Harkat (Re)

Harkat (Re)
Court (s) Database
Federal Court Decisions
Date
2009-03-06
Neutral citation
2009 FC 241
File numbers
DES-5-08
Decision Content
Date: 20090306
Docket: DES-5-08
Citation: 2009 FC 241
Ottawa, Ontario, March 6, 2009
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
IN THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration and Refugee Protection Act (IRPA);
AND IN THE MATTER OF the referral of a certificate to the Federal Court pursuant to section 77(1) of the IRPA;
AND IN THE MATTER OF a motion to review the conditions of release pursuant to section 82(4) and 82(5) of IRPA;
AND IN THE MATTER OF Mohamed HARKAT
REASONS FOR JUDGMENT
INDEX
Paragraph
1. Issues to be determined 1
2. History of the proceedings 4
3. The May 23, 2006 decision of Justice Dawson releasing Mr. Harkat from detention on conditions 27
4. The new legislative regime 32
5. Should this Court confirm Mr Harkat’s release? 42
6. Factors to be considered in determining which conditions are appropriate 53
6.1. Specific context and circumstances of this proceeding 71
6.2. Proportionality between the danger posed by Mr. Harkat and the conditions
of his release 72
6.3. The passage of time 80
6.4. The elements of trust and credibility 88
6.5. Applicability of the 2006 reasons of Justice Dawson to the situation in 2009 93
6.6. Importance to be attributed to the presence or not of Mr. Harkat at a proceeding
or at removal 95
7. Changes to the conditions of release sought by Mr. Harkat
7.1. Home alone 97
Paragraph
7.2. Increased mobility without the necessity of pre-approval of routes and
destinations within pre-determined geographic areas between the hours of 8 am
and 11 pm, or increased and extended weekly outings with a shorter notice period
to CBSA, and 6 new “family holiday” outings per month 108
7.3. Attendance at political and academic events as well as other speaking
engagements 112
7.4. Contact with the accredited media 117
7.5. Meetings with legal counsel 119
7.6. Expansion of the geographic boundaries to include the city of Gatineau 123
7.7. Use of public restroom facilities 126
7.8. Communication with an Imam and worshipers at the Mosque 129
7.9. Physical activity outings 132
8. Other changes being sought
8.1. CBSA parking (driveway) 135
8.2. Computer room 136
8.3. Telephone communications with counsel 137
9. Changes sought in written submissions where evidence was not presented 138
10. A word for CBSA 139
11. Judgment will be prepared by counsel and submitted for signature 140
12. Suggestion of a certified question 141
13. Conclusion 142
1. Issues to be determined
[1] Mr. Harkat filed a notice of application September 18, 2008, seeking an order reviewing the conditions of his release pursuant to section 82 of the Immigration and Refugee Protection Act, S.C. 2001, C. 27 (“IRPA”).
[2] An application under Subsection 82(4) IRPA requires a Designated Judge to review the reasons for continuing the conditions. In accordance with paragraph 82(5)(b) where a person is already released under conditions, the judge must confirm the release and determine what conditions are appropriate to neutralize the danger posed by that release.
[3] To facilitate the reading of these reasons, I will follow the index set out above, beginning with a history of the proceedings.
2. History of Proceedings
[4] On December 10, 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration (together, “the Ministers”) signed a certificate pursuant to then s. 77 of the Immigration and Refugee Protection Act (the “previous legislation”), in which they stated that they were of the opinion that Mohamed Harkat is foreign national who is inadmissible to Canada on grounds of national security (the “2002 certificate”). Specifically, it was alleged that Mr. Harkat supported terrorist activity as a member of the terrorist group know as the Bin Laden Network (“BLN”), which includes Al Qaeda.
[5] Pursuant to section 77(1) of former IRPA, the 2002 certificate was referred to the Federal Court for a determination of its reasonableness. Mr. Harkat was arrested and detained pursuant to section 80 of the previous legislation. Former section 84(2) prevented him from seeking judicial release from detention until 120 days after the certificate was held to be reasonable.
