BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
REASONS FOR ORDER
NOËL S. J.
[1] On May 23, 2006, the Court issued an 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. These conditions have been subsequently reviewed and modified by the Court to meet the unique situational needs of this case. The Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, specifically addresses the issues of detention and the availability of alternatives to detention, most notably in paragraphs 108-124. Particularly relevant to this motion, at paragraph 117, the Supreme Court endorsed that release conditions must “…be subject to ongoing, regular review…”. Part of this continuing process is to fine tune the terms and conditions of release and change them if the evidence clearly supports such a request. Mr. Harkat brings this application to vary the terms and conditions of his release.
[2] On behalf of her colleagues, Chief Justice McLachlin in Charkaoui, above, came to the conclusion that the certificate procedure contained in the Immigration and Refugee Protection Act, S.C. 2001, C.27 (IRPA), infringes on section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.1 (Charter). The pathway to legitimize such a procedure is to find a method by which the person subject to a security certificate is able to protect his rights in hearings held in public, in private or in camera. The Chief Justice gave Parliament one year to legitimize the security certificate procedure and to transpose it into legislation.
[3] Meanwhile, Mr. Harkat is still subject to terms and conditions of release. Extended periods of detention for those subject to security certificates have been validated by the Supreme Court of Canada, as long as the individuals subject to detention are provided with regular opportunities to have their detention reviewed. The Chief Justice also recognized that conditional release is an alternative to detention where a judge, on a detention review, is satisfied that release on terms and conditions would be a proportionate response to the threat that an individual subject to a certificate poses. This being said, the terms and conditions of release must be subjected to an ongoing periodical review process which must take into account a number of factors. This is the framework from which this Court must now operate when dealing with an application to vary the terms and conditions of release.
[4] Before listing the changes that Mr. Harkat is seeking, it is useful, in order to have a good understanding of the amendments sought, to provide an overview of Mr. Harkat’s legal reality. On March 22, 2005, Madam Justice Dawson, of this Court, judged reasonable the certificate signed by the Solicitor General of Canada and the Minister of Citizenship and Immigration concluding that Mr. Harkat, a foreign national, was inadmissible to Canada on security grounds pursuant to subsection 77(1) of IRPA (see Re Harkat, 2005 FC 393 at paragraphs 143-144).
[5] In another judgment, dated May 23, 2006, the Court seized with an application for release from incarceration, allowed the said application upon terms and conditions (Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FC 628 [May 2006 Order]). In the May 2006 Order, Madam Justice Dawson determined that the terms and conditions of release were essential to ensure that Mr. Harkat would not pose a threat to natural security or to the safety of any person. At paragraph 68 of the May 2006 Order Madam Justice Dawson wrote:
… I am satisfied that Mr. Harkat’s release without the imposition of any term or condition would pose a threat to National Security or to the safety of any person. For example, unchecked, Mr. Harkat would be in a position to recommence contact with members of the Islamic Extremist Network.
[6] In establishing the terms and conditions of release of Mr. Harkat, Madam Justice Dawson reviewed the positions of the parties and then decided to conceptualize her own set of terms and conditions that would ensure the neutralization of the threat that would be triggered by the release of Mr. Harkat. She made this assessment by balancing the risk of danger posed by Mr. Harkat and the terms and conditions she envisaged imposing:
In considering whether there are terms and conditions that would neutralize or contain the danger. I have borne in mind the need for terms and conditions to be specific and tailored to Mr. Harkat’s precise circumstances. They must be designed to prevent Mr. Harkat’s involvement in any activity that commits, encourages, facilitates, assists or instigates an act of terrorism, or any similar activity. The terms and conditions must be proportionate to the risk posed by Mr. Harkat.
(May 2006 Order, at paragraph 83)
[7] In support of Mr. Harkat’s application to vary the terms and conditions of release, Mrs. Sophie Harkat signed a detailed affidavit. She also testified at length at the hearing. There were also two (2) other affidavits filed, from Benoit Renaud and Matthew Behrens, concerning their requests to visit the residence of Mr. Harkat. The applicant did not file an affidavit nor did he testify.
