Date: 20080514
Docket:
DES-5-08
Citation:
2008 FC 595
Toronto, Ontario, May 14, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MOHAMED
HARKAT
Applicant
-
and -
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
MINISTER
OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
CANADA
Respondents
REASONS FOR ORDERS
[1] Mr.
Harkat has moved for an order approving William Baldwin as a supervising surety
and for an order permitting Mr. Harkat to move to a new residence pending
resolution of two conditions that counsel for the Ministers say must be met
before the Canada Border Services Agency (CBSA) would consider approving the
move. Those conditions are:
(i) Prior
to moving, Mr. Harkat must obtain in writing permission for the installation of
cameras and all related equipment from the condominium corporation; and
(ii) Prior
to moving, Mr. Harkat must obtain in writing the permission of the condominium corporation
for the CBSA to be parked on the private roadway at any time.
[2] These
are the Court's reasons for its orders that approved Mr. Baldwin as a
supervising surety but dismissed the request that Mr. Harkat be permitted to
move pending resolution of the concerns of the CBSA. The latter order provided
that Mr. Harkat was free to reapply for permission to change his place of
residence, but that any reapplication involving the same proposed new residence
should contain specific proposals to deal with the expressed concerns of the
CBSA.
The Nature of this Proceeding
[3] On
February 23, 2007, the Supreme Court of Canada declared that the then existing
procedures under the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (Act), for determining whether a security certificate was reasonable and
the related detention review procedures infringed section 7 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter). The
Court's declaration was suspended for one year.
[4] In
the result, the Act was amended to provide that, when proceeding under any of
sections 78 (determining the reasonableness of the security certificate)
and 82 to 82.2 of the Act (detention reviews, variations, and proceedings in
respect of alleged breaches of conditions of release), a special advocate
should be appointed. See: paragraph 83(1)(b) of the Act.
[5] A
new security certificate was issued in respect of Mr. Harkat under the amended
legislation.
[6] The
transitional provisions of the amending legislation had the effect that:
·
Mr. Harkat remained released under the conditions previously
imposed by the Court;
·
within 60 days of the amending legislation coming into force,
February 22, 2008, Mr. Harkat was entitled to apply to the Court for a
review of the reasons for continuing the conditions of his release; and
·
if no such application was made, Mr. Harkat could apply for
review of the conditions after six months passed since the coming into force of
the amending legislation.1
[7] As
of the date of the hearing of Mr. Harkat's motion, no special advocate had been
appointed in respect of Mr. Harkat. Counsel for Mr. Harkat advised the Court
at the commencement of this proceeding that "[i]n regard to the new
process created by Bill C-3 and the whole use of the special advocate, my view and
the position I take in regard to this is that we would like not to go through
that process because of the time I think it will take to develop that process."
Counsel continued:
So I am waiving the
need for the special advocate process and the new process contemplated in the
legislation. I am content to proceed on the basis that Mr. Harkat forms the
same danger that you have found on prior occasions. You of course made the
determination on the reasonableness of the certificate and you made the determination
on the original release. You have made one other determination, Mr. Justice Noël
made another determination.
I am not seeking to
back away from any aspect of the finding of the danger that he poses other than
to say I will argue that, almost two years out now, he should be getting some
credit for that time of proper behaviour, but I don’t think that that changes
my position at all in regard to the aspect of dangerousness.
[8] Counsel
for the Ministers confirmed that:
For the purposes of
this hearing, it’s acceptable to the Ministers that my friend’s submissions on
the issue of danger are sufficient such that we don’t need to refer to any
evidence that requires a special advocate.
[9] There
are two consequences of this position. First, the issues before the Court are very
narrow. They are the request for the appointment of a new, additional
supervising surety and the request for permission to move. Second, it is not
appropriate for the Court to assess what danger Mr. Harkat's release poses. That
can only be done with the assistance of a special advocate. As acknowledged by
counsel, the Court in this hearing is to proceed on the basis that the threat
remains as previously assessed and determined by the Court.
