Date: 20060504
Docket: DES-3-03
Citation: 2006 FC 555
Ottawa, Ontario, the 4th day of May 2006
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
IN RE a certificate pursuant to subsection
77(1) of the Immigration
and Refugee Protection Act, signed by the
Minister of Immigration
and the Solicitor General of Canada (the
Ministers),
S.C. 2001, c. 27 (IRPA);
IN RE the filing of the said certificate
in the
Federal Court of Canada pursuant to
subsection 77(1)
and sections 78 and 80 of the IRPA;
IN RE the application by
Adil Charkaoui to amend the
conditions for release and discharge of
the person concerned;
AND IN RE
Mr. Charkaoui.
REASONS FOR ORDER AND ORDER
[1]
Mr. Charkaoui
is essentially asking the Court to cancel most of the preventive conditions for
his release set out in a judgment of the undersigned dated February 17, 2005
(see Charkaoui (Re), 2005 FC 248), the said conditions having been
slightly amended subsequently in response to new circumstances (see the order
of November 10, 2005 restating the initial conditions and incorporating
successive amendments, and the order of March 8, 2006). In the alternative,
Mr. Charkaoui is asking for the discharge of some of the preventive
conditions so that he can have greater freedom to look after his family,
continue his studies and carry out his employment duties. Mr. Charkaoui is
also seeking authorization to be supervised by someone other than his father,
his mother and Larbi Ouazzani, in view of the heavy burden entailed by such an
assignment.
[2]
The
Ministers objected to the application to annul the preventive conditions but
indicated they were prepared to consider certain adjustments, provided the
principles reflected in the preventive conditions were not diluted and national
security and the safety of persons recognized. The Ministers asked for an in
camera hearing without the presence of Mr. Charkaoui and his counsel to
make their submissions, pursuant to subsections 78(e), (f), (g)
and (h) of the IRPA.
[3]
Through
his counsel, Mr. Charkaoui objected to the holding of such a hearing and the
undersigned rejected the objection in a decision supported by reasons on March
30, 2006 (see Charkaoui (Re), 2006 FC 410).
[4]
On or
about March 22, 2005, Mr. Charkaoui asked that the review of the reasonableness
of the certificate be suspended to allow the Ministers to dispose of a
protection application as provided for in subsection 112(1) of the IRPA. This
application to suspend was granted by order, as required by subsection 79(1) of
the IRPA. To date, the suspension is still in effect as the protection
application is still pending.
I. In
camera hearing and summary of evidence
[5]
The in
camera hearing in the absence of Mr. Charkaoui and his counsel took place
before the public hearing simply so that Mr. Charkaoui and his counsel
could be informed of the results of the hearing, thus enabling them to have
acess to all the material that could be communicated in such circumstances.
Accordingly, a summary of the evidence was prepared and given to Mr. Charkaoui
and his counsel at the start of the public hearing and the undersigned
explained the summarized evidence to the parties, consistent with subsection
78(h) of the IRPA.
[6]
At the in
camera hearing, the Ministers called two witnesses. These witnesses filed
documentary evidence, which only included classified records containing
“information” as defined in section 76 of the IRPA. For nearly three hours
the undersigned, in the presence of counsel for the Ministers, reviewed the
documents, determined their veracity and inquired as to their origin. The
undersigned examined and cross-examined witnesses as to their experience and
expertise on the origin of the documents, their reliability and their content.
The undersigned indicated several times that he was examining the evidence and
questioning the witnesses solely in relation to the application to cancel Mr.
Charkaoui’s preventive conditions. In the course of the review, the undersigned
identified a classified record which was not relevant to Mr. Charkaoui’s
application. Therefore, the undersigned ordered that this document be
immediately withdrawn from the documentation file pursuant to subsection 78(f)
of the IRPA. The document in question was excluded from the file.
