Harkat (Re)

Harkat (Re)
Court (s) Database
Federal Court Decisions
Date
2018-01-23
Neutral citation
2018 FC 62
File numbers
DES-5-08
Decision Content
Date: 20180123
Docket: DES-5-08
Citation: 2018 FC 62
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. Introduction
[1] The Applicant, Mr. Mohamed Harkat, seeks to vary the terms and conditions of his release from detention pursuant to subsection 82(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. He maintains that the conditions imposed upon him continue to be onerous on him and his family and are disproportionate to any threat he is perceived to present.
[2] The Respondents, the Minister of Citizenship and Immigration [MCI] and the Minister of Public Safety and Emergency Preparedness [MPSEP], submit that the existing terms and conditions should be maintained to neutralize the danger posed by Mr. Harkat, subject to certain clarifications and changes they propose.
[3] For the reasons that follow, I am prepared to make some adjustments to the terms and conditions of Mr. Harkat’s release from detention but not to the extent that he has requested.
II. Background
[4] For the purposes of this application, 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. Mr. Harkat has a long and detailed history with the courts and much has already been written. The reader is thus invited to review the most recent decisions rendered by this Court regarding the reasonableness of the second security certificate issued against Mr. Harkat (Harkat (Re), 2010 FC 1241) and the relaxation of the terms and conditions of his release (Harkat (Re), 2009 FC 241; Harkat (Re), 2009 FC 1008; Harkat v Canada (Citizenship and Immigration), 2013 FC 795; Harkat v Canada (Citizenship and Immigration), 2014 FC 1034). I shall limit myself to the following brief overview.
[5] Mr. Harkat is a citizen of Algeria. He came to Canada in 1995 and was granted refugee status in 1997.
[6] On December 10, 2002, the Solicitor General of Canada and the MCI issued a first security certificate naming Mr. Harkat as a person inadmissible to Canada on grounds of national security. He was arrested and detained in a correctional facility until his release under strict conditions in 2006 (Harkat v Canada (Minister of Citizenship and Immigration), 2006 FC 628).
[7] While this Court determined in 2005 that the security certificate was reasonable, the Supreme Court of Canada found in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 [Charkaoui #1] that the procedure established under the IRPA for the judicial confirmation of security certificates, applications for release and review of detention violated sections 7, 9 and 10(c) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. It suspended the declaration of invalidity of the impugned provisions for a period of one (1) year to allow Parliament to enact a new regime in compliance with its reasons.
[8] 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, SC 2008, c 3 (SI/2008-24) came into force. The Ministers signed a new security certificate stating that Mr. Harkat was inadmissible to Canada on grounds of security for the reasons described in paragraphs 34(1)(c), 34(1)(d) and 34(1)(f) of the IRPA. After considering evidence tendered in both open and closed hearings, this Court determined on December 9, 2010, that the certificate was reasonable (Harkat (Re), 2010 FC 1241). This finding was upheld by the Supreme Court of Canada on May 14, 2014 (Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37).
[9] Since Mr. Harkat’s release from detention in 2006, the terms and conditions of release have been the subject of ongoing reviews by this Court and over the years, have become more relaxed. Prior to the present review, the most recent hearings were held in June 2013 (both open and closed) and October 2014 (by way of teleconference) and resulted in decisions dated July 7, 2013, and October 31, 2014. The terms and conditions of release were subsequently amended on agreement of the parties by orders of this Court on January 16, 2015, and May 27, 2015.
[10] Generally, under the current terms and conditions of release, eight (8) individuals have executed performance bonds in varying amounts. Mr. Harkat has access to a desktop computer at home with internet connectivity and he is allowed to use a SIM card mobile telephone with the capacity of only receiving and making voice calls and text messages. The use of any internet features on the mobile telephone is prohibited and internet data shall be blocked through the service provider. Both the home computer and the mobile telephone are subject to supervision by the Canada Border Services Agency [CBSA]. While Mr. Harkat may use any landline telephone for employment purposes at his place of employment, he is not allowed to use any other mobile or landline telephone except in the event of an emergency, where he cannot reasonably access his mobile or landline telephone. He is not allowed access to the internet for employment purposes. Mr. Harkat must physically report to the CBSA once every two (2) weeks and, to the extent he wishes to travel outside the National Capital Region [NCR], he must remain in Canada and report to the CBSA by telephone once per day. If he leaves the city he is in after reporting to the CBSA, he is required to report again from the last city he is in that day. He is also required to provide the CBSA with at least five (5) full working days written notice of any such travel, including his itinerary.