[10] I
turn to the two requests made by Mr. Harkat.
The Request for a new
Supervising Surety
[11] Since
Mr. Harkat was released from detention, changes have been made to add a
supervising surety where the Court has been satisfied that the proposed surety
is capable of objectively ensuring compliance with the conditions of release
and providing a sufficient controlling influence over Mr. Harkat.
[12] Mr.
Baldwin, the proposed additional supervising surety, is a retired priest of the
Anglican Church of Canada. As such, his time is flexible. Before retirement,
in addition to working in various parishes, Mr. Baldwin worked as a coordinator
of theological education. He is willing to execute a performance bond in the
amount of $5,000.00, and he has the financial resources to support that bond.
Mr. Baldwin has been interviewed by the CBSA, and no concerns were brought to
the Court's attention arising from that interview. Mr. Baldwin testified that
he is aware of the allegations made against Mr. Harkat, that he has discussed
his role as a supervising surety with Mr. and Mrs. Harkat, and that he
understands he is to ensure that Mr. Harkat complies with the conditions of his
release.
[13] In
the words of counsel for the Ministers, "Mr. Baldwin has eminent
qualifications and a respectful and very eminent background."
[14] I
was impressed with Mr. Baldwin's evidence. He is involved in peace and justice
issues, and has obviously given significant thought as to how his duties as a
supervising surety might be impacted by his personal beliefs. Notwithstanding
his view that situations may exist where there is a "higher law" than
government law, Mr. Baldwin is prepared to commit himself to abide by all of
the conditions he has agreed to as a surety. He would make sure that, if so
ordered, Mr. Harkat would report for removal.
[15] I
accept the truthfulness and sincerity of Mr. Baldwin's evidence. I am
satisfied that he is capable of ensuring compliance with the conditions of
release and providing a sufficient controlling influence over Mr. Harkat. Accordingly,
I ordered that, subject to the execution of a performance bond and a written
acknowledgment that he has reviewed all of the terms and conditions of Mr.
Harkat's release, Mr. Baldwin is approved as a supervising surety.
The Request for a Change of
Residence
[16] Mr.
Harkat's proposed new residence is located in a condominium. It is the
recommendation of the CBSA, and the position of the Ministers, that Mr. Harkat
should be permitted to move to the new residence only if he obtains written
permission from the board of the condominium corporation for the installation
of surveillance cameras and for CBSA vehicles to park on the corporation’s
private roadway at any time.
[17] To
this, Mr. Harkat responds that his present living arrangement, where he and his
wife live with Alois Weidemann, is untenable. Mr. Weidemann is the former
partner of Mrs. Harkat's mother, Pierrette Brunette. Mr. Weidemann did not
testify on this motion, but he is said to now want Mr. Harkat and his wife to
move out. Mr. Harkat submits that he should not be compelled to live in
this situation. The need to move is characterized as being urgent and Mr.
Harkat's only alternative, if not allowed to move, is said to be to return to
detention.
[18] Mr.
Harkat notes that, lately, the CBSA is not surveilling him as frequently as it
has in the past and he points to the evidence of Peter Foley, the CBSA
operational case lead for Mr. Harkat's release, that since February of
this year the supervision and monitoring of Mr. Harkat has proceeded
without problems. Mr. Harkat also points to his record of compliance with the
conditions of his release (but for the breach arising when Ms. Brunette ceased
residing with Mr. Harkat, and neither she nor Mr. or Mrs. Harkat reported this
to the CBSA).
[19] Accordingly,
counsel for Mr. Harkat submits that:
[…] it is appropriate in the
circumstances for the Court to make the order allowing the move as
expeditiously as possible and instructing the parties to go off and deal with
the issues to try and figure out some alternative to building mounted cameras
and perhaps – I am not sure I have a suggestion for how we will ever do this –
parking space for the CBSA basically so they can watch the front of the house.