[6] A hearing into the reasonableness of the 2002 certificate was held before Justice Dawson in March 2005. Mr. Harkat challenged the constitutionality of sections 78 through 80 of the previous legislation on the grounds that it was contrary to section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). Justice Dawson upheld the constitutionality of the security certificate process based on the Federal Court of Appeal’s decision in Charkaoui (Re), [2005] 2 F.C.R. 299 and concluded that there were reasonable grounds to believe that Mr. Harkat had engaged in terrorism by supporting terrorist activity as a member of the BLN (Harkat (Re), [2005] F.C.J. 418).
[7] Mr. Harkat appealed Justice Dawson’s findings with respect to the constitutionality of the certificate proceeding. On September 6, 2005, the Federal Court of Appeal dismissed Mr. Harkat’s appeal on the grounds that he had not demonstrated any manifest error which would justify a departure from its previous decisions in Charkaoui (Re), supra, and Almrei v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 142, in which the constitutionality of the same provisions of former IRPA was upheld.
[8] On September 23, 2005, Mr. Harkat applied to the Federal Court for judicial release from detention pursuant to s. 84(2) of the previous legislation. On December 30, 2005, the application was denied by Justice Lemieux on the basis that Mr. Harkat failed to demonstrate that he would not be removed from Canada within a reasonable period of time (Harkat v. Canada, [2005] F.C.J. 2149).
[9] Mr. Harkat’s second application for release was heard on March 8 and 9, 2006. Justice Dawson rendered her decision in relation to this application on May 23, 2006. The Court was satisfied that Mr. Harkat had demonstrated that he would not be removed from Canada within a reasonable period of time and ordered Mr. Harkat released under conditions aimed at neutralizing the danger posed by him (Harkat v. Canada, [2006] F.C.J. 770).
[10] On June 9, 2006, the Ministers moved to stay the Order of Justice Dawson pending an appeal of her decision to the Federal Court of Appeal. Justice Décary dismissed the motion to stay the order on the grounds that the Ministers had not established irreparable harm or demonstrated that the balance of convenience required a stay of proceedings (Harkat v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 370). Justice Décary expedited the appeal, which was heard on July 13, 2006. From the bench, Justice Létourneau rendered judgment on behalf of a unanimous court dismissing the appeal (Canada v. Harkat, 2006 FCA 259).
[11] In August and September 2006, the Federal Court heard an application for the variation of Mr. Harkat’s conditions of release. Justice Dawson varied the order to allow Mr. Alois Weidemann to be added as a supervising surety, but refused to grant a request permitting Mr. Harkat to move to a new residence until it was inspected by the CBSA. A further liberalization of conditions sought by Mr. Harkat was denied on the grounds that insufficient time had passed since his release from detention (Harkat v. Canada, [2006] F.C.J. 1394 at par. 13).
[12] On February 9, 2007, the Ministers consented to Mr. Harkat changing residences on the condition that the occupants of the home consent in writing to the installation of video surveillance equipment at all entrances.
[13] On February 23, 2007, the Supreme Court of Canada found that the procedure for the judicial approval of certificates under former IRPA violated section 7 of the Charter and declared the relevant provisions to be of no force or effect. Chief Justice McLachlin, writing for a unanimous Court concluded that the judicial approval procedure violated section 7 because it did not enable the designated judge to render a decision on the facts and the law, and because it violated the named person’s right to know and answer the case against him or her. The Court found that these violations could not be saved by section 1 of the Charter because they did not minimally impair the rights in question.
[14] The Supreme Court also declared that former section 84(2), which governed applications for judicial release, violated sections 9 and 10(c) of the Charter because it did not provide a timely detention review for foreign nationals.
[15] The Supreme Court suspended the declaration of invalidity of the impugned provisions of previous legislation for a period of one year to allow Parliament to enact constitutionally compliant legislation. As a result, Mr. Harkat remained subject to the 2002 security certificate and conditions of release imposed by Justice Dawson on May 23, 2006.