[7]
The
evidence summary indicated to Mr. Charkaoui and his counsel that the
Ministers had obtained information leading them to believe that
Mr. Charkaoui was a danger which had not abated and that they reserved the
right, if necessary, to subsequently file a motion asking that the preventive conditions
be cancelled. The evidence summary further disclosed that there was information
favourable to Mr. Charkaoui in the Ministers’ file (the latter had a duty
to disclose it pursuant to the Supreme Court’s judgment in Ruby v. Canada,
2002 SCC 75, at paragraph 47). However, this information cannot be
released for reasons of national security. At the hearing, the undersigned
informed Mr. Charkaoui and his counsel that the latter was in compliance
with the preventive conditions and this could be taken into account in the
presentation of the evidence. At the in camera hearing, the undersigned sought
to identify specific and detailed information which could be released. If
disclosed, the records which I examined would create a danger to national
security or the safety of persons. That is my conclusion after a detailed
review of the records.
[8]
In
addition, I am also of the view that the evidence heard in camera does not have
to be used to decide this application. The public evidence is quite sufficient
for me to carry out my judicial duties and deal with the points of law at issue
here. The evidence that cannot be disclosed is still relevant but does not
necessarily have to be used in connection with this application, given the
sufficiency of the public evidence. The latter contains material for assessing
the preventive conditions, in light of earlier decisions and the relief sought
by this proceeding.
II. Parties’
arguments
A.
Arguments
by Mr. Charkaoui and his counsel
[9]
Mr. Charkaoui
asked that the preventive conditions be lifted because he considered that, over
time, the conditions have lost their validity, they had been complied with and
[translation] “he deserved
to be trusted by the Court at the time he was released in February 2005”.
Therefore, Mr. Charkaoui argued that he does not pose a danger to national
security or to the safety of any person. He added that cancelling the
conditions would not compromise national security or the safety of any person
and he would still be exposed to judicial proceedings or removal, if necessary.
[10]
In the
alternative, Mr. Charkaoui asked that the preventive conditions be amended
so as to allow him to work without restrictions in order to support his family
and to continue his studies freely. In this regard, he asked the Court to give
other individuals (in addition to his father, mother and Larbi Ouazzani)
the right to act as supervisor when he leaves his residence. Sixteen persons
filed affidavits and fifteen testified at the public hearing. At the hearing in
February 2005, several persons offered to act as supervisor but the Court only
accepted three.
B. Ministers’ arguments
[11]
For their
part, the Ministers reiterated their initial position in the case, namely that
they considered Mr. Charkaoui a member of Osama Bin Laden’s Al Quaeda
network and that he should be held inadmissible for security reasons pursuant
to paragraphs 34(1)(c), (d) and (f) of the IRPA. The
Ministers further considered that Mr. Charkaoui is linked to the Groupe
Islamique Combattant Marocain (GICM), an organization with ties to Al Quaeda
and allegedly responsible for the bomb attacks that occurred in Casablanca on
May 16, 2003 and in Madrid on March 11, 2004. In the Ministers’ submission,
Mr. Charkaoui gave the GICM the sum of $2,000 and a laptop computer. The
Ministers noted that, in earlier decisions dealing with the review of the
detention, the undersigned had found that the evidence was serious, and that
the preventive conditions had been imposed to ensure that the danger associated
with Mr. Charkaoui was neutralized.
[12]
At the
hearing, one of the Ministers’ counsel indicated that the latter were objecting
to the application to lift the preventive conditions but were prepared to
consider certain adjustments.
[13]
However,
they argued that no other measure could effectively replace the supervision and
the escorting of Mr. Charkaoui by a person recognized by the Court. In
this regard, the Ministers again drew the Court’s attention to the principles
underlying the supervision and the escorting of Mr. Charkaoui as set out
in the earlier decisions.
[14]
As to Mr.
Charkaoui’s request to be able to use a cell phone, messaging terminal,
blackberry and faxes, pagers, transceivers and computers with Internet for
study and other purposes, the Ministers contended that they agreed to several
measures of accomodation since February 2005 and objected to such an
application as, in their submission, giving Mr. Charkaoui greater freedom
would pose a danger to national security or the safety of any person.
Similarly, the Ministers insisted that the GPS bracelet mentioned in condition
4 should remain. In their submission, this was a complement or addition to the
supervisory function, making it possible to [translation] “minimize”
the danger to national security or the safety of any person.