I am not sure how we are ever going to resolve that particular issue.
[20] My
analysis of Mr. Harkat's submissions is as follows.
[21] The
proposed residence is a middle unit condominium townhouse, bordered on both
sides by neighbours. The front of the unit is on a private roadway owned by
the condominium corporation. The private roadway is very narrow. No parking
is permitted on the roadway. When CBSA agents have parked there, they have
been approached by neighbours and by the Harkats, all complaining that the CBSA
vehicle was obstructing traffic.
[22] The
private roadway is bordered on one side by another private roadway, which is
also owned by the condominium corporation. There is no evidence of any place
where visitor parking is permitted that affords a view of the front of the
proposed residence. It was Mrs. Harkat's evidence that the visitor parking
provides no sight line to the front door of the residence.
[23] The
number of routes for leaving from the front of the proposed residence is
greater than for other residences in which Mr. Harkat has lived because of the
presence of a series of foot or bicycle paths. On one occasion, while visiting
the proposed residence, Mr. Harkat left the residence using a foot or bicycle path
and the CBSA agents who were monitoring the rear of the residence were unaware
of his departure.
[24] The
condominium corporation has declined to consent to the installation of
surveillance cameras or to allow CBSA vehicles to park on the private roadway.
[25] The
rear of the proposed unit borders on a major thoroughfare. No parking is
allowed on one side of that road; however, six or seven parking spaces are
available on the other side of the road. In this regard, I rely upon
supplementary evidence provided in Mr. Copeland's and Mr. Tyndale's
letters of May 8, 2008, which corrected some evidence given at trial. The rear
yard is fenced. The fence is approximately 5 foot 2 inches in height. On the
side facing the road, between half to three quarters of the fence is covered by
bushes that are between 2 1/2 to 3 feet higher than the fence. The fence has a
gate that allows access to and from the residence.
[26] On
this evidence, I find as a fact that the concerns of the CBSA about the
proposed move, and the resultant ability of the CBSA to monitor Mr. Harkat's
activities, are reasonable and grounded in the evidence. The CBSA is now able
to monitor, through the use of surveillance cameras, activities in the front
and back yards of Mr. Harkat’s current residence. There is also ample parking
on the street in front of that residence, which affords CBSA agents an
unobstructed view of the front of the residence. Neither of those conditions
exists at the proposed residence.
[27] Thus,
I find that allowing Mr. Harkat to move to the proposed residence would amount
to a substantial change of the conditions upon which Mr. Harkat is now
released. Such a substantial change is not warranted in the absence of a
reconsideration of the danger that Mr. Harkat's release now poses.
[28] Mr.
Harkat has submitted that the need to move is urgent and that, if the move is
not allowed, he has no alternative but to ask to be returned to detention. In
my view, neither of these submissions is sufficiently supported by the
evidence.
[29] I
acknowledge that Mr. Harkat's current living situation is difficult and not
viable in the middle to long-term. However, while Mr. Weidemann indicated in
February of this year his willingness to continue as a surety for a further
period of six weeks, he nonetheless continues to allow Mr. and Mrs. Harkat to live
in his house (a small portion of which is owned by Pierrette Brunette). Ms.
Brunette still receives her business telephone calls and e-mails at this
residence, and she continues to teach music lessons there. There is no
evidence that Mr. Weidemann has given Mr. Harkat a firm date by which he has to
move out. As noted above, Mr. Weidemann did not testify on this motion. On
this evidence, I am not persuaded that sufficient time does not exist for Mr. Harkat
to meet the concerns of the CBSA before he is required to leave his current
residence.
[30] With
respect to any return to detention, no evidence was adduced that Mr. Harkat had
pursued any other option for his short-term living arrangements. It is
reasonable to think that, rather than return to detention, Mr. Harkat might ask
for permission to move in with a relative such as his mother-in-law or his
sister-in-law on a temporary basis. If those are not possibilities, it is
equally reasonable to expect that evidence would have been adduced that alternatives
had been considered or pursued without success.
