Date:
20080218
Docket:
DES-4-02
Citation: 2008 FC 198
Ottawa, Ontario, February 18, 2008
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
[1] On
January 29, 2008, agents of the Canada Border Services Agency (CBSA) arrested
and detained Mohamed Harkat. It was alleged that Mr. Harkat had breached the
terms and conditions of the Court's order of May 23, 2006, which had released him
from detention (release order).
[2] On
January 31, 2008, the Court held a hearing and received evidence, as required
by paragraph 19 of the release order. That paragraph states:
19. Any
officer of the CBSA or any peace officer, if they have reasonable grounds to
believe that any term or condition of this order has been breached, may arrest
Mr. Harkat without warrant and cause him to be detained. Within 48 hours
of such detention a Judge of this Court, designated by the Chief Justice, shall
forthwith determine whether there has been a breach of any term or condition of
this order, whether the terms of this order should be amended and whether
Mr. Harkat should be incarcerated. [emphasis added]
[3] In
view of the time constraints, and the full evidentiary record needed in order
to adjudicate upon whether there had been a breach of any term or condition of
the release order, whether the terms of the release order should be amended and
whether Mr. Harkat should be incarcerated, the Court ruled that it would hear
evidence and submissions about whether Mr. Harkat should be released from
detention pending a further hearing. The Court then received evidence and
heard submissions in which Mr. Harkat sought release upon the pre-existing
terms and conditions contained in the release order and the Ministers opposed Mr.
Harkat’s release from detention.
[4] On
February 1, 2008, the Court issued an interim order that released Mr. Harkat
from detention, but required that he remain, with one exception, inside his
residence at all times with one of his supervising sureties. That exception permitted
Mr. Harkat to leave his residence in order to attend the Court proceedings.
Subsequently, a further order issued, which allowed Mr. Harkat to visit his
lawyer’s office in preparation for the Court hearing (instead of requiring Mr.
Harkat’s lawyer to go to his residence).
[5] On
February 4, 5, and 6, 2008, the Court heard further evidence and submissions
with respect to the alleged breach of the terms and conditions of the release
order. The Court also heard evidence and submissions with respect to a
previously scheduled motion brought by Mr. Harkat to vary the conditions of his
release.
[6] On
February 8, 2008, the Court issued a second interim order. This order allowed
Mr. Harkat, when accompanied by a supervising surety, to be in the yard of his
residence and to take pre-approved walks as had been previously permitted.
Pending a final decision, the Court continued to restrict Mr. Harkat from
outings that he had been entitled to previously. Again, one exception was made
to allow Mr. Harkat to attend hearings before the Senate of Canada in respect
of proposed legislation with respect to security certificates.
[7] These
reasons now deal with:
• The request of the Ministers that Mr. Harkat be incarcerated,
that monies paid into Court under the release order be paid to Her Majesty, and
that certain performance bonds posted pursuant to the terms of the release order,
as amended, be forfeited to Her Majesty because Mr. Harkat breached the
terms of the release order (Ministers' motion).
• The request of Mr. Harkat that the terms and conditions of the
release order be varied (Mr. Harkat's motion).
• The
terms and conditions of Mr. Harkat’s continued release.
• The interim orders issued by the Court on February 1, 2008,
and February 8, 2008, respectively.
[8] In
these reasons, I find that:
(i) Pierrette Brunette left the residence with the intent of not
living there again. Therefore, she no longer “resides” with Mr. Harkat. The
consequence of Ms. Brunette’s departure was to put Mr. Harkat in breach of the
release order, which required him to reside with Sophie Harkat, Ms. Brunette,
and Alois Weidemann.
(ii)
The breach of the release order is a serious one.
(iii)
Mr. Harkat is entitled to be released if there are any conditions that
are capable of containing the danger that he poses. Such conditions still
exist.
(iv)
The Court is vested with discretion to determine whether, in light of
the breach of the release order, all or part of the monies paid into Court and
the performance bonds should be forfeited. In light of the unique and
extraordinary circumstances surrounding the breach, which are described below, it
would be unfair and unjust to order forfeiture of the monies or the bonds
signed by Ms. Harkat, Ms. Brunette, and Mr. Weidemann.
(v)
The request of Mr. Harkat to amend the terms and conditions of the
release order is denied, except the one request that was consented to by the
Ministers. That request expands slightly the geographic boundaries within
which Mr. Harkat is permitted to travel.
Thus, it is ordered that all the
terms and conditions of the release order, as amended, be reinstated for as
long as Mr. Harkat resides with Ms. Harkat and Mr. Weidemann, and Ms. Brunette
remains a supervising surety.
Applicable Legal Principles
[9] Before
turning to the merits of the competing motions, it is helpful to set out the governing
legal principles and the salient background facts.
[10] As
a matter of law, Mr. Harkat cannot be incarcerated if there are conditions
that, on a balance of probabilities, would neutralize or contain the danger
posed by his release. This is so because section 12 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. 11 (Charter),
requires that a detained person have the right to challenge their detention and
obtain release if it is justified. See: Charkaoui v. Canada (Citizenship
and Immigration), [2007] 1 S.C.R. 350, at paragraphs 96 and 101.
[11] Section
12 of the Charter also requires that onerous conditions of release, such as
those that apply to Mr. Harkat, be subjected to a meaningful process of robust,
ongoing review. That review must take into account the context and
circumstances of the individual case and the existence of alternatives to the
conditions. See: Charkaoui at paragraphs 107 and 117.
[12] The
conditions of release imposed upon a person must be proportionate to the threat
or danger posed by that person. See: Charkaoui at paragraph 116.
[13] In
Harkat v. Canada (Minister of Citizenship and Immigration), 2007 FC 416,
my colleague Mr. Justice S. Noël developed a non-exhaustive set of general guidelines
to be followed when considering proposed amendments to conditions of release.
At paragraph 9 of his reasons, Justice Noël wrote that the reviewing Court
should consider the following:
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.
[14] Having
outlined the applicable legal principles, I now turn to the factual context that
underlies the motions before the Court.
Factual Background
[15] On
December 10, 2002, Mr. Harkat was arrested and detained pursuant to the
security certificate issued against him.
[16] On
March 22, 2005, in reasons reported at Re Harkat (2005), 261 F.T.R. 52, the
Court determined the security certificate to be reasonable.1 At
paragraph 143 of its reasons, the Court concluded that:
1. Prior
to arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist
activity.
2. Mr. Harkat travelled to and was in
Afghanistan.
3. Mr.
Harkat supported terrorist activity as a member of the terrorist group known as
the Bin Laden Network. Before and after he arrived in Canada Mr. Harkat was
linked to individuals believed to be in this network.
