Harkat v. Canada (Minister of Citizenship and Immigration)

Harkat v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-05-23
Neutral citation
2006 FC 628
File numbers
DES-4-02
Notes
Reported Decision
Decision Content
Date: 20060523
Docket: DES-4-02
Citation: 2006 FC 628
Ottawa, Ontario, May 23, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MOHAMED HARKAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS CANADA
Respondents
PUBLIC REASONS FOR ORDER
INTRODUCTION
[1] On March 22, 2005, the Court determined that the security certificate, signed by the Minister of Citizenship and Immigration (Minister) and the Solicitor General of Canada (together, the Ministers) in respect of Mr. Harkat, was reasonable. The certificate stated that Mr. Harkat, a foreign national, is inadmissible to Canada on grounds of security because there are reasonable grounds to believe that:
(a) He has engaged in terrorism by supporting terrorist activities.
(b) He was, or is, a member of the Bin Laden Network which is an organization that there are reasonable grounds to believe has engaged, or will engage, in terrorism.
[2] Thereafter, Mr. Harkat applied to the Court for release from incarceration. That application was dismissed by my colleague Mr. Justice Lemieux on December 30, 2005. Mr. Harkat has again applied, pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), for an order releasing him from incarceration.
THE ISSUES TO BE DETERMINED
[3] Three issues are raised by the parties on this application. First, the Ministers assert that an over-arching and threshold issue is whether Mr. Harkat has established a material or substantial change of circumstances since his previous application that would permit the Court to deal with this second application. If so, the two further issues to be determined are whether Mr. Harkat has met the onus placed upon him by subsection 84(2) of the Act to satisfy the Court that he will not be removed from Canada within a reasonable time and that his release will not pose a danger to national security or to the safety of any person.
SUMMARY OF CONCLUSIONS
[4] In these reasons, I:
(i) find as a fact that there has been an unexplained delay in the process necessary to determine whether Mr. Harkat may be removed from Canada. This delay has prolonged Mr. Harkat’s detention and constitutes a distinct departure from the circumstances previously before the Court. It follows that this second application for release is properly brought by Mr. Harkat;
(ii) find that Mr. Harkat has met the onus upon him to establish that he will not be removed from Canada within a reasonable time;
(iii) find that Mr. Harkat’s release without condition would pose a threat to national security or to the safety of any person; and
(iv) find that a series of terms and conditions can be imposed upon Mr. Harkat that will, on a balance of probabilities, neutralize or contain any threat or danger posed by his release.
Thus, it is ordered that Mr. Harkat may be released from incarceration upon complying with the conditions set out in paragraph 95 below.
THE LEGISLATION
[5] As noted above, this application is brought pursuant to subsection 84(2) of the Act which is as follows:
84(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
84(2) Sur demande de l'étranger dont la mesure de renvoi n'a pas été exécutée dans les cent vingt jours suivant la décision sur le certificat, le juge peut, aux conditions qu'il estime indiquées, le mettre en liberté sur preuve que la mesure ne sera pas exécutée dans un délai raisonnable et que la mise en liberté ne constituera pas un danger pour la sécurité nationale ou la sécurité d'autrui.
[6] In order to appreciate the arguments of the parties with respect to the threshold issue and the issue of removal from Canada within a reasonable time, it is helpful to comment upon the larger legislative scheme.
[7] The effect of determining a security certificate to be reasonable is set out in section 81 of the Act; once a certificate is determined to be reasonable it is conclusive proof that the person concerned is inadmissible to Canada and it is a removal order.
[8] However, Mr. Harkat was found in February of 1997 to be a Convention refugee. He is, therefore, a protected person as defined in the Act. Generally, protected persons cannot be removed from Canada to a place where they would be at risk of persecution, torture or cruel and unusual treatment or punishment (see subsection 115(1) of the Act). An exception exists to this general principle where a person is found to be inadmissible on grounds of security. In such case, the person may be removed if, in the opinion of the Minister, "the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada" (see paragraph 115(2)(b) of the Act).
[9] Mr. Harkat says that if he is removed to Algeria, his country of citizenship, he will likely suffer torture or death. Unless, therefore, it is determined that Mr. Harkat does not face such a risk, or that notwithstanding such risk Canada’s security requires his removal pursuant to paragraph 115(2)(b) of the Act, Mr. Harkat cannot be removed from Canada.
