Date: 20060713
Docket: A-254-06
Citation: 2006 FCA 259
CORAM: RICHARD C.J.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
CANADA
Appellants
and
MOHAMED HARKAT
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on July 13, 2006)
LÉTOURNEAU J.A.
[1] The appellants challenge the decision of Dawson J., a designated judge of the Federal Court who ordered the release, under terms and conditions, of the respondent: see Harkat v. Canada(Minister of Citizenship and Immigration), 2006 FC 628.
ISSUES
[2] In support of their challenge, they raise the following grounds of appeal. First, they submit that the designated judge erred when she decided to hear, pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended (IRPA), a new application for judicial release as there was no evidence of a material or substantial change of circumstances since the preceding application for release decided only some five weeks earlier.
[3] Subsection 84(2) of the IRPA reads as follows:
| 84. (2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
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84. (2) Sur demande de l'étranger dont la mesure de renvoi n'a pas été exécutée dans les cent vingt jours suivant la décision sur le certificat, le juge peut, aux conditions qu'il estime indiquées, le mettre en liberté sur preuve que la mesure ne sera pas exécutée dans un délai raisonnable et que la mise en liberté ne constituera pas un danger pour la sécurité nationale ou la sécurité d'autrui.
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[4] Second, they contend that the designated judge applied a more stringent test than the test provided for in subsection 84(2). While part of the test for judicial release in subsection 84(2) requires a determination that the detained person will not be removed from Canada within a reasonable time, they argue that the designated judge, instead, examine whether there would be an imminent removal of the respondent. In other words, imminence of removal was substituted to removal within a reasonable period of time.
[5] Third, the appellants challenge the choice of the sureties made by the designated judge. They aver that the judge's decision to accept as sureties the spouse of the respondent and his mother-in-law, Ms. Pierrette Brunette, was unreasonable in the circumstances because these persons could not effectively act as sureties.
[6] Fourth, they also complain about the designated judge's selection of three of the seven persons required to sign performance bonds. In their view, she should not have accepted bonds from Mr. Skerritt, Mr. Bush and Ms. Squires after having determined that these persons were not genuinely committed to ensuring compliance with the conditions imposed for the release of the respondent. In the circumstances, her decision in respect of the performance bonds was unreasonable.
[7] Finally, the appellants claim that the threat posed by the respondent is not neutralized by the terms and conditions of his release. Therefore, the designated judge erred in believing that it was and in ordering the release of the respondent.
FACTS AND PROCEDURAL HISTORY
[8] For the purpose of this appeal, it is not necessary to provide a full account of the facts and procedural history of this case. These can be found in the reasons of the designated judge. We shall limit ourselves to those that are necessary for an understanding and determination of the issues raised. If and where necessary, we shall relate additional facts.
[9] The respondent is a foreign national born in Algeria who arrived in Canada in 1995 on a false Saudi Arabian passport. In December 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration signed a security certificate pursuant to section 77 of the IRPA.
[10] It was alleged that the respondent was inadmissible to Canada on security grounds. Indeed, the allegations were that the respondent supported terrorist activities as a member of a terrorist group known as the Bin Laden Network, which includes Al Qaeda.
[11] The respondent was arrested and detained while the security certificate was referred to the Federal Court on December 10, 2002 for a determination of the reasonableness of the certificate pursuant to section 80 of the IRPA. He remained in detention throughout these proceedings until his release which is the subject of the present appeal.
[12] On March 22, 2005, the Federal Court determined that the certificate was reasonable. The designated judge ruled that there were reasonable grounds to believe that the respondent has supported terrorist activities and is a member of an organization linked to the Bin Laden terrorist network. She also found that he had lied throughout the proceedings on these issues. We want to add that this appeal does not put in question her findings on the reasonableness of the security certificate and the involvement of the respondent in terrorist activities.