4. The
Bin Laden Network engages in acts of terrorism in order to obtain its stated
objective of establishing Islamic states based on a fundamentalist
interpretation of Islamic law. The Bin Laden Network has been directly or
indirectly associated with terrorist acts in several countries. […]
5. The
Bin Laden Network operated terrorist training camps and guest houses in
Afghanistan and Pakistan. The camps provided sanctuary, funds, and military and
counter-intelligence training. Abu Zubaida ran the Khaldun and Darunta training
camps in Afghanistan.
6. Mr.
Harkat acknowledges he was a supporter of the [Front islamique du salut (FIS)].
When the FIS severed its links with the [Groupe islamique armée (GIA)], Mr.
Harkat indicated his loyalties were with the GIA. The GIA seeks to establish an
Islamic state in Algeria through the use of terrorist violence. Mr. Harkat's
support of the GIA is consistent with support for the use of terrorist
violence.
7. Mr. Harkat lied to Canadian officials about
his:
- work for a relief company in Pakistan;
- travel to Afghanistan;
- association
with those who support international extremist networks;
- use of the alias Abu Muslima; and
- assistance to Islamic extremists.
Such lies were for the purpose, at least in part,
of distancing himself from those who support terrorism and to mislead Canadian
authorities about his involvement in the support of terrorist activities.
8. Mr.
Harkat has assisted Islamic extremists who have come to Canada.
9. Mr.
Harkat has associated with Abu Zubaida since the early 1990's. Abu Zubaida was
one of Osama Bin Laden's top lieutenants from the 1990's until his capture.
10. While
in Canada Mr. Harkat has been in contact with individuals known to be involved
in Islamic militant activities. [footnotes omitted]
[17] With
respect to Mr. Harkat's testimony, the Court found at paragraph 113 of its
reasons that he had lied under oath in several important respects.
[18] Subsequently,
Mr. Harkat applied for judicial release from detention pursuant to subsection
84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(Act), which provides:
|
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.
|
[19] Mr.
Harkat’s first application for release was dismissed, in reasons reported at Harkat
v. Canada (Minister of Citizenship and Immigration) (2005), 278 F.T.R. 150,
because he failed to satisfy the Court that he would not be removed from Canada
within a reasonable time.
[20] Mr.
Harkat’s second application for release from detention was allowed. In reasons
reported at Harkat v. Canada (Minister of Citizenship and Immigration)
(2006), 270 D.L.R. (4th) 50 (F.C.), the Court ordered that he be released
pursuant to a number of terms and conditions. Mr. Harkat was released on
June 21, 2006.
[21] Since
that date, the terms and conditions of Mr. Harkat's release have been reviewed
by the Court on two occasions. Some modifications were made to the conditions,
while other changes were denied. See: Harkat v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1105, and Harkat v. Canada
(Minister of Citizenship and Immigration), 2007 FC 416.
[22] As
set out above, on January 29, 2008, Mr. Harkat was arrested and detained as a
result of an alleged breach of the terms and conditions of the release order.
The gist of the alleged breach is that it was, and is, a term of the release
order that Mr. Harkat reside with his current supervising sureties: Sophie
Harkat, Pierrette Brunette, and Alois Weidemann. The Ministers allege that Ms.
Brunette, in breach of that term, has moved out of the residence. Mr. Harkat
denies any breach of the release order, stating that it did not require Ms. Brunette
to live with him and that, in any event, she continues to "reside"
with him.
The Release Order and Supporting
Reasons
[23] At
the heart of the issue of whether there has been a breach of the release order
is the proper interpretation of paragraph 6 of that order, which states as
follows:
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, _____________ 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. [emphasis added]
[24] At
the time of Mr. Harkat’s release, Pierre Loranger was a tenant who lived with Ms.
Brunette and Ms. Harkat. Mr. Loranger also executed a performance bond to
facilitate Mr. Harkat’s release.
[25] As
set out above, the release order provided that Mr. Harkat was not entitled to
be alone in the residence. While in the residence, or while out of the
residence in the yard or on an approved outing, Mr. Harkat was to be
accompanied by either Ms. Harkat or Ms. Brunette. They were his supervising
sureties. Mr. Loranger was not a supervising surety.
[26] Mr.
Loranger subsequently moved out of the residence and paragraph 6 of the release
order was amended to reflect this change in circumstance. The release order
was also amended to remove Mr. Loranger as a surety when a replacement surety
was found.
[27] Later,
Mr. Weidemann, Ms. Brunette's then partner, was added as a supervising surety
and paragraphs 6, 7, and 8 of the release order were amended by the Court to
reflect this change. This amendment was sought so that Ms. Harkat and Ms.
Brunette could leave the residence and someone else could remain with Mr.
Harkat. Then, in the fall of 2006, Mr. Weidemann and Ms. Brunette bought a
house where the Harkats were to live with them. On February 9, 2007, with the
consent of the parties, an order was issued further amending paragraph 6 of the
release order to allow Mr. Harkat to reside at the new residence. Thus, Mr.
Harkat was required by paragraph 6 of the release order, as amended, to
reside at the new residence "with Sophie Harkat, his wife, Pierrette
Brunette, his mother-in-law, and Alois Weidemann." This is the
requirement now in force.
[28] Paragraph
1 of the release order required that Mr. Harkat sign a document in which he
agreed to comply strictly with each term and condition of the release order.
Paragraph 8 of the release order also required that Ms. Harkat and Ms. Brunette,
prior to Mr. Harkat's release from detention, each sign a document in which
they acknowledged their obligation to immediately report to the CBSA any breach
of a term or condition of the release order. The order that added Mr.
Weidemann as a supervising surety also required that he sign a similar document
before supervising Mr. Harkat.
[29] During
oral argument on the Ministers’ motion, counsel for Mr. Harkat agreed that the
release order should be read together with its accompanying reasons in order to
ascertain its proper interpretation.
[30] Relevant
portions of the reasons, which supported the release order, are as follows:
- At
paragraph 60, the Court repeated the concession of Mr. Harkat's counsel that,
based upon the Court's findings when determining the security certificate
to be reasonable, Mr. Harkat's release would pose a danger.
- At
paragraph 68, the Court independently concluded 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."
- At
paragraph 76, the Court found that, because Mr. Harkat’s testimony had
been found to be untruthful, any term or condition of release had to be
based upon something other than his assumed good faith or trustworthiness.
- At
paragraph 83, the Court wrote that any terms and conditions of release
must be "specific and tailored to Mr. Harkat's precise
circumstances" and be "proportionate to the risk posed by Mr.
Harkat."
- At
paragraphs 84 through 92, the Court listed the factors that supported Mr. Harkat's
release upon strict conditions. Particularly relevant to this proceeding
are paragraphs 85, 88, 89, 90, and 91, where the Court wrote:
85. First, I believe that Mrs.
Harkat and her mother are capable of providing effective supervision. Having
seen Madam Brunette testify, I was impressed with her testimony as to the
significance to her of the sum of $50,000.00 that she is prepared to post and that
she does not wish to lose because of any breach of condition by Mr. Harkat.