[15]
In the
Ministers’ submission, the curfew imposed on Mr. Charkaoui does not have
to be abolished and the attention of the undersigned was drawn to the fact that
adjustments have been made since February 2005. The Ministers added that the
curfew was consistent with the supervision and the escorting [translation] “central to the preventive
conditions developed by the Court”. However, the Ministers remained willing to
accommodate Mr. Charkaoui.
[16]
Finally,
the Ministers noted that Mr. Charkaoui had said nothing about condition 5(i):
access to the residence by a member of the Canada Border Services Agency
(CBSA); condition 6: presence of the respondent at the hearings and
possible removal; condition 8: prohibition from possessing a weapon, imitation
weapon or explosive and chemical substances; condition 10: prohibition
from contacting certain individuals.
III.
Analysis
[17]
Since his
release from the Rivière des Prairies institution under preventive conditions
Mr. Charkaoui has:
- successfully
proceeded with his studies for a Master’s degree teaching French;
- become the father
of a third child, born in Canada;
- taken
part in public debates on immigration law and other matters;
- despite
his preventive conditions, and due to his vigorous efforts, been able to obtain
independent employment income (affidavit by Mr. Charkaoui dated
February 22, 2006, paragraphs 11(e), (f), (g) and (h), 16, 17 and
18).
[18]
Mr.
Charkaoui’s achievements are to be ackowledged, especially in view of the many
preventive conditions imposed on him to ensure that any danger remains
neutralized. I would add that, since his release in February 2005, the
preventive conditions have been amended five times at Mr. Charkaoui’s
request, and often with the approval of the Ministers so as to adapt them to his
everyday life.
[19]
It will be
recalled that, in Charkaoui (Re) on February 17, 2005, supra, I
identified more than 15 preventive conditions to ensure that the danger to
national security or the safety of any person would be neutralized. In arriving
at such a decision, I sought to reconcile the purpose of neutralizing any
danger with giving Mr. Charkaoui a certain degree of independence, taking
his everyday needs into account. Underlying each of the preventive conditions
was a concern to minimize this danger while, in the circumstances, allowing
Mr. Charkaoui to enjoy some freedom in view of his obligations.
Accordingly, the function of supervisor and escort assigned to
Mr. Charkaoui’s father and mother and to Larbi Ouazzani (who is also part
of the family and was the largest contributor to the bail associated with the
release) is based on family or other ties, some influence over the person
concerned, knowledge of the latter for several years and a personal interest in
him. The proximity between Mr. Charkaoui’s residence and that of his
parents and sister also tended to reassure the Court. Despite a move since
February 2005, that proximity remains. These are the circumstances in which the
preventive conditions were developed and the right to act as supervisor assigned
to certain individuals and not to others.
[20]
Undoubtedly,
the preventive conditions are restrictive and impair the freedom and autonomy
of Mr. Charkaoui and his family. In view of the legislation, its purposes
and the circumstances of the case at bar, this situation is inevitable and
there is no miraculous solution that will reduce the limitations on
Mr. Charkaoui’s freedom.
[21]
The Court
will eventually have to rule on the reasonableness of the certificate, which
will make it possible to contemplate a termination of this matter. For the time
being, the review of the reasonableness of the certificate has been stayed
pursuant to subsection 79(1) of the IRPA at Mr. Charkaoui’s request. It is
thus not possible to put an end to the hardships associated with the security
certificate nor to decide once and for all whether the Ministers’ allegations
are valid. It should be recalled that the Ministers alleged Mr. Charkaoui
was inadmissible for “engaging in terrorism” (paragraph 34(1)(c) of
the IRPA); “being a danger to the security of Canada” (paragraph 34(1)(d)
of the IRPA); “being a member of an organization which there are reasonable
grounds to believe engages, has engaged or will engage in acts referred to in
paragraphs (a), (b) or (c)” (paragraph 34(1)(f)
of the IRPA).