[8] The Court is now being asked to vary the terms and conditions of release even though no evidence was presented relating to the risk of danger that Mr. Harkat poses following release, except for the passage of time since the last order was rendered.
[9] It is useful, not only for Mr. Harkat, but also for future conditional release review hearings, whose purpose is to determine whether to allow proposed amendments to established terms and conditions, to enumerate general guidelines which flow from the Supreme Court’s decision in Charkaoui, above. These guidelines will assist in providing some degree of rationality when seeking amendments to terms and conditions in security certificate cases. These guidelines should be seen as non-exhaustive and should be used in a contextual manner when considering proposed amendments to release conditions. When reviewing a request to alter existing terms and conditions, the Court should consider the following factors, which appear below, for each of the amendments sought. However, due to the highly fact-specific and case by case nature of conditional release review hearings, not every factor listed will apply equally to each amendment sought, and in some cases one factor will be more relevant than the others. The guidelines are as follows:
a) Is the requested variation fundamentally different than the conditions imposed initially? Or is the requested variation more accurately characterised as a fine-tuning of the original conditions?
b) Is the requested variation a proportionate response to the nature of the threat posed by the individual and will such a variation continue to neutralize the threat posed by the individual?
c) Is there a reason why the requested variation was not sought initially?
d) At the time of the initial release were there unknown facts not brought to the attention of the Court that could have affected the original conditions of release?
e) Has there been factual evidence presented to support the requested variation?
f) Are there new facts that did not exist at the time when the conditions were originally established?
g) Is the requested variation a reasonable alternative to the condition being reviewed?
h) Is the requested variation a consequence of different interpretations being given to the wording of the terms and conditions?
i) The passage of time is a factor to be considered in conjunction with the other factors.
[10] Let us now summarize the changes sought by Mr. Harkat in this application. They are as follows:
1. That all CBSA pre-approved visitors for 12 Walton Court be allowed to attend Mr. Harkat’s new residence. The parties have agreed to this.
2. That Mr. Harkat be allowed to receive visits to his residence from Mr. Benoit Renaud and Mr. Matthew Behrens, individuals who have previously been refused approval by CBSA due to their criminal records.
3. That emergency repairs, if required, be allowed at Mr. Harkat’s residence provided that the estimated time frame of the repairs and the name of the company providing the repairs is made available to CBSA in advance of the repairs. Mr. Harkat asks that there not be a requirement to produce the names and dates of birth of the individuals conducting the repairs.
4. That Mr. Harkat be granted an extension of time that he is allowed to be in the yard of his residence from 9:00 pm to 11:00 pm. The parties have agreed to this.
5. That Mr. Harkat be permitted to stay in his residence or on his property alone without the presence of a supervising surety.
6. That the number of permissible outings per week be increased from three to five.
7. That anyone pre-approved to visit Mr. Harkat’s residence not be required to seek approval if meeting with Mr. Harkat outside his residence during the course of Mr. Harkat’s pre-approved outings.
8. That Mr. Harkat be allowed to meet with Members of Parliament and members of Parliamentary Committees regarding national security, public safety and immigration related issues, without seeking pre-approval from CBSA for each Member of Parliament or each member of the relevant Committee.
9. That a list of media outlets be submitted by Mr. Harkat to the CBSA for approval to allow Mr. Harkat to speak to media personnel from these media outlets, without prior individual approval from CBSA, so long as the personnel possesses the official identification of the approved media outlet.
10. That Mr. Harkat be allowed to attend conferences and rallies regarding security certificate issues, including events organised by the “Justice for Mohamed Harkat” Committee or events otherwise sponsored by that Committee.
11. That Mr. Harkat’s visits to his legal counsel’s office, to meet with counsel, and his attendance in court, for matters in which he is a party, not be considered an outing for the purpose of his weekly allotment.
12. That Mr. Harkat be pre-approved to attend the Supreme Court of Canada and associated press conference(s) on the day the Supreme Court releases its decision in his appeal. This request is now moot since the Supreme Court decision in Charkaoui, above, has already been released. Nonetheless, I have included this request in the interest of completeness and for future reference.