I also accept Mrs. Harkat's testimony that she will have to ensure that her
husband abides by all of the conditions of release or she will betray her
mother, who is posting the largest cash guarantee, and she will also disappoint
people whom she has become close to on the Committee for Justice for Mohamed
Harkat.
[…]
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.
90. Sixth, persons with
something to hide from Canadian authorities must be presumed to believe that
contact with Mr. Harkat will draw the authorities’ attention to those
persons.
91. Seventh, while I find much
of Mr. Harkat’s testimony to be untruthful, I do accept his evidence that he
believes that if he breaches any condition of release that:
[…] they’re
going to take me for sure to jail, plus it is going to be like give [sic]
opportunity to the Government to point their finger on me and deport me.
This
fear, which I believe to be genuine, can reasonably be considered to provide
some incentive to Mr. Harkat to abide by the conditions of his release.
- At
paragraph 94, the Court noted that, for the terms and conditions of
release to be effective and proportionate, “Mr. Harkat's movement,
associations and ability to communicate must be restricted in a fashion
that permits those activities to be supervised and monitored.” At
paragraph 81, certain proposed sureties were rejected because the Court
was not satisfied that "their genuine commitment is to ensure compliance
with the Court's conditions" and so "would not provide a
sufficient controlling influence over Mr. Harkat."
- Finally,
the Court appended to its reasons the terms of release proposed by Mr. Harkat.
In the fourth term, it was proposed that "Mr. Harkat is to reside
[…] with his wife, Sophie Harkat and his mother-in-law, Ms.
Pierrette Brunette." [emphasis added]
The Ministers' Motion
[31] Turning to the Ministers' motion, I propose
to deal with it as follows: (a) whether paragraph 6 of the release order
was breached; (b) if so, what is the severity of the breach; and (c) what, if
any, consequences should flow from the breach.
(a) Was paragraph 6 of
the release order breached?
[32] As
set out above, Mr. Harkat denies any breach of the release order and asserts
that, in any event, the concept of residence is sufficiently flexible so that,
on the evidence before the Court, Ms. Brunette continues to "reside"
with him and he with her.
[33] On
the first point, Mr. Harkat argues that the intent of the release order was to
neutralize the perception of danger that his release posed. The release order
never directed that Mr. Harkat be in the company of more than one surety
and never directed that any person must live with him. Thus, it is said that
Ms. Brunette, Ms. Harkat, and Mr. Weidemann could all move out of the
residence, and Mr. Harkat would not be in breach of the terms of the release
order so long as they arranged for one of them to always be with him at all
times.
[34] In
support of this position, Mr. Harkat relies upon Ms. Brunette's e-mail to Peter
Foley, dated of September 5, 2006 (Exhibit 11 (a)). Mr. Foley is the
“operational case lead” at CBSA for Mr. Harkat's release. Ms. Brunette’s
e-mail was sent while approval was then being sought for Mr. Harkat to move to
the current residence, which was purchased by Ms. Brunette and Mr. Weidemann in
the fall of 2006. In her e-mail, Ms. Brunette wrote:
You said it very clearly. Mr.
Harkat can't move without the approval of the court. NOT ME I sign [sic]
a document saying that I am ready to watch him and follow all the conditions.
I didn't sign any paper saying that I HAVE TO LIVE WITH THIS GUY. He has to be
with me OR Sophie 24 hours a day. If I decide that I move, I move. Mrs.
Dawson is more opened [sic] minded than that you are. She knows
perfectly that if I go, they follow. [emphasis in original]
[35] This
is said to reflect Ms. Brunette's understanding of her obligations, and Mr. Harkat
observes that the CBSA did not respond by asserting any obligation on the part
of Ms. Brunette to live with Mr. Harkat.
[36] With
respect to the second argument, Mr. Harkat relies upon cases such as R. v.
Stroud, [2007] O.J. No. 48 (C.A.) (QL), and R. v. Gravino, [1991]
O.J. No. 2927 (C.A.) (QL), to argue that the word "reside" is one of
flexible meaning. He argues that where Ms. Brunette, as a result of a broken
relationship, was "forced" out of the house, she has simply vacated
the residence for evenings. During the day, she is said to have a "strong
and regular contact" to the residence, as reflected by the fact that she
is there almost daily, keeps most of her belongings there, receives her mail
there, and maintains her business telephone there.
[37] The
evidence with respect to Ms. Brunette's involvement at the residence is fairly
straightforward. Her evidence was that:
·
she and Mr. Weidemann separated in or about June of 2007;
·
she then moved into a second, separate bedroom in the residence;
·
she met and became involved with her current partner between
October and November of 2007;
·
by November of 2007, she was not sleeping in the residence every
night;
·
since November 25, 2007, she slept in the residence "close
to not at all";
·
she stops at the residence almost every day between giving music
lessons in order to pick up her mail, phone messages, and other things;
·
some mail goes to her new address;
·
her current partner has purchased a new home where Mr. and Ms.
Harkat will live;
·
she will have her office at the new home, but she will not sleep
there all of the time;
·
she was evasive about her future plans;
·
she was evasive about whether her new partner was open to living
with Mr. and Ms. Harkat; and
·
she cannot imagine that her country will make her to live the
rest of her life with Mr. Harkat but, if it does, she will do so.
[38] With respect to the testimony that I have
characterized as evasive, Ms. Brunette testified on cross-examination as
follows:
Q. You said that your
partner has offered to buy a new house where you can live. Your partner has
offered to buy a new house.
A. Yes, he might move
with us maybe.
Q. Maybe?
A. Yes. We have three
houses now, the two of us. I have a house in Greely that I have never been
able to enjoy because of the situation, he has a house in Gatineau, and we were
going to have that house to accommodate Sophie and Moe.
Q. Is it your intention to
reside at this new house?
A. If I have to, I
will. But I have never been ordered
Q. That won’t be
particularly onerous because your definition of reside is to stop off every few
days. Right?
MR. WEBBER: That’s
just argumentative, my lady.
THE COURT: It is.
MR. TYNDALE:
Q. Is it your plan now
that you will sleep there most nights?
A. Most of the nights?
Q. Yes.
A. We are not moved yet.
Q. Is it your plan that
you will sleep there most nights?
A. If Sophie and Moe don’t
move there, no. They haven’t been accepted yet.
Q. If they are accepted
and they move there, is it your plan that you will sleep there most nights?
A. If the courts tell me
that I have to sleep there, I will.
Q. Only if the Court tells
you.
A. If it’s an order, I
will follow the order. Before I never felt that the Court ordered me that
I had to sleep every night with Sophie and Moe. Beside that, as I said,
for four months I did it before and there was absolutely no argument about that
fact. I don’t see what’s changed now. I am a surety, not the shadow
of Moe and Sophie.
