkat (Re), 2010 FC 1241). The Supreme Court of Canada upheld that finding in 2014 (Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37). Since Mr. Harkat’s release from detention in 2006, this Court has reviewed and varied the terms and conditions of his release. The most recent review took place in November 2017 (Harkat (Re), 2018 FC 62 [Harkat 2018]). For previous reviews, the reader should refer to Harkat v Canada (Citizenship and Immigration), 2014 FC 1034 [Harkat 2014]; Harkat v Canada (Citizenship and Immigration), 2013 FC 795 [Harkat 2013]; Harkat (Re), 2009 FC 1008; Harkat (Re), 2009 FC 241; Harkat v Canada (Citizenship and Immigration), 2007 FC 416; and Harkat v Canada (Minister of Citizenship and Immigration), 2006 FC 1105.
II. Analysis
A. Breach of Conditions
(1) Deletion of Emails Without Consent
[4] The Ministers allege that on June 12, 2018, an examination of Mr. Harkat’s computer revealed that he had deleted a large number of emails without authorization from the CBSA. They submit that Mr. Harkat breached condition 7a) of the terms and conditions of release set out in Appendix “A” of my Order dated April 6, 2018 [Order]. This condition stipulates that “Mr. Harkat, or anyone on his behalf, shall not alter or delete from his computer any tracking information without the permission of the CBSA, including, but not limited to email, … sent, received or draft electronic mail”.
[5] While Mr. Harkat admits to the deletion of emails, he maintains that he had the authority to delete them. In his testimony before the Court, he explained that it was his understanding, based on an email he received in December 2013, that he could delete his emails after the CBSA inspected his computer. In addition to this standing permission, he would also receive verbal authorization when he picked up his computer at the offices of the CBSA. When the CBSA did not inspect his computer for a while, an official from the CBSA would send him an email approximately every three (3) months authorizing him to delete emails up to a certain date.
[6] After reviewing the evidence of both parties, I am unable to conclude, on a balance of probabilities, that Mr. Harkat breached condition 7a) of his terms and conditions of release.
[7] The CBSA officer in charge of monitoring Mr. Harkat’s conditions, Michel Connelly, indicates in his affidavit that “a review of Mr. Harkat’s computer on June 12, 2018 revealed that he had deleted a number of emails” [my emphasis]. He then goes on to refer to an email sent to Mr. Harkat on June 21, 2018 advising him that the CBSA had conducted a “routine review of [his] email account” [my emphasis] and noticed that he had “deleted a large batch of emails (in the ‘Recover Deleted Items’ folder)”.
[8] The difficulty with this evidence is that it does not indicate when the CBSA actually accessed Mr. Harkat’s email account. This information is particularly relevant since Mr. Harkat’s emails are not stored on his computer, as he does not use a dedicated email software product [email client] such as Microsoft Outlook. Instead, Mr. Harkat accesses his email account through his computer’s web browser. To monitor this account, the CBSA uses Mr. Harkat’s username and password to log in remotely.
[9] It appears from the evidence that Mr. Harkat brought his computer to the CBSA for inspection on May 7, 2018, and he picked it up the next day. When he got home, he “cleaned” his computer and deleted certain emails. If the CBSA only accessed Mr. Harkat’s email account when it reviewed the image of the computer in June, as opposed to when he brought the computer to the CBSA for inspection in early May, it is possible that Mr. Harkat had already deleted the emails by the time the CBSA accessed his email account.
[10] I find there are too many gaps in the Ministers’ evidence that leave too many questions unanswered. To begin with, there is insufficient evidence establishing with any certainty how and when the CBSA provided authorization to Mr. Harkat in the past. In addition, there is no objective documentary evidence demonstrating the breach. The witnesses who appeared before me had no personal knowledge of the facts, and they could not provide any additional information on the breach. There is also no evidence of the scope and magnitude of the breach. Even if I had found that there was a breach, I would be unable to determine the appropriate consequence, given that I cannot assess the seriousness of the breach.
