Date: 20060919
Docket: DES-4-02
Citation: 2006 FC 1105
BETWEEN:
MOHAMED HARKAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS CANADA
Respondents
[1] On May 23, 2006, the Court issued an order (order) which provided that Mr. Harkat was entitled to be released from incarceration on condition that he comply with all of the terms and conditions contained in the order. The order also provided, in paragraph 23, that the Court would review the terms and conditions of the order at the earlier of: (i) the rendering of a decision by the delegate of the Minister of Citizenship and Immigration (Minister) as to whether Mr. Harkat may be removed from Canada; or (ii) four months from the date of the order.
[2] A decision has been made by the Minister’s delegate that Mr. Harkat may be removed from Canada. Upon learning this, the Court contacted counsel for the parties. Counsel for Mr. Harkat advised the Court that he wished changes to be made to the terms of the order. Counsel for the Ministers advised that the Ministers did not wish any changes to the terms of the order, notwithstanding the issuance of the opinion of the Minister's delegate. It was ultimately agreed that each party would file written submissions in support of their position, together with any evidence they considered to be necessary. Once the submissions advanced on behalf of Mr. Harkat, the Ministers and Mr. Harkat's submissions in reply were received, the Court would render its decision on the basis of the submissions and any evidence provided to the Court.
[3] The submissions have been received and neither party filed any evidence.
[4] These are the Court's reasons with respect to the submissions of the parties.
[5] I begin by summarizing the changes sought by Mr. Harkat. They are:
1. Permission is sought for Mr. Alois Weidemann to be added as a supervising surety, that is, one who can accompany and supervise Mr. Harkat outside the residence and one who can remain in the residence with Mr. Harkat so that Sophie Harkat and Ms. Brunette may leave the residence.
2. Permission is sought to move to a new home to be purchased by Mr. Harkat's mother-in-law, Pierrette Brunette, and/or her partner, Mr. Weidemann. Mr. Harkat proposes to live there with Ms. Brunette, Mr. Weidemann and Mr. Harkat's wife Sophie.
3. A variation of paragraph 7 of the order is sought so that Mr. Harkat may be allowed out of the home, into the yard, from 8 a.m. to 11 p.m. The order now provides that he may be out from 8 a.m. to 9 p.m. The Ministers counter, requesting that the order be varied so as to provide that Mr. Harkat may not be permitted outside of the residence into the yard "after dusk".
4. A variation is sought of paragraph 9 of the order with respect to who is permitted to enter the residence. That paragraph now provides:
9. No person shall be permitted to enter the residence except:
a) Sophie Harkat and Pierrette Brunette.
b) the other individuals specified in paragraph 5 above.
c) his legal counsel, Paul Copeland and Matthew Webber.
d) in an emergency, fire, police and health-care professionals.
e) a person approved in advance by the CBSA [Canada Border Services Agency]. In order to obtain such approval, the name, address and date of birth of such person must be provided to the CBSA. Prior approval need not be required for subsequent visits by a previously approved person, however the CBSA may withdraw its approval at any time.
Mr. Harkat asks that the following be added:
Where repairs are required to the house or to any equipment in the house, a bona fide repair person may enter the house without approval in advance by the CBSA. The CBSA shall be notified, in advance, of the name of the company that the repair person works for, and of the day on which the repair person is coming to the house. If required by the CBSA, a copy of the invoice for the repair work shall be provided to the CBSA within 96 hours of the request by the CBSA for a copy of the invoice.
5. A variation is sought of paragraph 8 of the order with respect to the notice to be given to the CBSA when Mr. Harkat wishes to leave the residence. Paragraph 8 provides:
8. Mr. Harkat may, between the hours of 8:00 a.m. and 9:00 p.m., with the prior approval of the CBSA, leave the residence three times per week for a duration not to exceed 4 hours on each absence. A request for such approval shall be made at least 48 hours in advance of the intended absence and shall specify the location or locations Mr. Harkat wishes to attend and the times when he shall leave and return to the residence. If such absence is approved, Mr. Harkat shall, prior to leaving the residence and immediately upon his return to the residence, report as more specifically directed by a representative of the CBSA. During all approved absences from the residence, Mr. Harkat shall at all times have on his person the tracking unit enabling electronic monitoring and shall be accompanied at all times by either Sophie Harkat or Pierrette Brunette, who shall bear responsibility for supervising Mr. Harkat and for ensuring that he complies fully with all of the terms and conditions of this order. This requires them to remain continuously with Mr. Harkat while he is away from the residence. Prior to Mr. Harkat's release from incarceration, Sophie Harkat and Pierrette Brunette shall each sign a document in which they acknowledge and accept such responsibility, specifically including their obligation to immediately report to the CBSA any breach of any term or condition of this order. The document shall be prepared by Mr. Harkat's counsel and shall be submitted to counsel for the Ministers for approval.