Q. Your counsel asked you
about the new house and you said my office will be there. My intention is
to stay there. I am going to suggest to you that until this issue of
reside came up, your plan was that Sophie and Mohamed would live there and you
would stop off every so often and you and Mr. Parent would live in
Gatineau. Isn’t that right?
A. He is putting now the
words in my mouth.
Q. Tell me if I am
wrong. Was that your plan or wasn’t it?
A. Not exactly because I
have school in Orleans. We don’t know what we are going to do. Are
we going to sell the house in Gatineau, sell my house in Greely, just live
there? We didn’t decide. We don’t even know if they will be allowed
to move there.
Q. Is it Mr. Parent’s
intention to move into the house with Mohamed and Sophie?
A. You are going to have
to ask him that.
Q. Have you discussed it
with him?
A. Mr. Parent said he
will do whatever needs to be done.
Q. From your discussions
with him, does he seem open to moving in with Mohamed and Sophie? Does he
think that’s a good idea, something he would like to do?
A. He didn’t say no.
Q. That’s not what I asked
you.
A. I cannot speak for
himself.
Q. Again, that’s not what
I asked you.
MR. WEBBER: But it is
her answer.
THE COURT: It is an
answer.
MR.
TYNDALE: All right, it will have to do.
[39] Ms. Harkat’s evidence with respect to the
future plan was more clear:
Q. Assuming that you get
permission to move to the new house, can you give the Court a brief description
of how that house would be set up and who would be there?
A. It looks like a
townhouse connected with two other units on each side, with a garage. The
intention would be that my husband and I would live there full-time. We have
our own privacy, and my mom can basically move on with her life. She would
have her office downstairs which would be locked up to Moe. We have no office
on the third floor; the office would be mainly downstairs. My mom and I would
use the same office and the same computer.
Q. Have you talked to your
mother about how often she would be at the house, if she is going to be staying
somewhere else?
A. She said that, if
necessary, she can stop by the house every day. She already does anyway to
check her mail and her phone messages, because right now all her clients are
calling there, and to check her e-mail messages. [emphasis added]
[40] The
surveillance cameras outside the residence record that:
·
from November 25, 2007, to December 8, 2007, Ms. Brunette
did not sleep in the residence;
·
from November 25, 2007, to November 28, 2007, Ms. Brunette
removed bags and luggage from the residence;
·
from November 29, 2007, to December 7, 2007, Ms. Brunette was in
the residence as follows:
November 29, 2007 - 2103 hours to 2234 hours
November 30, 2007 - 1711 hours to 1758 hours
December 1, 2007 - 1506 hours to 1523 hours
December 2, 2007 - 1118 hours to 1403 hours
December 2, 2007 - 1714 hours to 1842 hours
December 3, 2007 - 1316 hours to 1716 hours
December 3, 2007 - 2020 hours to 2251 hours
December 5, 2007 - 0728 hours to 0800 hours
December 5, 2007 - 1958 hours to 2212 hours
December 6, 2007 - 2003 hours to 0246 hours
December 7, 2007 - 1102 hours to 1202 hours
·
more items were removed from the residence on November 30,
December 2, December 5, and December 7, 2007.
[41] On
December 9, 2007, Ms. Harkat sent an e-mail to Mr. Foley (Exhibit 23) that
began as follows:
As you probably know by now from
reports from Mike, my mother and Louis are no longer together. After
numerous discussions, we've all decided to move our separate ways in separate
houses. We are looking for something much smaller and more affordable. In
the meantime, things are the same around here. [emphasis added]
[42] Turning
now to the arguments advanced by Mr. Harkat, I agree that the concept of residence
can vary depending upon the particular context.
[43] Here,
the context is a scheme of conditions of release that were designed to
neutralize and contain the danger posed by Mr. Harkat's unconditional release
from detention. The release order was made in circumstances where the security
certificate had been found to be reasonable, Mr. Harkat had been found to be
untruthful, and the supervision and monitoring of Mr. Harkat’s movement,
associations, and ability to communicate had been found to be necessary.
[44] In
this context, to “reside” with someone means to “live” with them. As the
release order was ultimately amended, Mr. Harkat was to live with Ms. Harkat, Ms. Brunette,
and Mr. Weidemann.
[45] I
do take guidance from the decisions relied upon by Mr. Harkat. While the
supervising sureties were not each obliged to sleep at the residence every
night in order for Mr. Harkat to reside with them, his residence had to be the
place where they usually returned to and slept at night. Such an interpretation
of “reside” is consistent with that applied by the High Court of Justice in Abu
Rideh v. Secretary of State for the Home Department, [2007] EWHC 2237
(Admin) at paragraphs 11 and 33. So long as the supervising sureties’ absences
from the residence were each for a temporary purpose and they intended to
return to the residence, the sureties resided with Mr. Harkat and he with them.
[46] Thus,
Ms. Brunette and Mr. Weidemann could vacation away from Mr. Harkat, as they
did, because their absence was temporary and their intention was to return to
the residence. Similarly, Ms. Harkat was entitled to attend an overnight
conference because her absence from the residence was only temporary and she
intended to return. In both instances, other supervising sureties would be in
the residence with Mr. Harkat.
[47] However,
on the evidence before the Court, I see no temporary purpose for Ms. Brunette's
absence from the residence. By the time Mr. Harkat was arrested, Ms. Brunette
had ended her relationship with Mr. Weidemann, formed a new relationship,
ceased sleeping at the residence, moved some of her belongings, and was in the
process of purchasing a new home. As Ms. Harkat had noted in her email to the
CBSA, "we've all decided to move our separate ways in separate
houses."
[48] For
the purpose of the release order, I find as a fact that Ms. Brunette had left
the residence with the intent of not living there again. I also find no intent
on the part of the Harkats to later move in with her. The most reasonable
inference, based upon Ms. Brunette’s evasive testimony, Ms. Harkat’s clear
testimony and Ms. Harkat’s e-mail of December 9, 2007, is that Ms. Brunette and
the Harkats were to go their separate ways. There was no plan on their part
that the Harkats would join Ms. Brunette at her new location.
[49] Ms. Brunette
was entitled to leave the residence in the sense that the Court had not, and
likely could not have, ordered her to reside with Mr. Harkat if she did
not want to. However, the consequence of Ms. Brunette’s departure was to put
Mr. Harkat in breach of paragraph 6 of the release order, which required him
to reside with her.
[50] This
breach was not reported to the CBSA by any supervising surety until January 25,
2008, when Mr. Weidemann told Mr. Foley that Ms. Brunette had not lived in the
residence since November 25, 2007. Therefore, it follows that each supervising
surety was in breach of their obligation to immediately report to the CBSA the
breach of the term of the release order that required Mr. Harkat to reside with
Ms. Brunette.