[22]
Abolishing
the preventive conditions, as Mr. Charkaoui is asking the Court to do,
would amount to a decision favourable to Mr. Charkaoui on the merits of
the case, namely the reasonableness of the certificate. How could I cancel the
conditions without making a ruling on the validity of the Ministers’
allegations against Mr. Charkaoui? This would be to act contrary to the
stay of proceedings provided for by Parliament (subsection 79(1) of the IRPA),
but more than that, I would thereby make a ruling on the merits of the case
without having all the tools at my disposal, including the benefit of a hearing
in which all the evidence is put forward by the parties so that an informed
decision may be made. At the close of the hearing, I had informed the parties
that I could not abolish the conditions for the reasons given above. However, I
told them that Mr. Charkaoui could submit suggestions for adjustments that
could be made and the Ministers could subsequently make their comments on
these. I indicated that I would intervene if necessary and that I was keeping
an open mind about amending the conditions of release so long as the foregoing
comments were taken into account.
[23]
While
Mr. Charkaoui persisted in asking that the preventive conditions be
cancelled completely, he submitted his suggestions for minimizing them, since
it was not possible to cancel them. The Ministers objected to several of the
suggested changes.
[24]
To fully
indicate the nature of these requests and clarify the spirit in which they were
suggested, I include them here in their entirety, excluding personal
information associated with Mr. Charkaoui and his family (the exclusion
does not affect understanding the suggestions).
[translation]
(a) First, it seems
advisable for Mr. Charkaoui to mention, or to repeat, to the Court that he
is the father of three young children, the eldest of whom will begin school in
September. For the children’s welfare, he has to be away from his residence in
various cases, for instance when he has to take the children to a medical
clinic, in emergencies or otherwise, undertake family, cultural or educational
outings or simply to run errands. In these circumstances, he would like to be
authorized to go out alone with his wife and/or his children. For example, to go
and take his daughter back to school in September . . .
(b)
He would
also like the Court to amend condition No. 2 to allow him to be unaccompanied
at all times within a radius of a minimum of fifteen metres from his property
located at . . . In this way, he could at any time have access to the yard of
his residence, his parents’ apartment or his car without fearing an
infringement of the conditions. If the Court allowed him to move about within a
larger area unaccompanied, he could supervise his children when they were
playing outside in the neighbourhood. The existing condition may be interpreted
as requiring him to be in his apartment when he is not accompanied by
persons approved by the Court and during his curfew.
(c)
Mr.
Charkaoui also wishes to support his family and he could for this purpose have
obtained several jobs since his release but for the escorting conditions,
prohibition on use of communication tools and restriction from leaving the
Island of Montréal. Accordingly, he would like to be able to be exempted from
the conditions for employment purposes and after having given reasonable
notice to the Canada Border Services Agency, notice which could for example be
set at 72 hours. The Agency could object to Mr. Charkaoui’s plans in this
regard on reasonable grounds, and in such a case the Court could resolve the
dispute at Mr. Charkaoui’s request.
(d)
Mr.
Charkaoui would also like to be able to go to the mosque to pray on Fridays,
when no one is available to accompany him. He would like to be able to make his
prayers at the mosque closest to his residence, namely . . .
(e) He would also like
permission to go to and/or be at the . . . without escort for training.
(f) Mr. Charkaoui
would like to be able to leave the Island of Montréal on certain
occasions: (1) to attend the hearing of his case in the Supreme Court on
June 13, 2006; (2) to go to the residence of Larbi Ouazzani in
Châteauguay; (3) to go on various family outings with his children; and (4) to
look for work. In all these circumstances, Mr. Charkaoui submits he could
be authorized to do so when he is with his father or mother and/or Larbi
Ouazzani, who would then report to the Court accordingly. Similarly, he could
notify the Canada Border Services Agency of his plans to leave the Island of
Montréal, including dates and addresses, within a time frame approved by the
Agency.
(g)
Considering
the limited availability of Mr. Charkaoui’s escorts, it would be desirable
for the curfew to be expanded so as to enable him to have sufficient time
during the day to carry out his obligations and activities. Thus, he considers
that a curfew from 11 p.m. to 6 a.m. would not be in any way inconsistent with
the public safety objectives.