[13] On September 23, 2005, five months had elapsed since the security certificate was found by the Federal Court to be reasonable. Then the respondent applied for his judicial release pursuant to subsection 84(2) of the IRPA. On December 30, Lemieux J. of the Federal Court denied that application. He concluded that the respondent had not demonstrated that he would not be removed from Canada within a reasonable time: see Harkat v. Canada(Minister of Citizenship and Immigration), 2005 FC 1740, paragraphs 117-123.
[14] The application for judicial release which led to this appeal was brought on February 5, 2006. The hearing took place from March 8 to March 10, 2006. The designated judge granted the application on May 23, 2006. She ordered the release of the respondent under some twenty-three (23) terms and conditions.
[15] The appellants immediately sought a stay of execution of that decision. On June 9, 2006, Décary J.A. dismissed the motion for an order to stay, but granted the motion for an order expediting the hearing of the appeal. He was of the view that the appellants had not met their burden of proving that the balance of convenience favors their position. "There is", he said, "absolutely no evidence before me in this motion to support a valid concern that Mr. Harkat's release pending the hearing of the Ministers' appeal represents a threat or a danger": see The Minister of Citizenship and Immigration, Minister of Public Safety and Emergency Preparedness Canadav. Harkat, 2006 FCA 215, at paragraph 27.
[16] The respondent requested, on June 26, 2006, that the hearing of this expedited appeal be adjourned until such time as the Supreme Court of Canada renders its decision in the Almrei and Harkat cases that it heard on the constitutional validity of the process governing the issuance and determination of the reasonableness of security certificates. The request was denied by Richard C.J. in a Direction issued on June 28, 2006.
WHETHER THE DESIGNATED JUDGE SHOULD HAVE REFUSED TO HEAR THE RESPONDENT'S SECOND APPLICATION FOR JUDICIAL RELEASE
[17] The grounds of the appellants' complaint in respect of the designated judge's decision to hear the application for judicial release are three-fold. There was, the appellants say, no substantial change in the circumstances that justified a new decision on the issue of the respondent's detention. In addition, the designated judge committed an error of law when she considered as a change of circumstances events that preceded the dismissal order of Lemieux J., dated December 30, 2005. Finally, in the absence of a change of circumstances, the impugned decision amounted to a collateral attack on the decision of Lemieux J. that had not been appealed.
The material or substantial change of circumstances
[18] The designated judge found as facts that:
a) there was unexplained delay in the appointment of the Minister's delegate whose function is to determine whether the respondent should be removed from Canada pursuant to paragraph 115(2)(b) of the IRPA;
b) once appointed, the delegate delayed the beginning of his study of the case; and
c) all these delays unduly and unjustifiably prolonged the detention of the respondent.
[19] She was of the view that these were facts that were not before Lemieux J. and were not contemplated by him when he adjudicated upon the respondent's first application for judicial release. This is why she came to the conclusion that these "facts are inconsistent with Lemieux J.'s conclusions that the authorities were "proceeding expeditiously in this matter" and "[t]he Minister's delegate's decision is pending"": see paragraph 26 of her decision.
[20] We cannot say that she either erred in law or drew an unreasonable inference from these facts and the previous decision of Lemieux J. when she concluded that the resulting delays now known were not known in December of 2005 and that, if they had been known, Lemieux J.'s decision might well have been different: id. at paragraph 27.
[21] With respect, we believe she was entitled to consider that these events after the rendering of Lemieux J.'s decision brought a substantial change in circumstances, one sufficient to authorize her to consider the merit of a new application for judicial release pursuant to subsection 84(2) of the IRPA. This brings us to the allegation that she committed an error of law when she considered events that occurred prior to Lemieux J.'s decision rendered on December 30, 2005.
Whether the designated judge erred in law in considering events that occurred prior to December 30, 2005
[22] When considering the unexplained delay in the appointment of the Minister's delegate, the designated judge referred to the period from December 12, 2005 (when the respondent made his final submission on the removal issue) to some time around March 7, 2006 (when the delegate was finally appointed to exercise the Minister's discretion with respect to removal).