[51] In
reaching these conclusions, I have considered Mr. Harkat’s submission that the
release order did not direct the supervising sureties to live with him. That
is true. As noted above, I doubt that any basis in law exists for such an
order. However, each supervising surety knowingly and willingly accepted the
obligation that Mr. Harkat reside with them. Having done so, if one or all of
them no longer wished to be bound by that obligation, each were required to ask
the Court to be relieved from it. By failing to do so and unilaterally moving
out, Ms. Brunette put Mr. Harkat in violation of the condition that he reside
with her.
[52] Ms.
Brunette's e-mail of September 5, 2006, is not inconsistent with this. The release
order did not expressly require her to obtain approval to move, and it would be
consistent with the concept of a temporary purpose to allow her to move in 2006
to the then new residence in order to prepare it for Mr. and Ms. Harkat's
arrival. As Ms. Brunette observed in her e-mail, "if I go, they
follow."
[53] The
evidence of both Ms. Brunette and Ms. Harkat is consistent with this temporary
separation. Under cross-examination, Ms. Brunette testified:
Q. Farther up, just below
the line that says, "If I decide that I move, I move," two lines down
it says: "She knows – " And, again, you are referring to the judge.
"She knows perfectly that if I go, they follow." I am going to
suggest to you that the plan was, when you realized you didn't have Court
approval for the move, that you would move to the new address and that Mohamed
and Sophie would follow when the renovations were complete and the Court
approved the move. That was the plan. Right?
A. That was the plan, yes.
If we move, they have to follow because he has to reside with me.
[emphasis added]
Under cross-examination, Ms. Harkat
also stated:
THE COURT: The
question is: Your original hope was to all move together.
THE WITNESS: Yes.
THE COURT: And that
turned out not to be possible.
THE WITNESS: Because
there were all kinds of delays and stuff like that. I stayed there where we
were supposed to, and Moe did, too.
THE COURT: Mr.
Tyndale.
MR. TYNDALE:
Q. What eventually
happened in February is that you and Mr. Harkat rejoined Mr. Weidemann and your
mother in the new house. Right?
A. That's correct.
Q. And the plan as of
February onward was that all of you were going to reside in that house.
A. That was what we were
hoping, and we actually love this place. It is unfortunate that everything is
happening.
[54] As
for the argument that, by virtue of her "strong and regular contact"
with the residence, Ms. Brunette continues to reside there, the usual meaning
of “reside”, as Mr. Justice Tarnopolsky noted in Gravino, is where
one sleeps. Ms. Brunette no longer sleeps at the residence on a regular basis.
The purpose of paragraph 6 of the release order was to ensure effective
supervision of Mr. Harkat. Effective supervision comes from the supervisor’s
physical presence - not from the presence of their belongings. I repeat that
there was nothing temporary about Ms. Brunette's decision to no longer sleep at
the residence.
(b) What is the severity
of the breach?
[55] Mr.
Harkat argues that, if I find that a term of the release order was breached,
the matter should be resolved by a clarification to, or an amendment of, the
release order. It is suggested that, while the Harkats continue to reside
where they now are, the appropriate amendment would be to require Mr. Harkat to
continue to reside with Ms. Harkat, while Ms. Brunette would continue to
be a supervising surety.
[56] I
view the breach of the release order to be more serious than to warrant the
mere approval of the de facto situation that the supervising sureties
and Mr. Harkat have created.
[57] The
terms of the release order were carefully tailored to address the danger that
Mr. Harkat's release posed.
[58] A
very important factor that militated in favor of Mr. Harkat's release was that,
together, Ms. Brunette and Ms. Harkat could effectively supervise him. At the
hearing that led to Mr. Harkat's release, I was impressed by Ms. Brunette’s
evidence and believed that her strong personality, coupled with her $50,000.00
performance bond, would result in her close supervision of Mr. Harkat. I also
accepted Ms. Harkat's testimony that she would provide careful supervision,
because to do otherwise would betray her mother and disappoint members of the
Justice for Mohamed Harkat Committee. The release order accordingly required Mr.
Harkat to reside with both Ms. Harkat and Ms. Brunette, as they had
proposed to the Court.
[59] This
requirement was not accidental or made without careful thought.
[60] Today,
that supervisory scheme, latter augmented by the addition of Mr. Weidemann,
does not exist, and neither the CBSA nor the Court was advised of this by Ms. Brunette
or the Harkats.
[61] Indeed,
the affidavits filed on December 21, 2007, in support of Mr. Harkat's motion to
have the conditions of his release varied, are silent about Ms. Brunette's
departure. Ms. Harkat’s affidavit simply states that "Mr. Alois Weidemann
will be moving from the house." This was not, in my view, an accurate
statement of the situation existing at that time.
[62] While
I accept that Mr. Harkat's counsel had advised counsel for the Ministers on
December 10, 2007, that the residence where Mr. Harkat was living would be sold
and also advised the Chief Justice of this Court in a case management
teleconference that a change of residence was anticipated, I am concerned that
Mr. Harkat would seek the changes that are described below without disclosing
the fact that Ms. Brunette had ceased living at, and centralizing her life
around, his residence.
[63] Mr.
Harkat, Ms. Harkat, and Ms. Brunette all testified that they strictly followed,
and intended to follow, the conditions of the release order. It is difficult
to understand how, in light of that evidence, Ms. Brunette believed that she could
leave the residence (and remove herself from the living arrangement that she
and the Harkats had earlier proposed to the Court for approval) without Mr.
Harkat having to seek approval for that very material change in circumstance.
It suggests that Mr. Harkat and his supervising sureties did not understand the
importance of compliance with the release order, or that they were reckless in
interpreting what the order meant, or that they had a careless disregard for
the terms of the release order.
[64] The
effect of this unauthorized and unilateral change in circumstance is to
seriously erode the trust and confidence that I have in the judgment of Ms.
Brunette, Mr. Harkat, and Ms. Harkat.
(c) What, if any, consequences
should flow from the breach of the release order?
[65] The
Ministers submit that the Harkats want to live by themselves and that, rather
than seek a variation of release order to permit this change, they are
presenting the situation for approval as a fait accompli. The Ministers
point to the fact that Mr. Weidemann is selling the residence, that Ms. Brunette
has entered into a new relationship, that Ms. Brunette’s future plans are, at
best, vague, and that Ms. Harkat has advised the CBSA that “we’ve all decided
to move our separate ways in separate houses.” The Ministers argue that the
Harkats, as a result of the breach of the release order, have presented what
is, in essence, “a done deal” for approval by the Court.
[66] In
this context, where the supervisory scheme required by the release order is
said to have disintegrated, the Ministers submit that Mr. Harkat should be
placed in detention. The onus should then be placed upon Mr. Harkat to design
a new supervisory plan and come before the Court, with witnesses, to ask for
release on those terms.
[67] I
have given very serious consideration to the submissions of the Ministers.