13. That the Court clarify that advance approval for meetings while on pre-approved outings, required under paragraph 10(iii)(b) of the May 2006 Order, not be interpreted so as to apply to store personnel and other persons in the community generally serving the public.
14. That Mr. Harkat be permitted to walk around shopping areas that are pre-approved for a particular outing without specifying the exact retailers that he and his supervising surety are going to enter.
15. That one business day notice be considered satisfactory for approval of a particular outing. Irrespective of whether the Court grants this request, it is requested that notice periods be calculated from the time they are requested by e-mail or telephone and not from the time that the request is actually received by CBSA.
16. That Mr. Harkat’s geographically accessible boundaries be extended to include the City of Gatineau.
17. That Mr. Harkat and his supervising surety be allowed to use the Blackburn Hamlet bypass, the Innes Road bypass and Highway 417 from Walkley Road to go to downtown Ottawa or to Orleans and that Mr. Harkat and his supervising surety be allowed to use the south side of Innes Road. The parties have agreed to this.
18. That Mr. Harkat be allowed to go for walks with one of his supervising sureties in the immediate neighbourhood of his residence for two hours per day without obtaining prior approval for the outing. It is proposed that Mr. Harkat would phone CBSA prior to the walk and immediately upon his return. It is further proposed that the route in question be agreed upon in advance by Mr. Harkat and CBSA.
19. When seeking medical care, that Mr. Harkat not be required to provide CBSA with the personal information of the persons providing him with medical, dental or other such professional services.
20. While attending appointments with a doctor, dentist or other such medical professional, that Mr. Harkat be permitted to receive medical care while the supervising surety waits outside the treatment room. Conversely, when a supervising surety is receiving medical care that Mr. Harkat be permitted to wait in the waiting room and not be required to be within the treatment room.
21. While being accompanied by a female supervising surety in public, that Mr. Harkat be allowed to use a public washroom while the supervising surety remains outside the washroom. In the event that the female supervising surety needs to use a public washroom, that Mr. Harkat be allowed to wait outside the washroom for the female supervising surety.
22. That the pre-approved outings be increased in allowable duration from four to six hours. If the Court does not grant the request, then in the alternative, to allow six hour outings in the case of medical appointments.
[11] At the end of the hearing, after having heard the evidence from both parties, I suggested to counsel that they should try to agree on some of the requests being sought. I gave them until March 26, 2007 to come to an agreement. The result of this exercise was limited to an agreement on three requests:
- pre-approved visitors for 12 Walton Court are allowed to attend the new residence of the Applicant (request 10(1));
- the geographic boundaries, referred to at term 10 of the May 2006 Order, should be interpreted so as to include the use of the Blackburn Hamlet bypass, the Innes Road bypass, Highway 417 between Walkley Road and Highway 174 to go to downtown Ottawa and to Orleans and the south side of Innes Road so as to permit access to the retail businesses that front the south side of Innes Road (request 10(17));
- the applicant shall be permitted to be in the yard of his residence until 11:00 p.m. (request 10(4));
[12] For the sake of clarity, I have divided the changes sought into three categories :
A. Issues relating to Mr. Harkat’s residence (items 10(1) through 10(6));
B. Issues relating to Mr. Harkat’s activities while on approved outings (items 10(7) through 10(18));
C. Personal needs related issues (items 10(19) through 10(22)).
A. Issues relating to Mr. Harkat’s residence (items 10(1) through 10(6))
[13] Keeping in mind the guidelines listed at paragraph 9, I will now deal with each proposed request being sought.
[14] As noted above, the parties have agreed that CBSA’s list of persons approved for visitation to Mr. Harkat’s former residence shall be allowed to attend Mr. Harkat’s present residence without undergoing any additional screening processes. CBSA shall continue to have the power to revoke approval of anyone on this list on valid grounds.
