Date:
20090220
Docket:
DES-4-08
Citation: 2009
FC 175
Ottawa, Ontario, February 20, 2009
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
IN THE MATTER OF a certificate
pursuant to subsection 77(1)
of the Immigration and Refugee
Protection Act (IRPA)
IN THE MATTER OF the referral
of
this certificate to the Federal Court
pursuant to subsection 77(1) of the IRPA
AND IN THE MATTER OF
Adil Charkaoui
AND LE BARREAU DU QUÉBEC,
intervenor
REASONS FOR ORDER AND ORDER
[1]
This
is a motion by Mr. Charkaoui to set aside the conditions or, in the
alternative, to modify the preventive release conditions imposed by the Court at
the fourth judicial review of the reasons for detention in its order dated
February 17, 2005, as subsequently modified in a minor way.
[2]
The
Ministers oppose this motion on the ground that the applicant has not
demonstrated that he satisfies the criteria for such a request. The preventive
release conditions in place are appropriate in light of the danger to national
security and the safety of any person. Abolishing these conditions would cause
the danger to reappear.
Applicable law
[3]
This
motion stems from the fact that on February 22, 2008, the Ministers signed
and referred a certificate stating that, in their opinion, there are reasonable
grounds to believe that the applicant is inadmissible to Canada on security grounds
pursuant to paragraphs 34(1)(c), (d) and (f) of the Immigration
and Refugee Protection Act (S.C. 2001, c. 27) (IRPA), as amended.
[4]
The
applicant fell within the ambit of section 7(3) of the transitional
provisions of the IRPA amending the IRPA and continuing the conditions imposed
in February 2005. Any person affected by this provision may ask the
Federal Court to review the grounds for continuing the conditions. His motion
to set aside/modify the conditions was filed pursuant to section 7(4) of
the transitional provisions of the IRPA.
[5]
The
appropriate test on the review is set out in section 82(5) of the new Act,
which reads as follows:
|
On review, the judge,
(a) shall
order the person’s detention to be continued if the judge is satisfied that
the person’s release under conditions would be injurious to national security
or endanger the safety of any person or that they would be unlikely to appear
at a proceeding or for removal if they were released under conditions; or
(b) in
any other case, shall order or confirm the person’s release from detention
and set any conditions that the judge considers appropriate.
|
Lors du contrôle, le juge:
a) ordonne le maintien en
détention s’il est convaincu que la mise en liberté sous condition de la
personne constituera un danger pour la sécurité nationale ou la sécurité
d’autrui ou qu’elle se soustraira vraisemblablement à la procédure ou au
renvoi si elle est mise en liberté sous condition;
b) dans les autres cas,
ordonne ou confirme sa mise en liberté et assortit celle-ci des conditions
qu’il estime indiquée.
|
[6]
The
last paragraph reflects what the Supreme Court of Canada stated at
paragraph 119 of Charkaoui v. Canada, [2007] 1 S.C.R. 350
(“Charkaoui 1”): the judge must be satisfied “that the danger no
longer exists or that it can be neutralized by conditions”. [Not
underlined in the original.]
[7]
It
is also important to point out that the Supreme Court of Canada confirmed in Charkaoui 1,
above, that a meaningful review process must take into account the context and
circumstances of the individual case and include a meaningful
opportunity to challenge the release conditions (Charkaoui 1, above,
paragraph 107). The release conditions must not be a disproportionate
response to the nature of the threat (Charkaoui 1, above, paragraph 116).
[8]
In
the case of a new certificate, I concur with my colleague,
Mr. Justice Mosley, that the hearing to modify the conditions is a de
novo hearing, and thus the designated judge is not bound by previous
decisions on questions of fact in the case (Almrei, paragraph 70).
[9]
The
Ministers bear the initial burden of establishing that the person “continues to
be a danger to national security or to the safety of any person, or is unlikely
to appear at a proceeding or for removal” (Charkaoui 1, paragraph 100).
[10]
In
a detention review, the Court assesses the evidence on the basis of the
reasonable grounds standard (Charkaoui (Re), 2005 FC 248, paragraph 30),
despite the submissions of counsel for the applicant, and nothing in the new
legislation suggests that Parliament chose to derogate from this standard. The
“reasonable grounds” standard requires more than suspicions. It also requires
more than a mere subjective belief by the person relying on them. It must be objectively established that reasonable grounds did in
fact exist. That is to say that a reasonable
person in the same circumstances would have believed that reasonable grounds
existed (R. v. Storrey, [1990] 1 S.C.R. 241).
Positions of
the parties
Ministers’
position
[11]
The
Ministers submit that the applicant has not demonstrated that he satisfies the
criteria for a request to set aside or modify conditions.
[12]
The
Ministers’ evidence establishes that there are reasonable grounds to believe
that the applicant is a danger to national security or to the safety of any
person and that the danger must continue to be neutralized by the existing
preventive conditions.