However, notwithstanding the actions of Ms. Brunette and the silence of the Harkats,
as a matter of law, Mr. Harkat is entitled to be released if there are any
conditions that are capable of containing the danger that his release poses. See:
Charkaoui at paragraphs 96 and 101. In my view, at this time, such
conditions still exist.
[68] The
supervisory scheme ordered by the Court, whereby Mr. and Ms. Harkat would
reside with another supervising surety remains intact, albeit barely, in the
form of Mr. Weidemann.
[69] Mr.
Weidemann testified that he is prepared to allow the Harkats to live in his
house for the short term, and that, during that period, he is prepared to
continue his obligations as a supervising surety. I was impressed with Mr.
Weidemann’s testimony and found him to be a decent, conscientious, and
straightforward individual. He was the one supervisory surety to notify the
CBSA of Ms. Brunette's departure from the residence.
[70] Mr.
Harkat testified that Mr. Weidemann is a "good man" who he respects
and who has helped him a lot. While Ms. Brunette said that she did not trust
Mr. Weidemann, Mr. Harkat “[saw] it a different way” and said that he gets
along very well with Mr. Weidemann. Ms. Harkat also testified that her husband
has a good relationship with Mr. Weidemann and that she had no problems
continuing to live with him in the residence.
[71] Mr.
Weidemann has also signed a performance bond.
[72] I
accept, and find, that Mr. Weidemann will provide effective supervision of
Mr. Harkat in the next short while.
[73] There
are four other factors that militate in favor of Mr. Harkat's continued
release.
[74] The
first is that, aside from the departure of Ms. Brunette, there is no evidence
that Mr. Harkat has breached any term of the release order. It was the
evidence of Mr. Foley that, aside from the incident giving rise to this
proceeding, things have “been working quite well” and that, given Mr. Harkat's
conduct to date, the CBSA has not found it necessary to provide surveillance of
Mr. Harkat on every outing. Mr. Foley has not identified any breach of the
conditions relating to Mr. Harkat's activities outside the residence. While
there have been some misunderstandings or disputes about scheduling outings or
visits, Mr. Foley testified that those matters have generally been resolved “informally”.
He described the relationship between the Harkats and the CBSA as being a generally
cooperative one. When the CBSA entered the residence on January 25, 2008,
unannounced, access to the computer was restricted and locked as required.
[75] The
second factor is the residual confidence that I have in Ms. Brunette and Ms. Harkat.
While I am at a loss to understand how they seemed to believe that Ms. Brunette
could leave the residence without notifying the CBSA or the Court, and while I
am concerned that they may have intended to present the new living arrangements
to the Court as a fait accompli in order to have the release conditions
amended, I find that they remain committed to the day-to-day supervision of Mr.
Harkat.
[76] I
reach this conclusion from their vehement testimony to that effect and their,
at times unnecessarily, combative attitude when cross-examined on this point.
I am satisfied that they worked hard to ensure compliance with the terms
relating to what Mr. Harkat could and could not do, and thus resent any
suggestion to the contrary. I am also satisfied that the existence of the
performance bonds, particularly Ms. Brunette's $50,000.00 bond, remains a
powerful motivator.
[77] The
third factor is that I continue to accept Mr. Harkat's testimony that he
believes that any breach of the release order on his part would probably lead
to his detention and increase the likelihood of his deportation.
[78] Finally,
when ordering Mr. Harkat’s release from detention, I placed reliance upon
the fact that authorities such as the CBSA would monitor him. Aside from such
monitoring, the presence of the CBSA would also act as a deterrent to both Mr.
Harkat and to those with something to hide from the authorities. The CBSA will
continue to exert that monitoring and deterrent presence.
[79] For
these reasons, I find that it is not now necessary that Mr. Harkat be detained
and that conditions still exist which are capable of containing the risk that
his release poses. This will remain the case for so long as the Harkats live with
Mr. Weidemann.
[80] I
recognize that this is not a long-term solution and that Mr. Weidemann’s
willingness to act as a supervising surety is for a limited period of time. In
that period, it is up to Mr. Harkat to present to the Court for approval a
proposal for his supervision over the longer term.
[81] To
be clear, while Mr. Harkat continues to reside with Ms. Harkat and Mr. Weidemann,
he must bring a motion to the Court for the amendment of the release order to
permit any change from that situation.
[82] In
addition to seeking Mr. Harkat's detention, the Ministers also seek payment to
Her Majesty of the monies paid into Court pursuant to the release order and the
forfeiture of the performance bonds posted by Ms. Brunette, Ms. Harkat, and Mr. Weidemann.
[83] Of
relevance to the Ministers’ claim are paragraphs 4 and 5(i), (ii), and (vii) of
the release order, which provide:
4. Prior
to Mr. Harkat's release from incarceration, the sum of $35,000.00 is to be paid
into Court pursuant to Rule 149 of the Federal Courts Rules. In the
event that any term of the order releasing Mr. Harkat is breached, an order may
be sought by the Ministers that the full amount, plus any accrued interest, be
paid to the Attorney General of Canada.
5. Prior
to Mr. Harkat's release from incarceration, the following seven individuals
shall execute performance bonds by which they agree to be bound to Her Majesty
the Queen in Right of Canada in the amounts specified below. The condition of
each performance bond shall be that if Mr. Harkat breaches any terms or
conditions contained in the order of release, as it may from time to time be
amended, the sums guaranteed by the performance bonds shall be forfeited to Her
Majesty. The terms and conditions of the performance bonds shall be provided
to counsel for Mr. Harkat by counsel for the Ministers and shall be in
accordance with the terms and conditions of guarantees provided pursuant to
section 56 of the Immigration and Refugee Protection Act. Each surety
shall acknowledge in writing having reviewed the terms and conditions contained
in this order.
i) Pierrette
Brunette $50,000.00
ii) Sophie
Harkat $5,000.00
[…]
vii) Alois
Weidemann $5,000.00
[84] There are no express criteria in the Act or
its associated regulations that govern the forfeiture of bonds or monies paid
into Court in the present context. Both parties nonetheless acknowledge that
the Court has discretion as to whether or not to order forfeiture.
[85] On Mr. Harkat's behalf, it is argued that
regard should be had to the criminal context and to cases such as Gayle v.
Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 446 (QL),
which speak of a discretion to grant relief from forfeiture where a breach of
condition occurs through no fault of the surety or where extenuating
humanitarian considerations exist.
[86] The Ministers acknowledge a
"wide" discretion on the part of the Court to decide whether a bond
should be forfeited in whole or in part, as well as a discretion to order that
some, but not all, the monies or bonds be forfeited. The Ministers argue that
a relevant consideration is the purpose for which the security is placed.
Reference was made to the prior decision of this Court in Khalife v. Canada
(Minister of Citizenship and Immigration) (2006), 287 F.T.R. 306.