[11] In reviewing the submissions of the parties, I noted that the “current conditions of release” listed in Annex I of Mr. Harkat’s memorandum of fact and law are not the most recent terms and conditions. It appears that the conditions listed are those which originate from the order dated January 16, 2015, after Justice Simon Noël of this Court issued his reasons for judgment on October 31, 2014 (Harkat v Canada (Citizenship and Immigration), 2014 FC 1034). The terms and conditions of release were subsequently amended upon agreement by the parties by order dated May 27, 2015. For the most part, the terms and conditions are identical except with regards to the use of a SIM card mobile telephone. The specifics of Mr. Harkat’s current terms and conditions of release from detention are set out in Schedule “A” attached to these Reasons for Order.
[12] In addition, Mr. Harkat has been advised that a danger opinion is being processed which could result in his removal from Canada.
III. Proposed Changes
[13] In his application record, Mr. Harkat requests a number of changes to the terms and conditions of his release, including:
cancellation of the $35,000.00 bond paid into Court pursuant to Rule 149 of the Federal Courts Rules, SOR 98-106 [Rules] upon Mr. Harkat’s release from incarceration (condition 2 of the order dated May 27, 2015);
reduction of the value of the performance bonds agreed to by two (2) of his sureties (condition 3);
authorization to possess a mobile telephone with SIM card and internet connectivity (condition 4);
authorization to possess and use a mobile telephone for employment purposes (condition 4);
authorization to possess and use a laptop and/or tablet computer with internet connectivity both inside and outside of the home (condition 7);
provision that the CBSA may only access Mr. Harkat’s computers without notice upon approval by a designated judge and only where the CBSA has justifiable reason to believe that Mr. Harkat is not complying with the terms and conditions of his release or because it is necessary for the purpose of ensuring the protection of national security and/or the safety of any person (condition 7);
authorization to possess and use a computer (desktop, tablet or laptop) for work-related purposes (condition 7);
cancellation of the condition which provides that Mr. Harkat’s wife may only access any computer technology providing she does not allow Mr. Harkat to access it (condition 8);
cancellation of the condition that other persons may not occupy Mr. Harkat’s residence without the approval of the CBSA (condition 10);
authorization to report to the CBSA by telephone through voice verification once a month, and if not possible, that the reporting requirement be once every three (3) months instead of once every two (2) weeks (condition 11);
authorization to travel anywhere in Canada without having to provide notice and report to the CBSA (condition 12);
requirement that in order to access Mr. Harkat’s residence, the CBSA demonstrate to a designated judge that it has justifiable reason to believe that Mr. Harkat is not complying with the terms and conditions of his release or because it is necessary for the purpose of ensuring the protection of national security or the safety of any person (condition 14); and,
authorization not to appear at all Court hearings and proceedings under the IRPA if his presence is not required (condition 17).
IV. The Evidence
[14] To support his application, Mr. Harkat relies on the sworn statements of his wife, Sophie Harkat, his mother-in-law, Pierrette Brunette, her partner, Philippe Parent and three (3) other sureties.
[15] In her affidavit, Ms. Harkat indicates that while she realizes that the security certificate was found to be reasonable, she feels that the process was unfair and believes her husband to be innocent, not a terrorist or a threat to anyone. She portrays her husband as a “kind, gentle, patient, very hard working, smart and extremely funny” person. She also describes the pain, stress and hardship of living under a security certificate regime. In particular, it has been difficult for her husband to find employment given the limitations which result from the terms and conditions of his release such as the inability to use technology at work and his reporting schedule to CBSA. Moreover, she states that the CBSA officers who monitor them are not discreet. For instance, during a trip to Brockville on her birthday in September 2016, they were followed by the CBSA officers the entire ten (10) hours of the trip despite three (3) of Mr. Harkat’s sureties being present with him. Additionally, when the CBSA officers come to pick up her husband’s computer, there is a minimum of three (3) officers in bulletproof vests, with guns on their side and who park their dark vehicles outside the front of their house. This raises questions with their neighbours and brings them a lot of negative attention. Finally, Ms. Harkat asserts that she and her husband have been extremely vigilant in following the conditions of his release and requests that the conditions be eased so that their lives may be normalized.