Mr. Harkat advises that the CBSA has taken the position that the 48-hour notice is to be counted from the time the request is received by the CBSA (and not from when it is made), and has taken the position that 96 hours notice is required for long weekends.
6. Mr. Harkat is concerned that when he leaves the residence with one of his supervising sureties he is followed by CBSA personnel. The Court is asked to clarify the role of the CBSA. It is suggested that if the CBSA are to follow Mr. Harkat, perhaps it is not necessary for his supervising sureties to accompany him.
7. Mr. Harkat would like to be permitted to go for walks within a three block radius of the residence.
8. Mr. Harkat would like paragraph 8 of the order, set out above, which limits the amount of time he is allowed out of the house to be varied so as to extend the duration of an outing if it includes an attendance at a physician’s office.
9. Mr. Harkat would like the order to be varied so as to permit him to be in the residence alone. Paragraph 6 of the order provides:
6. Upon his release from incarceration, Mr. Harkat shall be taken by the RCMP (or such other agency as the CBSA and the RCMP may agree) to, and he shall thereafter reside at [redacted in the public order] in the City of Ottawa, Ontario (residence) with Sophie Harkat, his wife, Pierrette Brunette, his mother-in-law, and Pierre Loranger. In order to protect the privacy of those individuals, the address of the residence shall not be published within the public record of this proceeding. Mr. Harkat shall remain in such residence at all times, except for a medical emergency or as otherwise provided in this order. While at the residence Mr. Harkat is not to be left alone in the residence. That is, at all times he is in the residence either Sophie Harkat or Pierrette Brunette or some other person approved by the Court must also be in the residence. The term "residence" as used in this order encompasses only the dwelling house and does not include any outside space associated with it.
10. Mr. Harkat would like the order varied so as to allow him to have five (as opposed to three) outings per week.
11. Mr. Harkat asks that in respect of permitted outings, he no longer be required to notify the CBSA in advance of where the car he travels in will be parked while he is out.
12. Mr. Harkat would like paragraph 10(iii)b) of the order to be varied. That paragraph provides:
10. When, with the approval of the CBSA, Mr. Harkat leaves the residence he shall not:
[…]
iii) meet any person by prior arrangement other than:
[…]
b) any person approved in advance by the CBSA. In order to obtain such approval, the name, address and date of birth of such person must be provided to the CBSA.
Mr. Harkat asks that the provision be varied so as to exempt from the requirement of advance CBSA approval "media personnel who have a bona fide media identification document".
13. Mr. Harkat asks that the following people be allowed to attend his residence, or to meet with him outside the residence: Benoit Renaud, Paul Smith, Matthew Behrens and Dan Sawyer.
14. Mr. Harkat asks that paragraph 10 iv) of the order be varied. That provision currently provides:
10. When, with the approval of the CBSA, Mr. Harkat leaves the residence he shall not:
[…]
iv) go to any location other than that or those approved pursuant to paragraph 8 above, during the hours approved.
Mr. Harkat asks that such information not be required, but that instead he provide description of the physical area to be visited.
15. Mr. Harkat requests that paragraph 12 of the order be varied to the extent that it provides that "[…] no cellular telephone shall be permitted in the residence". Mr. Harkat asks that his wife be permitted to have a cellular phone if she undertakes not to allow him to use it and if she keeps it in a locked portion of the house.
16. Mr. Harkat asks that Mr. Pierre Loranger be removed as a surety.
17. Mr. Harkat asks that the order setting the geographic boundaries of the area he is entitled to be in when absent from the residence on a CBSA approved leave be varied, so as to allow him to use the Blackburn Hamlet Bypass.
18. Mr. Harkat currently lives with his wife and mother-in-law in a rental property. In view of his anticipated change of residence, Mr. Harkat asks that the order be varied so as to permit specific named persons from the property management company that oversees the rental unit to enter the residence and to show it to potential tenants without requiring approval for each person who enters the residence.