[16] In February and March 2007, Mr. Harkat brought a second application to vary his conditions of release. In his application, Mr. Harkat sought changes to the conditions relating to: his residence, his activities while on approved outings and the frequency of these outings, and the necessity of constant supervision by a surety. In particular, Mr. Harkat sought variations which would allow him to be alone in his house without a supervising surety, and increase the number of approved weekly outings from three to five. In a decision rendered on April 20, 2007, (2007 FC 416), I granted the application in part and allowed Mr. Harkat to take regular one-hour supervised walks in his neighborhood, to seek pre-approval to speak to media personnel and Members of Parliament, relaxed the pre-approval requirement for visitors to conduct emergency repairs in the home, granted an amendment allowing two individuals with criminal records to visit the Harkat residence, and varied the geographic boundaries. Several of Mr. Harkat’s requests were denied, including a variation to allow him to remain home alone and a request for longer and more frequent outings.
[17] When the 2002 certificate was found to be reasonable in March, 2005, it had the effect of becoming a removal order pursuant to the previous legislation. As such, Mr. Harkat’s file was referred to the Minister’s delegate for a pre-removal risk assessment and an opinion on danger. In May, 2007, Mr. Harkat applied for a stay of proceedings regarding the judicial review of the ministerial delegate’s danger opinion, as a consequence of the decision in Charkaoui v. Canada (Citizenship and Immigration) [2007] 1 S.C.R. 350 (“Charkaoui #1”). Justice Lemieux granted a stay of proceedings pending the enactment of amendments to the legislation.
[18] On January 29, 2008, agents of the Canada Border Services Agency (“CBSA”) arrested and detained Mr. Harkat for breaching his conditions of release when one of his supervising sureties, Ms. Brunette, moved out of the residence without notifying CBSA. This occurrence was clearly contrary to the conditions of Mr. Harkat’s release which required him to reside with two supervising sureties. In February, 2008, the Ministers argued that Mr. Harkat should remain in detention, and the breach should result in forfeiture of monies paid by Mrs. Harkat, Mrs. Brunette and Mr. Weidermann.
[19] In the same proceeding, Mr. Harkat asked Justice Dawson to amend his conditions by allowing him to remain home alone.
[20] In her decision, Justice Dawson held that the decision of Ms. Brunette to move out of the residence on a permanent basis constituted a breach of the conditions set out in her order. Justice Dawson also found that the failure of the supervising sureties to report the breach to CBSA was a breach of their obligations under the order. Nevertheless, she determined that Mr. Harkat should be released from detention since there were conditions capable of neutralizing the danger that the release posed. Justice Dawson declined to order the forfeiture of the performance bonds given the existence of unique and extraordinary circumstances. She also declined to permit Mr. Harkat to stay alone in his home.
[21] On February 22, 2008, Bill C-3, an Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act (“Bill C-3” or the “new legislation”), came into force. Bill C-3 made substantial modifications to the procedure governing the judicial review of certificates and applications for detention release in that context. These amendments included the addition of special advocates to represent the interest of the persons named in a certificate during the closed hearings and the elimination of the distinction between permanent residents and foreign nationals for the purposes of the judicial interim release.
[22] On February 22, 2008, the Ministers signed a new certificate under the authority of the new legislation, alleging that Mr. Harkat was inadmissible to Canada on the grounds of national security (the “2008 certificate”).
[23] On June 26, 2008, the Supreme Court of Canada rendered a second decision concerning the certificate process in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 (“Charkaoui #2”). In that appeal, Mr. Charkaoui sought a stay of proceedings given the destruction of original notes taken by CSIS during interviews with him. The Supreme Court allowed Mr. Charkaoui’s appeal in part. While a stay of proceedings was held to be premature, the Court held that the destruction of operational notes was a serious breach of CSIS’s duty to retain and disclose information. Justices Lebel and Fish wrote on behalf of the Court at paragraph 53:
But whether or not the constitutional guarantees of s. 7 of the Charter apply does not turn on a formal distinction between the different areas of law. Rather, it depends on the severity of the consequences of the state’s actions for the individual’s fundamental interests of liberty and security and, in some cases, the right to life. By its very nature, the security certificate procedure can place these rights in serious jeopardy, as the Court recognized in Charkaoui. To protect them, it becomes necessary to recognize a duty to disclose evidence based on s. 7.
