DES-3-03
2005 FC 248
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 (the I.R.P.A.);
IN RE the filing of this certificate in the Federal Court of Canada pursuant to subsection 77(1) and sections 78 and 80 of the I.R.P.A.;
IN RE the warrant for the arrest and detention, and review of the reasons justifying continued detention, pursuant to subsections 82(1) and 83(1) and (3) of the I.R.P.A.;
IN RE the fourth review of the detention of Adil Charkaoui (Mr. Charkaoui) pursuant to subsections 83(2) and (3) of the I.R.P.A.
Indexed as: Charkaoui (Re) (F.C.)
Federal Court, Noël J.--Montréal, January 10, 11 and February 7; Ottawa, February 17, 2005.
Citizenship and Immigration -- Detention Review -- Fourth review since detention under Ministers' certificate (IRPA, s. 77(1)) -- Reasonableness of certificate not yet determined -- Detainee allegedly member of organization linked to Al-Qaida -- Testified for first time at fourth detention review -- Gave reasons for going to Morocco, Turkey -- Denied going to Afghanistan -- Called polygraphist as witness but evidence rejected by Court -- Standard of proof at detention review -- Why designated judge at detention review in better position than Ministers when initial decisions made -- Function of designated judge under s. 83(3) -- Meaning of phrases "danger to national security", "danger . . . to the safety of any person" -- Main question: does danger still exist? -- Danger, once imminent, might later be neutralized -- Release can be granted subject to conditions but not if detainee still a danger -- Matters taken into account at fourth review -- If danger imminent when detained, neutralized by now -- Release ordered subject to numerous conditions, Court reserving right to cancel release should circumstances make this necessary -- Conditions to be reviewed every three months.
This was the fourth review of Adil Charkaoui's detention pursuant to a certificate signed by the Minister of Immigration and Solicitor General pursuant to Immigration and Refugee Protection Act, subsection 77(1). Although he was detained in May 2003 and IRPA, paragraph 78(c) requires that certificate matters are to be handled expeditiously, a hearing as to the certificate's reasonableness has not yet taken place due to constitutional and other motions as well as to certain agreements between the parties.
It was alleged that Mr. Charkaoui was a member of an organization linked to Al-Qaida, which was responsible for attacks in Casablanca and Madrid, that he was indoctrinated in Montréal by a Libyan imam and gave money and a laptop computer to the terrorist organization.
At this fourth hearing, Mr. Charkaoui testified for the first time. He had gone to Morocco in 1996 to see his fiancée and again in 1998 to get married. In 1999, he travelled to Turkey for a martial arts competition. In 1999, he returned to Morocco to visit his wife, who was waiting to receive her Canadian permanent resident status. It was on a 2000-2001 return to Morocco with his wife that he first encountered problems with security authorities, in Canada, Morocco and, on his return, in New York, where he was detained overnight by the FBI He denied ever going to Afghanistan. He also denied that there is a Libyan imam in Montréal.
Mr. Charkaoui called as a witness a polygraphist who had administered a polygraph test. Upon review of the computerized polygraph tracing, it appeared that Mr. Charkaoui was telling the truth in saying that he was not, and never had been, a terrorist network member. Several reasons were advanced for the Ministers as to why the testimony of the polygraphist, should not be accepted.
At detention reviews every six months after the first review the designated judge must analyse the old and new evidence, applying the same "reasonable grounds" standard applicable to reviewing the decision by the Ministers to issue an arrest warrant. However this is similar to the balance of probabilities.
The key function of the designated judge under subsection 83(3) is to analyse the evidence and decide whether the individual is still a danger to national security or whether he is unlikely to appear at a proceeding or for removal. The meaning of the phrase "danger to the security of Canada" in the context of the former Immigration Act's deportation provisions, discussed by the Supreme Court in Suresh v. Canada (Minister of Citizenship and Immigration), is applicable to IRPA, subsection 83(3), wherein the phrase is "danger to national security". There is another phrase in subsection 83(3): "danger . . . to the safety of any person" and, for detention review purposes, it would appear that the definition would be broader than the Suresh definition of "danger to the public" which was limited to a danger from those convicted of a serious offence. "Danger . . . to the safety of any person" includes awareness before the act occurs, which in itself broadens the concept of "danger to the public" to more than persons who have been convicted of a serious offence. The main question is whether a danger still exists. A danger may exist at one moment and not at another. The designated judge must weigh the evidence with this concern in mind. A danger once imminent might subsequently be neutralized. As for the phrase "is unlikely to appear at a proceeding or for removal", it would seem that Parliament had in mind that a certain degree of probability, or improbability, be taken into account in weighing the evidence.
Division 6 of the IRPA provides, in subsection 58(3), for the possibility of release on conditions thought necessary, including a guarantee of compliance. But if the detainee is considered by the designated judge to still present a danger, release cannot be contemplated, even subject to exceptional conditions.
Held, Mr. Charkaoui should be released from detention subject to some 16 preventive conditions.
This decision was based upon the evidence submitted to date without reaching a conclusion as to Mr. Charkaoui's credibility, which will be done upon the hearing on the reasonableness of the certificate.
Once the Ministers decide to have an individual arrested under IRPA, subsection 82(1) to prevent an event that might occur, within 48 hours from the commencement of preventive detention, the Chief Justice of the Federal Court, or a designated judge, is to review the reasons that would justify continued detention: Act, subsection 83(1). If detention is then upheld, it has to be re-evaluated every six months if the certificate remains to be ruled on. In Charkaoui (Re), [2004] 1 F.C.R. 528, this Court identified three concerns: travels to Morocco, trip to Pakistan and contacts with five particular individuals. Mr. Charkaoui declined to testify at the first three reviews. When it comes to national security, a colossal bail amount, as a condition of release, will not suffice. In view of the exceptional responsibility imposed by Parliament upon the designated judge, at the earlier reviews it could only be concluded that Mr. Charkaoui remained a threat to national security.