[10] Sections 81 and 115 of the Act are set out in the appendix A to these reasons.
THE EVIDENCE
[11] At paragraphs 21 through 72 of his reasons, cited as Harkat v. Canada (Minister of Citizenship and Immigration), 2005 FC 1740, Mr. Justice Lemieux carefully reviewed the documentary and oral evidence adduced in public at the hearing of Mr. Harkat’s first application for release and described generally the material placed before the Court in confidence by the Ministers on that application. All of that documentary evidence, whether tendered in public or in confidence was, by consent, re-filed in evidence on this second application. Additionally, the transcripts of the public and private proceedings were, by consent, filed in evidence before me.
[12] In view of Mr. Justice Lemieux's review of the evidence tendered on the first application for release, there is no need for me to repeat that review.
[13] The new evidence tendered on this second application for release consisted of:
(i) Documents filed in public on behalf of both Mr. Harkat and the Ministers.
(ii) Oral evidence adduced on Mr. Harkat's behalf in public.
(iii) Information provided in private by the Ministers.
(i) The Documentary Evidence
[14] Mr. Harkat's counsel filed the affidavit of a legal assistant describing briefly matters that have arisen since the first application and to which is attached a copy of the final submissions, dated December 12, 2005, addressed to the Minister's delegate concerning whether Mr. Harkat could safely be returned to Algeria. Also filed was correspondence to and from counsel for Mr. Harkat that generally dealt with the possible movement of persons detained pursuant to security certificates to a new federal facility, the status of the appointment of the Minister's delegate and that delegate’s qualifications, and an access to information request. The Minister’s delegate is the person who will determine whether Mr. Harkat should be removed from Canada pursuant to paragraph 115(2)(b) of the Act.
[15] Of greatest relevance was a letter dated March 7, 2006 sent to Mr. Harkat's counsel just before the commencement of the hearing of this second application by the Director General, Case Management Branch of Citizenship and Immigration Canada. In its entirety the letter advised as follows:
The purpose of this letter is to set out the status of the determination by the Minister’s Delegate of the Danger Opinion in the case of Mr. Harkat.
An officer has been designated to be the decision-maker for the purposes of Mr. Harkat’s s.115(2) determination. This officer will begin his full time work on this case by mid-Marc[sic] and dell [sic] be dedicated solely to its completion. With the guideline (taken from other similar cases) of approximately 200 hours of work required, we anticipate that the decision will be completed in late April or Early [sic] May.
[16] The Ministers filed the affidavit of a paralegal to which is attached a letter from the Detention Manager, Canada Border Services Agency. This letter advised that the transfer of persons detained under security certificates will take place in the near future.
(ii) The Oral Evidence
[17] The Ministers adduced no oral evidence in public on this second application for release. On Mr. Harkat's behalf both he and his wife testified, as did four proposed sureties including Mr. Harkat’s mother-in-law, Pierrette Brunette. This oral evidence essentially reiterated testimony given before Mr. Justice Lemieux, as summarized by him at paragraphs 31 and 32 of his reasons, cited above. The witnesses testified in person on this second application so as to permit the Court to better assess their testimony.
(iii) Information Provided in Private
[18] No new confidential information was filed by the Ministers. Following the conclusion of the public hearing I requested that a witness or witnesses be produced to answer questions I had arising out of this second application and the confidential record.
[19] At paragraphs 81 through 89 of my reasons given for finding the security certificate to be reasonable, cited as Harkat (Re), 2005 FC 393, I endeavoured to explain why it is necessary to keep certain information confidential, and gave examples of the type of information that must be kept confidential because its release would prove injurious to Canada's national security or to the safety of any person. For those reasons, I am not able to disclose the confidential information provided to me in private. It can be disclosed, as was set out in a direction provided to the parties setting out the status of the in camera proceeding, that the following issues were raised by me and that a witness was produced on behalf of the Ministers to answer questions concerning these issues:
1. The possibility of further disclosure of confidential information to Mr. Harkat and his counsel.
2. The existence of any exculpatory information which may have been learned since the certificate was found to be reasonable.
3. The extent, if any, Mr. Harkat's contacts while in detention, his mail or telephone communications have been monitored.