(h)
If,
despite the evidence submitted, the Court is still of the view that the escorting
condition should be maintained, Mr. Charkaoui would like persons who filed
affidavits in Court in connection with the motion to amend the release
conditions to replace Mohammed Charkaoui, Latifa Radwan and
Larbi Ouazzani so as to enable him to leave his residence. These
individuals could then report to the Court on their escorting, as mentioned by
these individuals.
(i)
Mr.
Charkaoui would like the Court to authorize him to have access to the Internet
from his residence. This communication tool would enable him to contact his
attorneys, do research connected with his case and exchange information with
his employers and teachers. He submits that the Canada Border Services Agency
could in return have access to his communications and computer if necessary to ensure
that the conditions were observed. He could then also provide the Agency and/or
the Court with all information on the addresses and suppliers of services used.
(j)
Mr. Charkaoui
considers that if the Court feels that the escorting condition should be continued,
the wearing of the GPS bracelet is superfluous, and asks that he accordingly be
excused from doing so.
(k)
Mr. Charkaoui
would like to be able to use a cell phone, a copy of the user contract for
which he would give to the CBSA, to guarantee his safety and that of the
members of his family when he is away from his residence. He could by this
means reach the Canada Border Services Agency at any time and in the same way
be called by the Agency at any time. He is prepared to relinquish all
confidentiality regarding the use of this cell phone, if authorized by the
Court, to ensure that the conditions are observed.
(l)
Finally,
as to the requirement of reporting to the CBSA once a week, Mr. Charkaoui
would like not to be required to report to any specific officer but simply to
indicate his presence in writing to the responsible official so as to reduce
the length of his time spent at the Agency each Wednesday.
(I have identified the
requests by the letters (a), (b), (c) and so on for purposes of reference.)
[25] In response, the Ministers objected to the
complete lifting of the preventive conditions. However, they agreed with the
following subsidiary requests by Mr. Charkaoui:
- request
(b): going out unaccompanied within a certain area around the family residence;
- request
(f)(1): attendance by Mr. Charkaoui at the hearing of his appeal in the
Supreme Court;
- request
(g): partial consent as to curfew (during which Mr. Charkaoui must remain
at home), so that Mr. Charkaoui should be at his residence from 10 p.m. to
7 a.m., rather than 11 p.m. to 6 a.m., as requested by Mr. Charkaoui; the
curfew currently in effect under the order of November 10, 2005 extends from 10
p.m. to 8 a.m.
[26] The Ministers repeated their objections to the
other requests to alter the preventive conditions. In their view, the Court
should not appoint new individuals to act as supervisors and escorts. The
Ministers further objected to the following requests:
- request (i):
requests for Internet access;
- request (k): use
of cell phone;
- request (j):
discontinuance of wearing GPS bracelet;
- request
(l): weekly visits to BSA office.
[27] At the same time, the Ministers indicated that
they were somewhat receptive to request (a) regarding family outings. However,
in this regard, they would like Mr. Charkaoui’s wife to be recognized by
the Court as a supervisor and escort, provided she follows the necessary
procedure (Mr. Charkaoui’s counsel would have to make a request, which
would have to be supported by an affidavit by Mr. Charkaoui’s wife, and she
would then have to be prepared to testify if requested to do so). Further, the
Ministers were receptive to approving a departure from the Island of Montréal
(request (c)) for specific interviews or work, but felt this did not warrant the
cancellation of the preventive condition as a whole. They were also receptive
to the family outing request (request (f)(3)), but felt such requests should be
considered on a case-by-case basis.
[28] There is no doubt that the function of supervisor
and escort assigned to Mr. Charkaoui’s parents and to Larbi Ouazzani is
very demanding, and that it requires a great deal of time and energy. These
individuals have their own professional, family and personal obligations which
must be added to their responsibilities as supervisor and escort. Is there a
better way of dividing this heavy responsibility?