Turning to the fourth detention review, the Court had before it sworn statements of support for Mr. Charkaoui, not just from the Muslim community but also from the university, political, religious and union spheres. The Court had also to consider the support of his wife, family and Mr. Ouazzani, the largest contributor to the proposed bail. The Court did not accept the testimony of the polygraphist. Apart from his limited knowledge of the medical aspects of the test and questions as to its conduct, to conclude that polygraph evidence corroborated detainee's credibility would be an improper delegation of the judge's duty to decide on the detainee's credibility.
Detention reviews are questions of fact peculiar to each situation. In the case at bar, the imprisonment, the passage of time, media attention, family and community support, Mr. Charkaoui's testimony were all matters to be taken into account in assessing whether a danger still exists and whether he will appear at a proceeding or for removal. If a danger was imminent when he was put into preventive detention, it would by now have been neutralized. The media attention to his case is such that his conduct in public will have to be exemplary and above suspicion. The danger to national security and the safety of any person had decreased with the passage of time to the point where it had been neutralized.
Mr. Charkaoui was ordered released, subject to 16 conditions, among them: bail set at $50,000; reside at a specified address (withheld to allow for family privacy) and remain there each day from 8:30 p.m. till 8:00 a.m. (except in case of medical emergency); not use a computer, cell phone, Blackberry, fax machine, pager or portable transceiver; wear an electronic monitoring bracelet (if demanded by the Ministers); surrender his passport prior to release; not possess any weapon or explosive; not to leave the island of Montréal; refrain from communication with a list of five named individuals as well as someone known as "Abdeslam the Canadian" and anyone having a criminal record. The Court reserved the right to cancel the release should circumstances warrant and, if necessary, following a decision on the certificate's reasonableness. Furthermore, the conditions will be reviewed at a hearing every three months.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 9, 12, 15.
| Criminal Code, R.S.C., 1985, c. C-46, s. 127 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 185). |
| Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2),149. |
| Immigration Act, R.S.C., 1985, c. I-2, s. 53 (as am. by S.C. 1992, c. 49, s. 43). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 9, 58(3), 76 (as am. by S.C. 2002, c. 8, s. 194), 78, 80(1), 81, 82(1), 83, 84(1), 85. |
cases judicially considered
followed:
Charkaoui (Re), [2005] 2 F.C.R. 299; (2004), 247 D.L.R. (4th) 405; 328 N.R. 201; 2004 FCA 421.
applied:
Charkaoui (Re), [2004] 3 F.C.R. 32; (2003), 253 F.T.R. 22; 38 Imm. L.R. (3d) 56; 2003 FC 1419; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 152; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; 2002 SCC 1; Charkaoui v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 451; (2003), 236 D.L.R. (4th) 91; 315 N.R. 1; 2003 FCA 407; Suresh (Re), [1998] F.C.J. No. 385 (T.D.) (QL).
referred to:
Charkaoui (Re), [2004] 1 F.C.R. 528; (2003), 237 F.T.R. 143; 2003 FC 882; Charkaoui (Re) (2004), 247 F.T.R. 276; 39 Imm. L.R. (3d) 318; 2004 FC 107; Charkaoui (Re), 2004 FC 1031; [2004] A.C.F. No. 1236 (QL); Charkaoui (Re), 2005 FC 149; [2005] A.C.F. No. 139 (QL); Gauthier c. Assurances générales Desjardins inc., [2004] R.R.A. 517 (Que. Sup. Ct.); Services financiers DaimlerChrysler c. Hébert, [2003] R.R.A. 1482 (C.Q. (Civ. Div.)); R. v. Béland, [1987] 2 S.C.R. 398; (1987), 43 D.L.R. (4th) 641; 36 C.C.C. (3d) 481; 60 C.R. (3d) 1; 79 N.R. 263; 9 Q.A.C. 293.
DETENTION REVIEW pursuant to Immigration and Refugee Protection Act, subsections 83(2) and (3). Detainee to be released upon undertaking to comply with certain conditions.
appearances:
J. Daniel Roussy and J. C. Luc Cadieux for Solicitor General of Canada.
Daniel Latulippe for Minister of Citizenship and Immigration.
Dominique Larochelle and Karine Giguère for Adil Charkaoui.
solicitors of record:
Deputy Attorney General of Canada for Solicitor General of Canada and Minister of Citizenship and Immigration.
Des Longchamps, Bourassa, Trudeau et Lafrance, Montréal, for Adil Charkaoui.
The following is the English version of the reasons for order and order rendered by
Noël J.:
INTRODUCTION
[1]This judgment has to do with the fourth review of the detention of Mr. Charkaoui as provided for in subsection 83(2) of the IRPA [Immigration and Refugee Protection Act, S.C. 2001, c. 27]. For the purposes of this judgment, the undersigned has discussed the three preceding reviews of detention in the following judgments:
| - Charkaoui (Re), [2004] 1 F.C.R. 528 (F.C.) (hereinafter Charkaoui I); |
| - Charkaoui (Re) (2004), 247 F.T.R. 276 (F.C.) (hereinafter Charkaoui II); |
| - ;Charkaoui (Re), 2004 FC 1031; [2004] A.C.F. No. 1236 (QL) (hereinafter Charkaoui III). |
For a clear understanding of the analysis of the concept of danger (which underlies the question of review of the detention), it is important to refer to these judgments.
Brief recapitulation of situation and updating of parties' evidence
[2]A certificate and a detention order were signed, issued and carried out in late May 2003 (see sections 76 [as am. by S.C. 2002, c. 8, s. 194] and 81 of the IRPA).
[3]Although according to paragraph 78(c) the IRPA requires that a proceeding involving a certificate be handled "expeditiously" and informally, the hearing on the reasonableness of the certificate (see subsection 80(1) of the IRPA) has still not taken place (it is scheduled for the last week of February 2005), the reason being that several constitutional and other motions were filed and certain agreements made between the parties (i.e., proceeding to deal with the constitutional aspect first and then the certificate itself, a stay of proceedings, a change of counsel and so on).
[4]In view of this situation, there have been to date four hearings to review the detention (the most recent being the subject of this judgment), in addition to other hearings convened to dispose of a group of motions resulting from implementation of the record.
[5]So long as the constitutional test of the fundamental aspects of Division 9 of the IRPA has not been considered by the country's highest court, there will be challenges leading to delays and consequently several detention reviews. It will therefore be difficult to achieve the legislative objective of proceeding "expeditiously" so long as the constitutional question has not been settled.