[24] Throughout this time, Mr. Harkat continued to live under conditions at the residence of Mr. Weidemann who is Ms. Brunette’s former partner. In October, 2008, the Ministers consented to a change of residence, and to the removal of a condition that required Mr. Harkat to reside with two supervising sureties. The Minister’s consent was conditional upon Mr. Harkat’s agreement with the following conditions: CBSA would be allowed to the install video surveillance equipment at the front and rear entrances of the new residence; the Harkats would provide the CBSA with unobstructed access to the driveway; all visitors would be pre-approved and required to provide photo identification to the CBSA prior to visiting the new residence; and, the Harkats would not use the garage. The Ministers also agreed to have Mr. Weidemann removed as a supervising surety.
[25] In September, November and December 2008, this Court heard evidence, oral argument and received written submissions on the current application for a review of the conditions of release. Among those who testified were Mr. and Mrs. Harkat, several individuals who have committed themselves to performance bonds in this case, a CSIS witness and several witnesses on behalf of CBSA.
[26] Counsel for Mr. Harkat are seeking a robust review of the conditions of release as required by the Supreme Court of Canada in Charkaoui #1, and note that, as of today, Mr. Harkat has been on conditional release for close to three years.
3. May 23, 2006 decision releasing Mr. Harkat from detention on conditions of this Court rendered by Justice Dawson
[27] On March 22, 2005, Justice Dawson determined that the 2002 certificate naming Mr. Harkat as a person inadmissible to Canada was reasonable. As a consequence of this finding, the certificate became a removal order against Mr. Harkat.
[28] In public reasons for order dated May 23, 2006, pursuant to section 84(2) of the previous legislation, Justice Dawson came to the conclusion that Mr. Harkat should be released from detention with conditions tailored to neutralize the danger posed by him. In order to understand summarily her conclusion, a number of extracts from her decision (Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FC 628, are helpful:
Par. 68: … Having considered the sources of all of that confidential information, the reliability of those sources, and the extent to which the confidential information is corroborated by independent sources, I am satisfied that Mr. Harkat’s release without the imposition of any term or condition would pose a threat to national security or to the safety of any person. For example, unchecked, Mr. Harkat would be in a position to recommence contact with members of the Islamic extremist network.
Par. 76: I remain convinced that throughout this proceeding Mr. Harkat’s testimony to the Court has been untruthful on a number of significant points.5 Thus, any terms and conditions for release must be based upon something other than Mr. Harkat’s assumed good faith or trustworthiness. This militates, in my view, against terms and conditions such as that proposed that would allow him to remain in his residence alone with unrestricted access to visitors, and that would allow him to leave his residence at will from 8:00 a.m. to 9:00 p.m. every day, albeit with a surety.
Par. 82: It would be, however, erroneous to reject Mr. Harkat's application for release if there are conditions that, on a balance of probabilities, would neutralize or contain the danger posed by his release. In that circumstance, his continued incarceration cannot be justified because of Canada's respect for human and civil rights, and the values protected by our Charter.
Par. 83: In considering whether there are terms and conditions that would neutralize or contain the danger, I have borne in mind the need for terms and conditions to be specific and tailored to Mr. Harkat’s precise circumstances. They must be designed to prevent Mr. Harkat's involvement in any activity that commits, encourages, facilitates, assists or instigates an act of terrorism, or any similar activity. The terms and conditions must be proportionate to the risk posed by Mr. Harkat.