[16] Ms. Brunette declares that Mr. Harkat has integrated well into the family and that he has a good relationship with children and in particular, his niece. She also indicates that the terms and conditions of Mr. Harkat’s release have made life “intolerable” for her daughter and her husband. She complains of the CBSA’s monitoring and, like her daughter, provides the example of when they travelled to Brockville, Ontario in 2016. According to Ms. Brunette, Mr. Harkat has demonstrated exemplary behaviour in abiding by the strict conditions which have been imposed on him. She states that the current conditions of release have made it difficult for Mr. Harkat to find employment and that he needs to be able to use a mobile telephone. She adds that her daughter’s health is precarious and that she must be able to reach her husband at all times. Finally, she confirms that she is still willing to act as a surety to Mr. Harkat.
[17] Mr. Parent declares that he has known Mr. Harkat for over nine (9) years. Mr. Harkat and his wife are currently renting his property in Ottawa. Mr. Parent is of the view that there is no need for Mr. Harkat to be monitored by the CBSA when he travels with one of his sureties. He indicates that it is becoming more difficult to find a payphone or a landline for Mr. Harkat to make his required daily reporting call to the CBSA. He asks the Court to relax Mr. Harkat’s conditions of release so that it will make it easier for all of them to travel out of town. Like Ms. Harkat and her mother, he also would like to see the conditions of release relaxed so that Mr. Harkat may find employment. He further believes that Mr. Harkat needs to be able to use a mobile telephone in order for Ms. Harkat to reach him at all times given her medical condition. Finally, he confirms his continued willingness to act as a surety for Mr. Harkat.
[18] Three (3) of Mr. Harkat’s other sureties, Jessica Squires, Leonard Bush and Kevin Skerrett also provided sworn statements supporting the relaxation of Mr. Harkat’s conditions, and specifically in relation to the use of computers or other communication devices for employment purposes. They remain committed to being sureties for Mr. Harkat.
[19] In addition to relying on the foregoing sworn statements, Mr. Harkat provided many letters from friends, advocates and members of the public. These letters of support were sent to the MPSEP in January 2016 after the initiation of the danger opinion process. They advocate that Mr. Harkat has always respected the terms and conditions of his release and should be allowed to remain in Canada.
[20] Mr. Harkat also relies on a psychiatric opinion dated January 15, 2016, and a subsequent update letter dated August 4, 2017, prepared by Dr. Colin Cameron, MDCN, FRCPC, Clinical Director of the Integrated Forensic Program – Secure Treatment Unit of the Royal Ottawa Health Care Group. The 2016 medical assessment is addressed to the MPSEP and was prepared in the context of assisting the MPSEP to determine whether Mr. Harkat should be granted a ministerial exemption to overcome his inadmissibility. It contains a psychiatric opinion on the mental health of Mr. Harkat, his psychological profile and any risk he may pose to Canadian society in terms of violence or other antisocial behaviour.
[21] Dr. Cameron explains that he assessed Mr. Harkat on the basis of a number of forensic tests that gage the potential for future misconduct. While he acknowledges the absence of tools designed to specifically assess the risk of engaging in or actively supporting terrorist acts or activities, he is of the view that the tools applied to assess risk generally can nevertheless be used. It is Dr. Cameron’s assessment, based on the results of those tests and over a hundred hours spent with Mr. Harkat, that Mr. Harkat has no identifiable psychopathic traits and is considered to be at very low risk for violence or crime generally. He finds that the only risk items flagged in the assessments were those associated with Mr. Harkat’s legal situation, employment and mental health problems as well as prior incarceration. He is also of the view that it is extremely unlikely that Mr. Harkat would engage in or support terrorism and that the status quo remains very detrimental to Mr. Harkat’s mental health and prevents him from becoming a productive member of society.