[15] With respect to the request to allow Mr. Benoit Renaud and Mr. Mathew Behrens to attend Mr. Harkat’s residence, the Court will allow this amendment despite the fact that they have criminal records. In principle, possession of a criminal record is a bright line test and the Court will not be concerned as to the underlying facts surrounding the conviction. Moreover, as previously mentioned, in the absence of clear evidence, the Court will not vary terms and conditions of release which it has already established, including the condition that Mr. Harkat “…shall not, any time or in any way, associate or communicate directly or indirectly with any person Mr. Harkat knows, or ought to know, has a criminal record” (see May 2006 Order, term 11(ii)). This being said, in what concerns Mr. Renaud and Mr. Behrens, I accept that there has been evidence presented to allow an exception to term 11(ii) of the May 2006 Order. In particular, I am satisfied that their offences were relatively minor (in the case of Mr. Renaud a conviction for unlawful assembly, in the case of Mr. Behrens convictions in the 1980s for mischief and causing a disturbance), that is to say at the low end of the spectrum of criminal offences, and that there are valid and well established reasons to allow these individuals to have access to Mr. Harkat given their role in Mr. Harkat’s political cause. Any additional persons with criminal records must seek the permission of the Court before having contact with Mr. Harkat.
[16] Emergency repairs to the residence are allowed, without the pre-approval of specific repair personnel, providing that an estimate of the length of time for the repairs and the name of the business providing the repairs is made known to CBSA. Mr. Harkat may not communicate with the repair personnel at any time, or in any manner, during the repairs. If there are a significant number of repair personnel on site, or if there are logistic concerns, CBSA may require that Mr. Harkat leave the residence and remain in the yard, or if the weather is too inclement, remain in a running car with a supervising surety.
[17] Again, as noted above, the parties have agreed that Mr. Harkat will be allowed to be outside his residence, in his yard, under the supervision of a surety, until 11:00 pm. The Court agrees that this is a reasonable modification of Mr. Harkat’s release conditions as it is a fixed time and not a term such as the previously proposed “dusk” which might lead to inadvertent breaches, as was previously contemplated in Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FC 1105 at paragraph 14 [September 2006 Order]. I note that this is not a fundamental change, but rather a fine tuning of the existing conditions.
[18] As for Mr. Harkat being allowed to reside in his residence unaccompanied by a supervising surety, I am not convinced that there is any reason to depart from the Court’s prior determinations on this point. In her reasons for the May 2006 Order, Madam Justice Dawson wrote at paragraph 76:
I remain convinced that throughout this proceeding Mr. Harkat's testimony to the Court has been untruthful on a number of significant points. […] Thus, any terms and conditions for release must be based upon something other than Mr. Harkat's assumed good faith or trustworthiness. This militates, in my view, against terms and conditions such as that proposed that would allow him to remain in his residence alone…
I am not satisfied that the testimony at the hearing, or the application record submitted, could allow the Court to contemplate such a drastic departure from the May 2006 Order. On the contrary, the evidence submitted by Mr. Harkat, through his wife, was more focused on the demands placed on her in her role as a supervising surety. Such evidence is insufficient to allow such a fundamental change to Mr. Harkat’s release conditions.
[19] In the May 2006 Order, Justice Dawson clearly stated that “[i]n considering whether there are terms and conditions that would neutralize or contain the danger, I have borne in mind the need for terms and conditions to be specific and tailored to Mr. Harkat's precise circumstances.” In the paragraphs that follow, Madam Justice Dawson reiterates that the carefully tailored terms and conditions of Mr. Harkat’s release were largely based on the role that supervising sureties would play in ensuring that the threat posed by Mr. Harkat was minimized. This is further evidenced in the September 2006 Order at paragraph 23, where the Court expressly rejected the argument that since CBSA was monitoring Mr. Harkat there was no need for him to be with his supervising sureties while on approved outings.
[20] The Federal Court of Appeal in Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FCA 259 at paragraph 12, addresses the finding by Justice Dawson that Mr. Harkat lied to the Court, but does not take issue with this finding.
[21] Moreover, at paragraphs 40-42 of the decision, the Federal Court of Appeal accepts that Madam Justice Dawson was not convinced that the sureties would “provide a sufficient controlling influence” by themselves and therefore she crafted terms and conditions “…specific and tailored to Mr. Harkat’s circumstances.” The Federal Court of Appeal held, “[w]e are satisfied that the choice of sureties by the designated judge is not so flawed as to trump the cumulative effect of all the conditions and terms.”