19. If the change in residence is approved, Mr. Harkat notes that it may be impossible to provide the names and particulars of the employees of the moving company that will attend the residence for packing and moving purposes.
20. Mr. Harkat says that incoming mail has been seriously delayed. He asks that paragraph 13 of the order that permits the interception of the incoming and outgoing written communications to or from the residence, be varied so as to specify that all inspection is to be completed within one working day of the arrival of mail for delivery.
[6] I have divided these requests into four categories. They are:
A. The request to change Mr. Harkat's place of residence and to add Mr. Weidemann as a supervising surety (items 1, 2, 18 and 19 above).
B. The request for liberalization of certain of the existing conditions (items 3, 7, 8, 9, 10, 11, 14 and 17 above).
C. The unopposed request (item 16 above).
D. Required clarification of certain existing terms (items 4, 5, 6, 12, 13, 15 and 20 above).
[7] I will deal with each in turn.
A. The request to add Mr. Weidemann as a supervising surety, to change Mr. Harkat's place of residence and to allow access to prospective new tenants (items 1, 2, 18 and 19 above).
[8] In order for the Ministers to consider their position with respect to adding Mr. Weidemann as a supervising surety it is agreed by the parties that he should be interviewed by representatives of the CBSA. Mr. Weidemann is, however, out of the country and not expected to return until late September. Once he has been interviewed and the Ministers have considered and made submissions on his suitability (and if necessary Mr. Harkat has made responding submissions) the Court will consider whether the requested addition of Mr. Weidemann as a supervisory surety is approved.
[9] With respect to the requested change of residence, the CBSA and the monitoring company are required to inspect the property in order to determine whether it is suitable for GPS technology, and the CBSA is required to consider generally the feasibility of surveillance at the proposed new residence. When the inspection has been completed and the Court receives the Ministers’ submissions (and Mr. Harkat’s reply, if necessary) the Court will consider whether the requested change of residence be approved. If the move is to be permitted, further submissions will be required with respect to provisions to monitor Mr. Harkat on the day of the move.
[10] While for the reasons set out above, it is premature to deal with the request to approve the change in residence, the parties have made submissions with respect to the appropriate way to deal with any future efforts to show the current residence to potential new renters. I shall therefore deal with the issue at this time.
[11] CBSA recognizes the right of the landlord to show the property, but requests that certain conditions be imposed. In my view, the proposed conditions are reasonable and so the order will be varied to deal with this situation by adding the following as paragraph 25:
25. The landlord or his agent may show the premises where Mr. Harkat now resides to prospective tenants on the following terms:
i) Any showing shall be between the hours of 8:00 a.m. and 9:00 p.m.
ii) The name, address and date of birth of any agent showing the property on behalf of the landlord shall be provided to the CBSA at least two business days prior to the agent seeking entry to the residence.
iii) CBSA shall be given 24 hours advance notice of any showing.
iv) Representatives of the CBSA may be present at any showing.
v) No persons entering the residence shall bring into it any communication device (including any telephone, pager, or device such as a blackberry).
vi) No person entering the residence shall photograph or videotape the interior of the residence. An agent of the landlord may seek the prior approval of the CBSA to take any photographs required in order to market the property.
vii) No person who has been denied access to the property by the CBSA may be shown the property.
viii) To the extent possible, showings should be timed to coincide with Mr. Harkat’s approved absences from the residence.
ix) If Mr. Harkat is present for a scheduled showing, before anyone enters the residence Mr. Harkat, together with an accompanying surety, shall leave the residence and go to the rear yard of the residence.
B. The request for liberalization of certain of the existing conditions (items 3, 7, 8, 9, 10, 11, 14 and 17 above).
[12] I observe at the outset that the requirement in the order for the conditions of release to be reviewed if a decision was made that Mr. Harkat be removed from Canada reflected the Court’s concern that such a decision would bring Mr. Harkat one step closer to removal from Canada. As such, it was an event that could increase the possibility that Mr. Harkat might breach the conditions of release so as to avoid removal. It was not contemplated that if the decision was made to remove Mr. Harkat the Court would use that as an event to trigger consideration of liberalizing the terms of release.