[13]
Since
the applicant chose not to testify, the Court is left in a factual vacuum
regarding the concerns raised by the Ministers’ evidence.
[14]
The
testimony in support of the applicant does not establish that he is a danger to
national security or to the safety of any person.
[15]
The
existing preventive conditions ensure a delicate balance between the protection
of national security and the safety of other persons. The changes being sought
would jeopardize this delicate balance. Lifting the preventive conditions before
the final decision on the certificate would cause the danger to reappear. The
Ministers acknowledge that their arguments are not based on a risk of flight.
Applicant’s
position
[16]
The
applicant is requesting that the preventive conditions be lifted or, in the
alternative, substantially modified by ordering his release under the usual
conditions, i.e., reasonable bail and an undertaking to keep the peace.
[17]
Counsel
submit that, pursuant to section 82(5), detention under the new law
requires evidence that release under conditions will pose a danger or that the
person will not appear. In those cases, the judge sets any conditions for
release that he or she considers appropriate (82(5)(b) of the IRPA).
The criteria for imposing conditions are those adopted in Sahin v. MCI,
[1995] 1 F.C. 214, which were confirmed by the Supreme Court in Charkaoui I,
above.
[18]
The
conditions must impair the person’s rights as little as possible and be applied
restrictively. The restrictions must allow the person to lead a normal life in
a manner proportionate to the danger invoked and established. Counsel rely on Teale
v. Noble, 2005 CanLII 44305 (QC S.C.).
[19]
In
order to prove a danger to the security of Canada, counsel
submit that the facts must establish a serious threat and the imminence of a
prohibited act or activity. Counsel also argue that an innocent contribution to
or association with a terrorist group is not subject to the Act.
[20]
In
addition, alternatives to detention pursuant to a certificate, such as stringent release conditions, must not be a
disproportionate response to the nature of the threat.
[21]
In
this case, the evidence does not demonstrate that Mr. Charkaoui will be a
danger to national security or to the safety of any person if he is released
without conditions; nor does the evidence show that conditions are necessary and
that without them he will be a danger. The allegations date back roughly nine
years; they do not establish imminent acts or detailed risks; there is no
evidence that conditions are necessary or useful. Rather, the evidence suggests
that the conditions are not necessary to ensure his attendance at court, to
ensure that he will submit to a removal proceeding or to prevent the commission
of a criminal offence. Indeed, the evidence calls for the following finding: the
Ministers have no valid and founded grounds; the Ministers have no evidence;
there is proof on a balance of probabilities of the applicant’s responsible nature
and conduct as the father of a family, and there is general evidence of
compliance with conditions.
Analysis
[22]
Since
the Ministers have acknowledged that there is no risk of flight, this analysis
will be limited to determining, in light of the evidence adduced to date,
whether the applicant will pose a danger to national security or to the safety
of any person if he is not detained. If the danger is neutralized, are the
conditions that were imposed relevant and proportionate having regard to the
nature of the danger?
[23]
In
his decision granting release under conditions, Mr. Justice Noël noted
that “[i]f Parliament intended the designated judge to assess whether there was
still any danger, it also imposed an assessment of how the danger might evolve.
The imminence of danger may decline with the passage of time.” That is the finding
he made in his decision. At that time, for Justice Noël, the danger to national
security and to the safety of any person had decreased with the passage of time
and the interaction of the group of circumstances to the point where, in fact,
the danger was neutralized at the time of his assessment (Charkaoui (Re),
above, paragraphs 74-75).
[24]
Is
the situation the same four years later so that I can determine, as he did,
that the danger is neutralized at the time of this assessment?
Evidence
[25]
I
note at the outset that the Ministers did not submit any evidence regarding the
release conditions. The Ministers rely strictly on the evidence they submitted
that there are reasonable grounds to believe that the applicant poses a danger
to national security or to the safety of any person.
[26]
Essentially,
the Ministers contend that the preventive release conditions in place are
appropriate with respect to the danger to national security and the safety of
any person and that any change would cause the danger to reappear.
[27]
The
applicant’s evidence essentially consists of the testimony of his mother and
friends, who spoke of the applicant’s responsible nature vis-à-vis his family
and his children, his maturity, his compliance with the release conditions and
the exemplary role he plays in his community.
Mr. Larbi
Ouazzani
[28]
Mr.
Larbi Ouazzani is a Canadian citizen of Moroccan origin. He acts as a
supervisor for Mr. Charkaoui. He has known Mr. Charkaoui since his
marriage to Foujzia Ouahid, who is his wife’s cousin. He has discussed violence
and extremist groups with Mr. Charkaoui on a number of occasions. He has heard
Mr. Charkaoui denounce attacks in the news. He notes that Mr. Charkaoui
has had a lot of contact with his children since his release from detention and
that he is concerned about seeing them suffer because of the conditions.