[11] I also note the testimony of Mr. Connelly, during which he indicated that he could not recall any unauthorized deletions of emails before this alleged incident. This is an important consideration given that Mr. Harkat has had an email account for several years.
[12] Finally, I cannot ignore the answer provided by Mr. Connelly when asked on cross-examination how he found out that Mr. Harkat had deleted some emails. He responded as follows:
[…] avec l’assistance de notre bureau chef de notre section, on est arrivé à la conclusion qu’il y avait une possibilité qu’il avait effacé ses courriels.
Alors j’ai envoyé l’information à Mme et M. Harkat concernant la possible infraction.
[translation]
… with the assistance of our section’s head office, we concluded there was a possibility he had deleted his emails.
So, I sent Ms. and Mr. Harkat the information concerning the possible infraction.
(Transcript of Proceedings, Vol 1 at 44:7-17)
[Emphasis added.]
[13] Even if Mr. Harkat has admitted to deleting some of his emails, I am not persuaded that a breach actually occurred given the words used by Mr. Connelly, which only refer to the “possibility” of a breach occurring, and given the lack of detailed evidence on the issue.
(2) Password Change
[14] The Ministers allege that Mr. Harkat breached the terms and conditions of his release by failing to advise the CBSA of a change in the password to his email account.
[15] In his affidavit, Mr. Connelly states that, on October 29, 2018, the CBSA attempted to log in to Mr. Harkat’s email account but was unable to do so. On November 8, 2018, counsel for the Ministers wrote to Mr. Harkat’s counsel requesting the password. On November 20, 2018, Mr. Harkat’s counsel responded that there had been no changes to Mr. Harkat’s password. On December 4, 2018, the CBSA wrote directly to Mr. Harkat, as the CBSA was still unable to access his email account. On that date, Mr. Harkat provided Mr. Connelly with the new password. The next day, Mr. Harkat confirmed the new password. On December 7, 2018, in a folder labelled “Garbage” in Mr. Harkat’s email account, the CBSA discovered an email from Microsoft stating that Mr. Harkat’s password had been changed on September 28, 2018 at 9:24 p.m.
[16] The Ministers argue that Mr. Harkat’s failure to advise the CBSA of the password change prevented them from reviewing Mr. Harkat’s emails for a period of approximately sixty (60) days. As a result, they are asking the Court to require Mr. Harkat to access his email only through an email client such as Microsoft Outlook or Mozilla Thunderbird, rather than his current method using a web browser. An email client will provide the CBSA a better level of protection in its monitoring of Mr. Harkat’s emails.
[17] In response, Mr. Harkat acknowledges there was a password change. However, he maintains that it was not a breach of his conditions because he did not change it intentionally. His evidence is that after the tornado in the National Capital Region in September 2018, he had problems with his computer. On September 26, 2018, he advised the CBSA he would bring them his computer for an inspection, and then he would have it repaired at a local business. He brought his computer to the CBSA on September 27, 2018 and picked it up the next day. Before taking his computer for repair, he logged out of his email account so that the technicians at the store would not be able to see his emails. Since the repair shops were too busy, he returned home and tried to log into his email account. He tried to enter his password three (3) times, only to be locked out of his account. He testified that he remembers receiving a message asking him whether he had forgotten his password. The telephone then rang and he received a security code to enter and reset his password. As he did not want to change his password, he entered the same one.
[18] Mr. Harkat claims that he did not realize he had changed one of the letters in the password from uppercase to lowercase. He explained that the change in case did not raise an issue for him because he kept his email account logged on, and, therefore, he did not need to remember his password. He only realized the password had changed when he received an email from the CBSA in early December 2018, in which Mr. Connelly told him that Microsoft had sent an email, which was in the “Garbage” folder, indicating that the password had been changed. The same day, Mr. Harkat sent an email to Microsoft complaining that he had not changed his password.