4. The precise nature of the threat Mr. Harkat's release is said to pose.
5. If Mr. Harkat was released on the proposed conditions, what is the exact nature of the acts it is feared that Mr. Harkat would engage in that would pose a danger to national security or the safety of persons, and how would he be able to do those things?
6. If Mr. Harkat was released on the proposed conditions, how is it believed that the conditions would be insufficient to prevent the harm feared?
7. Does the Service draw a distinction between the nature of the threat posed by persons such as Mr. Mahjoub and a person such as Mr. Harkat?
8. What, if any, concerns have arisen as a result of the release, on condition, of Mr. Charkaoui?
9. Why would Mr. Harkat's release pose a greater threat, and the basis for that belief?
10. What, if any, information exists that Mr. Harkat desires to resort to violence?
11. Information as to the nature of Mr. Harkat's dedication to his wife and mother-in-law.
12. Other matters that arose.
[20] With this background, I now turn to the first issue to be determined.
HAS A MATERIAL OR SUBSTANTIAL CHANGE OF CIRCUMSTANCES BEEN ESTABLISHED?
[21] The Ministers argue that in Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, at paragraphs 36 and 52, the Federal Court of Appeal found that a renewal of a subsection 84(2) application "is possible if new facts are discovered or if there is a substantial change in circumstances since the previous application" and that the application "can be renewed if new facts are discovered or the situation has evolved to a point where detention is no longer necessary or justified."
[22] As to what constitutes a material change in circumstances, the Ministers rely upon the decision of the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27. There, the Court was required to interpret the provisions of the Divorce Act, R.S., 1985, c. 3 (2nd Supp.) that relate to custody and access, and specifically the need in that context to be satisfied as to the existence of a material change in the circumstances of a child. At paragraphs 11 and 12, Madam Justice McLachlin (as she then was) wrote:
11 The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 8 R.F.L. (3d) 139 (B.C.C.A); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 10 R.F.L. 193 (N.S.S.C.), at p. 194.
12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.
[Emphasis added.]
[23] Thus, the Ministers forcefully argue that Mr. Harkat has failed to establish on the evidentiary record before the Court any change in circumstances constituting a "distinct departure" that could not reasonably have been anticipated by Mr. Justice Lemieux. To the extent Mr. Harkat relies upon the fact that it was just immediately prior to the commencement of this hearing that the Minister’s delegate was appointed and so the delegate had not yet started to work on his decision, the Ministers respond that it “was certainly within the contemplation of Justice Lemieux that there would have been delay in appointing the Minister’s delegate.” They say this is reflected in paragraphs 114 to 120 of Mr. Justice Lemieux's reasons. There he noted that:
114 Counsel for Mr. Harkat did not lead direct evidence on the issue of whether Mr. Harkat would not be removed within a reasonable time. Rather, he relied on the fact that from the date he made his preliminary submissions to the [Canada Border Services Agency] CBSA in respect to the seeking of a section 115(2)(b) opinion, six months had passed before the CBSA submitted its memorandum to the Minister's delegate seeking a positive section 115(2)(b) opinion. According to counsel for Mr. Harkat, this six-month timeframe is evidence that the CBSA is not doing its job on a timely basis. This six-month timeframe is prima facie unreasonable. This six-month delay falls within the principle expressed by Justice Létourneau in Almrei, supra, at paragraph 42, that Mr. Harkat has discharged his onus of leading some evidence that he has reasonable grounds to believe that the removal will not be effected within a reasonable time. Counsel pursues his argument that Mr. Harkat, having led this evidence, that evidence has to be answered. The burden has shifted to the government who has not called any evidence to justify the six-month delay and, as a result, Mr. Harkat is entitled to be released.
115 Mr. Harkat's counsel also stated he does not know when Mr. Harkat might be removed and does not know when the Minister's delegate will render a decision on the section 115(2)(b) issue. He acknowledged that I should not be speculating on these two points.
116 With respect to seeking leave to appeal to the Supreme Court of Canada from the Federal Court of Appeal's September 6, 2005 decision dismissing his constitutional challenge, Mr. Harkat's counsel argued that any delay arising on account of such challenge should not count against Mr. Harkat who would be pursuing a constitutional challenge fundamental to the process.
117 It is true that six months have passed between the time counsel for Mr. Harkat made his preliminary submissions to the CBSA and the time the CBSA filed its memorandum with the Minister's delegate. Mr. Copeland had forwarded his preliminary submissions to the CBSA on April 21, 2005, with the CBSA's disclosure package to the Minister's delegate being dated October 21, 2005.