[22] Finally, Mr. Harkat’s application record also contains four (4) redacted risk assessments prepared by the CBSA’s Intelligence Risk Assessment and Analysis Division, Intelligence Directorate (May 2009, January 2012, September 2014 and October 2016), recent news reports regarding a $35 million lawsuit by five (5) employees of the Canadian Security Intelligence Service [CSIS], correspondence between Mr. Harkat’s counsel and the CBSA and copy of a September 23, 2009 public summary of the threat assessment conducted by the CSIS concerning Mr. Harkat.
[23] In support of their response, the Ministers filed an affidavit by the Acting Manager for Inland Enforcement for the CBSA Northern Ontario Region, Michel Renaud. He states that his role is to make sure that Mr. Harkat complies with all his conditions of release by assigning officers to monitor him. He further indicates that the monitoring of Mr. Harkat’s terms and conditions has been proceeding smoothly since his last review in October 2014 and there have been no breaches of the terms and conditions. The CBSA’s last risk assessment was completed in 2016 and concludes that the risks are neutralized by Mr. Harkat’s compliance with the existing terms and conditions. However, concerns remain regarding risks of non-compliance if the degree of monitoring is relaxed as there will be more opportunities for Mr. Harkat to engage in non-compliance. Mr. Renaud explains that the danger process is underway. On August 28, 2015, Mr. Harkat received a modified notice of intention to seek a danger opinion pursuant to paragraph 115(2)(b) of the IRPA and, on March 31, 2017, his case was assigned to a senior decision maker for consideration.
[24] While there have been no breaches since Mr. Harkat’s last review, the CBSA continues to have a number of concerns with respect to Mr. Harkat’s use of computer technology. For instance, under the current conditions of release, Mr. Harkat is required to make his computer available for inspection to the CBSA, at a time to be decided by the CBSA without notice. The conditions also include that Ms. Harkat may have access to any communication technology that she requires providing she does not allow Mr. Harkat access to it. In September 2016, when the CBSA officers attended Mr. Harkat’s home to pick up his computer for inspection, the officers noted the proximity of Mr. Harkat’s computer to Ms. Harkat’s computer. There was also a mix up in a USB key given to the CBSA. Later, in August 2017, the CBSA officers noted that Ms. Harkat’s monitor was left unattended while open to a Facebook page. At the same time, Mr. Harkat’s monitor was not turned on and his keyboard and mouse were absent. The same month, the CBSA officers noted that Mr. Harkat had obtained a solid state drive for his computer which raises concerns regarding the evidentiary value of the data imaged for inspection. Furthermore, the use of a tablet does not appear to be feasible at this time as the CBSA has the same concerns with internet connectivity with a tablet as it does with a mobile telephone.
[25] Regarding the use of technology for the purposes of employment, Mr. Renaud indicates that he is advised that Mr. Harkat has seriously considered or applied for three (3) potential jobs: courier, school crossing guard and church custodian. The CBSA advised Mr. Harkat in September 2015 that if he took a position with the courier company, he would possibly be contravening conditions 4(g) (use of a mobile telephone other than his own), 12 (notice to travel outside the NCR) and 18 (possession of weapons, noxious substance or explosives) of the order dated May 27, 2015. The CBSA did not have any concerns regarding the school crossing guard position but has no information on why Mr. Harkat did not take the job. As for Mr. Harkat’s current employment as a church custodian, arrangements were made to get around the requirement that Mr. Harkat have access to a mobile telephone for the purposes of his employment. Mr. Renaud states that the CBSA believes it can allow Mr. Harkat to use a computer for employment purposes while at his place of employment, subject to more information regarding the computer that would be used and the extent of internal monitoring of work computers by the employer.
[26] On the issue of reporting, Mr. Renaud indicates that telephone reporting is not available in the NCR. The CBSA would be willing to provide some flexibility by allowing Mr. Harkat to change the date of his reporting providing he gives a forty-eight (48) hour notice to the CBSA. The CBSA is also prepared to reduce in person reporting to once per month.