[19] Mr. Harkat claims that he did not read the email from Microsoft confirming the password change. The email in question was still marked as unread when he checked his “Garbage” folder. Mr. Harkat explained that he had created the “Garbage” folder to store emails he wanted to delete while waiting for the CBSA’s permission to delete them.
[20] The three (3) digital forensic investigators who appeared before me, which included Mr. Harkat’s own expert, unequivocally stated that password changes do not happen by accident. A user can only change an online account password by logging into the account and changing the security settings, or by using the “I forgot my password” recovery function accessible from the login screen. Mr. Harkat’s digital forensic expert, Stephen Ellwood, also testified that there may be some confusion in changing a password. A non-technical person may not understand the importance of uppercase and lowercase characters when setting a password, which may cause the person to think that the password is the same.
[21] I can understand that Mr. Harkat may not have realized initially that he had changed his email password if he was not required to log onto his email account because it remains continuously logged in on his computer. However, when he and his wife became aware that the password he had given the CBSA did not work, he should have tried to determine the cause of the problem. He could have logged off and attempted to re-enter his account, at which time he would have realized that his old password was not working. He could have double-checked which password the CBSA were using or brought his computer in for inspection. If he had consulted his “Garbage” folder, he would have seen the unopened email from Microsoft on September 28, 2018 indicating the password change. Even if the password change was inadvertent, Mr. Harkat could have been more proactive in attempting to resolve the issue.
[22] I also note that the information relating to Mr. Harkat locking himself out of his email account and receiving a call from Microsoft was never communicated to the CBSA, and it does not appear anywhere in his affidavit or in his wife’s affidavit. This information only came to light during his oral testimony.
[23] While Mr. Harkat may not have intended to change his password, the fact remains that he did so without informing the CBSA. Therefore, I must conclude that he has breached condition 7c) of his terms and conditions of release. This condition required him to provide the CBSA with any password necessary to access any part of his computer. This includes the password to his email account. I will address the consequences of this breach later in these reasons.
(3) InPrivate Browsing
[24] Before leaving the issue of the breach of conditions, it is important to note an additional alleged breach that the Ministers have since abandoned. When this matter initially came before the Court, the Ministers were only alleging the two (2) breaches above. Then, after the Ministers filed their motion record, Mr. Harkat’s counsel was provided a copy of an affidavit sworn by Carl Létourneau in late March 2019. Mr. Létourneau is a digital forensic investigator employed with the CBSA. In his affidavit, he stated that, as a result of his forensic investigation and analysis of the internet artifacts on Mr. Harkat’s hard drive, he believed that Mr. Harkat had used the “InPrivate Browsing” feature of Internet Explorer, in violation of his terms and conditions of release. After receiving a copy of the affidavit, Mr. Harkat’s counsel indicated she would consent to the filing of this late affidavit, provided she could cross-examine the affiant and obtain her own expert report, to which the Ministers agreed. On April 24, 2019, the CBSA provided a digital forensic image of Mr. Harkat’s hard drive to his counsel to allow his expert to examine it.
[25] The Ministers amended their motion record on July 4, 2019. They included two (2) affidavits sworn by Mr. Létourneau on the issue of the alleged “InPrivate Browsing” breach, one dated March 25, 2019 and a second dated June 28, 2019. In these affidavits, Mr. Létourneau explained the “InPrivate Browsing” feature, its purpose, the footprint it leaves behind and how one can retrace its use using digital forensic tools.
[26] On August 23, 2019, Mr. Harkat filed his responding motion record, which included a report from Mr. Ellwood, his own digital forensic expert. Mr. Ellwood concluded there was no evidence that the laptop had been used to perform “InPrivate Browsing” using Internet Explorer. Rather, it was his view that a misunderstanding of Internet Explorer’s “Automatic Crash Recovery” feature had led the CBSA investigators to an inaccurate conclusion.