[23] The appellants, as did the designated judge, rely upon the decision of the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 to determine what constitutes a material change in circumstances. At paragraph 22 of her decision, the designated judge quoted the following excerpt of that case which, in relation to custody and access under the Divorce Act, R.S. 1985, c. 3 (2nd Supp.), dealt with a material change in the circumstances of a child:
The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 8 R.F.L. (3d) 139 (B.C.C.A.); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 10 R.F.L. 193 (N.S.S.C.), at p. 194.
What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.
(emphasis added)
[24] The appellants submit that the Supreme Court decision clearly establishes that the judge should "consider only the change in circumstances since the order was issued". In this case, this means, according to the appellants, that the designated judge could not refer to the delay prior to December 30, 2005.
[25] By referring to December 12, 2005, the designated judge pointed out that the Minister could have begun to exercise his discretion as of that date or have appointed a delegate to exercise it on his behalf. She also remarked that there was no reason why a delegate could not have been appointed immediately after or even before that date so as to be able to deal promptly with the final submissions when received: see her decision at paragraph 42.
[26] Even if the appellants are right in their submission that the delay should have been computed from December 30 rather than December 12, 2005, an issue which we need not decide, and, therefore, that in so doing the designated judge erred in law, we do not think that this error is material in the circumstances. There was sufficient evidence of an unexplained and unjustified delay from December 30, 2005 to March 7, 2006 to support her finding that that delay contributed to a substantial change in circumstances.
[27] It should not be lost sight of the fact that, by that time, more than a year had already elapsed since the security certificate had been determined to be reasonable, much more than the 120 days mentioned in subsection 84(2) (in fact over three times that period) had elapsed since the determination as to the reasonableness of the certificate, and the respondent was not removed and was still detained. Yet, the Minister had still not appointed a delegate to exercise his discretion and begin his analysis with respect to removal, immediately upon completion of that process which, as the designated judge mentioned, could have been at least as early as December 12, 2005. As of today, which is more than six months after the decision of Lemieux J., no decision has been rendered by the Minister on the removal of the respondent.
[28] In our view, in assessing the Minister's diligence in processing the removal issue for the purpose of determining whether the delay after December 30, 2005 contributed in part to a change in circumstances, the designated judge was entitled to look at the moment in time when that diligence could have been exercised, which, in this case, is at least from December 12, 2005. That moment in time, if it cannot be used in the computation of the overall delay, is nonetheless relevant to assess the merit of any explanation given for the delay after December 30, 2005 or to understand the lack of any explanation for such delay.
Whether, in the absence of a change of circumstances, the designated judge's decision amounted to a collateral attack on the previous decision of Lemieux J.
[29] As we have concluded that there was a change of circumstances, there is no need to deal with this argument. However, we would like to say this.
[30] The appellants' argument is an attack on the designated judge's review of Lemieux J.'s decision. There was nothing improper in the fact that she proceeded to review the decision of Lemieux J. This was not done to revisit the merit of that decision. She was quite aware of the limits established by the Supreme Court in the Goertz case, supra, as she expressly mentioned them. The review was undertaken for the purpose of determining the facts that were before Lemieux J. at the time he rendered his decision and, then, compare them with those now alleged before her. It is in this context that paragraph 26 of her decision must be read. At paragraph 26, she wrote:
The unexplained delay in the appointment of the Minister's delegate (from December 12, 2005 when Mr. Harkat's final submission was made until sometime around March 7, 2006) and the consequent failure of the delegate to begin to consider his decision until sometime around mid-March are facts that are inconsistent with Justice Lemieux's conclusions that the authorities were "proceeding expeditiously in this matter" and "[t]he Minister's delegate's decision is pending."