[22] These passages militate against modifying the conditions of release to allow Mr. Harkat to be left unsupervised, as Madam Justice Dawson and the Federal Court of Appeal were clear that the presence of supervising sureties was an integral part of the release conditions required to neutralize the danger presented by Mr. Harkat. I have not been persuaded by the evidence presented that this condition is not proportionate to the nature of the threat posed by Mr. Harkat.
[23] In coming to this conclusion, I note that Mr. Harkat did not take the witness stand at the most recent review of his terms and conditions of release and thus did not subject himself to cross-examination. Consequently, I have nothing before me which would allow me to review the findings of trustworthiness, or lack thereof, previously made by the Court. The evidence presented by Mrs. Harkat was to the effect that the role of a supervising surety is a difficult one, that the demands placed on her and the limitations on her personal life have been extreme. Mrs. Harkat’s testimony did not focus on her husband’s trustworthiness. In my opinion, the mere passage of time, without anything more, does little to improve Mr. Harkat’s trustworthiness in the eyes of the Court. Therefore it is not appropriate in the circumstances of this case to allow Mr. Harkat to remain alone at his residence at this time. In coming to this conclusion, the Court specifically turned its mind to the testimony of Mrs. Harkat, namely that she favoured this change over all the other amendments sought. However, I must reiterate that the evidence, as presented, does not open up this possibility at this time.
[24] The request for an increase in the number of permitted outings from three to five per week is also denied at this time. The same request was previously denied by the Court in the September 2006 Order at paragraph 13, on the basis that insufficient time had passed to warrant the liberalization of this term of release. I accept that approximately six months have passed since Madam Justice Dawson rendered that decision. However, the passage of time is only one of a number of factors that must be considered. As I am of the opinion that the present situation is workable, and given that there is no convincing argument that the mere passage of time is a sufficient reason to increase the number of allowable weekly outings, I cannot vary this condition. Additionally, there has been no evidence of new facts which indicate that there is a need to increase the number of permitted outings, or that the Court, when it imposed the condition, was unaware of some salient facts.
B. Issues relating to Mr. Harkat’s activities while on approved outings (items 10(7) through 10(18));
[25] The people on the list of pre-approved visitors to Mr. Harkat’s residence may meet with Mr. Harkat while he is on approved outings. This is not a fundamental change to the release conditions as CBSA has already approved contact between these persons and Mr. Harkat. Consequently, there will be no requirement for Mr. Harkat to seek CBSA approval prior to such meetings, so long as the outing is approved. I stress that the obligation will be on Mr. Harkat and his accompanying supervising surety to verify that the person is in fact a pre-approved visitor to Mr. Harkat’s residence. In the event of such an encounter, Mr. Harkat will report to CBSA the name(s) of the person(s) met during the outing immediately upon returning to his residence after the outing.
[26] Mr. Harkat, and his supervising surety, will be allowed to use one of his weekly outings to attend Parliament Hill, upon receiving an invitation, to meet with Members of Parliament, and members of Parliamentary Committees, providing that proper notice is provided to CBSA, as it would be for any other approved outing. There is no requirement that Mr. Harkat provide the birth dates and names of all persons that are attending the meetings on Parliament Hill, so long as the Sergeant-at-Arms is providing security at the meeting. At such meetings, Mr. Harkat will be limited to speaking to the Members of Parliament, or members of the relevant committee who invited him. This is not to be considered a social gathering, and the obligation will be on Mr. Harkat and his supervising surety to ensure that Mr. Harkat only speaks to authorized persons. Failure to do so could be seen as a breach of the order. This amendment is appropriate in the circumstances, as the Court has been presented with facts that were not previously known, namely that Mr. Harkat has been unable to attend invitations to Parliament Hill without risking a breach to his release conditions.