[87] In considering these submissions, it is my
view that cases such as Gayle are of limited assistance because they
turn upon express ministerial guidelines that do not apply in the present
situation.
[88] While I do not purport to set the exact
bounds of the discretion vested in the Court or to enumerate an exhaustive list
of factors to be considered by the Court, the relevant considerations, in my
view, include:
1. In every case, the exercise of discretion must be principled,
having regard to the merits of the particular case before the Court.
2.
All of the relevant circumstances must be taken into account.
3. The purpose for which the bonds and monies were put forward
must be considered. In this context, that purpose is to ensure compliance with
the terms and conditions of an order releasing a person detained pursuant to a
security certificate. This purpose must not be undermined.
4. A surety enters into a serious obligation and ought to pay the
amount promised, unless there are circumstances that make it unfair or unjust
for all or a portion of the monies to be forfeited.
[89] Applying those considerations, the most relevant
factors that counsel in favour of forfeiture and payment in the present case
are the following:
i. The
serious nature of the breach of the release order.
ii.
The breach was personally committed by a surety, Ms. Brunette, not
reported by another surety, Ms. Harkat, and not immediately reported by yet
another surety, Mr. Weidemann. The failure to report the breach immediately is
itself a breach of the release order.
iii. The bonds and monies paid into Court were taken in order to
ensure Mr. Harkat’s compliance with the release order.
[90] On the basis of this evidence, I gave
serious consideration to ordering full or partial forfeiture of the monies and
bonds. I also considered requiring that additional monies be secured by
performance bonds.
[91] There, however, is one significant factor
that militates against forfeiture. In October of 2006, Mr. Weidemann and Ms.
Brunette bought the current residence. Mr. Weidemann moved into the
residence and Ms. Brunette joined him, leaving the Harkats alone in the former
residence until Mr. Harkat was permitted to move in February of 2007. Mr.
Harkat and his sureties argue that, if this arrangement was permitted then, why
does the present situation amount to a breach of the order or to a sufficiently
culpable situation that would trigger forfeiture of the performance bonds and
the monies paid into Court?
[92] As stated above, I find the two situations
to be distinguishable. The move by Ms. Brunette in 2006 was for a
temporary purpose until the residence was renovated and approved by the CBSA. The
plan was for the Harkats to follow Ms. Brunette to the residence. Thus,
it may well not have constituted a breach of the release order.
[93] As well, by way of distinguishing factors,
Mr. Foley testified that the CBSA was unaware that Ms. Brunette had left the
former residence. Thus, Mr. Foley notes, the CBSA did not approve of Ms. Brunette
living apart from Mr. Harkat. Counsel for Mr. Harkat accepted Mr. Foley's
evidence, as do I. There is, therefore, no basis upon which to suggest that
CBSA “waived” this conduct.
[94] Notwithstanding that the CBSA did not know
of Ms. Brunette's move in October of 2006, given the degree to which the CBSA
was monitoring Mr. Harkat (but not Ms. Brunette) at the time, I
accept that it was open to Ms. Brunette and the Harkats to infer that the CBSA
knew that Ms. Brunette had moved out of the former residence in October of 2006
and lived apart from them until February of 2007. Yet, no consequences flowed
from Ms. Brunette’s move in 2006.
[95] In that very unique and extraordinary
circumstance, I conclude that it would be unfair and unjust to order forfeiture
of the bonds or the monies paid into Court, whether in whole or in part. I
further conclude that this will not undermine the purpose for which those
securities were placed. In the exercise of my discretion, no forfeiture will be
ordered.
[96] I emphasize the extraordinary circumstance
that led to the exercise of this discretion. It should not be assumed by any
surety that, in future, anything other than an equally extraordinary
circumstance will prevent the forfeiture of all, or a significant portion, of
the bonds and monies that now support the release order. I also wish to
emphasize that this decision is a specific response to the very specific
evidence before the Court. In every case, the Court will have to carefully
weigh all of the particular evidence before it and consider the applicable
legal principles.
Mr.
Harkat’s Motion
[97] I now turn to Mr. Harkat's motion. He asks
that the release order be amended in the following four respects:
1. He be permitted to stay in the residence alone, without his
supervising sureties. (From Ms. Harkat's evidence, it is clear that this
amendment is sought not just to allow Ms. Harkat to attend meetings and
appointments, but also to attend conferences and events that would take her
away from the residence overnight and perhaps longer).
2. He be permitted to stay in the yard of the residence alone,
without his supervising sureties.
3. The geographic boundaries in which he is permitted to travel
be expanded, so as to permit visits to the new home of Ms. Harkat's sister.
4. An additional residual clause be added to his conditions of
release, allowing the CBSA to consider special requests to extend one of his
weekly outings for a family outing exceeding four hours in duration, so long as
such outing would be within the permitted geographic boundaries. Such a clause
would allow him to go on these extended outings up to three times per month.
[98] The third request was not opposed by the
Ministers and will be dealt with below.
[99] At paragraph 13 above, I set out the
general guidelines to be considered when faced with proposed amendments to
conditions of release.
[100] Independent of those guidelines, however, is
the overarching reality that, when assessing what conditions of release are
proportionate to the threat or danger posed by release, reliance must be placed
upon the person concerned and/or his supervising sureties. In this case, when
Mr. Harkat was released from detention, significant reliance was placed upon his
supervising sureties. Limited reliance was placed upon Mr. Harkat, except
to the extent that the Court accepted that he believed a breach of the release
order would probably lead to his detention and increase the likelihood of his
deportation.
[101] As noted above, the effect of the breach of
the release order is to seriously erode the trust and confidence that I have in
the judgment of Ms. Brunette, Mr. Harkat, and Ms. Harkat. Because of that
diminished confidence in their judgment, I am not, at this time, prepared to
loosen the terms and conditions to permit Mr. Harkat to be alone in the
residence or the yard.
[102] As I explained above, one of the factors
that justified my conclusion that Mr. Harkat need not now be detained, notwithstanding
the breach of the release order, was the residual confidence that I have in the
ability and the willingness of the supervising sureties to continue to monitor
the day-to-day activities of Mr. Harkat. I cannot conclude that, in all of the
circumstances, allowing Mr. Harkat to be unsupervised and alone is, at
this time, proportionate to the threat that he poses.
[103] The reason for which Mr. Harkat sought
permission to be alone in the residence was to reduce the hardship upon his
wife. I acknowledge that this decision will maintain the onerous supervisory
obligations that Ms. Harkat has chosen to bear. However, as Mr. Justice
S. Noël noted at paragraphs 40 and 45 of his reasons in the last review of Mr.
Harkat’s conditions of release, those obligations may be substantially mitigated
by the addition of supplementary supervising sureties. This is something that
Ms. Harkat has not done because she and her husband wish to do it on their own.