[29] Dawson J. felt that release with strict conditions was permissible based on the following eight factors:
1. Mrs. Harkat and her mother were capable of providing supervision (para. 85);
2. Mr. Harkat had been incarcerated since December 10, 2002; therefore, his ability to communicate with members of the Islamic extremist network had been disrupted (para. 86);
3. Mr. Harkat is well known, which could hamper his ability to engage in covert or clandestine activity (para. 87);
4. If released from incarceration Mr. Harkat shall remain a person of interest to Canadian authorities, and would be subject to the laws of Canada that permit supervision of his activities if so required (par. 88);
5. Mr. Harkat’s knowledge of the ability of the Canadian authorities to monitor his activities can act as a deterrent (par. 89);
6. Any person that could have an interest in Mr. Harkat should know that the Canadian Authorities have an interest in him (par. 90);
7. Dawson J., having reservations about his truthfulness, believed Mr. Harkat when he said that a breach of the conditions of his release would result in his detention and possibly his deportation, which was a compelling reason to abide by the conditions (par. 91);
8. To a lesser degree of importance than the factors above, the Court took notice of the fact that in England and Canada, others in comparable legal situations have been released on conditions (par. 92)
[30] Justice Dawson concluded that if Mr. Harkat were to be released without conditions he would pose a threat to national security of Canada, but that the danger could be neutralized by the imposition of appropriate conditions.
[31] Justice Dawson then established a set of terms and conditions which were described as “rigorous” by the Supreme Court at par. 116 of Charkaoui #1. These conditions have been modified as changes in circumstances have arisen but have, in essence, remained the same. At this time, Mr. Harkat is asking for the review of these conditions.
4. The new legislative regime
[32] On February 22, 2008, Bill C-3 came into force. Clause 7 of Bill C-3 contained several transitional provisions. By virtue of clause 7(3)(b) of Bill C-3, Mr. Harkat’s release under existing conditions was continued. Clause 7(6) entitled Mr. Harkat to apply for a review of the reasons for continuing the conditions if a period of six months had elapsed from the coming into force of Bill C-3 and he had not sought a review pursuant to clause 7(4).
[33] On September 18, 2008, Mr. Harkat filed an application to confirm his continued release under conditions and to review the appropriateness of the existing conditions.
[34] An application to review conditions of release is brought pursuant to subsections 82(4) and (5) of the new legislation. The judge seized of an application pursuant to subsection 82(4) and (5) must confirm the release of the applicant and then consider what conditions are necessary to neutralize the danger posed by the applicant to national security or to the safety of any person and any risk of flight.
[35] Mr. Harkat has a right to a meaningful and rigorous review of his release under conditions, and the Ministers must justify the continued imposition of the conditions. As noted by the Supreme Court in Charkaoui #1, the onus is on the Ministers to justify detention, and by analogy, the imposition of rigorous conditions of release grows heavier with the passage of time. (Charkaoui #1 at par. 113)
[36] Where the review of the conditions occurs prior to the determination of the reasonableness of the certificate, the review must be based on an assessment of the danger to national security in evidence at the time of the review taking the following principles set out in Charkaoui #1 into consideration:
- The review must be meaningful and rigorous (par. 107);
- The procedure must be consistent with the principles of fundamental justice including a real opportunity for the named person to present his or her case (par. 107);
- The Court must review the context and the circumstances related to the particular proceeding (par. 107). I would read this as including the type of allegations made in the certificate which is referred to the Court;
- The conditions imposed by the judge to neutralize the danger must be proportionate to the danger posed by the named person and must be tailored to neutralize any such danger (see par. 111, 116, 120); and
- The length of time during which the named person has been living under conditions of release, and his or her compliance with the conditions (par. 112 refers to the length of detention as a factor to be considered, I extend this criteria to the length of the period of the release with conditions).
[37] Having reviewed the pertinent and applicable law, it is now the intention of the Court to determine this application on the basis of the record before it.
[38] The Court has heard the Ministers’ evidence on the reasonableness of the certificate in both closed and public hearings, as well as their position in response to the amendments to the new conditions of release being sought by Mr. Harkat. The Court has also had the benefit of public written submissions from each party, public oral argument concerning the review of conditions, and closed oral arguments from the special advocates and counsel for the Ministers.
[39] However, neither counsel for Mr. Harkat nor the special advocates have cross-examined any ministerial witness on the reasonableness of the certificate. Nor has Mr. Harkat presented his evidence and argument in response to the certificate.