[6]For the purposes of this detention review, the parties referred to the evidence filed at the three prior reviews and to that presented at this hearing.
[7]It is important to mention that the Ministers submitted additional evidence at a hearing on January 5, 2005 which took place in the absence of Mr. Charkaoui and his counsel (counsel for Mr. Charkaoui objected to the holding of the hearing). This additional evidence resulted in a summary of supplementary information released to Mr. Charkaoui's counsel on January 6, 2005 pursuant to paragraphs 78(e) and (h) of the IRPA. In addition, a summary of interviews on January 31 and February 2, 2002 by Mr. Charkaoui with representatives of the Canadian Security Intelligence Service (CSIS), as well as a summary of another interview with representatives of the Federal Bureau of Investigation (the FBI) on January 30, 2001, were given to counsel for Mr. Charkaoui and formed part of the Ministers' evidence. Counsel for Mr. Charkaoui objected to this additional evidence in a motion heard on January 18, 2005, but I dismissed their application to exclude it (see Charkaoui (Re), 2005 FC 149).
[8]For information purposes, at the hearing of January 5, 2005 from which Mr. Charkaoui and his counsel were excluded, I questioned two witnesses for several hours in order to check the reliability of the facts related, taking into account the source (or sources) of such facts, the type of source(s) and analysis of the documentation. This exercise made it possible for me to identify what could be released to Mr. Charkaoui in order to enable him to have sufficient information on the facts and allegations, while ensuring confidentiality for what was covered by national security, including the safety of any person (see paragraphs 78(b) and (h) of the IRPA).
[9]In short, the new summary disclosed the following:
- the inquiry regarding Mr. Charkaoui is continuing;
- the Moroccan authorities have identified Mr. Charkaoui as a member of the Groupe Islamique Combattant Marocain (the GICM);
- the GICM is a group linked to Al-Qaida and was allegedly responsible for the attacks of May 16, 2003 in Casablanca and March 11, 2004 in Madrid;
- on a trip to Afghanistan in early 1998, Mr. Charkaoui allegedly took military training and theological education at the Sharia institute in Khalden;
- the emir of the GICM, Noureddine Nafia, in prison in Morocco, disclosed that Mr. Charkaoui had been indoctrinated by a Libyan imam in Montréal;
- funds were allegedly collected to set up cells in various countries, namely Canada, Pakistan, Germany, France and the United Kingdom;
- Mr. Charkaoui maintained contact and sent the sum of $2,000 (CAN) to the GICM, and allegedly gave a member of the GICM a laptop computer.
[10]At the public hearing, the Ministers did not call witnesses or enter any documentary evidence.
[11]Additionally, Mr. Charkaoui filed sworn statements which essentially expressed the desire of the signatories that Mr. Charkaoui be released and included the offer of a sum of money as a contribution to bail. Mr. Charkaoui's evidence included some 30 sworn statements, the content of which varied with the signatories. Examples of these are Mr. Charkaoui's family, his teachers, his classmates, his friends and persons supporting his cause. Some signatories offered to supervise him if the Court decided to release him on conditions. Additionally, he entered in evidence newspaper articles regarding the present proceedings. This brief summary does not indicate all of the evidence. To see all the evidence it is important to refer to the judgments in Charkaoui I, Charkaoui II and Charkaoui III.
[12]Additionally, and for the first time, Mr. Charkaoui testified briefly through questions from his counsel and in response to questions in cross-examination by counsel for the Ministers. Mr. Charkaoui's testimony resulted largely from answers to questions put by the Court.
[13]Mr. Charkaoui told the Court that the various lawyers he had consulted had recommended that he not testify where the situation involved a tribunal proceeding in secret, as his testimony would allow the opposing party to claim he was lacking in credibility or lying. This is the reason he decided not to testify at the first three preceding detention reviews, and instead asked other individuals (his teachers, his friends, his family and so on) to do so for him. Recently, after the Federal Court of Appeal's judgment on the constitutionality of the security certificates--see Charkaoui (Re), [2005] 2 F.C.R. 299 (hereinafter Charkaoui IV)--he decided to testify to show his good faith.
[14]For the purposes of this detention review (see subsections 83(2) and (3) of the IRPA), Mr. Charkaoui's testimony can be summarized as follows:
[15]His travels:
- In 1996 he went to a suburb of New York for a martial arts competition with his Montréal-North karate team;
- In 1996 he went to Morocco to visit his fiancée, whom he had known since 1989, as well as childhood friends, friends in his neighbourhood and relatives;
- In 1997 he did not travel since he was taking additional courses to finish his bachelor's degree at the University of Montréal;
- From February to July 1998 he went to Pakistan, where among other things he attended an annual meeting of a Muslim group, "Adawaa Wa Tabligh", which often preached in the Montréal area. He travelled with someone from Alberta, whose name he does not remember and whom he has never seen again since his return to Canada;
- A few weeks after his return from Pakistan, Mr. Charkaoui went to Morocco to get married (in August and September, for about a month);
- In the spring of 1999, he went to Turkey for a martial arts competition and to visit the region;
- Later that year, he went to the U.S. for two or three days. He stayed with his aunt's husband, who was living in Astoria, near New York;
- In 1999 he went back to Morocco. His wife was still there since she was waiting to receive her Canadian permanent resident status. He stayed in Morocco for a few months, and then left for Europe in order to buy fabrics and clothing for resale in Morocco to finance his return trip to Canada. He first went to Turkey, and then to Germany by plane. He then toured France and Spain by bus and train, before returning to Morocco in early January 2000. He returned to Canada with his wife in late February 2000;
- His last trip was in 2000-2001: in December 2000 he went back to Morocco with his wife, who was pregnant at the time (she subsequently had a miscarriage), for a few months to visit her family. It was at this time that Mr. Charkaoui began having problems with airport security services. Before leaving Canada, he was stopped by a corporal of the Royal Canadian Mounted Police (the RCMP), who told him that his name appeared on a list of alleged terrorists. When he arrived in Morocco, he had other problems. He also said that a car of the DST (the Moroccan security service) was always parked in front of the house of his parents-in-law while he was there. On his return trip, he was detained by the FBI for a night in New York (where his plane had made a one-hour layover) and he was asked the names of all the persons he knew in the Montréal mosques and cafés (Mr. Charkaoui refused to accede to their request). The FBI agents also told him that "Ottawa" wanted to get in touch with him;
- Finally, Mr. Charkaoui said he had never been to Afghanistan.