118 I do not accept counsel for Mr. Harkat's argument that, in and of itself, this six-month period is per se unreasonable and constitutes prima facie evidence that Mr. Harkat will not be removed within a reasonable time.
119 In my view, the evidentiary burden had not shifted to the respondents to explain this particular delay.
120 I question whether the six-month timeframe is accurate because, throughout the summer of 2005, counsel for Mr. Harkat was continuously submitting additional material.
[24] During oral argument, I raised with counsel for the Ministers the issue of the extent to which reliance upon Gordon, cited above, was apt given that Mr. Harkat’s liberty interest is at stake. It is, however, unnecessary for me to decide the question because on the evidence before me I find, as a fact, that the unexplained delay in the appointment of the Minister’s delegate was a distinct departure from the circumstances which the Court could reasonably have anticipated when denying the first application for release. I reach this conclusion on the following basis.
[25] At paragraph 122 of his reasons, Mr. Justice Lemieux set out seven factors that led him to conclude that Mr. Harkat had not discharged the onus upon him to satisfy the Court that he would not be removed within a reasonable time. The second and third factors were expressed as follows:
(2) All indicators are that the CBSA is proceeding expeditiously in this matter and is not dragging its feet. It began seeking assurances from the Algerian Government in 2003. Two days after Justice Dawson's decision on the reasonableness of the security certificate, Mr. Harkat was notified a danger opinion would be sought against him and the timeframe for preliminary submissions were set and completed expeditiously;
(3) The process leading to a decision by the Minister's delegate on the section 115(b) opinion is completed. The Minister's delegate's decision is pending. I cannot speculate when the Minister's delegate's decision will be rendered. If there is unreasonable delay, Mr. Harkat can renew his application for judicial release;
[Emphasis added.]
[26] The unexplained delay in the appointment of the Minister’s delegate (from December 12, 2005 when Mr. Harkat's final submission was made until sometime around March 7, 2006) and the consequent failure of the delegate to begin to consider his decision until sometime around mid-March are facts that are inconsistent with Justice Lemieux’s conclusions that the authorities were “proceeding expeditiously in this matter” and “[t]he Minister’s delegate's decision is pending.”
[27] I am therefore satisfied that if the delay in appointing a delegate and the resultant delay in considering whether Mr. Harkat may be removed from Canada were known in December of 2005, the decision of Mr. Justice Lemieux may well have been different. It must be remembered that unless the Minister grants a request made by Mr. Harkat to leave Canada to go to a country of his choice that is prepared to accept him, or unless Mr. Harkat is released from incarceration by this Court, Mr. Harkat must remain in detention until he is removed from Canada. The delay in proceeding with the subsection 115(2) opinion is, therefore, significant because, as Mr. Justice Lemieux noted at paragraph 74 of his reasons, any unreasonable delay by the authorities that unduly and unjustifiably prolongs the detention of a person is a violation of that person’s constitutionally guaranteed right to liberty and security of the person.
[28] Accordingly, Mr. Harkat has established, by way of new evidence, a substantial change in circumstances since the previous application.
[29] I now turn to the second issue.
HAS MR. HARKAT MET THE ONUS UPON HIM TO ESTABLISH THAT HE WILL NOT BE REMOVED FROM CANADA WITHIN A REASONABLE TIME?
(i) Applicable Principles of Law
[30] In Almrei, cited above, the Federal Court of Appeal set out a number of legal principles applicable to proceedings under subsection 84(2) of the Act. The principles that are relevant to the evidence before me are as follows:
1. Time and the behavior of the parties are of the essence of the subsection 84(2) application (paragraph 5).
2. The purpose of subsection 84(2) is to ensure that due diligence will be exercised by the Minister in removing a foreign national detained for security purposes (paragraph 28).
3. The onus of proof is upon the person seeking release, and the burden must be discharged upon a balance of probabilities (paragraph 39).
4. A subsection 84(2) application requires the judge to determine whether the foreign national will be removed from Canada “within a reasonable time.” The concept of "removal within a reasonable time" requires a measurement of the time elapsed from the time the security certificate was found to be reasonable, and an assessment of whether that time is such that it leads to the conclusion that removal will not occur within a reasonable time (paragraph 55).