[27] After reviewing the Ministers’ motion materials as well as Mr. Harkat’s responding motion record, I issued a direction to the parties that the Ministers’ motion would proceed orally and that the Court would hear from the forensic investigators. Five (5) days before the scheduled hearing, the Ministers filed a reply record. It included a will-say statement from Mr. Létourneau and a copy of the digital forensic report he had originally prepared and relied upon to conclude there was a breach. This new information caused Mr. Ellwood to prepare several videos simulating Mr. Harkat’s computer to dispute the findings reached by Mr. Létourneau. After reviewing the videos and the findings advanced by Mr. Ellwood, the Ministers informed the Court on October 7, 2019 that, while their digital forensic investigator had found traces of browsing artifacts consistent with “InPrivate Browsing”, he could no longer confirm with certainty whether this feature had been used by Mr. Harkat or the computer’s previous owner. As a result, the Ministers advised that they were abandoning this alleged breach and their request for partial forfeiture of the cash bond deposited into Court.
[28] While I do not intend to comment any further on this alleged breach, I must say that it is unfortunate that the Ministers’ reassessment of their position did not come earlier in the proceedings. In total, two and a half (2.5) days of hearings were devoted to the examination and cross-examination of three (3) digital forensic investigators. If Mr. Létourneau’s report had been attached to his affidavit sworn on March 25, 2019 instead of being introduced through his will say on September 13, 2019, it is likely that this issue would have been resolved before the hearing began on September 18, 2019, which would have resulted in a shorter hearing.
B. Review of the Terms and Conditions of Release
[29] In my last review of Mr. Harkat’s terms and conditions of release, I indicated that I accepted the legal framework set out by my predecessor in Harkat 2014 at paragraph 7 and in Harkat 2013 at paragraphs 25 to 27 (see also Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at paras 108-109, 119). I also set out a non-exhaustive list of factors to be considered in determining whether Mr. Harkat’s release poses a danger to the security of Canada and, if so, whether that danger can be neutralized through the impositions of terms and conditions (Harkat 2018 at para 39). Ultimately, I concluded that the conditions were disproportionate with the danger posed by Mr. Harkat and that they should be attenuated.
[30] Neither counsel for the Ministers nor Mr. Harkat argued extensively on the factors that I should consider in the context of this motion. For the most part, I find that they remain unchanged (Harkat 2018 at paras 42-66), with certain exceptions.
[31] To begin with, on October 2, 2018, a senior delegate of Immigration, Refugees and Citizenship Canada [Minister’s Delegate] determined, pursuant to paragraph 115(2)(b) of the IRPA, that Mr. Harkat should not be allowed to remain in Canada based on the nature and severity of the acts he committed. Mr. Harkat is seeking judicial review of that decision in Court File IMM-5330-18. That proceeding is ongoing and its finality remains uncertain at this time.
[32] Additionally, unlike in the last review, Mr. Harkat has not complied with all of the terms and conditions of his release. The Ministers have demonstrated that Mr. Harkat has breached one of his conditions. The existence of the breach raises issues of trustworthiness and credibility, both of which are essential considerations in reviewing the appropriateness of the terms and conditions of release (Harkat 2013).
[33] As in the past, the passage of time favours the relaxation of the conditions. The Ministers have not presented any evidence that Mr. Harkat has been involved in any threat-related activity since my last review. The fact that the opinion of the Minister’s Delegate is based on the nature and severity of the acts committed by Mr. Harkat in the past, as opposed to the danger he poses to Canada today, supports the conclusion that the danger posed by Mr. Harkat continues to be situated at the lower end of the spectrum.
[34] In this context, I will now examine the changes and clarifications proposed by the parties.
(1) Mobile Telephone for Employment Purposes
[35] In my last review of Mr. Harkat’s terms and conditions of release, I allowed him to use a mobile telephone for employment purposes, subject to the following conditions:
the employer-provided mobile telephone could not have internet connectivity;
Mr. Harkat was required to provide a written undertaking that the mobile telephone would be used for employment purposes only, and any unauthorized use would result in a breach of conditions;
Mr. Harkat was required to advise his employer of this condition and ask his employer to report any unauthorized use to the CBSA;
Mr. Harkat was to provide his employer with the name and number of the contact person at the CBSA and provide the CBSA with the name and number of his work supervisor.