[40] Given the incomplete record, the determination of the issues arising in the present review should not in any way be interpreted as an indication of future factual findings. It is only when all of the evidence is before me, and submissions have been presented, that I will be in a position to make a final determination on the reasonableness of the certificate. The key elements of a final determination are not present at this time.
[41] Nevertheless, I have sufficient information to review the conditions of release as required by subsections 82(4) and 82(5) IRPA. It is consistent with the intent of Parliament, in the interests of justice and in the interest of Mr. Harkat that I deal with these issues in an interim way.
5. Should this Court confirm Mr. Harkat’s release under conditions?
[42] Paragraph 82(5)(b) requires the judge to confirm the release from detention of the named person. Pursuant to paragraph 82(5)(a), release from detention will be ordered where a judge is satisfied that the release, under conditions, would not be injurious to national security or endanger the safety of any person. Like Justice Mosley, I conclude that the change in wording from “danger” to national security to “would be injurious to national security” does not result in a substantive change (Re Almrei, 2009 FC 3 at par. 47)
[43] The concept of “danger to the security of Canada” was defined by the Supreme Court in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 90:
These considerations lead us to conclude that 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.
This interpretation was referred to by this Court in Re Harkat, 2006 FC 628, at paragraph 54-59, Re Charkaoui, 2005 FC 248, at paragraph 36, and Re Almrei, 2009 FC 3 at paragraph 48.
[44] Therefore, when assessing the facts of this case (as presented to me to date in both public and closed hearings), the concept of “danger to national security” as it was interpreted by the Supreme Court in Suresh is to be applied.
[45] The allegations of the Ministers in relation to the alleged danger posed by Mr. Harkat are contained in the public Security Intelligence Report (“SIR”) filed in the present proceeding. The Ministers summarize the conclusions reached by CSIS as follows:
58. The Service concludes, based on the information presented in this summary, that HARKAT assisted Islamist extremists entering Canada, and received funds from Islamist extremists abroad. HARKAT’s method and route of travel to Canada, untrue statements made to Canadian officials, his support for individuals and groups involved in political violence or terrorist activity, his alliances with Islamist extremists, and his use of security techniques, lead the Service to conclude that HARKAT has been associated with organizations that support the use of political violence and terrorism
59. The Service also concludes that HARKAT is a member of an international extremist network of groups and individuals who follow and support Osama Bin Laden. This network engages in acts of terrorism to attain its stated objective of purging all secular and Western influences from the Islamic world and establishing Islamist states based on a fundamentalist interpretation of Islamic law, or sharia. The Service also concludes that HARKAT is a sleeper agent of the Bin Laden Network.
[46] The factual basis to support these allegations of danger was presented by the Ministers during public and closed hearings. As mentioned before no cross-examination, either in public by counsel for Mr. Harkat or by the special advocates in the closed hearings, was done on the issue of the reasonableness of the certificate; questions were limited to the notion of danger related to Mr. Harkat.
[47] John, the Ministers’ witness who appeared in public and gave testimony in support of the allegations of danger, briefly explained what, in his opinion, the alleged danger consists of:
“Q. Do you believe that Mohamed Harkat remains a threat to the security of Canada and, if so, why?
A. I do so believe. The reason why is that we have found in our investigations that people who become committed to the cause rarely lose that commitment. Often we will find that people, even after a period of incarceration, once they are given freedom to act will re-engage in activity.
A prime example of this was as a result of the Madrid bombings. A number of the key leaders had in fact been incarcerated -- in some cases for a period of years -- on various charges, immediately prior to becoming involved in the planning for the Madrid bombings. We have found that a period of time does not diminish the threat posed by individuals.
Q. It's obvious that Mr. Harkat is a person of interest to the media. There is some media present today. There have been a number of media stories. There is also, I believe, a group to aid Mohamed Harkat.
What is your view on the publicity surrounding him and his notoriety? I don't mean that in the pejorative sense, but the fact that he is well known. What impact would that have, in your view, on his present dangerousness?
A. In my view, the notoriety in and of itself does not reduce the danger presented. There are other individuals in the past who have had notoriety and continue to pose a threat. Ahmed Said Khadr is a very good example. From 1995 on he was increasingly known to the Canadian media and others, and yet he became more active and his family became more active as the time passed.