5. The judge must consider any delay in removal and the causes of the delay. Judicial remedies must be pursued diligently and in a timely fashion. This also applies to the Ministers' responses and to the judicial hearing of the application for release. Subsection 84(2) of the Act "authorizes a judge to discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time." Put another way, where an applicant tries to prevent his removal and delay ensues as a result, he can not complain that his removal has not occurred within a reasonable time, unless the delay is unreasonable or inordinate and not attributable to him (paragraphs 57 and 58).
6. A forward-looking and future-oriented test is used. Evidence must be provided that indicates the applicant will not be removed within a reasonable time. If credible and compelling evidence of an imminent removal is produced, the conditions of detention and the time already served lose much of their significance (paragraph 81).
7. The length of the past detention is relevant only to the extent that the history of events may cast doubt on the reliability of the assertion and evidence submitted that the moment of removal is close at hand (paragraph 82).
[31] These principles are to be seen in the context that the security certificate procedure established under the Act was intended to provide a constitutionally valid mechanism for the summary removal from Canada of non-citizens viewed to present a danger to Canada's security. The right to remove non-citizens is consistent with jurisprudence of the Supreme Court of Canada such as Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 where, at page 733, the Court stated "[t]he most fundamental principle of immigration law" to be that "non-citizens do not have an unqualified right to enter or remain in the country." The Court went on to quote from its earlier decision in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, where it stated at paragraph 133 that "[t]he Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so." This principle was recently restated by the Supreme Court in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at paragraph 10.
[32] However, in recent years this process has not been particularly summary in nature. Thus, in Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FC 1645, my colleague Madam Justice Layden-Stevenson concluded in an application for release brought by Mr. Almrei that he had met the onus to establish that he would not be removed from Canada within a reasonable period of time. A similar conclusion had been reached in Mahjoub v. Canada (Minister of Citizenship and Immigration), 2005 FC 1596.
[33] It is, therefore, perhaps salutary to repeat that the purpose of subsection 84(2) of the Act is to ensure that due diligence will be exercised by the Minister's officials with respect to removal of non-citizens detained for reasons of security and that unreasonable delay that unjustifiably and unduly prolongs detention is a violation of constitutionally guaranteed rights.
[34] Before turning to the application of these principles to the evidence before the Court, it is important to stress that this second application for release must not be a collateral attack upon, or a disguised appeal from, the Court's decision on the first application. No appeal was taken from that decision, and during oral argument counsel for Mr. Harkat conceded that “we would not succeed on an appeal of Justice Lemieux's decision, on his finding of reasonableness.”
[35] The issue now before the Court is whether, at this time, on the evidence presently before the Court, Mr. Harkat has met the onus upon him to satisfy the pre-conditions for release contained in subsection 84(2) of the Act.
[36] My analysis of this issue will consider:
· the length of detention
· any delay in removal and the cause of that delay
· the forward-looking nature of the test
(ii) The Length of Detention
[37] Mr. Harkat has been detained since December 10, 2002. More than a year has elapsed since March 22, 2005, when the security certificate was found to be reasonable and it became a removal order.
(iii) Any Delay and the Cause of that Delay
[38] The procedural history of this matter was reviewed at paragraphs 4-22 of the reasons given for finding the security certificate to be reasonable. A further review of the procedural history is found at paragraph 52 of the Court's reasons reported as Harkat (Re), 2004 FC 1717. This history shows that no delay that occurred prior to the appointment in June of 2004 of Mr. Copeland as counsel for Mr. Harkat can be attributed to the Ministers. After Mr. Copeland’s appointment the matter proceeded on a timely basis.
[39] I turn then to the time period from when the certificate was found to be reasonable until the present.
[40] As noted above, Mr. Harkat asserts that if he is removed to his country of nationality he will likely be tortured or killed. He has provided expert opinion evidence to support that view. The Federal Court of Appeal explained in Almrei, cited above, at paragraph 86, that the possibility of removal to torture or serious violation of human rights requires that "substantial procedural protections and safeguards be given" to a detained person. As the Court of Appeal detailed:
86 […] The person facing deportation to torture must be informed of the case to be met and be given an opportunity to respond to the case presented by the Minister. He or she is entitled to disclosure, subject to privilege and other lawful exceptions. He or she also has the right to present evidence both on the issue of lack of danger to the security of Canada and on the risk of torture. Consultations with other government departments and with the countries to which the person could be removed may be necessary to obtain and implement safeguards for the life and integrity of the individual whose removal is being ordered. Landing rights may have to be negotiated and obtained. In short, as both the judge in the present case and Dawson J. in the Mahjoub case, supra, at paragraph 55, pointed out, "more time, rather than less, will reasonably be required to ensure that the principles of fundamental justice are not breached."