[13] Mr. Harkat was released from detention on or about June 21, 2006. Insufficient time has, in my view, passed for the Court to agree to liberalize the terms of release. Thus, the requests made in items 3, 7, 8, 9, 10, 11, 14 and 17 above are denied. The matters may be revisited when further time has elapsed and Mr. Harkat has a longer temporal record of compliance with all of the conditions of release.
[14] I decline to restrict paragraph 7 of the order as sought by the Ministers so as to provide that Mr. Harkat may not be out in the yard "after dusk". I do so for two reasons. First, the Ministers identified no problem that has arisen with respect to the existing term and indeed advised at the outset that they sought no changes to the order. Second, I have attempted to make the order as clear as possible so as to avoid misunderstandings and inadvertent breaches of the terms and conditions of the order. Importing a term such as "dusk" into the order, as opposed to specifying fixed times, increases the opportunity for dispute.
C. The unopposed request (item 16 above).
[15] The request that Mr. Loranger be removed from the order is not opposed by the Ministers so long as another supervising surety, acceptable to the Ministers, agrees to assume the responsibilities previously assumed by Pierre Loranger.
[16] I am not aware of any responsibility assumed by Mr. Loranger other than he execute a performance bond in the amount of $1,500.00 and that he acknowledge in writing reviewing the terms and conditions contained in the order. The order will be amended to remove any reference to Mr. Pierre Loranger on condition that: the additional sum of $1,500.00 be paid into Court; or a new surety executes a performance bond in that amount in accordance with the terms of paragraph 5 of the order; or an existing surety executes an amended performance bond increasing the amount secured by $1,500.00.
D. Required clarification of certain existing terms (items 4, 5, 6, 12, 13, 15 and 20 above).
[17] The need for certain modifications of, or clarifications to, the order is discussed below.
Item 4-access by repairman
[18] I accept that it may be difficult to provide the CBSA with advance notice of the name, address and birth date of persons who are to enter the residence for the purpose of effecting emergency repairs to the house or equipment located within the house. However, the requested variation to allow entry of a "bona fide repair person" is too vague. Instead, a new term shall be added to the order as follows:
24. In all situations where repairs or other services are required on a non-urgent basis in respect of the residence or equipment located within the residence, the conditions contained in the order shall govern the granting of access to the residence. However, in respect of repairs or services to the residence or equipment located within the residence required on an urgent basis, at any time the CBSA may be requested to approve a person, firm, corporation or other entity that provides repair services to residential premises or equipment found therein. Where work or service is then required on an urgent basis the CBSA shall immediately be notified of the required urgent work or service. If no entity has been pre-approved to provide such work or service the CBSA shall be asked to approve on an urgent basis a person, firm, corporation or other entity to perform the work. When a service appointment is then made with a pre-approved or approved entity, the CBSA shall immediately be notified of the time of the scheduled appointment and the work to be performed. If possible, the CBSA shall be notified of the person(s) who shall enter the residence to perform such service on the day prior to the appointment. The CBSA may accompany such person(s) into the residence and/or request that Mr. Harkat vacate the residence with one of his supervising sureties to the rear of the outside yard, or any other location directed by the CBSA, for the duration of the service call. If the weather is too inclement to permit this, the CBSA may direct that Mr. Harkat sit in a parked, running vehicle with one of his supervising sureties or may direct that he wait at another location it may determine. Mr. Harkat may be accompanied by a representative of the CBSA for the duration of any service call.
Item 5-length of notice to be given for requested absences from the residence
[19] A difficulty, not properly anticipated by the order, has been encountered with respect to requests for absences from the residence. Where long weekends have intervened, the CBSA has required 96 hours notice of a requested absence, and requests have been denied when made late on a Friday afternoon requesting a Sunday outing. Often requests are made by e-mail or by telephone and Mr. Harkat asks that the 48-hour advance notice period run from the time when the e-mail or telephone message is sent or left, and not from the time when the message is read or picked up.
[20] In the reasons given in support of the order it was noted, at paragraph 94, that the authorities' ability to supervise Mr. Harkat's release must be facilitated "while at the same time not imposing an undue burden upon the authorities". It was intended that the CBSA have two working days to consider a request for an outing. Thus, a request made on a Friday afternoon should be responded to by Tuesday afternoon, or Wednesday afternoon if the Monday is a holiday. Accordingly, paragraph 8 of the order is amended so as to add immediately after the sentence "A request for such approval shall be made at least 48 hours in advance of the intended absence and shall specify the location or locations Mr. Harkat wishes to attend and a time when he shall leave and return to the residence” the phrase “For greater certainty, any request for approval shall be made in advance so that the CBSA shall have two business days to consider the request”.
