Date: 20060609
Docket: A-254-06
Citation: 2006 FCA 215
Present: DÉCARY J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
CANADA
Appellants
and
MOHAMED HARKAT
Respondent
REASONS FOR ORDER
DÉCARY J.A.
[1] This is a motion by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness Canada (the Ministers) for an order staying a judgment of Madam Justice Dawson of the Federal Court, dated May 23, 2006, (2006 FC 628), pending the disposition of their appeal of the judgment to this Court, and for an order expediting the hearing of the appeal.
[2] In the impugned decision, the Judge granted Mr. Mohamed Harkat's (Mr. Harkat) application for release from detention while attempts are being made to remove him from Canada.
[3] In the impugned decision, the Judge makes the following findings, at paragraph 4:
[4] In these reasons, I:
(i) find as a fact that there has been an unexplained delay in the
process necessary to determine whether Mr. Harkat may be removed from Canada. This delay has prolonged Mr. Harkat's detention and constitutes a distinct departure from the circumstances previously before the Court. It follows that this second application for release is properly brought by Mr. Harkat;
(ii) find that Mr. Harkat has met the onus upon him to establish that he will not be removed from Canada within a reasonable time;
(iii) find that Mr. Harkat's release without condition would pose a
threat to national security or to the safety of any person; and
(iv) find that a series of terms and conditions can be imposed upon Mr. Harkat that will, on a balance of probabilities, neutralize or contain any threat or danger posed by his release.
[4] At paragraph 95, the Judge sets out 23 terms and conditions, the complete list of which is attached as Appendix I to these reasons.
[5] I wish to make clear at the outset that neither the impugned decision nor the one I am about to make on this motion have any impact on Madam Justice Dawson's final determination, on March 22, 2005, that Mr. Harkat, a foreign national, was inadmissible to Canada based on the anti-terrorism provisions of the Immigration and Refugee Protection Act (the Act), and that the security certificate issued against him in December 2002 was reasonable. Her conclusion, which still stands, was that there were reasonable grounds to believe that Mr. Harkat has engaged in terrorism and that it was clear and beyond doubt that Mr. Harkat had lied under oath in several important respects.
[6] It also goes without saying that nothing in these reasons should be seen as prejudging the appeal.
[7] This motion was argued on the sole basis of the public record. The Ministers do not rely on, nor am I privy to, the secret record which was before the Federal Court Judge.
[8] When a security certificate has been found by the Federal Court to be reasonable, the foreign national remains in detention until his removal from Canada if the removal occurs within 120 days after the Federal Court has made its determination. Once the period of 120 days has elapsed, the foreign national who has not yet been removed from Canada may apply to the Federal Court to be released 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. (s. 84(2) of the Act).
[9] Prior to the hearing, counsel were informed that the appeal would be expedited whatever the fate of the motion for an order to stay and that this Court would hear the appeal during the first or second week of July 2006. It has been agreed that the hearing would take place on Thursday July 13, 2006, in Ottawa.
[10] The granting of a stay pending the disposition of an appeal is an extraordinary remedy. The burden rests upon the losing party (in this case the Ministers) to meet the tripartite test developed by the Supreme Court of Canada. The test runs as follows:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
R.J.R.-Macdonald Inc. v. Canada(Attorney General), [1994] 1 S.C.R. 312, at 334.
A serious question
[11] The first part of the test is generally relatively easy to meet. As was stated in R.J.R. Macdonald (supra, at pages 337-338), "the threshold is a low one. The judge ... must make a preliminary assessment of the merits of the case... Once satisfied that the application is neither vexatious nor frivolous, the motion judge should proceed to consider the second and third tests... A prolonged examination of the merits is generally neither necessary nor desirable".
[12] In the case at bar, I am satisfied that the appeal raises some serious questions with respect to the factors to be taken into account and the circumstances to be looked at by the Court when ordering the release of a person found on reasonable grounds to have engaged in terrorist activities.
Irreparable harm
[13] At this stage, using again the words of the Supreme Court of Canada in RJR-Macdonald supra, at page 341:
... the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.
"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.
[14] The Ministers submit that they will suffer irreparable harm if Mr. Harkat is released from detention pending the appeal because "the risk of terrorism perpetrated by Harkat on his own, or in concert with others, is not diminished by the conditions Dawson J. imposed on him" and "the threat is in no way either mitigated or diminished by the conditions the Court has imposed on Harkat" (Memorandum of fact and law, paragraphs 59 and 61).
[15] No affidavit evidence was tendered by the Ministers to support their submissions with respect to the risk posed by Mr. Harkat. The submissions are made in absolute terms. One would have expected them to be somehow substantiated.