[41] In light of the required procedural protections, the need for careful consideration of all of the submissions made to the Minister’s delegate, and the difficulty of the issues raised, I respectfully adopt the conclusion of my colleague Mr. Justice Lemieux that as of December 30, 2005 the time expended was not unreasonable and that as of that date the evidentiary burden had not shifted to the Ministers to explain the delay.
[42] However, a markedly different situation exists today due to the apparent and unexplained lack of activity from at least December 12, 2005 until March, 2006, when a delegate was finally appointed to exercise the Minister’s discretion with respect to removal. I say “at least” as there would seem to be no reason why a delegate could not have been appointed pending receipt of the final submissions so as to be able to deal promptly with the submissions when received. I have previously found this delay to be a substantial change in circumstances from those before the Court on the first application. Considering the previously described purpose of subsection 84(2) of the Act, I find the unexplained delay is sufficient to shift the evidentiary burden to the Ministers.
[43] Before leaving this point, I also observe that since the certificate was found to be reasonable Mr. Harkat has not been the cause of any delay. As explained above, as a Convention refugee Mr. Harkat cannot, as a matter of law, be removed from Canada except at his own request or upon a decision being made pursuant to subsection 115(2) of the Act. Thus, it was the CBSA that triggered the paragraph 115(2)(b) process, as it was obliged to do if it wished to remove Mr. Harkat from Canada, by notifying Mr. Harkat of its intention to seek the Minister’s opinion. Mr. Harkat has taken no legal proceeding that has prevented the CBSA from removing him within a reasonable period of time.
(iv) The Forward-Looking, Future Orientated Test
[44] In this case, the Ministers did not produce any witness to testify with respect to the imminence of removal. In both Mahjoub and Almrei, cited above, the Ministers called the Director of Security Review of the CBSA to testify as to when the respective paragraph 115(2)(b) decisions were expected and when removal might occur if there were no legal impediments to removal.
[45] The evidence before the Court on the imminence of Mr. Harkat’s removal is:
i) the March 7, 2006 letter, quoted in full at paragraph 15 above, advising that the decision was anticipated in April or early May of this year.
ii) the evidence of the Removals Manager adduced before Mr. Justice Lemieux as to how removal would be affected if the Minister's delegate endorsed the recommendation given to him that Mr. Harkat be removed to Algeria.
[46] The Federal Court of Appeal observed in Almrei, cited above at paragraph 82, that the "history of events may cast doubt on the reliability of the assertion and evidence submitted that the moment of removal is close." There is a history of events before the Court that, in my respectful view, casts doubt on the reliability of the statement that the delegate's decision is expected to be completed in late April or early May. That history is found in the treatment of persons similarly situated to Mr. Harkat and in Mr. Harkat’s treatment.
[47] In the case of Mr. Mahjoub, Citizenship and Immigration Canada first informed Mr. Mahjoub of its intention to seek the Minister's opinion with respect to removal on October 22, 2001. A decision was ultimately made on July 22, 2004. However, that decision was set aside by this Court on judicial review (see: Mahjoub v. Canada (Minister of Citizenship and Immigration), 2005 FC 156). On February 11, 2005, during a hearing of Mr. Mahjoub's application for release from detention, the Director of Security Review of the CBSA testified that once all submissions relating to paragraph 115(2)(b) of the Act were given to the Minister’s delegate, approximately three months would be required to make a decision. The best case scenario was said to be that a decision would be made by the end of June, 2005. Notwithstanding this evidence, the records of the Court indicate that the decision was not made until January 3, 2006. An application for judicial review of that decision is pending before this Court.
[48] With respect to Mr. Almrei, the reasons of the Federal Court of Appeal set out the following chronology:
(i) December 5, 2001, Mr. Almrei was advised that Citizenship and Immigration Canada intended to seek an opinion that he could be removed from Canada.