(Harkat 2018 at para 87)
[36] Mr. Harkat provided his signed undertaking regarding the use of the mobile telephone for employment purposes on April 13, 2018.
[37] According to the evidence, Mr. Connelly contacted Mr. Harkat’s work supervisor by telephone on April 26, 2018 to verify that the conditions were being respected. Mr. Harkat’s supervisor indicated that she preferred that he communicate with her in writing. Mr. Connelly sent the supervisor an email the next day asking for confirmation that Mr. Harkat had advised her of his conditions regarding the use of a mobile telephone at work, the make and model of the telephone provided to Mr. Harkat, and confirmation that the mobile telephone did not have internet connectivity. Mr. Harkat’s supervisor did not respond to the email. Mr. Connelly resent the same email on May 15, 2018. Mr. Harkat’s supervisor responded the same day that she was not bound by the Order.
[38] The Ministers contend that since the Order required Mr. Harkat to provide the CBSA the name and number of his work supervisor, it implicitly permitted CBSA employees to verify compliance with the terms of the undertaking. They consider that the supervisor’s comments amount to a breach of the Order.
[39] The Ministers are asking that condition 4r) of the terms and conditions, which governs Mr. Harkat’s use of a mobile telephone for employment purposes, be amended to include the following:
(i) Additionally, Mr. Harkat will need to advise the CBSA as to whether or not he will be taking the mobile phone home to his residence, or whether the mobile phone will remain at his workplace; the make and model of the mobile telephone he is required to use for employment purposes (and update the CBSA with this information if he uses a different mobile phone).
(ii) Mr. Harkat will also be required to advise his employer of this condition and ask his employer to report any unauthorized use to the CBSA. Mr. Harkat’s employer will be required to sign an acknowledgment that Mr. Harkat has advised them of the conditions and that it will report any unauthorized use to the CBSA.
[40] Mr. Harkat disagrees with the Ministers’ interpretation of the Order, and he asserts that he has abided by all of its terms and conditions. In his view, there is nothing in the Order requiring him to provide the make and model of the employer’s telephone or obliging his employer to answer the CBSA’s questions. There is also no evidence that he has ever breached this condition.
[41] I am concerned by Mr. Harkat’s failure to abide by the spirit of the Order. In my view, much of the disagreement between the parties could have been avoided if Mr. Harkat had simply informed the CBSA of the make and model of the mobile telephone. Also, in emails dated August 19 and 22, 2019, Mr. Harkat’s supervisor eventually confirmed to Ms. Harkat that the mobile telephone did not have internet connectivity, that she was aware of the conditions, and that she would report any breach. These emails were filed as exhibits to the affidavit of Ms. Harkat, which was included in Mr. Harkat’s motion record. It is unfortunate that Mr. Harkat did not obtain this information earlier and communicate it to the CBSA.
[42] Despite my concerns, I am not prepared to order that Mr. Harkat’s current employer or any future employer sign an acknowledgment that Mr. Harkat has advised them of the conditions regarding the mobile telephone. To do so would undoubtedly make it difficult for Mr. Harkat to obtain employment.
[43] While Mr. Harkat may wish to have a mobile telephone with internet connectivity for employment purposes, I am not prepared to agree to this change. Mr. Létourneau testified that when one has a telephone with internet connectivity, it would be possible to install applications while at work, log into various accounts, and communicate with others. Then, at the end of the business day, the employee could delete the applications and communications. The employer would not know that the employee had initiated a communication and, unless the CBSA can inspect the telephone, it will not be able to know either. This concern exists with internet access over cellular data networks or over Wi-Fi networks.
[44] To the extent that the make and model number of the mobile telephone will inform the CBSA of the mobile telephone’s capabilities, including internet connectivity and storage technology, I am prepared to hold that Mr. Harkat must advise the CBSA of the make and model number of the mobile telephone. However, I have not been persuaded that it is necessary for Mr. Harkat to inform the CBSA whether he will be taking the employer-provided mobile telephone home.