[31] She was not retrying the case that was before Lemieux J. She was simply inferring from these conclusions of Lemieux J. that the facts now submitted to her could not have been before him in view of the blatant inconsistency between the conclusion of Lemieux J. that the authorities were proceeding expeditiously and the new evidence which revealed unexplained and unjustified delay in processing the removal issue.
[32] In conclusion, we are satisfied that there is no merit in this first ground of appeal.
WHETHER THE DESIGNATED JUDGE APPLIED A MORE STRINGENT TEST THAN THE LEGISLATIVE TEST FOUND IN SUBSECTION 84(2) OF THE IRPA
[33] The appellants take issue with a number of passages from the designated judge's decision where she refers to the imminence of removal. They conclude from these passages that she altered the legislative test found in subsection 84(2) of the IRPA. We think, with respect, that this is an inadequate, not to say an unfair, reading and understanding of what she was doing and saying.
[34] In order to properly understand what the designated judge was actually doing when applying the forward-looking, future orientated test contained in subsection 84(2), we need to reproduce paragraphs 44 to 52 of her decision:
(iv) The Forward-Looking, Future Orientated Test
[44] In this case, the Ministers did not produce any witness to testify with respect to the imminence of removal. In both Mahjoub and Almrei, cited above, the Ministers called the Director of Security Review of the CBSA to testify as to when the respective paragraph 115(2)(b) decisions were expected and when removal might occur if there were no legal impediments to removal.
[45] The evidence before the Court on the imminence of Mr. Harkat's removal is:
i) the March 7, 2006 letter, quoted in full at paragraph 15 above, advising that the decision was anticipated in April or early May of this year.
ii) the evidence of the Removals Manager adduced before Mr. Justice Lemieux as to how removal would be affected if the Minister's delegate endorsed the recommendation given to him that Mr. Harkat be removed to Algeria.
[46] The Federal Court of Appeal observed in Almrei, cited above at paragraph 82, that the "history of events may cast doubt on the reliability of the assertion and evidence submitted that the moment of removal is close." There is a history of events before the Court that, in my respectful view, casts doubt on the reliability of the statement that the delegate's decision is expected to be completed in late April or early May. That history is found in the treatment of persons similarly situated to Mr. Harkat and in Mr. Harkat's treatment.
[47] In the case of Mr. Mahjoub, Citizenship and Immigration Canada first informed Mr. Mahjoub of its intention to seek the Minister's opinion with respect to removal on October 22, 2001. A decision was ultimately made on July 22, 2004. However, that decision was set aside by this Court on judicial review (see: Mahjoub v. Canada(Minister of Citizenship and Immigration), 2005 FC 156). On February 11, 2005, during a hearing of Mr. Mahjoub's application for release from detention, the Director of Security Review of the CBSA testified that once all submissions relating to paragraph 115(2)(b) of the Act were given to the Minister's delegate, approximately three months would be required to make a decision. The best case scenario was said to be that a decision would be made by the end of June, 2005. Notwithstanding this evidence, the records of the Court indicate that the decision was not made until January 3, 2006. An application for judicial review of that decision is pending before this Court.
[48] With respect to Mr. Almrei, the reasons of the Federal Court of Appeal set out the following chronology:
(i) December 5, 2001, Mr. Almrei was advised that Citizenship and Immigration Canada intended to seek an opinion that he could be removed from Canada.
(ii) January 13, 2003, the Minister's delegate rendered an opinion that Mr. Almrei may be removed from Canada.
(iii) April 23, 2003, the Minister acknowledged that "serious errors" were made in forming that opinion and the Minister consented to the decision being set aside.
(iv) July 28, 2003, Mr. Almrei was told a second opinion would be sought.
(v) October 23, 2003, a second opinion concluded that Mr. Almrei could be removed from Canada.
[49] Justice Layden-Stevenson picks up the chronology in her reasons with respect to Mr. Almrei's detention review, cited above:
(vi) March 11, 2005, the second opinion of the Minister's delegate was set aside by this Court.