[27] Mr. Renaud acknowledges that he has been one of the officers conducting the monitoring of Mr. Harkat along with other CBSA officers. The monitoring is conducted on a regular basis but the frequency and length vary. He states that it is necessary to occasionally monitor Mr. Harkat’s travel to ensure compliance with his terms and conditions of release. The officers try to be discreet but they are required to wear their protective gear and there are a limited number of vehicles they can use. The CBSA recognizes that there has been monitoring outside of the NCR during Mr. and Ms. Harkat’s recent trips to the cottage in the summer of 2017 and to the funeral of Ms. Harkat’s grandmother in November 2016. He adds, however, that the CBSA has agreed to review its monitoring process to ensure the proper balance is maintained between the risks posed by Mr. Harkat and ensuring that the terms and conditions are respected.
[28] Mr. Renaud then discusses Mr. Harkat’s use of a mobile telephone. He indicates that while allowed to use one with specific conditions, Mr. Harkat has not sought to obtain one due to cost. He further indicates that the CBSA continues to have concerns about its ability to monitor a mobile telephone and adds that the CBSA would need to periodically inspect such a telephone at its premises to ensure compliance with the other terms and conditions. Because mobile telephones have a smaller amount of data capability than personal computers, deleted data is more likely to be overwritten by the telephone’s operating system on a regular basis. The ability to examine internet usage on a mobile telephone is also more limited than examining internet usage on a personal computer.
[29] In addition to the sworn statements and documentary evidence filed by the parties, the Court also heard testimony from a number of witnesses. Ms. Harkat, Mr. Parent, Dr. Cameron and Mr. Renaud testified and for the most part, their testimony was consistent with their written statements. The Court also heard from Ms. Elizabeth Whitmore regarding Mr. Harkat’s compliance with his conditions. She testified that she calls Mr. Harkat four (4) or five (5) times a year for him to come and repair things at her home. At one point, he indicated to her that he could not fix her laptop as he could not touch the laptop or have anything to do with it.
[30] The Court also heard from Mr. Harkat. At the outset of the hearing, the Ministers requested an adjournment of the hearing on the basis that counsel for Mr. Harkat only advised that she intended to call Mr. Harkat as a witness the day before the hearing. Counsel for the Ministers argued that while Mr. Harkat had the undoubted right to testify in these proceedings, no affidavit had been adduced by Mr. Harkat. Counsel argued that it would be unfair to proceed as he was not prepared to cross-examine Mr. Harkat. Counsel for Mr. Harkat responded that she had not filed supporting affidavits in other similar cases involving review of conditions of release. She informed the Court that Mr. Harkat intended to testify about his compliance with the conditions and the impact of those conditions on him and his wife. After hearing from both counsel, I informed the parties that I would not be granting an adjournment as it would be a waste of judicial time and resources. Given the long-standing involvement of counsel for the Ministers in Mr. Harkat’s case, and considering the nature of the testimony Mr. Harkat intended to give, I presented two (2) options to counsel. The first option was to have Mr. Harkat testify in chief that morning and be cross-examined the following day. The second option consisted of having Mr. Harkat’s counsel provide the Ministers’ counsel with a will-say statement by the end of the morning and having Mr. Harkat testify the next day, both in chief and in cross-examination. The first option was retained.
[31] Mr. Harkat testified that his current conditions of release make it difficult for him to obtain employment as he needs to be able to use a computer at work as well as a mobile telephone. He spoke of the places where he has sought employment and explained that while he is expected to carry a mobile telephone in his current employment, his employer has accommodated him by letting him use a walkie-talkie. He also testified that he has not looked for employment in the last two (2) years because of medical reasons.
[32] He testified about the difficulties that come from having to report once a day by telephone when he is travelling and gave the example of when he and his wife visited his sister-in-law’s cottage. Because he is required to call in from a landline, he had to drive to town to make the call from a payphone as there was no telephone at the cottage and he is not allowed to use someone else’s mobile telephone. All the while, the CBSA officers were already at the cottage monitoring him. With respect to the monitoring, Mr. Harkat testified that over the last two (2) years, the CBSA had been conducting its monitoring every Sunday.