[27] I accept, based on the evidence presented, that Mr. Harkat should be allowed to provide a list of media outlets and media personnel to CBSA for pre-approval. This being said, there will be a requirement that Mr. Harkat inform CBSA that he is meeting with pre-approved media personnel from a pre-approved media outlet during an approved outing. Pre-approved media personnel meeting with Mr. Harkat must have proper identification with them, issued by an approved media outlet. The obligation rests with Mr. Harkat and his supervising surety to ensure that media personnel are approved, and possess valid identification. The validity of the list of pre-approved media outlets may be reviewed at any time by CBSA. However, press conferences are to be treated differently. At genuine press conferences, Mr. Harkat will be able to answer questions from known media outlets.
[28] At this time, the terms and conditions cannot be varied so as to allow Mr. Harkat to attend political rallies, such as the events organized by the “Justice for Mohamed Harkat Committee”. The reason being that evidence showing that CBSA agents will be fully protected, at such potentially politically polarized events, has not been provided. A clearer proposal as to the steps that would be taken to ensure the safety of government officials at such events must be presented before such a modification to the terms and conditions of release is considered.
[29] I agree that Mr. Harkat should be permitted to attend his present legal counsel’s office without it constituting a weekly outing. On such occasions, Mr. Harkat is to go directly to the office of his lawyer for the meeting and directly to his residence after the meeting. Such meetings shall be limited to between the hours of 9:00 a.m. and 5:00 p.m. If a meeting is required outside these hours, Mr. Harkat’s legal counsel will have to exercise their unfettered right to visit Mr. Harkat’s residence. Mr. Harkat is to provide 24 hours notice to CBSA prior to a meeting at the office of his legal counsel. Additionally, Mr. Harkat is to telephone CBSA prior to departing for his counsel’s office and also immediately upon his return to his residence. Of course, it goes without saying that such outings shall be strictly limited to meetings with Mr. Harkat’s legal counsel and are not meant to be used for meeting with persons other than Mr. Harkat’s legal counsel, or to allow Mr. Harkat to engage in other recreational activities.
[30] Attendance at court, for matters in which Mr. Harkat is a party, will not constitute a weekly outing. On such occasions, Mr. Harkat is to go directly to the court, where the proceeding is taking place, and immediately return to his residence upon the conclusion of the hearing. Mr. Harkat is to provide CBSA with 48 hours notice of his intention to attend a court hearing for a matter in which he is a party. Additionally, Mr. Harkat is to telephone CBSA prior to departing for such a hearing, and again immediately upon his return to his residence after the hearing.
[31] As mentioned, the issue of Mr. Harkat attending the Supreme Court of Canada upon the release of their decision, with respect to his appeal, is moot.
[32] With respect to clarifying the wording of condition 10(iii)(b) of the May 2006 Order, Mr. Harkat is not required to seek pre-approval of service people (such as cashiers and wait staff at restaurants, etc.), who assist the general public, while on approved outings. Incidental communication, in the course of the service provided, is not to be considered a meeting and will not constitute a breach of the order. It must be emphasized that this does not allow him to interact with such individuals in a manner that would allow the meeting to develop into a social event or a full-blown conversation. This amendment is to facilitate easier transactions with service providers. The onus will be on Mr. Harkat and his supervising surety to control the conversation, so that it conforms to the order.
[33] I am not prepared to remove the condition that Mr. Harkat is to provide CBSA, in advance, with the names of all stores and vendors that he will be attending on an approved outing. However, an exception to this condition will exist for all malls, shopping centres, and other shopping areas and locations which have already been pre-approved by CBSA. I note that this condition is necessary, prior to an outing, to allow CBSA to properly monitor Mr. Harkat. To vary this condition, would constitute a fundamental change to Mr. Harkat’s terms and conditions on release, and would not be proportionate to the risk posed by Mr. Harkat.
[34] I am not prepared to alter the present time frames for providing notice for outings or the triggering event used to calculate the 48-hour notice. This condition shall remain unchanged for now. A clearer proposal is required before the Court considers altering this condition of release.