[16]His contacts:
- Mr. Charkaoui knows no one by the name [translation] "Abdeslam the Canadian";
- He knows Samir Ezzine (hereinafter Mr. Ezzine); he often saw him in the Montréal Muslim community and at the mosques, but did not know him very well before he financed the purchase of Mr. Charkaoui's pizzeria in 2001 (Mr. Ezzine gave him about $9,000 equipment on credit and later worked with him for about a month and a half, until just after September 11, 2001). Mr. Charkaoui knows that Mr. Ezzine had been to Bosnia some years earlier with a humanitarian group (with Karim Saïd Atmani (hereinafter Mr. Atmani), and Mr. Abdallah Ouzghar (hereinafter Mr. Ouzghar), amongst others), but did not know any more about this trip;
- Mr. Charkaoui knows Moroccans and Algerians who are information technology consultants in Ottawa. He has been to Ottawa once or twice, in 2001 and 2002, and stayed with them when he was having interviews in the area;
- Mr. Charkaoui knows Raouf Hannachi (hereinafter Mr. Hannachi) since he did the call to prayers at the Assuna mosque in Montréal; however, he said he only knows him slightly. He knows Mr. Hannachi had been tortured in Tunisia, his country of origin, and he knew Mr. Hannachi was currently imprisoned by the Tunisian authorities, but he did not know whether Mr. Hannachi had been convicted of terrorist activity;
- Mr. Charkaoui had heard mention of an Arab man in Montréal who went to Bosnia with a humanitarian group (with Mr. Ezzine and Mr. Ouzghar), but had never met him. This man took Bosnian citizenship and stayed there to fight. He knows that after September 11, 2001, the man was deported from Bosnia to France, where he is currently being held as a terrorist. He believes this man was called "Karim" and agreed that it could be Karim Saïd Atmani, the name recognized by CSIS;
- All Mr. Charkaoui said about Samir Ait Mohammed was that he did not attend Montréal mosques;
- Mr. Charkaoui does not know Noureddine Nafia (hereinafter Mr. Nafia) and says he first saw this name when consulting documentary evidence CSIS had against him;
- Mr. Charkaoui knows Mr. Ouzghar and knows that he went to Bosnia with Mr. Atmani and Mr. Ezzine. He also read in the newspapers that France was requesting his extradition from Canada because he was being charged with trafficking in forged papers, but this application had been dismissed by an Ontario Superior Court judge;
- Abousfiane Abdelrazik (hereinafter Mr. Abdelrazik) is an acquaintance of Mr. Charkaoui. He saw him everywhere in Montréal, since he was a man connected to the Montréal mosques, but did not know him very well before 2001. Mr. Charkaoui knows Mr. Abdelrazik was acquainted with Ahmed Ressam (hereinafter Mr. Ressam), and they in fact discussed the Ressam case together;
- Mr. Charkaoui does not know Mr. Ressam personally; however, he knows people who know him, and admits it was possible Mr. Ressam had seen him in Montréal without their meeting (for example, in a café). Mr. Ressam did not attend the Montréal mosques. In the Montréal Muslim community, many people think Mr. Ressam was recruited by the secret services to embarrass Canada and that Mr. Ressam was never part of the Al-Qaida network;
- Hicham Tahir (hereinafter Mr. Tahir) worked at Mr. Charkaoui's pizzeria. They met in 1995 or 1996 when Mr. Charkaoui first arrived in Montréal, since they often went to the same mosque and played soccer together;
- Mr. Charkaoui never met Abu Zubaida (hereinafter Mr. Zubaida), never used his services, money, clothing or anything else. He knows no one who knows him personally. He did not hear of Mr. Zubaida until after the September 11, 2001 attacks, and that was in the newspapers. He believes Mr. Zubaida had in fact died without ever being captured by the Americans, but that the American authorities use him to make accusations against other people;
- Mr. Charkaoui insists there is no Libyan imam in Montréal, something alleged by Mr. Nafia.
[17]His personal life:
- Mr. Charkaoui completed his baccalaureate studies at the University of Montréal in the spring of 1997. In September 1997, he began his Master's degree at the same faculty. During the first semester of his Master's degree (before he left for Pakistan), he held two jobs, trained in the martial arts and gave karate courses;
- In 2001, since he had found no employment in his field (teaching), he bought a pizzeria with his father's help. He sold it in March 2003 since he was in debt and found someone who was ready to buy it, and take over the debts which he owed. He found it too difficult to work at the pizzeria and do his Master's degree at the same time. His professor had also offered him part-time work as a researcher;
- Mr. Charkaoui prayed at several Montréal mosques, not one only;
- Mr. Charkaoui said he had never committed a crime. However, in March 1999, he pleaded guilty to attempted theft, for which he received an unconditional discharge. He says he was innocent, he had never tried to steal anything and could not defend himself since it cost too much;
- In 1999, on his trip to Morocco, he sold a laptop computer, which he had taken with him from Canada, to a neighbour who was an information technology consultant, since it was cheap for the neighbour. He did not take it with him on his travels to Europe.
[18]In addition, Mr. Charkaoui told the Court about his meeting with CSIS officers in the spring of 2001, at which time the officers told him they were conducting a security investigation concerning him in connection with his citizenship application. After that meeting he decided, out of [translation] "pure curiosity", to find out more about the people whose names had been mentioned by CSIS as well as by the FBI (at the meeting earlier that year).