[45] Consequently, condition 4r) will be amended to include the following underlined passage:
4. …
r) … To the extent Mr. Harkat is required to have a mobile telephone for employment purposes, Mr. Harkat will be required to provide a written undertaking that the mobile telephone will be used for employment purposes only, with the exception of calls to and from his wife, and any unauthorized use will result in a breach of conditions. Additionally, Mr. Harkat will need to advise the CBSA of the make and model of the mobile telephone he is required to use for employment purposes (and update the CBSA with this information if he uses a different mobile telephone). Mr. Harkat will also be required to advise his employer of this condition and ask his employer to report any unauthorized use to the CBSA. Mr. Harkat will provide the employer with the name and number of the contact person at the CBSA and provide the CBSA with the name and number of his work supervisor.
…
(2) Use of a Computer for Employment Purposes With Internet Access
[46] In November 2017, Mr. Harkat sought permission to use a computer with internet connectivity for employment purposes. I agreed with Mr. Harkat that the restrictions regarding the use of technology for employment purposes, such as the internet, made it difficult for him to find full-time employment. I noted that Mr. Harkat had complied with his conditions of release since his release in 2006 and that, in order to fully embrace the values of his adopted country, it was important that he be given the opportunity to obtain gainful employment.
[47] While the Ministers were amenable to relaxing this condition, they opposed the request for “blanket approval” due to the possibility of unmonitored and anonymous communications. They suggested that each request be dealt with on an individual basis, and they agreed that the CBSA’s approval should not be unreasonably withheld.
[48] I therefore indicated in my reasons that I was inclined to allow Mr. Harkat the right to use a computer, including the internet, for employment purposes, subject to certain limitations. Upon review by the parties, the condition was worded as follows:
7. …
…
i) With the CBSA’s consent, Mr. Harkat may use a desktop computer or laptop computer with internet connectivity if required by his employer for work purposes only. The parties shall identify in advance the types of technologies Mr. Harkat can use. Upon Mr. Harkat contemplating employment, he shall inform the CBSA of the name of his prospective employer, the duties he will be required to perform, the technology he will be required to use and have access to in the course of his employment, including the internet, the use he will make of it, and the number of hours a week he will be required to use it. Upon notification by Mr. Harkat, the CBSA shall consider Mr. Harkat’s prospective employment without delay and respond to him in a diligent and expeditious manner. If the parties are unable to reach a consensus, they may come to the Court for a determination. In all cases, Mr. Harkat will be required to sign an undertaking that any use of the technology or the internet will be for employment purposes only and any unauthorized use shall constitute a breach of his conditions. Mr. Harkat will also be required to advise his employer of this condition and ask his employer to report any unauthorized use to the CBSA. Mr. Harkat will provide the employer with the name and number of the contact person at the CBSA and provide the CBSA with the name and number of his work supervisor.
…
[49] The Ministers now seek to have this term removed from the terms and conditions for several reasons. They argue that Mr. Harkat has committed two (2) serious breaches of the terms and conditions imposed by this Court, both related to his personal use of the internet. Also, Mr. Harkat’s employer has, to date, demonstrated that it does not intend to cooperate with the CBSA. The Ministers submit that a term that requires the cooperation of a third party, when the third party has demonstrated that it will not cooperate with the CBSA, is not a term or condition that can be enforced.
[50] The Ministers have failed to persuade me that Mr. Harkat should not be allowed to use a computer with internet connectivity for employment purposes.
[51] As I indicated in my last review, I can think of very few types of employment that require no form of technology or the use of the internet. I also believe that frustration can result from one’s inability to secure gainful employment. It can affect a person’s mental health, which in turn can lead to other issues and problems. Indeed, the Supreme Court of Canada has affirmed the significance of internet access as an “increasingly indispensable component of everyday life” (R v KRJ, 2016 SCC 31 at para 54).