[16] In most instances the failure to provide any affidavit with respect to irreparable harm would be fatal. This is not, however, a typical case. We are dealing here with an alleged harm to the public interest, which cannot necessarily be expressed, quantified or cured in the traditional way. The Supreme Court of Canada, at page 341 of its reasons in RJR-Macdonald, appears to be of the view that the question of irreparable harm to public interest should rather be considered at the third stage, which is the balance of convenience stage. I am prepared, accordingly, to move on to that third stage.
Balance of convenience
[17] In this third stage of the test the Court must decide which party would suffer the greatest hardship if the stay is granted or denied.
[18] The Ministers, essentially, allege harm to the public interest, namely the security of the state and the safety of the population. Mr. Harkat, essentially, alleges that his recently acquired right to be released from detention pending removal procedures would be infringed.
[19] The question of public interest is not as simple as the Ministers suggest. Clearly, and undoubtedly, security of the state and safety of the population are the most serious matters of public interest one can imagine. But they cannot be looked at in a vacuum. As they have been regulated by Parliament, there is also a public interest in ensuring that laws that have been enacted in that respect through a democratic process and for the public good are enforced.
[20] This Court, in Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54 (an appeal from that decision will be heard by the Supreme Court of Canada next week), has made it clear that the objective behind subsection 84(2) of the Act is "to ensure judicial examination of detention and judicial protection against indeterminate or indefinite detention" (at paragraph 36). The possible release, albeit under very onerous terms and conditions and for a temporary period, of a foreign national who is being detained without criminal conviction on the basis of a security certificate found by a judge to be reasonable, is an important part of the legislative scheme put in place to deal with terrorism in a non-criminal context. It is the remedy chosen by Parliament to prevent indeterminate or indefinite detention, a concept which is simply not in harmony with our democratic values even when applied to persons who have been found on reasonable grounds to have engaged in terrorist activities. In addition, this remedy expressly addresses the concern for the security of the state which the Ministers rightfully advocate, in that it requires the judge to satisfy him or herself that the release of the foreign national will not pose a threat to national security or a danger to the safety of any person.
[21] This is not a case where the constitutional validity of a statute or the legality of some acts of the state are at issue or where there has been a breach of the law (see, for example, Harper v. Canada, [2000] 2 S.C.R. 764). Mr. Harkat applied for his release in the way set out in the Act. The Judge, in reviewing the detention, was performing a duty assigned to her by Parliament. In ordering the release of Mr. Harkat on very strict conditions, the Judge was making an order permitted by law. The release, pending removal procedures, is a possibility that was contemplated by our elected representatives in certain circumstances. The protection by the courts of the right to seek release is a matter of public interest.
[22] Whether the terms and conditions imposed on Mr. Harkat are workable and can neutralize the risk he now poses, is not a matter in the public domain or a matter a court could be inherently expected to be aware of. Absent affidavit evidence I simply cannot accept as facts what are, in the end, speculations.
[23] I am asked to balance, on the one hand, the public interest in the security of the state and the safety of all persons, and on the other, the private interest of Mr. Harkat in obtaining his release from prison and the public interest in having laws duly enacted being enforced.
[24] If the stay is granted Mr. Harkat will be deprived of the liberty he just regained (albeit in a temporary way and under strict conditions) and, in view of the fact that no relevant affidavit was filed by the Ministers, a stay would for all practical purposes become the rule whenever a release order is appealed from. The Supreme Court of Canada, in Manitoba(Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at page 152, has indeed stated that it expected a motion judge "to weigh the precedential value and exemplary effect of granting a stay...". To grant a stay in the circumstances would be tantamount to establishing a statutory stay pending appeal of all release orders made under subsection 84(2) of the Act. Some statutes provide for stays pending appeal (for example, see, section 65 of the Supreme Court Act, subsection 50(2) of the Federal Courts Act and sections 490 and 672.75 of the Criminal Code). This Act does not.
[25] If the stay is denied, there is no affidavit evidence before me that suggests that Mr. Harkat is likely to pose a security risk between now and the time of the hearing of the appeal. Dawson J. was aware of all the circumstances of the case, including those to which I did not have access, when she drafted the terms and conditions of the release. My role is not to speculate as to what evidence there might have been which would have satisfied me that public interest in the security of the state and in the safety of persons warranted a stay pending the appeal. The fact that the hearing of the appeal has been expedited, is also relevant: the likelihood of any harm to the public in the short interim is likely to be reduced.
[26] All in all, I have reached the view that the Ministers have not met their burden and that the balance of convenience favors Mr. Harkat.