[35] I do not agree that the geographical limitations placed on Mr. Harkat should be extended to include the whole of the City of Gatineau at this time. However, Mr. Harkat will be allowed to go to the City of Gatineau if he provides CBSA with the addresses of specific individuals that reside in the City of Gatineau that he wishes to visit and provides CBSA with any other information it requires relating to the occupants of those addresses. Moreover, Mr. Harkat must also provide CBSA with the fixed route, which he and his supervising surety will follow to travel to and from the addresses in the City of Gatineau. If an address in the City of Gatineau is approved by the CBSA, Mr. Harkat may use a pre-approved outing to attend the address in question, providing he follows the pre-approved route.
[36] As noted above, the parties agree that the geographic boundaries referred to at condition 10 of the May 2006 Order be varied to allow Mr. Harkat to use the Blackburn Hamlet bypass, the Innes Road bypass, and Highway 417 between Walkley Road and Highway 174 to go to downtown Ottawa or to Orleans. In addition, the south side of Innes Road is included within the geographic boundary so as to permit access to retail business that front the south side of Innes Road.
[37] I am satisfied based on the evidence presented with respect to the adverse effects on health, combined with the passage of time, that Mr. Harkat, in the company of a supervising surety, should be allowed to go for walks for a duration not to exceed one (1) hour. This walk is to be in the neighbourhood of Mr. Harkat’s residence and must occur between the hours of 10:00 am and 4:00 pm. Mr. Harkat must provide routes to CBSA, for pre-approval, in advance of the walks. Mr. Harkat must also provide at least six (6) hours notice to CBSA informing them that he intends to go for a walk and on which route he intends to travel, if Mr. Harkat has provided more than one route for pre-approval. The six hours notice for a walk begins when received by the CBSA and not when requested by Mr. Harkat. These walks are only available on days when there is no other planned pre-approved weekly outing. However, should Mr. Harkat have an outing planned on a given day, and cancel that outing, providing there is time to give notice, he may have a walk on that day. Additionally, Mr. Harkat is to telephone the CBSA prior to departing for his walk and also immediately upon his return from the walk.
C. Personal needs related issues (items 10(19) through 10(22))
[38] To clarify the wording in the existing order, with respect to pre-approved visits to medical/dental offices, there will be a requirement that Mr. Harkat submit the name of the professional who will conduct the treatment to the CBSA prior to the meeting. There will be no requirement that the names of support staff working in the medical/dental office be provided to CBSA. Medical/dental support staff is providing a service to the customers of the medical professional, and Mr. Harkat may have incidental communications with such individuals in furtherance of his medical/dental care. Again, this is not a social event and Mr. Harkat is not to engage support staff in conversations unrelated to his medical care.
[39] As an additional clarification, while Mr. Harkat is receiving medical/dental treatment, his supervising surety is not required to be in the immediate room where he is being treated. This will be a narrow exception to the requirement that Mr. Harkat be supervised at all times by a supervising surety, as the medical practitioner is effectively supervising Mr. Harkat during the course of medical/dental treatment. The supervising surety must remain as close as reasonably possible during the treatment. For the purposes of the order, the office waiting room will be presumed to be reasonable. The supervising surety is not to leave to the medical/dental office, or the floor where the treatment is occurring if it is a multi-level office, while Mr. Harkat is receiving his treatment.
[40] If Mrs. Harkat is the individual receiving medical/dental treatment, I am not prepared to allow such a fundamental departure from the order to allow Mr. Harkat to be left unsupervised in the medical office waiting room. In this circumstance, Mr. Harkat may be supervised by a supervising surety other than Mrs. Harkat. The Court is aware of the limited assistance some of the present supervising sureties are able to provide and of the burden that this has placed on Mrs. Harkat. The solution, however, is not to loosen the requirement that Mr. Harkat be constantly supervised, but rather to add supplementary approved supervising sureties.
[41] To clarify the order, during any outings, where family restroom facilities, which would permit the supervising surety to remain continuously with Mr. Harkat, are unavailable, the supervising surety shall advise the CBSA by telephone and also inform CBSA personnel that are physically present (if applicable) of the need to use the restroom. In such a case, Mr. Harkat or the supervising surety may use a public restroom while the other is not present, providing that the supervising surety remains as close to Mr. Harkat as reasonably possible. The solution, to avoid this issue, is to use diligence in planning outings so that family restrooms are readily accessible.