[33] Mr. Harkat also responded to the CBSA’s concerns regarding the location of the computers. He indicated that while his computer has been in the same location since November 2013, the CBSA has never raised the issue despite coming to his house on numerous occasions to pick up the computer for inspection. According to Mr. Harkat, the CBSA has inspected his computer maybe three (3) times in the last two (2) years. As for the missing mouse and keyboard, Mr. Harkat explained that they were in his bedroom because he uses the television as the computer’s monitor. He also testified about the issue of his wife’s unattended monitor. He explained that the last time the CBSA came without notice to the house, his wife had been on the computer that morning. When the men arrived, he warned her that the CBSA was there to pick up the computer. As she was undressed, she left the room and went to the washroom without turning the computer off.
[34] Regarding the solid state drive installed in his computer, Mr. Harkat testified that when his computer stopped working after being inspected by the CBSA, he was told by the CBSA to have the hard drive repaired at a local store and that it would pay for the repairs. The CBSA was given the receipt and did not raise the issue with him.
[35] Mr. Harkat also believes that the CBSA checks his emails remotely as he is required, under the terms and conditions of his release, to provide the CBSA with his passwords. While he would like to have access to a tablet, he does not want a mobile telephone for personal use because of roaming concerns and the possible interpretation that he would be in breach of his conditions.
[36] Mr. Harkat also testified about how the conditions have affected his relationships with others. He indicated that he would prefer that the CBSA not come to his house because people ask questions.
[37] Finally, Mr. Harkat testified that he does not have any information relating to the individuals he has been found to be associated with in the decision on the reasonableness of the certificate nor does he know how long his case will be before the MPSEP. He will do what Canada asks him to.
V. The Legal Framework
[38] For the purposes of this review, I accept the legal framework set out by my predecessor in Harkat v Canada (Citizenship and Immigration), 2014 FC 1034 at paragraph 7 and in Harkat v Canada (Citizenship and Immigration), 2013 FC 795 at paragraphs 25-27 (see also Charkaoui #1 at paras 108-109, 119). I must determine whether Mr. Harkat’s release poses a danger to the security of Canada and if so, whether it can be neutralized through the imposition of terms and conditions.
[39] In conducting this exercise, I may consider the following non-exhaustive list of factors:
a) the Court’s assessment of danger to the security of Canada associated with Mr. Harkat in light of all the evidence presented;
b) past decisions relating to danger and the history of the procedures pertaining to reviews of detention, release from detention with conditions and the decisions made;
c) the decision, if any, on the reasonableness of the security certificate;
d) the uncertain future as to the finality of the procedures;
e) the elements of trust and credibility related to the behaviour of Mr. Harkat after having been released with terms and conditions and his compliance with them;
f) the passage of time; and,
g) the impact of the terms and conditions of release on Mr. Harkat and his family and the proportionality between the danger posed by Mr. Harkat and the conditions of release.
(Harkat v Canada (Citizenship and Immigration), 2013 FC 795 at para 26; Charkaoui #1 at paras 108-109).
[40] The burden lies with the Ministers to establish on the “reasonable grounds to believe” standard that there is a need to maintain stringent conditions of release (Mahjoub (Re), 2013 FC 10 at para 14). The Ministers must identify the terms and conditions and demonstrate that they are proportional to the danger posed (Harkat v Canada (Citizenship and Immigration), 2013 FC 795 at para 27; Harkat v Canada (Citizenship and Immigration), 2014 FC 1034 at para 7).
[41] I now propose to review each of those factors.
A. The assessment of the threat to the security of Canada posed by Mr. Harkat in light of all the evidence presented
[42] As indicated above, the Ministers have the burden of establishing that Mr. Harkat poses a danger to national security or the safety of persons. They must show that the threat is serious, in the sense that it is grounded on objectively reasonable suspicion based on evidence and that the threatened harm is substantial and not negligible (Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 90; Mahjoub (Re), 2017 FC 603 at para 49).