[27] It is true that Mr. Harkat was found by Dawson J. to have engaged in terrorist activities. It is also true, however, that the very same judge has found that at the present time his release from detention under strict conditions does not pose a threat to national security or a danger to the safety of any person. These is absolutely no evidence before me in this motion to support a valid concern that Mr. Harkat's release pending the hearing of the Ministers' appeal represents a threat or a danger. To grant a stay absent any evidence would be to deny Mr. Harkat the benefit of the law as it now stands and to substitute my own opinion to that of Madame Justice Dawson, thereby prejudging the appeal.
Disposition
[28] The motion for an order to stay the decision rendered on May 23, 2006 by Madam Justice Dawson is dismissed.
[29] The motion for an expedited hearing of the appeal is granted. The appeal will be heard in Ottawa on July 13, at 10:00 a.m., for a duration not to exceed one day. The appeal books, and the memorandum of fact and law of the appellants must be served and filed at the latest on June 30, 2006. The memorandum of fact and law of the respondent must be served and filed at the latest on July 7, 2006.
"Robert Décary"
Appendix I
Terms and conditions set out in paragraph 95 of Madam Justice Dawson's reasons of May 23, 2006, Mohamed Harkat v. Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness Canada, 2006 FC 628, at paragraph 95.
1. Mr. Harkat is to be released from incarceration on terms that he sign a document, to be prepared by his counsel and to be approved by counsel for the Ministers, in which he agrees to comply strictly with each of the following terms and conditions.
2. Mr. Harkat, before his release from incarceration, shall be fitted with an electronic monitoring device as from time to time arranged by the CBSA, along with a tracking unit. Mr. Harkat shall thereafter at all times wear the monitoring device and at no time shall he tamper with the monitoring device or the tracking unit or allow them to be tampered with. Also prior to his release, Mr. Harkat shall arrange at his expense for the installation in the residence specified below of a separate dedicated land-based telephone line meeting the CBSA's requirements to allow effective electronic monitoring. Mr. Harkat shall consent to the disabling as necessary of all telephone features and services for such separate dedicated land-based telephone line.
3. Prior to Mr. Harkat's release from incarceration, the CBSA shall install and test the necessary equipment and shall report to the Court as to whether it is satisfied that the equipment is properly working and that all necessary things have been done to initiate electronic monitoring.
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
iii) Kevin Skerritt $10,000.00
iv) Leonard Bush $10,000.00
v) Jessica Squires $1,000.00
vi) Pierre Loranger $1,500.00
vii) Alois Weidemann $5,000.00
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 these reasons encompasses only the dwelling house and does not include any outside space associated with it.
7. Between the hours of 8:00 a.m. and 9:00 p.m., Mr. Harkat may exit the residence but he shall remain within the boundary of any outside space associated with the residence (that is, the yard). He must at all times be accompanied by either Sophie Harkat or Pierrette Brunette. While in the yard, he may only meet with persons referred to in paragraph 9, below.
8. Mr. Harkat may, between the hours of 8:00 a.m. and 9:00 p.m., with the prior approval of the CBSA, leave the residence three times per week for a duration not to exceed 4 hours on each absence. A request for such approval shall be made at least 48 hours in advance of the intended absence and shall specify the location or locations Mr. Harkat wishes to attend and the times when he shall leave and return to the residence. If such absence is approved, Mr. Harkat shall, prior to leaving the residence and immediately upon his return to the residence, report as more specifically directed by a representative of the CBSA. During all approved absences from the residence, Mr. Harkat shall at all times have on his person the tracking unit enabling electronic monitoring and shall be accompanied at all times by either Sophie Harkat or Pierrette Brunette, who shall bear responsibility for supervising Mr. Harkat and for ensuring that he complies fully with all of the terms and conditions of this order. This requires them to remain continuously with Mr. Harkat while he is away from the residence. Prior to Mr. Harkat's release from incarceration, Sophie Harkat and Pierrette Brunette shall each sign a document in which they acknowledge and accept such responsibility, specifically including their obligation to immediately report to the CBSA any breach of any term or condition of this order. The document shall be prepared by Mr. Harkat's counsel and shall be submitted to counsel for the Ministers for approval.
9. No person shall be permitted to enter the residence except:
a) Sophie Harkat and Pierrette Brunette.
b) the other individuals specified in paragraph 5 above.
c) his legal counsel, Paul Copeland and Matthew Webber.
d) in an emergency, fire, police and health-care professionals.
e) a person approved in advance by the CBSA. In order to obtain such approval, the name, address and date of birth of such person must be provided to the CBSA. Prior approval need not be required for subsequent visits by a previously approved person, however the CBSA may withdraw its approval at any time.