[104] In oral argument, counsel for Mr. Harkat
observed that the Court had previously rejected Ms. Squires and Messrs. Skerrit
and Bush as supervising sureties’ and suggested that they were, perhaps, the
best sureties available. However, at the time they were rejected, the Court,
at paragraphs 78 through 81 of its reasons, noted their limited connection with
Mr. Harkat, together with their lack of any detailed discussion about how their
roles would be discharged. These were two of the factors that militated
against their approval as supervising sureties at that time. This does not
necessarily mean that, on a different evidentiary record, they would be
rejected in the future.
[105] As to the request for a residual clause that
would allow extended outings, in view of Mr. Foley's evidence that this raises
serious operational issues, my reliance upon the CBSA and the current breach of
the release order, this request is denied at this time.
The terms
of Mr. Harkat's continued release
[106] For the reasons given starting at paragraph 67
above, I have found that it is not now necessary that Mr. Harkat be detained,
that conditions still exist that are capable of containing the risk that his
release poses, and that this will remain the case for so long as Mr. Harkat
continues to reside with both Ms. Harkat and Mr. Weidemann.
[107] For the reasons given starting at paragraph 101
above, I have found that, at this time, it would not be proportionate to the
risk posed by Mr. Harkat to allow him to be in the residence or the yard
without a supervising surety or to permit him to be on extended outings.
[108] In all of the circumstances, an order will
issue reinstating all of the terms and conditions of the release order, as
amended, clarifying that this will continue only for so long as Mr. Harkat
resides with both Ms. Harkat and Mr. Weidemann. This will restore Mr. Harkat’s
right to limited outings, with the prior approval of the CBSA.
[109] Additionally, in view of the fact that the
Ministers consent to the slight amendment of the geographic boundaries in which
Mr. Harkat is permitted, and in view of Mr. Foley's testimony that this will
make no operational difference to the CBSA, an order will issue to that effect
once counsel provides the appropriate wording for the demarcation of the
boundaries.
[110] As explained above, because Mr. Weidemann is
not prepared to function as a supervising surety in the long term, this will
require that Mr. Harkat bring a motion to the Court for amendment of the
release order to permit any change from the current situation.
[111] I anticipate as well that, if new
legislation with respect to security certificates comes into force, and if a
new certificate is issued in respect of Mr. Harkat, future motions will be
brought to review and vary the conditions of his release.
[112] It is in that context that I make the
following observation.
[113] A concern that emerged while hearing the
evidence of Ms. Harkat and Ms. Brunette was their resentment and
dissatisfaction with the actions of the CBSA. Ms. Harkat testified that
she could not understand why she needed the CBSA to “double-check” her work. Ms.
Brunette testified that she has refused to accompany Mr. Harkat on walks
if agents of the CBSA intend to follow.
[114] While both Mr. Foley and Ms. Harkat
testified as to their generally good working relationship, their testimony was
somewhat belied by other testimony. Ms. Brunette testified that she
believes that Mr. Foley abuses his power and uses the terms of the release
order as a sort of pretext to make their lives difficult. Ms. Harkat testified
that Mr. Foley’s interpretation of the release order goes too far, and she
cannot understand why some outings are not permitted. Mr. Foley testified that
he opposed the residual clause because reposing such a discretion in him would
increase the potential for conflict between him and Mr. Harkat’s
supervising sureties.
[115] Two things arise out of this:
• First, there has been no formal allegation of
arbitrary or abusive conduct on the part of the CBSA, and no evidence to
support any such suggestion was adduced.
• Second,
the resentment toward the CBSA is misplaced and reflects a lack of
understanding about one of the bases for the release order.
[116] As detailed above, a significant factor that
weighed in favour of Mr. Harkat's release and his continued release,
notwithstanding the breach of the release order was and, is the monitoring and
deterrent presence of the CBSA.
[117] To use an analogy, the release order is not
a one-legged stool, supported only by the existence of supervising sureties.
Other important legs were listed at paragraphs 86 through 92 of the Court's
reasons in support of the release order. One of those legs is the presence of
the CBSA.
[118] I point this out because I believe that
evidence of a mature, civil, and genuinely cooperative relationship between Mr.
Harkat, his supervising sureties, and the CBSA would be a relevant factor when
assessing whether less stringent conditions of release may be proportionate in
the future. This is because evidence of such a relationship would be relevant
when weighing the confidence the Court might place in future in the supervising
sureties and Mr. Harkat.
[119] To
clarify, this does not mean that Mr. Harkat is required to blindly follow every
decision made by the CBSA. But, at the same time, there must be an
understanding of the role that the CBSA plays and a respectful dialogue between
the parties.
The Interim Orders
[120] There
remains the explanation for the Court's interim orders of February 1, 2008, and
February 8, 2008.
[121] It
is important to state that the interim orders were of a temporary nature and
intended to reflect the circumstances known to the Court at the time each was
made.
(a) The February 1, 2008 Order
[122] After
the hearing on January 31, 2008, which immediately followed Mr. Harkat's
arrest, the Court ordered, on an interim basis, that he be released from
detention. Once released, the order required that Mr. Harkat remain in his
residence with one of his supervising sureties, save for his attendance at the scheduled
Court hearing.
[123] This
order was made because the Court had heard no evidence to convince it that, if
released on that condition, Mr. Harkat would pose a danger to national security
or to the safety of any person. The full terms of the release order were not
restored because the Court was satisfied, on the evidence that it had heard,
that the Ministers' allegation that a breach of the release order had occurred
was not frivolous. The restrictions on Mr. Harkat's liberty until all of the
evidence and submissions had been heard was viewed by the Court to be
proportionate.
(b) The February 8, 2008 Order
[124] After
hearing all of the evidence and submissions, particularly the evidence of Mr.
Weidemann, the Court issued a second interim order. Mr. Weidemann gave
important evidence that he remained committed to providing effective
supervision, although he would like to be relieved of that obligation in six
weeks. The second order required Mr. Harkat to continue to reside with Ms.
Harkat and Mr. Weidemann, but allowed him to be in the yard or on a
pre-approved walk with a supervising surety. Pending the final decision of the
Court on the Ministers' motion, Mr. Harkat was not permitted to take the thrice
weekly outings contemplated under the terms of the release order.
[125] These
conditions reflected that the Court had heard evidence with respect to what it
viewed to be a serious breach of the terms of the release order. The
requirement that Mr. Harkat continue to reside with Ms. Harkat and Mr. Weidemann
was designed to ensure that the scheme of the original release order, which
required him to live with more than one supervising surety, was retained.
[126] The
restriction on outings was considered to be proportionate because, pending the
Court's final decision on the Ministers' motion, it was not appropriate to
allow Mr. Harkat to engage in activities that were more difficult for the
CBSA to monitor.
Conclusion
[127] An
order will issue embodying these reasons.
“Eleanor
R. Dawson”
1. The Court reviewed
the reasons for the lengthy nature of the proceeding, at paragraph 12 of
its reasons.
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