[43] The Ministers acknowledge that the level of danger that Mr. Harkat poses to the security of Canada has diminished over the years. However, they contend that the danger has not evaporated, nor have the findings contained in the decision upholding the security certificate. The Court found that while the danger associated with Mr. Harkat had diminished over time, he still posed a danger to the security of Canada (Harkat (Re), 2010 FC 1241 at paras 13, 545). The Ministers argue that the present conditions continue to be necessary to neutralize this danger.
[44] The Ministers also rely on a risk assessment prepared by the CBSA in 2016 which indicates that the degree of risk associated with non-compliance of the terms and conditions is assessed to be “medium to medium low”. This assessment is based on the assumption that the current terms are in place.
[45] Mr. Harkat, on the other hand, submits that there is no current evidence demonstrating that he is a danger to Canada or to the safety of any person. He argues that the evidence of danger is dated and cannot reasonably be relied upon. The last threat assessment conducted by the CSIS was in 2009 and disclosed no new information about his involvement in threat-related activities. Moreover, the assessment was based on information which predated his detention in 2002. As for the CBSA risk assessment upon which the Ministers rely, it does not address the threat he poses but rather the risk of non-compliance with the terms and conditions imposed by the Court. Mr. Harkat further notes that the CBSA has not identified any actual breach since 2008.
[46] To support the argument that he does not pose a danger, Mr. Harkat relies on the advocacy letters contained in his record where the individuals state that they do not believe he would engage in violence or contribute to harm others and on the conclusions drawn by Dr. Cameron in his report dated January 15, 2016.
[47] In their written submissions, the Ministers submit that Dr. Cameron’s report cannot be admitted into evidence on the basis that it does not comply with the Rules of this Court for filing and relying on expert evidence. However, they conceded at the hearing that Dr. Cameron’s report could be admitted under section 52.3 of the Rules which creates an exception where the expert is the treating medical professional and his evidence is limited to the topics enumerated in the said Rule.
[48] The Ministers also submit that I should give less weight to Dr. Cameron’s evidence to the extent his opinion considers the ultimate questions that I must determine (R v Mohan, [1994] 2 SCR 9 at paras 21, 24 (QL)) and generally advocates Mr. Harkat’s position.
[49] I have reviewed Dr. Cameron’s report and testimony. While I understand he has known Mr. Harkat for a long time and his psychiatric opinion on Mr. Harkat’s mental health is worth noting, I am concerned about the line between advocacy and expertise being blurred. When confronted on cross-examination with a number of contradictions between the Court’s findings in the 2010 security certificate reasonableness decision and Mr. Harkat’s version of events upon which the assessment was based, Dr. Cameron repeatedly attempted to distinguish the Court’s findings with a number of explanations, including “at the time, 1990 to ’95, the Taliban were our allies” (Transcript p 211), “one person’s supporting terrorism is another person’s freedom fighter” (Transcript p 218) and “in the 1990’s, the Taliban were our friends” (Transcript p 219). In doing so, Dr. Cameron left me with the impression that he was advocating on Mr. Harkat’s behalf instead of providing neutral evidence upon which I could draw my conclusions. Given that Dr. Cameron’s written opinion was prepared with the intent of persuading the MPSEP to grant Mr. Harkat a ministerial exemption and that it accepts as fact elements of Mr. Harkat’s story despite this Court’s findings to the contrary, I will give the opinion limited weight regarding the risks associated with Mr. Harkat.
[50] On the basis of the evidence before me, I find, like my predecessor, that the danger posed by Mr. Harkat is situated at the lower end of the spectrum (Harkat v Canada (Citizenship and Immigration), 2014 FC 1034 at paras 9-10; Harkat (Re), 2009 FC 1008 at para 20; Harkat v Canada (Citizenship and Immigration), 2013 FC 795 at paras 24, 28, 31).
[51] I am cognizant of the fact that the Ministers have adduced no new evidence regarding the level of danger posed by Mr. Harkat. The absence of such evidence clearly weighs in favour of Mr. Harkat. That being said, I cannot totally discount the findings contained in the decision upholding the security certificate and previous conditions review decisions. While the passage of time as well as Mr. Harkat’s overall compliance with the conditions of release have significantly attenuated the level of danger he poses, I find that a danger still remains even though it is unclear to me whether the effectiveness of the conditions of release is responsible for the reduced threat or whether Mr. Harkat has truly turned a new leaf and abandoned his past ideologies.