10. When, with the approval of the CBSA, Mr. Harkat leaves the residence he shall not:
i) leave the area bordered by streets or geographic features to be agreed upon by all counsel prior to Mr. Harkat's release from incarceration. The boundary shall be specified in a further order of this Court.
ii) attend at any airport, train station or bus depot or car rental agency, or enter upon any boat or vessel.
iii) meet any person by prior arrangement other than:
a) Paul Copeland or Matthew Webber; and
b) any person approved in advance by the CBSA. In order to obtain such approval, the name, address and date of birth of such person must be provided to the CBSA.
iv) go to any location other than that or those approved pursuant to paragraph 8 above, during the hours approved.
11. Mr. Harkat shall not, at any time or in any way, associate or communicate directly or indirectly with:
i) any person whom Mr. Harkat knows, or ought to know, supports terrorism or violent Jihad or who attended any training camp or guest house operated by any entity that supports terrorism or violent Jihad;
ii) any person Mr. Harkat knows, or ought to know, has a criminal record; or
iii) any person the Court may in the future specify in an order amending this order.
12. Except as provided herein, Mr. Harkat shall not possess, have access to or use, directly or indirectly, any radio or radio device with transmission capability or any communication equipment or equipment capable of connecting to the internet or any component thereof, including but not limited to: any cellular telephone; any computer of any kind that contains a modem or that can access the internet or a component thereof; any pager; any fax machine; any public telephone; any telephone outside the residence; any internet facility; any hand-held device, such as a blackberry. No computer with wireless internet access and no cellular telephone shall be permitted in the residence. Any computer in the residence with internet connectivity must be kept in a locked portion of the residence that Mr. Harkat does not have access to. Mr. Harkat may use a conventional land-based telephone line located in the residence (telephone line) other than the separate dedicated land-based telephone line referred to in paragraph 2 above upon the following condition. Prior to his release from incarceration, both Mr. Harkat and the subscriber to such telephone line service shall consent in writing to the interception, by or on behalf of the CBSA, of all communications conducted using such service. This shall include allowing the CBSA to intercept the content of oral communication and also to obtain the telecommunication records associated with such telephone line service. The form of consent shall be prepared by counsel for the Ministers.
13. Prior to his release from incarceration, Mr. Harkat and all of the those persons who reside at the residence shall consent in writing to the interception, by or on behalf of the CBSA, of incoming and outgoing written communications delivered to or sent from the residence by mail, courier or other means. Prior to occupying the residence, any new occupant shall similarly agree to provide such consent. The form of consent shall be prepared by counsel for the Ministers.
14. Mr. Harkat shall allow employees of the CBSA, any person designated by the CBSA and/or any peace officer access to the residence at any time (upon the production of identification) for the purposes of verifying Mr. Harkat's presence in the residence and/or to ensure that Mr. Harkat and/or any other persons are complying with the terms and conditions of this order. For greater certainty, Mr. Harkat shall permit such individual(s) to search the residence, remove any item, and/or install, service and/or maintain such equipment as may be required in connection with the electronic monitoring equipment and/or the separate dedicated land-based telephone line referred to in paragraph 2 above. Prior to Mr. Harkat's release from incarceration all other occupants of the residence shall sign a document, in a form acceptable to counsel for the Ministers, agreeing to abide by this term. Prior to occupying the residence, any new occupant shall similarly agree to abide by this term.
15. Prior to his release, Mr. Harkat shall surrender his passport and all travel documents to a representative of the CBSA. Without the prior approval of the CBSA, Mr. Harkat is prohibited from applying for, obtaining or possessing any passport or travel document, or any bus, train or plane ticket, or any other document entitling him to travel. This does not prevent Mr. Harkat from travelling on public city bus transit within the City of Ottawa as may be authorized by the CBSA.
16. If Mr. Harkat is ordered to be removed from Canada, he shall report as directed for removal. He shall also report to the Court as it from time to time may require.
17. Mr. Harkat shall not possess any weapon, imitation weapon, noxious substance or explosive, or any component thereof.
18. Mr. Harkat shall keep the peace and be of good conduct.
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.
20. If Mr. Harkat does not strictly observe each of the terms and conditions of this order he will be liable to incarceration upon further order by this Court.
21. Mr. Harkat may not change his place of residence without the prior approval of this Court. No persons may occupy the residence without the approval of the CBSA. This condition does not apply to Alois Weidemann.
22. A breach of this order shall constitute an offence within the meaning of section 127 of the Criminal Code and shall constitute an offence pursuant to paragraph 124(1)(a) of the Immigration and Refugee Protection Act.
23. The terms and conditions of this order may be amended at any time by the Court upon the request of any party or upon the Court's own motion with notice to the parties. The Court will review the terms and conditions of this order at the earlier of: (i) the rendering of a decision of the Minister's delegate as to whether Mr. Harkat may be removed from Canada; and (ii) four months from the date of this order. Thereafter, the Court will direct the frequency of the review of the terms and conditions of this order.
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