Item 6-the presence of representatives of the CBSA on approved absences from the residence
[21] Paragraphs 88 and 89 of the reasons given in support of the order listed two of the factors that supported Mr. Harkat's release upon strict conditions. Those paragraphs are as follows:
[88] Fourth, it can reasonably be assumed that, if released from incarceration, Mr. Harkat will remain a person of interest to Canadian authorities who will have the ability to lawfully exercise supervision of his activities.
[89] Fifth, Mr. Harkat must be assumed to know of both the authorities’ interest in him and their ability to monitor his activities. This knowledge may further be assumed to deter conduct that could result in further proceedings against Mr. Harkat.
[22] I am not prepared to dictate how the CBSA discharges its responsibility to supervise Mr. Harkat. Only in the event that some specific conduct occurred in the course of surveillance of an outing that was said to be inappropriate or objectionable would I consider the appropriateness of the actions of the CBSA.
[23] The presence or absence of CBSA representatives does not in any way alter the obligations upon Mr. Harkat's supervising sureties. Accordingly, I am not prepared to amend the order as suggested so as to provide that his supervising sureties need not accompany Mr. Harkat when he is out of the residence on a permitted outing.
Item 12-media access
[24] I would be prepared to consider some variation of the order with respect to with whom Mr. Harkat could speak to as the order applies to members of the media. However, the proposed criteria of allowing Mr. Harkat to meet those who have a "bona fide media identification document" is too vague and could lead to inadvertent breaches of the terms and conditions of release. A clearer proposal is required.
Item 13-approval of four visitors
[25] It appears that the one of the proposed new visitors, Paul Smith, has not made a request to attend at the residence. It is therefore inappropriate to deal with that request before it has been made to the CBSA. With respect to the three other proposed visitors, if it is asserted that the CBSA has unreasonably withheld approval of a visitor, affidavit evidence should be provided by each refused visitor who wishes to pursue the matter. Responsive affidavits may then be filed by the CBSA and the matter will be considered on the basis of an evidentiary record.
Item 15-a cell phone for Mrs. Harkat
[26] No reason is given to support the statement that "Sophie Harkat very much needs to have the use of a cellular phone". As I recall, this was not an issue when she testified before the Court at the application for her husband's release. Similarly, no reason is given as to why Mrs. Harkat's needs would not be met if the CBSA provided her with a cell phone for the purpose of allowing her to communicate with the CBSA or emergency personnel. This request is denied.
Item 20-mail
[27] In order to clarify any uncertainty with respect to the review of incoming and outgoing written communications, paragraph 13 of the order will be clarified by inserting at the end of that paragraph the following:
All incoming and outgoing communications shall be reviewed by the CBSA within two working days so as to minimize the delay in sending or receiving such communications.
“Eleanor R. Dawson”
Judge
Ottawa, Ontario
September 19, 2006
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-4-02
STYLE OF CAUSE: MOHAMED HARKAT
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS CANADA
DATES OF FURTHER SUBMISSIONS REGARDING THE VARIATION OF BAIL:
Mr. Harkat’s submissions were filed August 18, 21, 23 and 25, 2006
Ministers’ submissions were filed August 28, 30 and September 6, 11 and
14, 2006
Mr. Harkat’s reply submissions were filed August 29 and 30, 2006
THE HONOURABLE MADAM JUSTICE DAWSON
DATED: September 19, 2006
APPEARANCES:
Mr. Paul Copeland Counsel on behalf of the applicant
Mr. Matthew Webber
Mr. D. MacIntosh Counsel on behalf of the respondents
Ms. A. Riaz
SOLICITORS OF RECORD:
Mr. Paul Copeland For the applicant
Copeland, Duncan
Barrister, Solicitors
31 Prince Arthur Avenue
Toronto, Ontario
Mr. Matthew Webber For the applicant
Webber Schroeder
Ottawa, Ontario
John H. Sims, Q.C. For the Ministers
Deputy Attorney General of Canada
Toronto, Ontario