At the end of the day, my assessment would be that the level of threat is based on opportunity rather than whether or not someone is still in the shadows.”
(Pages 321-323, Volume 2, November 4, 2008)
[48] Similar evidence was presented during closed hearings.
[49] It is also important to note that counsel for Mr. Harkat has admitted both during oral argument and in his written submissions that, for the purposes of the present review, there exists an assumption that his unconditional release will pose a danger. He argued, however, that the current conditions are overbroad and unnecessary to neutralize the danger (see opening paragraphs and par. 121 of the written submissions of Mr. Harkat dated December 8, 2008).
[50] Since the Court is required, pursuant to paragraph 82(5)(b) IRPA, to confirm Mr. Harkat’s release before proceeding with a review of the condition of the release, I have assessed the evidence for that purpose.
[51] I conclude, on a review of the evidence before me, that the Ministers have established a prima facie case that Mr. Harkat’s release without conditions would be injurious to national security.
[52] Once more, it is essential to note that the evidence before the Court was limited to the Ministers’ point of view on danger, and that I have not received, at this time, the response of Mr. Harkat to the allegations in the SIR. Moreover, I have not had the benefit of cross-examination of the Ministers’ witnesses by counsel for Mr. Harkat or by the special advocates on the issue of the reasonableness of the certificate. While my conclusion is subject to change once a full picture of the evidence is before the Court, for the purposes of this review of conditions, I confirm Mr. Harkat’s release from detention under appropriate conditions.
6. Factors to be considered in determining which conditions are appropriate
[53] In the following paragraphs, I will rely on six factors to assist in the evaluation of the changes to the conditions being sought. They are the following:
- The context and circumstances related to this proceeding;
- The proportionality between the danger posed by Mr. Harkat and the conditions of his release;
- The passage of time;
- The elements of trust and credibility;
- Applicability of the 2006 reasons of Justice Dawson to the current proceeding;
- The importance to be attributed to the presence of Mr. Harkat at a proceeding or at removal from Canada;
[54] After having reviewed each of these factors, I will keep them in perspective when addressing each request to change the conditions made by Mr. Harkat and determine whether these amendments should be granted at this time.
[55] When the Ministers filed a certificate naming Mr. Harkat on February 22, 2008, the public Security Intelligence Report contained more information than was disclosed in support of the 2002 certificate.
[56] The ongoing disclosure process, occurring with the participation of the Special Advocates, has resulted in additional important information being communicated to counsel for Mr. Harkat. Further disclosure will likely result from the Special Advocates’ review of the Charkaoui #2 documents filed pursuant to an order of this Court dated September 24, 2008.
[57] Mr. Harkat, a foreign national, arrived in Canada in the fall of 1995. As the amended 2008 public SIR and the recent disclosure reveal, upon his arrival in Canada, he was monitored by Canadian authorities who employed human sources and communication intercepts to collect information and intelligence about his activities.
[58] Mr. Harkat was arrested and detained as a result of the referral of the 2002 certificate to this Court on December 10, 2002 (s. 77(1) & 82(2) of former IRPA). He remained in detention until his release under conditions on June 21, 2006.
[59] Since Mr. Harkat’s release, the conditions have been amended on several occasions, but the core conditions established by Justice Dawson to neutralize the danger in 2006 remain unchanged. The modification of some conditions, such as the installation of video surveillance equipment at all entrances to permit a move to a new residence where physical surveillance was problematic, have been negotiated between counsel for the Ministers and Mr. Harkat and have been achieved with the consent of all parties.
[60] On October 10, 2008, this Court allowed further modifications to the conditions of release so that Mr. Harkat could move to his third residence since 2006. In particular, the Court removed the condition which required Mr. Harkat to reside with multiple supervising sureties, which had the effect of allowing Mr. Harkat to live alone with his wife, Mrs. Sophie Lamarche Harkat.