[19]Finally, Mr. Charkaoui opined at length about terrorism. He found it deplorable that a [translation] "terrorist" prototype had developed over the years, that of a young Arab Muslim male who travelled a lot, and studied languages and the martial arts. He said he knew many innocent people who had been suspected of being terrorists, often on account of this prototype. He also told the Court that he found it difficult to understand how anyone [translation] "who was in a medieval country in a cave" (namely, Usama bin Laden in Afghanistan) could have perpetrated an attack on the scale of September 11, 2001 in the U.S. Mr. Charkaoui noted that in December 2000 he was searched by the FBI at JFK airport when he was accompanied by his pregnant wife, but 19 young Arab men were able to board aircraft on September 11, 2001 without difficulty. He found it strange that the 19 passports of these men had been found but the black boxes of the four aircraft were still missing. From his reading, his study on the Internet and the newspapers, Mr. Charkaoui is not convinced that the attacks were committed by Muslims; he says it is equally likely they were carried out by neo-conservatives and religious authorities in the U.S.
[20]Mr. Charkaoui called a polygraphist, John Galianos (hereinafter Mr. Galianos). However, Mr. Galianos was never recognized as an expert witness for the purposes of his testimony. Briefly, Mr. Galianos prepared five questions with Mr. Charkaoui's counsel which they felt identified the principal concerns in the case. Mr. Charkaoui subsequently took the polygraph test. The questions and answers were as follows:
[translation]
(a) On the allegations in the security certificate filed against you, do you intend to speak the truth in answering each question in this test?
Answer: "YES".
(b) Have you ever participated in a terrorist training camp?
Answer: "NO".
(c) Have you ever been a member of a terrorist network?
Answer: "NO".
(d) Are you a member of a terrorist network?
Answer: "NO".
(e) Have you ever planned to commit a crime with one or more members of Al-Qaeda?
Answer: "NO".
Two polygraphists (Donald Bourque and Jacques Gagné) reviewed and analysed the procedure, the technique used and the computerized polygraph tracing. They concluded Mr. Charkaoui was telling the truth. They were not present at the polygraph test and did not testify.
[21]Briefly, and for information purposes, Mr. Galianos testified as follows: He became a member of the Sûreté du Québec in 1968. In 1976, he was chosen to take a course to become a polygraphist (previously, there was no polygraphist in the Sûreté du Québec), a position which he held until his retirement in 1993. He subsequently formed his own company, Galianos Polygraphe Expert Inc., which conducts polygraph tests in the private sector. In the 1980s, he helped form the first polygraph school in Ottawa and on several occasions helped with the training of officers of the RCMP, the Sûreté du Québec and various police colleges in Canada, among others.
[22]According to Mr. Galianos, the polygraph gives a more exact idea of whether someone is lying, since when a person lies there are psycho-physiological reactions which the polygraph can record. Mr. Galianos said the margin of error was between 5 and 10 percent.
[23]Mr. Galianos was approached by Mr. Charkaoui's counsel, who gave him a one-page document regarding the security certificate and told him a little about the background to the matter. He also did a little research on the Internet. As is customary, he prepared the five questions for the test with Mr. Charkaoui's counsel.
[24]Subsequently, on November 17, 2003, he went to Rivière-des-Prairies to meet Mr. Charkaoui and administer the polygraph test. He asked for Mr. Charkaoui's version of the facts and put several questions to him regarding terrorism and the allegations against him. He showed him the five questions so he could be prepared. In all, Mr. Galianos said he spent three hours with Mr. Charkaoui, most of the time being used for the informal discussion before the test, or the "pre-test", an important stage to ensure that the polygraph test produces the best possible result.
[25]That is a summary of the parties' evidence as submitted, and it was assessed in light of the obligations imposed by subsection 83(3) of the IRPA
Parties' arguments
[26]The Ministers argued that the standard applicable to determining ongoing danger involves applying that of "reasonable grounds" (see Charkaoui IV, paragraph 103, and Charkaoui I, paragraph 39). In their submission, the ongoing danger found to exist three times (see Charkaoui I, Charkaoui II and Charkaoui III) is still present, even in view of the new evidence submitted by Mr. Charkaoui.
[27]Counsel for the Ministers maintained that, in view of the evidence heard at the hearings when he and his counsel were not present, Mr. Charkaoui perjured himself in his testimony. At the public hearings, counsel could not be more specific for reasons of national security. Also, the testimony of the polygraphist Galianos could not be accepted for several reasons: the questions chosen did not reflect the Court's concerns, they were not appropriate for a polygraph test, they contained duplications and the control question was not relevant. Additionally, Mr. Galianos did not have the necessary knowledge to understand the content of such a test (he could not explain why the changes in the sweat glands were recorded in ohms, not in pH, or why it was important to record them; he did not know when he measured breathing whether it was the rhythm or volume of air that was important; he did not know the blood pressure of a normal person or whether pressure was measured in millimeters or some other measure, and did not check Mr. Charkaoui's blood pressure before administering the test). Finally, counsel for the Ministers filed precedents (Gauthier c. Assurances générales Desjardins inc., [2004] R.R.A. 517 (Que. Sup. Ct.) and Services financiers DaimlerChrysler c. Hébert, [2003] R.R.A. 1482 (C.Q. (Cir. Div.))), in which Mr. Galianos' credibility was questioned. Consequently, the Ministers submitted that no credibility should be accorded to Mr. Galianos. Further, the Ministers submitted that the concerns identified in Charkaoui I and restated in Charkaoui II and Charkaoui III continue to exist, and the new evidence does not diminish them. Lastly, the Ministers added that conditional release was not an option in view of the danger associated with Mr. Charkaoui and that no supervision plan or conditions had been submitted on the basis of which the Court could decide whether to release him.
[28]Mr. Charkaoui's counsel asked the Court to analyse the evidence as a whole in the four detention reviews, and added that with the testimony of Mr. Charkaoui and the polygraphist Mr. Galianos the evidence was conclusive that their client presented no danger. Further, the financial commitments (for contribution toward bail) and supervision by the signatories should be taken into account to determine satisfactory conditions of release. They added that the detention prevented Mr. Charkaoui from looking after his two young children and he was unable to earn any income to discharge his responsibilities as the father of a family. They mentioned that he had undertaken under oath to comply with [translation] "any conditions of release it shall please the Court to order". Finally, he argued that continuing the detention without release on bail contravened sections 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (hereinafter the Charter).