[52] I have very little evidence on the specific conditions of Mr. Harkat’s employment and his access to a computer with internet connectivity. During the hearing, Mr. Harkat’s counsel submitted that when Mr. Harkat works the night shift at his current job, no one is there to supervise him, so, in theory, he could use the nearby computer if he wanted to access the internet. She suggested that the Court either trusts him or it does not.
[53] If Mr. Harkat is required to use a computer with internet connectivity in his current employment, I believe that one option to resolve this issue would be to allow Mr. Harkat to bring his personal laptop computer to work, providing it does not contain a solid-state drive [SSD]. The evidence provided by the Ministers’ digital forensic investigators is that the presence of an SSD in Mr. Harkat’s computer would interfere with the evidentiary value of the data imaged for inspection. An SSD performs a number of system functions that will delete certain data used for forensic analysis. Because SSDs tend to have lower capacities than traditional hard drives, an SSD also increases the likelihood that data will be overwritten. Once the data is overwritten, it may not be recoverable later.
[54] There is conflicting evidence on the record as to whether Mr. Harkat’s computer already contains an SSD. Jeremy Fernando, the other digital forensic investigator who testified on behalf of the Ministers, states in his affidavit that he was advised and believes that Mr. Harkat obtained an SSD in August 2017. His evidence is consistent with the evidence of Mr. Connelly’s predecessor, who swore an affidavit and testified during Mr. Harkat’s last review. However, Mr. Létourneau testified as follows:
Q. With respect to the kind of computer that Mr. Harkat has, do you know if it’s an SSD or a platter?
A. It’s a spinning drive.
Q. So it’s a platter computer?
A. Yes.
(Transcript of Proceedings, Vol 2 at 248-249)
[55] Mr. Létourneau is responsible for imaging Mr. Harkat’s computer and analyzing the images. During cross-examination on his affidavit, he explained that one of the first things he does when he receives Mr. Harkat’s computer is to look at the type of hard drive in the computer. As he is the best-placed person to know what type of storage device is in Mr. Harkat’s computer, I will assume that he is correct and that Mr. Harkat does not currently have an SSD in his personal computer.
[56] Allowing Mr. Harkat to use his personal laptop computer for employment purposes will permit the CBSA to monitor his use of the computer while at work through its existing inspection procedures. The CBSA cannot do this with respect to the employer’s computer.
[57] If Mr. Harkat’s computer already contains an SSD, he will not be permitted to bring it to work because, based on the evidence before me, I am concerned that the increased usage would increase the risk of data being overwritten.
[58] In the event that Mr. Harkat is required to use an employer’s computer with internet connectivity for work purposes, either in his current employment or in future employment, the condition will remain the same, except that Mr. Harkat must also provide the following information to CBSA:
• the name of the prospective employer;
• the duties he will be required to perform;
• the technology he will be required to use and have access to in the course of his employment, including the make and model of the computer, his access to the internet, the use he will make of it, the number of hours a week he will be required to use it;
• the programs he will be required to use to complete his work;
• whether he will be required to use email;
• whether his computer use will be monitored or supervised;
• the employer’s policy with respect to personal use of the computer;
[59] While I understand that this list of required information may appear overwhelming at first glance, it is important because it allows the CBSA to evaluate whether issues might arise. Given the confrontational relationship between the parties, it is necessary to include as much information as possible to avoid a “back and forth” situation. When Mr. Harkat will be contemplating the use of technology with internet connectivity for employment purposes, full information should be provided at the outset to avoid unnecessary delays in the CBSA’s evaluation process.
[60] In keeping with the need for early resolution, the CBSA will also be required to consider the information provided by Mr. Harkat and provide a response to him within three (3) business days. While no specific time limit was mentioned in the previous Order, it appears from the evidence that it took the CBSA from May 24 to June 13, 2018 to advise Mr. Harkat that it had refused his request to use a computer with internet connectivity at work.