[29] Several persons testified in order to offer their
services as supervisor and escort from time to time, in replacement of
Mr. Charkaoui’s father and mother or Larbi Ouazzani. I have already
explained the concept of the supervisor and escort and the type of person who
could be appointed. I have listened to, and understood, each person’s
testimony. I recognize that these individuals had a sense of civic duty and in
some cases devotion to a noble cause and concern for the well-being of another
person. However, these observations cannot be a basis for my assigning the
heavy burden of supervisor and escort to any of these individuals. I thank them
for their gesture, indicating a degree of humanitarianism and concern for
another’s well-being. The Court is prepared to assign the function of
supervisor and escort to persons other than those already named, but feels it
is not sufficient for the individuals in question to have known Mr. Charkaoui
and his family for a short time. It is even less likely that the individuals
who indicated their willingness to undertake supervisory functions and have no
connection with Mr. Charkaoui could be worthy of the Court’s confidence. The
function of supervisor and escort is a burdensome duty which requires not only
a connection with the person mentioned in the security certificate but also
objectivity, assiduity, an ongoing concern for the safety of others and
detachment.
[30] The public hearing enabled the Court to have a
better understanding of Mr. Charkaoui and become more familiar with his
family situation. I remain confident that it will be possible to identify
persons who could perform the duties of supervisor and escort so as to lighten
the burden on the shoulders of Mr. Charkaoui’s parents and of Larbi Ouazzani,
while bearing in mind the concerns expressed in the decision of February 17,
2005, supra, and in this decision.
[31] I have carefully reviewed Mr. Charkaoui’s
subsidiary requests, keeping in mind my concern to preserve a balance between
the objectives of national security and Mr. Charkaoui’s wish to enjoy a measure
of freedom. For the reasons stated herein, I cannot at this time upset that
balance. The review of the reasonableness of the certificate has been stayed
and I would not like to directly or indirectly contravene this by making too
substantial an alteration of the preventive conditions. However, that does not
mean that I am closing the door to some adjustments and individual requests in
future, as the situation changes.
[32] Taking the Ministers’ comments into account, I
approve requests (b) (going out within a certain area around the family
residence), (f)(1) (leaving to attend the hearing of the appeal in the Supreme
Court of Canada in Ottawa) and (g) (the curfew). Accordingly, I would ask
Mr. Charkaoui’s counsel, Ms. Larochelle, to prepare a plan for
amending the preventive conditions to be submitted to counsel for the Ministers
before being submitted to the Court. As to request (f)(1), if
Mr. Charkaoui’s presence in Ottawa is for longer than one day, it would be
important to indicate where he will be staying. The curfew will remain in effect. On request (g), the curfew
will be from 10 p.m. to 7 a.m.
[33] As to request (l), I would like the following
approach to be followed. Simply signing a register would be sufficient when a
meeting with a Canada Border Services Agency officer is not required, the
purpose being that Mr. Charkaoui’s attendance at the CBSA should not take
too long if an interview is not scheduled. As requested above, I would ask
Ms. Larochelle to prepare a draft amendment indicating the objective
mentioned and to forward it to counsel for the Ministers before submission to
the Court.
[34] Mr. Charkaoui’s other applications are dismissed,
but the Court continues to be open to possible adjustments in accordance with
the facts submitted and the changing situation.
IV. Additional comments
[35] To give a full
indication of the way in which the hearing was held ex parte, I told
Mr. Charkaoui and Ms. Larochelle that Maurice Archdeacon would be present
as an observer. For 18 months, Mr. Archdeacon has been working with the
Chief Justice and the undersigned to establish a training program for
designated judges dealing with human rights and national security. As a former
Inspector General, appointed under the Canadian Security Intelligence Agency
Act, R.S.C. 1985, c. C-23, and former executive director of the Security
Intelligence Review Committee, Mr. Archdeacon has the experience necessary to
perform this task. He was an observer at the ex parte hearing in this
capacity.
ORDER
FOR THESE REASONS, THE COURT ORDERS THE
FOLLOWING:
- the
application to amend Mr. Charkaoui’s conditions of release is allowed in part;
- the
parties will submit a draft order amending the preventive conditions to the
Court, based on the reasons for the order, and subsequently a new order will be
made.
“Simon
Noël”
Certified
true translation
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