Points at issue
[29]There are two questions to be answered:
(1) In light of the evidence submitted by the Ministers in the hearings held at the four detention reviews, the finding by the Court on three occasions that Mr. Charkaoui was still a danger to national security or the safety of any person or was unlikely to appear at a proceeding or for removal, and the evidence submitted by the latter since the first review, including the recent evidence, is Mr. Charkaoui still a danger to national security or the safety of any person, or is he unlikely to appear at a proceeding or for removal?
(2) Assuming that the danger has been neutralized and that, based on the most recent evidence, Mr. Charkaoui is not unlikely to appear at a proceeding or for removal, should conditional release as provided for in section 85 and Division 6 [ss. 54-61] of the IRPA be considered?
APPLICABLE LAW
Standard of review
[30]In a detention review, the Court assesses the evidence on the basis of the reasonable grounds standard. At the time of the decision by the Ministers to issue a warrant for the arrest and detention of the person mentioned in the certificate, the said decision by the Ministers must be taken provided the latter have reasonable grounds to believe that the person in question is a danger to national security or the safety of any person, or is unlikely to appear at a proceeding or for removal (see subsection 82(1) of the IRPA). It is logical to assume that in subsequent reviews by a designated judge, the same standard will be used. This is what was found in Charkaoui I, at paragraph 39, and what the Court of Appeal confirmed in Charkaoui IV, at paragraph 103, per Létourneau J.A.:
The "reasonable grounds" standard requires more than suspicions. It also requires more than a mere subjective belief on the part of the person relying on them. The existence of reasonable grounds must be established objectively, that is, that a reasonable person placed in similar circumstances would have believed that reasonable grounds existed, in the case of an arrest, to make the arrest: R. v. Storrey, [1990] 1 S.C.R. 241, at page 250.
The reasonable grounds standard is the one applicable to reviewing the decision by the Ministers to issue an arrest warrant and to proceed to arrest the person concerned.
[31]However, at detention reviews every six months after the first review (provided for in subsection 83(2) of the IRPA), the designated judge must analyse the old and new evidence as he is in a better position to do so than the Ministers, since he has received new evidence from the parties. He does so by applying the same "reasonable grounds" standard, but this is similar to the balance of probabilities. In Charkaoui (Re), [2004] 3 F.C.R. 32 (F.C.) (hereinafter Charkaoui V), this point was dealt with exhaustively in paragraphs 125, 126 and 128:
With respect, I believe that a designated judge assessing the reasonableness of a certificate or the necessity of continued detention could well be in a more advantageous position than the Ministers are in when they make the initial decisions. In addition to examining the information that the Ministers had when they made their decisions, the designated judge has access to any other evidence (paragraphs 78(d) and 78(e) of the IRPA), can hear and see witnesses called by the Ministers and the person concerned, can examine additional documentation that might even be unfavourable to the Ministers' case (Ruby , supra) and can hear each party's arguments at the hearing. At the request of a party, the designated judge can even recei ve into evidence anything he believes is appropriate, even if normally inadmissible, and may base the decision on that evidence (paragraph 78(j) of the IRPA). In short, depending on the evidence tendered, a designated judge may be in a better position than the Ministers were in when they made their decisions.
Parliament has chosen standards other than the preponderance of evidence standard because this is what national security demands. Cases involving national security must be approached differently from others. In this case, the security of Canada, the safety of its citizens and the protection of its democratic system are at stake. The state must therefore use extraordinary methods of protection and inquiry, as illustrated by the schemes established by the Canadian Security Intelligence Service Act and other statutes. Situations and entities that pose a threat to national security are often difficult to detect and are designed to strike where society is most vulnerable. Attacks against national security can have tragic consequences. People who pose a danger to national security are often on a "mission" for which they are prepared to die. They are difficult to identify and their borderless networks are often difficult to infiltrate. They strike when least expected. Where national security is involved, we must do everything possible to avert cata strophe. The emphasis must be on prevention. After all, the security of the state and the public are at stake. Once certain acts are perpetrated, it could be too late. In my opinion, national security is such an important interest that its protection warrants the use of standards other than the preponderance of evidence standard. Having said this, we will see that the "reasonableness" and "reasonable grounds to believe" standards comport [sic ] requirements that come close to the preponderance of evidence standard.
. . .
These standards do not require that the designated judge seek proof of the existence of the facts. Rather, they require that the judge analyse the evidence as a whole and determine whether it provides reasonable grounds to believe there are reasons justifying the inadmissibility, arrest warrant and continued detention. While the preponderance of the evidence is not the standard, there must nevertheless be a serious possibility that the facts exist based on reliable, credible evidence. In Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), at paragraph 60, the standards contemplated in the IRPA are compared to the preponderance of evidence standard:
| As for whether there were "reasonable grounds" for the officer's belief, I agree with the Trial Judge's definition of "reasonable grounds" (supra , at paragraph 27, page 658) as a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes "a bona fide belief in a serious possibility based on credible evidence." See Attorney General of Canada v. Jolly , [1975] F.C. 216 (F.C.A.). |
[32]As mentioned above, the logic followed in that judgment was affirmed by the Court of Appeal (see the quotation contained in paragraph 30 hereof).
[33]Accordingly, from the outset of the detention review and thereafter, the standard of review has been that of reasonable grounds to believe. It is on the basis of that standard that I will analyse the evidence to make the appropriate findings.
Legal duties arising from detention review (subsection 83(3) of the IRPA)
[34]The first detention review is subject to subsection 83(1) of the IRPA. Subsections 83(2) and (3) of the IRPA set out the basic duties applicable to subsequent appearances by the detainee. For the purposes of analysis, they are set out here:
83. . . .
(2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.
(3) A judge shall order the detention to be continued if satisfied that the permanent resident 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.
For the sake of completeness, I add the following subsection, 84(1): "The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada".
[35]The key function of the designated judge under subsection 83(3) is to analyse the evidence and decide whether the person concerned is still a danger to national security or the safety of any person or whether he or she is unlikely to appear at a proceeding or for removal. This requires evidence based on reasonable grounds. (For argument's sake, it might be that the form of detention could change despite the existence of danger, but the point does not have to be dealt with in this proceeding. It will probably be the subject of another judgment.)
