Harkat, Re, (2013) 436 F.T.R. 304 (FC)

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: June 11, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 436 F.T.R. 304 (FC);2013 FC 795

Harkat, Re (2013), 436 F.T.R. 304 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. JL.034

Mohamed Harkat (applicant) v. The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness Canada (respondents)

(DES-5-08; 2013 FC 795; 2013 CF 795)

Indexed As: Harkat, Re

Federal Court

Noël, J.

July 17, 2013.

Summary:

In 2002, Harkat was detained under a Ministerial security certificate as a person inadmissible to Canada on grounds of national security. In 2006 he was released from detention on stringent conditions. Over time, those conditions were substantially modified in favour of Harkat. In July 2013, he applied for review of the terms and conditions of release (i.e., a variation) pursuant to s. 82(4) of the Immigration and Refugee Protection Act. Among other things, he sought to have a condition relating to a Global Positioning Device (GPS) ankle bracelet removed, a notice requirement respecting travel outside Ottawa to be changed and be granted the right to use a mobile phone and a computer.

The Federal Court allowed the application and varied the terms and conditions of release. The court, inter alia, removed the GPS condition, reduced the notice requirement to five business days and allowed Harkat to use a mobile phone (voice and text) and a computer with internet capability.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - In July 2013, Harkat, who had been the subject of Ministerial security certificates since 2002, applied for a variation of the terms and conditions of his release - The Federal Court allowed the application - The threat to the security of Canada by Harkat was now at the low end of the spectrum, given, inter alia, the passage of time and his past compliance - The terms and conditions were disproportionate to the danger assessment - Therefore, the court, inter alia, removed a Global Positioning Device (GPS) ankle bracelet condition, reduced the notice requirement respecting travel outside the National Capital Region to five business days, and allowed Harkat to use a mobile phone (voice and text) and a computer with internet capability.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - The Federal Court listed the factors to be considered on a review of the terms and conditions of detention for a person who was subject to a Ministerial security certificate - The factors were to assist the court in balancing the danger to the security of Canada of the detained person against the terms and conditions that would neutralize the danger - The court noted that the burden was on the Ministers to establish that the danger was such that the terms and conditions of release had to be created and maintained - See paragraphs 25 to 30.

Cases Noticed:

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 59 Imm. L.R.(3d) 1; 2007 SCC 9, refd to. [para. 25].

Mahjoub, Re (2013), 425 F.T.R. 1; 225 A.C.W.S.(3d) 122; 2013 FC 10, refd to. [para. 27].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 84(2) [para. 25].

Counsel:

David Tyndale and Philippe Lacasse (closed hearing), for the Ministers;

M. Webber and L. Russomanno, for the respondents;

P. Copeland, special advocate.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the Ministers;

Webber Schroeder Goldstein, Ottawa, Ontario, for Mohamed Harkat;

Paul Copeland, Toronto, Ontario, special advocate.

A public hearing respecting this application was heard on June 11, 2013, and a closed hearing on June 18, 2013, in Ottawa, Ontario, before Noël, J., of the Federal Court, who delivered the following decision on July 17, 2013.