[61] The evidence indicates that Mr. Harkat has been under the watchful eyes of Canadian authorities since the mid-1990s. He was incarcerated for a period of close to four years, and has been released under rigorous conditions for almost three years. I conclude that Mr. Harkat has been under the surveillance or control of Canadian authorities for well over a decade.
[62] Since at least December 10, 2002, there is no evidence that Mr. Harkat has associated or communicated directly or indirectly with persons who support terrorism, violent jihad or have a serious criminal record. This covers a period of more than eight years.
[63] This Court has noted that the release of Mr. Harkat under conditions has allowed him to reside with his family instead of remaining in prison. The Court notes that on the evidence before it, the conditions appear to have neutralized the danger posed by Mr. Harkat.
[64] Since Mr. Harkat’s release under conditions, the CBSA, led by Mr. Foley, has been in charge of supervising Mr. Harkat and ensuring his compliance with the release order. I have congratulated them publicly for the manner in which they have assumed this duty.
[65] Since Mr. Harkat’s release from detention, he and his wife have been required to adapt to a new life, restricted by the conditions of his release. Ms. Pierrette Brunette and her partners have also made many sacrifices to ensure Mr. Harkat’s compliance with the conditions of his release. There is evidence that sometimes the Harkat family has not strictly abided by the conditions. All breaches of a Court order are serious; however, this Court has only determined one established breach to have been significant.
[66] While their record of compliance is not perfect, the professionalism and dedication of the CBSA, paired with the commitment of the Harkat family into insuring respect of the conditions of release, has resulted in very few breaches of the conditions. This finding is based on an evaluation of the past and does not guarantee future compliance. It is simply one indicator among others to consider when assessing the appropriateness of the conditions at issue before the Court.
[67] In November, 2008, the Court heard testimony from Mr. Harkat in support of his application to review the conditions of his release. He explained to the Court that he views compliance with these conditions as essential because his life is on the line and he does not want to disappoint his family and supporters. He also noted that he did not want to give the Ministers an opportunity to deport him from Canada (see testimony of Mr. Harkat, Volume 3, at page 387, November 5, 2008).
[68] In reference to his past credibility, which was strongly questioned in judgments of my colleague Justice Dawson, he had this to say:
“Q: Judgments rendered in the past concerning you have concluded that you have lied on numerous occasions. Why should I trust you?
A: Because when I came to the court, it would be that one because I lied to the CSIS. Before I don't speak English good and I was, like, scared and I came to the court to say, or there is some things I don't see it, and if there is some things, there is clarification for that. I didn't have that to answer that question. I am not have that disclosure, what I didn't answer yet. At the same time, I have two years outside and I have money on my head and I have a family. My life is not going to be normal. If there is any breach, it's going to get worse. You like to ask for some things to get better. If you want to do stupid things or breaking conditions, you are going to end up in jail, deportation. It's not easy things. You come to the court again and you fight it. It's not easy for me. It's very hard to come in front of you if something is happened on purpose, mistakes like that, and the yard, taking the grass. It's very ‑‑ if I just come in front of you and say what happened, but doing it on purpose, putting myself on more complicated situation, I don't think so. It's, even for you, easy to give me opportunity again. I just prevent it completely, it's never going to happen. This is kind of ‑‑ I believe it build a little bit of trust. I am not alone in this situation. There is money. There is people life going to be shattered.” (See Volume 3, pages 451-452)
On the trust element, he said:
“For now almost two years on the bail and following every single order Judge Dawson and you put me on, I didn't ‑‑ there is some understanding of breach Judge Dawson find about Pierette moving. But in my opinion, that's my English reading and it looks like not, but accept her order final. I am trying to do every single thing right because some people going to lose. Plus, the time I spent in jail and the time factor and people behind me and circumstances if I am going to break that trust, there is a big circumstance. It's not regular thing.” (See Volume 3, page 459)
[69] Again, the Court does not consider these statements as being a predictor of future compliance. As mentioned before, the trust element is only one factor to consider when assessing the conditions necessary to neutralize the danger posed by Mr. Harkat.
[70] Having said that, I heard Mr. Harkat’s testimony, I saw