[61] If the parties are unable to reach an agreement, they may seek a determination by the Court. Before they do so, I encourage them to attempt an alternative form of dispute resolution, either privately or with the assistance of the Court.
[62] Finally, for the same reasons that I provided concerning the use of a mobile telephone for employment purposes, I am not prepared to order that Mr. Harkat’s employer, whether current or future, sign an acknowledgement that Mr. Harkat has advised them of the conditions regarding his use of a computer with internet connectivity. To the extent the parties reach an agreement on Mr. Harkat’s use of technology with internet capabilities, it will be sufficient for Mr. Harkat to sign an undertaking that any use of the technology or the internet will be for employment purposes only and any unauthorized use will constitute a breach of his conditions. Mr. Harkat will also be required to advise his employer of this condition and ask his employer to report any unauthorized use to the CBSA. Mr. Harkat will provide the employer with the name and telephone number of the contact person at the CBSA, and he will provide the CBSA with the name and telephone number of his work supervisor.
(3) Variations Relating to Mr. Harkat’s Use of His Computer
[63] The Ministers seek a number of adjustments to the conditions relating to Mr. Harkat’s computer use. They can be regrouped into the following categories: (a) computer hardware; (b) social media websites and applications; (c) internet browsers; and (d) email accounts.
(a) Computer Hardware
[64] The CBSA wants the authority to approve the make and model of Mr. Harkat’s personal computer in advance. It is also requesting the addition of a condition stipulating that Mr. Harkat’s desktop or laptop computer not contain an “[SSD], flash SSD, hybrid drive or flash storage devices”. The CBSA made this request in the last review, but I denied it on the basis that there was insufficient evidence to justify this condition.
[65] As I explained above, the Ministers’ digital forensic investigators provided evidence that an SSD in Mr. Harkat’s computer would interfere with the evidentiary value of the data imaged for inspection. Because they tend to have lower capacities than traditional hard drives, SSDs present more opportunities for data to be overwritten and rendered unrecoverable. The capabilities for recovering data are better with a traditional hard drive because deleted data are often left intact on the disk platter.
[66] Since I will be permitting Mr. Harkat to bring his computer to work, it is important that the data related to his use of the computer not be overwritten. Therefore, I am granting the Ministers’ request that Mr. Harkat’s computer not contain a flash storage device, including an SSD, flash SSD, or hybrid drive. I will not be granting their request that the CBSA must approve the make and model of Mr. Harkat’s computer in advance, as they have failed to convince me that this condition is necessary.
(b) Social Media Websites and Applications
[67] The second category of changes requested by the Ministers relate to Mr. Harkat’s use of social media websites or applications. The CBSA asks that Mr. Harkat’s access to social media websites or applications, such as Facebook and Twitter, and to websites or applications that facilitate online video chat, such as Skype, be subject to the following conditions:
(i) he may obtain only one (1) account per respective website or application;
(ii) he must obtain CBSA approval before creating an account on any websites or applications that facilitate online video chat, other than Skype;
(iii) he shall provide the username, password and any updates thereof to the CBSA immediately upon setting up an account;
(iv) he shall consent to the CBSA, or any person designated by it, having access to his accounts without notice;
(v) he shall not alter or delete records of activity or records of communication on any websites or applications;
(vi) he may only access Skype using the desktop application, and he must ensure that his Skype settings are such that all chat and call history are set to be saved forever;
(vii) he must notify the CBSA of the names and Skype addresses of individuals with whom he wishes to communicate, one month in advance of engaging in such communication, though such notice need only be given once with respect to the same individual; and
(viii) Mr. Harkat shall not participate in any communication over these websites or applications over which he can claim solicitor-client or litigation privilege.
[68] The Ministers submit that there are limits to the CBSA’s ability to supervise communications over the internet and over social networks. Given the rapid and constantly evolving nature of technology and social networking services, the Ministers submit that restricting Mr. Harkat’s use of social media is necessary to allow the CBSA