[36]The courts have previously had to discuss and interpret the phrase "danger to the security of Canada" in connection with the deportation provisions of the Immigration Act, R.S.C., 1985, c. I-2 (the old Act) and the application of section 53 [as am. by S.C. 1992, c. 49, s. 43]. In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 90, the Supreme Court concluded:
. . . that a person constitutes a "danger to the security of Canada" if he or she poses a seriou s threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be "serious", in the sense that it must be grounded on object ively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.
There does not seem to be any reason whatever why this definition would not apply to subsection 83(3) of the IRPA, which uses similar wording, namely "danger to national security".
[37]The other phrase in subsection 83(3), "danger . . . to the safety of any person", does not appear to have been dealt with specifically. Suresh, makes a distinction at paragraph 84 between "danger to the security of Canada" and "danger to the public", found in section 53 of the old Act. The latter concept is similar to the phrase "danger . . . to the safety of any person" contained in subsection 83(3) of the IRPA. In Suresh, the Supreme Court limited the phrase "danger to the public" to persons who had been convicted of a serious offence.
[38]Having noted that, it appears that the concept "danger to any person", for the purposes of a detention review, applies when the evidence discloses facts to support a serious likelihood of direct or indirect participation in the design and/or planning of terrorist activities. One of the purposes of Division 9 and paragraph 3(h) of the IRPA is "to protect the health . . . of Canadians and to maintain the security of Canadian society". In order to carry out these obligations, it is important to be forewarned of situations which have a serious likelihood of occurrence, rather than to suffer the painful consequences of an actual occurrence. Danger to the safety of any person includes awareness before the act occurs, which in itself broadens the concept of "danger to the public" to more than persons who have been convicted of a serious offence. This seems to me to be the meaning that should be given to the phrase "danger . . . to the safety of any person" included in subsection 83(3) of the IRPA.
[39]The point which these two phrases have in common is determining whether the danger to national security or the safety of any person still exists. Parliament has asked the designated judge to analyse the evidence by considering whether the danger still exists. Accordingly, this means that it may exist at one moment and not at another. The designated judge must therefore weigh the evidence with this concern in mind. There is thus a possibility that danger may be imminent but subsequently be neutralized. It seems to the Court that this is what Parliament intended to be the role of the designated judge.
[40]The other phrase in subsection 83(3) of the IRPA that should be taken into account in analysing the evidence is whether the person in question "is unlikely to appear at a proceeding or for removal". Use of the wording "vraisemblablement" in the French version and "is unlikely to appear" in the English indicates that Parliament intended a certain degree of probability, or improbability, to be taken into account in weighing the evidence.
The possibility of imposing conditions for preventive purposes
[41]Section 85 of the IRPA reads as follows:
85. In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency.
[42]Division 6 of the IRPA, under the heading "Detention and Release", provides in subsection 58(3) for the possibility of release on conditions thought necessary, including a guarantee of compliance. The same point was discussed in Charkaoui I, at paragraph 66:
There is provision in subsection 58(3) of Division 6 of the Act (Detention and Release) for release with the posting of a guarantee for compliance. This division applies through section 85 of the Act, which states that in the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency. Thus, since sections 82 to 84 do not cover any terms that may be linked to a release prior to the hearing on the certificate, a contrario, that are not inconsistent on this specific point, subsection 58(3) may serve as a base reference on release and the conditions therefor.
The legislative situation has not altered since this provision was drafted, and no other argument was submitted to support reconsideration of the proposed approach.
[43]In considering a conditional release, the designated judge must be satisfied, on reasonable grounds, that the person concerned is not a danger to national security or the safety of any person. If there is a danger, he cannot consider release, even with exceptional conditions. He does not have that discretion. In Charkaoui IV, Létourneau J.A., concluding that the detention referred to in sections 82-84 of the IRPA was justified, noted at paragraphs 120 and 121:
Finally, the lack of discretion of the designated judge when there is a danger to national security or the safety of any person may be justified by the nature of the activities contemplated in section 34 of the IRPA, including terrorist activities.
Whatever the case, the detention of a permanent resident awaiting the determination of the reasonableness of the security certificate issued against him is not an unjustified measure where there is proof of a danger to national security or that he might not appear at the proceedings taken against him.
[44]It is within this legal framework that I intend to analyse and make the appropriate findings.
Analysis
[45]In order to fully cover the issues arising from this detention review, I intend to answer the following questions:
- From the start of the proceedings to the finding on the third detention review, was there a danger to national security or the safety of any person, or was Mr. Charkaoui unlikely to appear at a proceeding or for removal, if applicable?
- In connection with the fourth detention review, is there still a danger to national security or the safety of any person, or is Mr. Charkaoui unlikely to appear at a proceeding or for removal, if applicable?
- If the danger has been neutralized, should preventive conditions be considered? If so, what are they?
Caution
[46]This analysis and the consequent findings are undertaken in light of the evidence submitted to date. I do not intend to decide on Mr. Charkaoui's credibility, which I will do when the hearing on the reasonableness of the certificate takes place and all the evidence has been presented. In order to answer the questions mentioned in paragraph 45, I intend to devote my analysis to the concept of "danger to national security" or "danger to the safety of any person" and whether it is likely that Mr. Charkaoui will appear at a proceeding or for removal, if necessary. A ruling on the reasonableness of the certificate will be made subsequently.
From the start of the proceedings to the finding on the third detention review, was there a danger to national security or the safety of any person, or was Mr. Charkaoui unlikely to appear at a proceeding or for removal, if applicable?
[47]When the Ministers signed the warrant for the arrest and detention of Mr. Charkaoui, they did so not in order to lay charges or eventually secure a conviction, but to make an arrest and detention that would prevent events that might occur. This tool, given to the Ministers by Parliament pursuant to subsection 82(1) of the IRPA, is intended, inter alia, to "maintain the security of Canadian society" (see paragraph 3(1)(h), "Objectives--immigration", of the IRPA), as well as national security. As we saw earlier, this decision is based on "reasonable grounds to believe". In Charkaoui v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 451 (F.C.A.), at paragraph 21, Létourneau J.A. himself characterized the detention as preventive:
Determining the dangerousness of a detained person generally involves a question of fact. The question of whether this dangerousness is sufficient to warrant preventive detention, that is, detention while awaiting a decision on the main issue . . . .