[29]
As
a supervisor, he noticed that Mr. Charkaoui was concerned about complying
with his conditions. Mr. Ouazzani is ready to continue as a contributor to
the bail offered for the applicant.
Ms. Latifa
Radwan
[30]
Ms.
Radwan, the applicant’s mother, explained the difficulties her husband has experienced
as a supervisor over the last four years, since he must accompany Adil
everywhere he goes, whether it be to the university, doing errands or driving
the children to school. Her husband had to leave his employment as a machinist
because of his supervisory duties, which did not leave him enough time to work.
The financial impact is being felt, and they can no longer afford to continue
like this.
Ms. Layla
Sawaf
[31]
Ms.
Sawaf, principal of a private school that she founded in 2000, testified that Mr. Charkaoui
was an excellent French teacher. He was very well-liked by the students, but
she had to let him go because Mr. Charkaoui’s problems with the government
prevented him from obtaining a teaching permit. Once the problems with the
Ministère de l’éducation du Québec are resolved, she will take him back as a
teacher without hesitation.
Mr. Salem El Menyawi
[32]
Mr.
El Menyawi, a Montréal imam and professor of Islamic theology at Concordia
University, knew Mr. Charkaoui during his detention. He continued his
contacts with him after his release from detention; he sees him regularly
almost every week and considers him a good friend. Mr. El Menyawi describes
Mr. Charkaoui as a devout Muslim who adheres to the Sunni interpretation
but who respects other religions and opinions that are contrary to his own.
[33]
From
the conversations he has had with Mr. Charkaoui, he is convinced that if Mr. Charkaoui
is released without conditions, he will be a model citizen. Mr. Charkaoui
is very mindful of the fact that he has the support of his community and he
would not want to behave in a way that would disappoint them.
[34]
Although
Mr. El Menyawi is not an expert, I place significant weight on his testimony
since he has had many opportunities to personally observe Mr. Charkaoui and
to notice his maturity or lack thereof, his commitment to his family and to his
community and to what extent the community exercises control over Mr. Charkaoui’s
conduct. Mr. El Menyawi significantly assisted the Court in
determining whether Mr. Charkaoui’s release will or will not pose a danger
to national security or to the safety of any person.
[35]
The
Ministers pointed out that the applicant chose to not testify about the release
conditions as he had done in the past before Justice Noël. The applicant submitted
a detailed affidavit, which specifically explains the impact of the release conditions
on his personal and professional life. I note that the Ministers chose to not
cross-examine the applicant on his affidavit as they could have done under rule 83
of the Federal Courts Rules (1998), SOR/98-106.
[36]
Based
on all the testimony and the evidence heard thus far, I find as a fact that the
danger to national security and to the safety of any person is neutralized. I point
out, as Justice Noël did previously in Charkaoui (Re), above, that
in making this finding, I am not ruling on the reasonableness of the
certificate since the evidence is not complete and this issue must be
determined at a later time.
[37]
If
the danger is neutralized, it remains to be determined what preventive
conditions would be necessary and proportionate to ensure that the danger remains
neutralized until the Court determines the reasonability of the certificate.
[38]
I
place considerable weight on the passage of time. First, the allegations
in the certificate date back nine years. The contacts that the applicant could
have had with certain individuals before his arrest that may have been
problematic at that time would have been interrupted for roughly nine years. The
applicant’s trips ended in January 2001. He lives in the same building as
his parents, with his wife and, now, his three children.
[39]
The
uncontradicted evidence shows that he is complying with the conditions imposed
by the Court.
[40]
The
applicant’s case receives a great deal of media attention, which compels Mr. Charkaoui
to behave in an exemplary manner. Similarly, if he fit the profile of a sleeper
agent nine years ago, it is clear that he could not be one today given the
publicity surrounding his case. Moreover, he has the support of his family and
his community. It appears unlikely to me that he would risk disappointing them.
[41]
I
am satisfied that the control exercised by his community as well as the
applicant’s desire to meet the expectations of those around him neutralize the
danger to national security and the safety of any person. Moreover, is it likely
that the applicant, who has always complied with the conditions that the Court imposed
on him, would do something that would risk compromising his case? I do not believe
so.
At this
juncture, what restrictions are required to ensure that the danger remains
neutralized?
[42]
A
number of restrictions that were imposed are necessarily aimed at controlling
Mr. Charkaoui’s movements and, in my view, are justified primarily where
there is a concern that the individual will flee or will not submit to the
removal process or where there is a concern that the individual will commit a
criminal offence or pose a danger to any person. The evidence that I have heard
to date does not demonstrate that this is the case.
[43]
Therefore,
in my view, the conditions dealing with supervision, curfew and signing in every
week at the Border Services Agency are a disproportionate response, after all
these years, to the nature of the danger, which I determined above is
neutralized, in large part as a result of the passage of time.