(vii) A third danger opinion was then sought. Submissions to the Minister's delegate were completed by Mr. Almrei on July 29, 2005. At the time Justice Layden-Stevenson's reasons were delivered on December 5, 2005, the delegate's opinion remained outstanding.
[50] On the basis of this history of events I was inclined to place little weight upon the unsworn estimate that the delegate's opinion with respect to removal would be completed by late April or early May.
[51] Then, on April 13, 2006, counsel for Mr. Harkat forwarded to the Court the contents of a letter from the CBSA that stated:
"The Minister's Delegate has been fully dedicated to this task for some weeks. He has determined that, because of the volume of material, the complexity of the issues and the volume of previous litigation in this case, it will take somewhat longer than anticipated to release his decision and corresponding reasons. Although our earlier estimate was for completion by late April or early May, we now estimate the completion date to be approximately the end of May."
I find on the basis of the lack of any other evidence, this advice that the delegate's decision will not be made within the time originally contemplated, and the time taken to reach such decisions in the past, that no cogent evidence of imminent removal has been put before the Court. I particularly note that notwithstanding the "best case scenario" estimate in Mahjoub, the decision was rendered in early January 2006 and not in June 2005 and that while submissions were completed in late July 2005 with respect to Mr. Almrei, no decision had been made by early December 2005.
(v) Conclusion
[52] Earlier, I concluded on all of the evidence that the evidentiary burden shifted to the Ministers. No credible or compelling evidence of an imminent removal was produced on behalf of the Ministers. It follows that Mr. Harkat has met the onus upon him to establish that he will not be removed from Canadawithin a reasonable period of time.
(Emphasis added)
[35] The designated judge was informed by the appellants that the removal of the respondent was imminent. The hearing was held in March and the expected date of removal was the following month or early May. On the basis of what this Court held in Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, she proceeded to a review of the history of events in this case as well as in other comparable cases to see whether the appellants' assertion of an imminent removal had an aura of reliability and credibility. In so doing, she was not substituting a more stringent test to the legislative test. She was merely assessing and answering a contention made by the appellants.
[36] From the evidence of the delays actually taking place in the case and the lack of cogent evidence by the appellants of an imminent removal, she concluded that the appellants' assertion was not credible and, therefore, that the respondent had met his burden of establishing that he will not be removed from Canada within a reasonable time, which is the test found in subsection 84(2) of the IRPA. It cannot be said that she applied the wrong test in view of what the appellants were pleading. Nor can we find unreasonable her conclusion of fact that he will not be removed within a reasonable time. In these circumstances, we can see no error in law in her conclusion that there was sufficient evidence of a delayed removal to shift to the appellants the burden of proving that this condition of subsection 84(2) is or will be met. As this Court said in Almrei, supra, the respondent was faced with an evidentiary burden of filing some evidence that he has reasonable grounds to believe that his removal will not be effected within a reasonable time. He has met that burden and this evidence needed to be answered by the appellants, which they failed to do.
WHETHER THE TERMS AND CONDITIONS OF RELEASE ARE SUFFICIENT TO NEUTRALIZE THE RISK POSED BY THE RESPONDENT
[37] The appellants argue that the 23 terms and conditions of release are not sufficient to neutralize the risk posed by the respondent. Two of these terms and conditions are made specific grounds of appeal. They relate, as we previously mentioned, to the choice of the two main sureties and three of the five other persons who signed performance bonds. In order to avoid repetitions, we will address these two grounds of appeal, as they should be, in the broader context of whether all the terms and conditions imposed may neutralize or contain the risk posed by the respondent.
[38] As the respondent was found by the designated judge to have engaged in terrorism by supporting terrorist activities and being a member of an organization believed on reasonable grounds to have engaged or that will engage in terrorist activities, the risk posed is that the respondent will resume contacts with terrorists and somehow assist them in their endeavours.