[42] The request that weekly outings be increased in allowable duration from four to six hours is not acceptable at this time. There has been no evidence presented that the current situation is not workable and there were no new facts presented which demonstrate that a need for extended outings exists. The evidence presented was, in large part, related to the limited time Mrs. Harkat has in her busy schedule and that four hour outings have been constrictive as to what she can accomplish during this time. I once again reiterate, the solution to such a problem is to add supplementary approved supervising sureties, individuals who could remain at the residence with Mr. Harkat while Mrs. Harkat conducts her daily tasks.
[43] In what concerns outings taken to obtain medical/dental care, I will vary the terms and conditions of release so as to permit such outings to last up to six hours, instead of the usual four, as the potential for longer medical treatments may be characterized as a fact that was unknown at the time of the May 2006 Order. It must be noted, that on such occasions, the six hours is to be used solely for obtaining medical/dental care. In other words, there is no spill-over of this time to permit for recreational activities. For example, Mr. Harkat cannot have one hour of medical treatment followed by five hours of recreational activities. However, if the medical care takes less than four hours, Mr. Harkat will be allowed to use the remaining time (up to a maximum of four hours) for recreational activities, provided that CBSA is given notice, as per the normal procedure for other pre-approving outings.
[44] In Re Chakaoui, 2006 FC 555 at paragraph 29, I stated that “[t]he function of supervisor and escort is a burdensome duty…”. Having heard the testimony of Mrs. Harkat and having carefully considered her affidavit, I restate the proposition in this case. I sympathize with Mrs. Harkat as the role of supervising surety is no easy task. This task, as arduous and time consuming as it is, was a role that Mrs. Harkat volunteered for so as to allow her husband to be released under strict conditions. I note that Mr. Harkat initially proposed many of the conditions that are challenged by way of this application.
[45] If the burden of being a supervisory surety is too great, or otherwise unworkable, given Mrs. Harkat’s activities in her and her husband’s cause, then it may be time for her to consider finding additional supervising sureties to ease her burden.
[46] As mentioned above, ongoing reviews of the terms and conditions of release are required in security certificate cases, as was explained by the Supreme Court of Canada in Charkaoui, above. I reiterate, such reviews are meant to be a fine-tuning exercise to fix unforeseen problems, the whole subject to the guidelines iterated at paragraph 9 of this order, and the overarching need to conduct a proportionality assessment of the amendments sought and the risk posed by the individual in question. The ongoing review of the terms and conditions of release is not meant to provide a drastic overhaul of these terms and conditions, especially not those which are presently workable. If a party desires to fundamentally change a term or condition, evidence as to why the change is required must be presented. The mere passage of time, on its own, is unlikely to be sufficient to alter many of the terms and conditions of release.
[47] When reviewing the terms and conditions of release using the non-exhaustive guidelines which appear at paragraph 9 of this order, it is of primordial importance to remember that each case must be decided on its own unique facts. As explained by the Supreme Court in Charkaoui, above, at paragraph 116, “…stringent release conditions, must not be a disproportionate response to the nature of the threat…”. In other words, the fact that an individual, in the context of a security certificate case, has particular release conditions does not necessitate that others subject to security certificates have similar conditions imposed on them.
[48] The parties are being asked to prepare an amended draft order of the terms and conditions of release, in line with the present reasons. The draft order shall be presented to the undersigned for review and signature. A ten (10) day period shall be given to prepare the draft order.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-4-02
STYLE OF CAUSE: Mohamed Harkat
- and –
The Minister of Citizenship and Immigration and
The Minister of Public Safety and Emergency Preparedness
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 28, 2007 and March 1, 2007
REASONS FOR ORDER: The Honourable Mr. Justice Simon Noël
APPEARANCES:
|
Mr. Paul Copeland Mr. Matthew Webber
|
|
|
Mr. Donald MacIntosh Mr. David Tyndale Mr. James Mathieson
|
SOLICITORS OF RECORD:
|
Copeland, Duncan Toronto, Ontario
Webber Schroeder Ottawa, Ontario
|
|
|
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
|