(ii) January 13, 2003, the Minister’s delegate rendered an opinion that Mr. Almrei may be removed from Canada.
(iii) April 23, 2003, the Minister acknowledged that "serious errors" were made in forming that opinion and the Minister consented to the decision being set aside.
(iv) July 28, 2003, Mr. Almrei was told a second opinion would be sought.
(v) October 23, 2003, a second opinion concluded that Mr. Almrei could be removed from Canada.
[49] Justice Layden-Stevenson picks up the chronology in her reasons with respect to Mr. Almrei's detention review, cited above:
(vi) March 11, 2005, the second opinion of the Minister’s delegate was set aside by this Court.
(vii) A third danger opinion was then sought. Submissions to the Minister’s delegate were completed by Mr. Almrei on July 29, 2005. At the time Justice Layden-Stevenson's reasons were delivered on December 5, 2005, the delegate’s opinion remained outstanding.
[50] On the basis of this history of events I was inclined to place little weight upon the unsworn estimate that the delegate's opinion with respect to removal would be completed by late April or early May.
[51] Then, on April 13, 2006, counsel for Mr. Harkat forwarded to the Court the contents of a letter from the CBSA that stated:
“The Minister’s Delegate has been fully dedicated to this task for some weeks. He has determined that, because of the volume of material, the complexity of the issues and the volume of previous litigation in this case, it will take somewhat longer than anticipated to release his decision and corresponding reasons. Although our earlier estimate was for completion by late April or early May, we now estimate the completion date to be approximately the end of May.”
I find on the basis of the lack of any other evidence, this advice that the delegate’s decision will not be made within the time originally contemplated, and the time taken to reach such decisions in the past, that no cogent evidence of imminent removal has been put before the Court. I particularly note that notwithstanding the “best case scenario” estimate in Mahjoub, the decision was rendered in early January 2006 and not in June 2005 and that while submissions were completed in late July 2005 with respect to Mr. Almrei, no decision had been made by early December 2005.
(v) Conclusion
[52] Earlier, I concluded on all of the evidence that the evidentiary burden shifted to the Ministers. No credible or compelling evidence of an imminent removal was produced on behalf of the Ministers. It follows that Mr. Harkat has met the onus upon him to establish that he will not be removed from Canada within a reasonable period of time.
[53] Mr. Harkat’s counsel has submitted that if the Court so concluded it would be unnecessary for the Court to deal with his late raised issue with respect to the constitutionality of subsection 84(2) of the Act. I agree, and will not deal with the issue.
HAS MR. HARKAT MET THE ONUS UPON HIM TO ESTABLISH THAT HIS RELEASE WILL NOT POSE A DANGER TO NATIONAL SECURITY OR TO THE SAFETY OF ANY PERSON?
(i) Applicable Legal Principles
[54] In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 the Supreme Court of Canada considered what constitutes a "danger to the security of Canada." The Court concluded, at paragraph 85, that the phrase must be given a "fair, large and liberal interpretation in accordance with international norms." What constitutes such a danger is "highly fact-based and political in a general sense."
[55] The Court observed that support of terrorism abroad may harm Canada's national security. The Court explained the basis for that conclusion at paragraph 88 of its reasons, as follows:
88 First, the global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activity. Second, terrorism itself is a worldwide phenomenon. The terrorist cause may focus on a distant locale, but the violent acts that support it may be close at hand. Third, preventive or precautionary state action may be justified; not only an immediate threat but also possible future risks must be considered. Fourth, Canada's national security may be promoted by reciprocal cooperation between Canada and other states in combatting international terrorism. These considerations lead us to conclude that to insist on direct proof of a specific threat to Canada as the test for "danger to the security of Canada" is to set the bar too high. There must be a real and serious possibility of adverse effect to Canada. But the threat need not be direct; rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security.
[56] The Court also discussed the nature of the evidence required to establish a danger to Canada's security, at paragraphs 89 and 90, in the following terms:
89 While the phrase "danger to the security of Canada" must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to return (refouler) a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution. This supports the conclusion that while "danger to the security of Canada" must be given a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat.
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.
[57] Thus, evidence that grounds an objectively reasonable suspicion of substantial threatened harm will establish a danger to national security.
[58] To the extent possible, the Court’s conclusion with respect to danger should be based upon the public record. However, reliance upon information put before