B. Past decisions relating to danger, the history of the procedures pertaining to reviews of detention, release from detention with terms and conditions
[52] It is not necessary for me to elaborate further on this factor and rely on the previous decisions of this Court. Overall, the terms and conditions of release have evolved proportionally with the danger associated with Mr. Harkat, who has demonstrated compliant behaviour throughout the years since his release in 2006. This also weighs in favour of Mr. Harkat.
C. The decision on the reasonableness of the certificate, if any
[53] In the decision upholding the reasonableness of the security certificate (Harkat (Re), 2010 FC 1241), the Court concluded as follows:
[548] Having carefully considered the evidence presented during the public and closed hearings and after having assessed it on a balance of probabilities, I conclude that the Ministerial position on almost all the allegations made against Mr. Harkat must be accepted. I find that Mr. Harkat has engaged in terrorism, that he is a danger to the security of Canada and that he is a member of the Bin Laden Network through his past work for the Khattab group and his association with known terrorists and/or Islamist extremists, such as A. Khadr and Al Shehre. Given the legal framework of the IRPA and the definitions given herein, the Court finds that these factual conclusions link Mr. Harkat to the grounds set out in paragraphs 34(1)(c), (d) and (f) of the IRPA. Therefore, I rule that the certificate based on these three grounds of security against Mr. Harkat is reasonable.
[54] I note this decision was ultimately upheld by the Supreme Court of Canada.
[55] While not determinative, the grounds upon which the Court concluded the security certificate was reasonable are among the most serious grounds of inadmissibility. This factor weighs against Mr. Harkat.
D. The uncertain future as to the finality of the proceedings
[56] Relying on the decision in Charkaoui #1, this Court found in Harkat v Canada (Citizenship and Immigration), 2013 FC 795 at paragraph 39 that the uncertain future length of the proceedings favours an open-minded approach towards the relaxation of the terms and conditions of release.
[57] It appears from the evidence, at least on a medium-term basis, that Mr. Harkat’s future is uncertain.
[58] Although the decision on the reasonableness of the security certificate became final when it was upheld by the Supreme Court of Canada in 2014, the removal process remains outstanding. The CBSA has sought a danger opinion pursuant to paragraph 115(2)(b) of the IRPA whereby the MPSEP’s delegate will determine whether Mr. Harkat poses a danger to national security or if the nature and severity of the acts committed reach a serious level of gravity and if so, whether the risk to Mr. Harkat of deporting him outweighs the danger. The danger opinion package with Mr. Harkat’s submissions was provided to Immigration, Refugee and Citizenship Canada for decision on March 8, 2017, and a senior officer was assigned to the case on March 31, 2017, for consideration. While the danger opinion process usually takes between eighteen (18) and twenty-four (24) months, Mr. Renaud believes that it may be longer in Mr. Harkat’s case given the complexity of his case. Furthermore, if Mr. Harkat is unsuccessful in the danger opinion process, it is foreseeable that he is likely to seek judicial review of any future decisions, thus prolonging the uncertainty with respect to the finality of the proceedings.
E. The elements of trust and credibility related to the behaviour of Mr. Harkat after having been released with conditions and his compliance with them
[59] In Harkat v Canada (Citizenship and Immigration), 2013 FC 795, the Court stated that the elements of trustworthiness and credibility are essential considerations in reviewing the appropriateness of the terms and conditions of release. It noted that since 2009, Mr. Harkat has complied with all the terms and conditions of his release and there have been no problems.
[60] According to Mr. Renaud’s sworn statement, this continues to be the case (see para 3 of his affidavit), thus enhancing this Court’s level of trust into Mr. Harkat.
F. The passage of time
[61] The most recent CSIS threat assessment was prepared in 2009 and the Ministers have presented no evidence demonstrating that Mr. Harkat has been involved in any threat-related activities since that time. Furthermore, Mr. Harkat has complied with the terms and conditions of his release since his release in 2006.
[62] The passage of time, at present, favours the relaxation of the conditions.
G. The impact of the conditions of release on Mr. Harkat and his