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