[31] I
have dealt with Mr. Harkat’s submissions about urgency and detention. However,
it is important to understand that the Act specifies, in subsection 82(5), that
where a person is released from detention under conditions, on a review of
those conditions, the judge "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." This means that the Court's focus must be on national security
and the safety of persons. Given Mr. Harkat’s admission that he continues
to pose the danger originally found by the Court, the Court cannot approve a change
of residence in circumstances where the CBSA's ability to monitor Mr. Harkat is
so diminished.
[32] I
make three additional comments.
[33] First,
I am satisfied that, as of the date of the hearing, Mr. Harkat had given no
significant thought as to how the concerns of the CBSA could be met. For
example, neither Mr. Harkat nor his wife owns a car. From time-to-time, they
borrow Pierrette Brunette’s car. The proposed residence has a garage and a one-car
driveway. Thus, there would seem to be no reason why Ms. Brunette’s car
could not be kept in the garage when she is in the proposed residence or when
her car is on loan to Mr. and Mrs. Harkat. This would leave the driveway
available for the CBSA and the visitors’ parking available for visitors.
(Although Mrs. Harkat suggested that she opposes this arrangement because of
privacy concerns.) By way of further examples, paragraph 16 of Peter
Foley's affidavit raised alternate monitoring methods, including an interior
camera to monitor the front door. It may also be that a camera could be
installed in the rear yard of the proposed residence that would not be affixed
to condominium property or that the condominium corporation might consent to because
the camera would not capture images other than those within the Harkats' rear
yard.
[34] These
are matters that Mr. Harkat ought to have considered, and ought to consider
should he remain desirous of moving to this property.
[35] Second,
I have given little weight to Mr. Harkat’s submissions concerning the frequency
with which the CBSA now monitors his activities and the efficacy of
surveillance cameras in light of the existence of active GPS monitoring. In
this regard, the extent to which the CBSA chooses to provide visible
surveillance is a matter within its expert discretion. The ability of the CBSA
to monitor Mr. Harkat’s activities is a significant aspect of the scheme
controlling Mr. Harkat's release. Cameras very recently provided cogent
evidence of a breach of the conditions of Mr. Harkat's release and provide a
deterrent to any further breach.
[36] Finally,
I do not consider it to be at all realistic to approve, as Mr. Harkat suggests,
any change of residence on the basis of further negotiations. I accept the
submission of counsel for the Ministers that, if the move is permitted as
proposed, it will be extremely difficult to later achieve a result that
replaces, or substantially replicates, the conditions that now exist.
[37] On
this point, I note Mrs. Harkat's position with respect to surveillance
cameras. While her husband testified that he would consent to surveillance
cameras being placed at the front and back doors, during her cross-examination,
Mrs. Harkat testified that even if the condominium corporation approved such
cameras she would not provide her consent. In Exhibit 6, an article Mrs. Harkat
wrote for the “Justice for Mohamed Harkat” website, she advised that "the
Passion is there to fight against the surveillance cameras." Similarly,
as noted above, she expressed privacy concerns about the CBSA’s use of the
driveway. I acknowledge that, after the evidence was closed on the first day
of the hearing, Mrs. Harkat sent an e-mail, Exhibit 9, to Peter Foley in
which she made various suggestions to deal with the concerns of the CBSA. I am
not confident, however, that such willingness would remain if the requested
move was permitted without clear conditions being in place before the move.
[38] For
these reasons, the motion for an order permitting Mr. Harkat to move to a new
residence was dismissed, with leave to reapply on the basis set out in
paragraph 2 above.
“Eleanor
R. Dawson”
1. Bill C-3, An Act to amend the Immigration and Refugee
Protection Act (certificate and special advocate) and to make a consequential
amendment to another Act, 2nd Sess., 39th Parl., 2008, cl. 7 (assented
to 14 February 2008).
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