[39] In addition, there is usually a fear that the released person will flee and, therefore, not appear at the proceedings. In this case, the flight would have to be one within Canada. Otherwise, a flight that would take the respondent outside this country would accomplish the removal that the appellants are trying to achieve and the respondent opposes. Thus, while a failure to appear remains a possibility, it amounts to a limited threat in view of the position taken by the respondent and the losses he would incur.
[40] The appellants contest the sufficiency of the terms and conditions of release. Of course, in a package of conditions as the one in the present instance, some conditions are better than others and more prone to achieve the end-result. However, the fact that some of the terms or conditions may be of a lesser value in this respect does not mean that the aggregate of these terms and conditions is inadequate or inappropriate to achieve the purpose for which they were imposed.
[41] While perhaps better sureties could have been chosen, this is not the question. The question is whether the alleged weakness of the impugned terms regarding the sureties and performance bonds is such that it undermines the strength of the other terms and their cumulative effect to the point that the overall objective of national security is compromised. In La Reine v. Rondeau, [1996] R.J.Q. 1155 where the Quebec Court of Appeal reviewed the release of an accused charged with conspiracy to commit murder and first degree murder, it identified the factors to be taken into account in assessing the dangerousness of the accused and insisted on the fact that what must be looked at is the cumulative effect of these factors. In our view, the same reasoning applies to the assessment of the terms and conditions of release imposed to negate or contain the danger.
[42] The designated judge was aware of the limits and shortcomings that these sureties would offer. That is why she acknowledged at paragraph 81 of her decision that "as such ... they would not provide a sufficient controlling influence over Mr. Harkat if he is released from incarceration". She then proceeded to devise additional terms and conditions that were "specific and tailored to Mr. Harkat's precise circumstances": see paragraph 82 of her reason. We are satisfied that the choice of sureties by the designated judge is not so flawed as to trump the cumulative effect of all the conditions and terms.
[43] Finally, the appellants put in question the efficiency and reliability of the electronic monitoring device that the respondent has been ordered to wear. The basis of their argument is that a project manager of the company which provides services in relation to electronic monitoring testified in the presence of the respondent as to the limitations and shortcomings of the device.
[44] The designated judge was fully aware of these limitations and addressed the appellants' concerns in paragraphs 94 and 100 of her decision. She proceeded to determine a general geographic region within which the respondent was permitted to go. The parameters of that geographic area were delimited in a court order issued on June 15, 2006 and were agreed to by the appellants. They now complain before us that the area is too broadly defined and imposes upon them a heavy burden in terms of supervision.
[45] In addition, they say that the refusal of the designated judge to accept the respondent's and his wife's proposed undertaking not to speak Arabic compounds the difficulty.
[46] Upon the filing of the appropriate evidence, the appellants are free to go back to the designated judge to seek a variation of the condition regarding the geographic area as well as the inclusion, as a condition, of the proposed undertaking by the respondent and his wife regarding the use of the Arabic language.
SUBSIDIARY ARGUMENTS RAISED BY THE APPELLANTS
[47] The appellants have submitted subsidiary arguments derived from their main submissions. In our view, it is not necessary to examine them since, either individually or collectively, they do not undermine the conclusion that the designated judge arrived at regarding the opportunity of releasing the respondent.
CONCLUSION
[48] The release of the respondent involved an assessment of the risk that he posed a threat to national security. In these matters, whether one refers to the containment of the threat or the sufficiency of the terms of release, there is no absolute certainty one way or the other. What needs to be evaluated is the extent and likelihood of the threat, if the detained person is released, as well as the likelihood and the extent to which the conditions of release imposed will negate or contain that threat or risk of threat.
[49] In the present instance, the designated judge imposed very constraining terms and conditions of release which, she believed, collectively and cumulatively are likely to achieve the desired result. We have not been convinced that in making her assessment she committed errors of law or of fact that warrant our intervention.
[50] For these reasons, the appeal will be dismissed.
"Gilles Létourneau"
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