[44]
Consequently,
the Court has decided, on the basis of the evidence adduced to date, to
significantly modify the previous conditions. The Court imposes the following preventive
conditions:
(1) The
bail that has been deposited with the Court Registry in accordance with Rule
149 of the Federal Courts Rules (1998), SOR/98-106 is to be maintained. If
this order is breached, this amount will become payable to the Attorney General
of Canada following an order by the Court;
(2) Mr. Charkaoui
undertakes to continue wearing a monitoring bracelet with GPS functions (a
global positioning system);
(3) Mr.
Charkaoui shall inform the Court, the Ministers and the Canada Border Services
Agency of any change of address at least 72 hours prior to the change taking
effect;
(4) His
passport, as well as all travel documents, shall continue to be held by a
Canada Border Services Agency officer. The Ministers shall provide him with the
name of the officer;
(5) Mr.
Charkaoui undertakes to appear at Court hearings;
(6) Mr.
Charkaoui undertakes to not be in possession of a weapon, an imitation weapon
or explosive or chemical substances;
(7) If
he leaves the Île de Montréal, he undertakes to give 48 hours’ notice to the
Canada Border Services Agency;
(8) Mr.
Charkaoui undertakes to not communicate directly with the following persons: Abousofiane Abdelrazik;
Raouf Hannachi;
Samir Ait Mohammed;
Abdellah Ouzghar; and
Karim Saïd Atmani;
(9) Mr.
Charkaoui undertakes to not knowingly associate with any person who has a
criminal record or any person who poses a threat to national security;
(10) Mr.
Charkaoui may use any telephone, subject to the prohibition to communicate with
the persons identified by the Court in paragraphs 8 and 9 above;
(11) Mr.
Charkaoui may use his desktop computer with an Internet connection at his
residence. However, he shall permit any employee of the Canada Border Services
Agency or any person designated by the Agency to examine his computer,
including the hard drive and the peripheral memory, without notice;
(12) Mr.
Charkaoui undertakes to keep the peace and be of good behaviour; and
(13) Mr.
Charkaoui acknowledges that any breach of this order will constitute an offence
under section 127 of the Criminal Code, R.S.C. 1985, c. C-46, as
amended, and that if he does not comply with each of the preventive conditions,
he will be detained again following an order of the Court to that effect.
ORDER
THE COURT ORDERS
that Mr. Charkaoui shall remain at liberty
provided that he signs a document to be prepared by his counsel in which he
undertakes to comply with each of the following preventive conditions:
(1) The
bail that has been deposited with the Court Registry in accordance with Rule 149
of the Federal Courts Rules (1998), SOR/98-106 is to be
maintained. If this order is breached, this amount will become payable to the
Attorney General of Canada following an order by the Court;
(2) Mr.
Charkaoui undertakes to continue wearing a monitoring bracelet with GPS
functions (a global positioning system);
(3) Mr.
Charkaoui shall inform the Court, the Ministers and the Canada Border Services
Agency of any change of address at least 72 hours prior to the change
taking effect;
(4) His
passport, as well as all travel documents, shall continue to be held by a
Canada Border Services Agency officer. The Ministers shall provide him with the
name of the officer;
(5) Mr.
Charkaoui undertakes to appear at Court hearings;
(6) Mr.
Charkaoui undertakes to not be in possession of a weapon, an imitation weapon
or explosive or chemical substances;
(7) If
he leaves the Île de Montréal, he undertakes to give 48 hours’ notice to the
Canada Border Services Agency;
(8) Mr.
Charkaoui undertakes to not communicate directly with the following persons: Abousofiane Abdelrazik;
Raouf Hannachi;
Samir Ait Mohammed;
Abdellah Ouzghar; and
Karim Saïd Atmani;
(9) Mr.
Charkaoui undertakes to not knowingly associate with any person who has a
criminal record or any person who poses a threat to national security;
(10) Mr.
Charkaoui may use any telephone, subject to the prohibition to communicate with
the persons identified by the Court in paragraphs 8 and 9 above;
(11) Mr.
Charkaoui may use his desktop computer with an Internet connection at his
residence. However, he shall permit any employee of the Canada Border Services
Agency or any person designated by the Agency to examine his computer,
including the hard drive and the peripheral memory, without notice;
(12) Mr.
Charkaoui undertakes to keep the peace and be of good behaviour; and
(13) Mr. Charkaoui acknowledges that
any breach of this order will constitute an offence under section 127 of
the Criminal Code, R.S.C. 1985, c. C-46, as amended, and that
if he does not comply with each of the preventive conditions, he will be
detained again following an order of the Court to that effect.
“Danièle Tremblay-Lamer”
Certified true
translation
Mary Jo Egan, LLB
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