[48]Once this decision has been made, Parliament has provided for quick action by the courts through the Chief Justice of the Federal Court or a judge designated by him. The action must be taken within 48 hours of the start of the preventive detention, when the designated judge undertakes review of the reasons in support of continued detention (see subsection 83(1) of the IRPA). As indicated earlier, he makes his analysis and determination using the "reasonable grounds" standard (see paragraphs 29-32 hereof).
[49]Once this first determination upholds the detention, the designated judge must re-evaluate the preventive detention once every six months or by authorization, so long as he has not ruled on the certificate. He does this using the "reasonable grounds" standard and considering whether the danger to national security or the safety of any person still exists, or whether the person concerned is unlikely to appear at a proceeding or for removal, if applicable.
[50]This is what has been done on three occasions since the preventive detention began. Each time, it has been determined that there were reasonable grounds to believe Mr. Charkaoui was still a danger to national security or the safety of any person or would try to avoid appearing at the proceeding and/or for removal (see Charkaoui I, paragraph 65; Charkaoui II, paragraphs 16, 17 and 18; Charkaoui III, paragraph 38).
[51]In Charkaoui I, I identified three concerns for Mr. Charkaoui that arose from the record and required explanations. Those concerns are:
- the respondent's life from 1992 to 1995 (in Morocco) and from 1995 to 2000 (in Canada), including his travels;
- the respondent's trip to Pakistan from February to July 1998;
- Mr. Charkaoui's contact with, inter alia, Mr. Abdelrazik, Mr. Mohammed, Mr. Atmani, Mr. Hannachi and Mr. Ouzghar.
I associated these concerns with the concept of danger to national security or the safety of any person or with the likelihood that Mr. Charkaoui would try to avoid appearing at a proceeding and/or for removal, if applicable.
[52]These concerns were not specifically addressed by Mr. Charkaoui at the first three detention reviews. He chiefly limited himself to submitting evidence requesting his release on conditions, including an amount as bail. Certain witnesses (Abdurahman Khadr (hereinafter Mr. Khadr), Mr. Ezzine, and so on) testified, but this testimony did not address all the concerns identified. Although asked to testify several times, Mr. Charkaoui refused to do so. The Court indicated that danger could not be assessed in a "vacuum" and urged the parties to participate fully (see Charkaoui III, paragraph 41). In Charkaoui IV, Létourneau J.A. took occasion to make the following comment on Mr. Charkaoui's testimony, at paragraph 16: "To date, the appellant has not deigned to do so", that is, has not deigned to testify.
[53]Moreover, how can a designated judge assess the existence of danger and the possibility of a conditional release if the person concerned does not tell him, inter alia, that he intends to comply with the conditions? How can a designated judge assess the trust which he must have in the person concerned in order to consider the possibility of a conditional release? In national security, the mere suggestion of conditions for release (including a colossal sum for bail) will not suffice. The designated judge must have all the information necessary at his disposal for him to be able to fully perform his function, taking into account the exceptional responsibility entrusted to him by Parliament.
[54]Taking into account the evidence at the disposal of the Court when the first three decisions were made, the question in issue (evaluation of the danger and so on), the burden duly discharged by the Ministers, and the limited relevant evidence submitted by Mr. Charkaoui for the purposes of a detention review, it could only be concluded that Mr. Charkaoui was still a danger to national security or the safety of any person or was unlikely to appear at a proceeding or for removal.
In connection with the fourth detention review, is there still a danger to national security or the safety of any person, or is Mr. Charkaoui unlikely to appear at a proceeding or for removal, if applicable?
[55]As was done in the past (see the Charkaoui I, Charkaoui II and Charkaoui III judgments), the Court has reviewed the documentary evidence submitted, including the sworn statements. The latter were largely limited to giving support to Mr. Charkaoui's cause and contributing a sum of money for bail. The signatories of these statements did not come only from the Muslim community in Montréal but also from the province of Quebec and elsewhere. This type of support came from several walks of life, including the university, political, religious and trade union spheres. It came from all kinds of people. In short, part of the community indicated a measure of support for Mr. Charkaoui.
[56]The statements made by the Charkaoui family in general and the testimony of the father informed the Court of their full human and financial support and proposed a plan of supervision if conditional release was considered. Although it might be expected that the members of Mr. Charkaoui's family would rally around him in such circumstances, the fact remains that their persistence and devotion to the effort were edifying and entirely to the family's credit. There is potentially a peaceful, and possibly safe, sanctuary.
[57]The statement and testimony by Larbi Ouazzani demonstrated credibility and seriousness regarding the conditional release option. His answers reflected a trustworthiness and confidence which the Court must take into account. He is the largest financial contributor to the bail offered for Mr. Charkaoui.
[58]The presence in Court of Mr. Charkaoui's wife, whom he has known since 1989, and the fact that Mr. Charkaoui and his wife are the father and mother of two young children (aged 4 years, and 17 months) are facts which the Court cannot help but consider.
[59]For a better understanding of the sworn statements, the Court refers the reader to the analysis made in the Charkaoui I, Charkaoui II and Charkaoui III judgments.
[60]On the testimony by Mr. Ezzine, Mr. Khadr and other witnesses, I reserve comments, if necessary, for the determination of the reasonableness of the certificate.
[61]The testimony of Mr. Galianos, the polygraphist, is summarized in paragraphs 20-23 hereof.
[62]However, the Court does not accept Mr. Galianos' testimony for the following reasons:
- The questions chosen did not reflect the concerns arising from the evidence as a whole. To take a simple example, it was not thought necessary to consider whether Mr. Charkaoui had in fact gone to Afghanistan, a matter of importance;
- The control question, which is essential to ensure some accuracy in the test, appeared to be insignificant in the circumstances and could not serve as the standard for the following questions;
- The conduct of the test, including the preparation, which is an important part, appears questionable. The Court notes that for reference purposes the witness referred only to notes on a slip of paper to explain what took place;
- The assessment of the witness' credibility in Gauthier, and Services financiers DaimlerChrysler, adds nothing to the situation;
- The limited knowledge of the medical aspects of the test (blood pressure, sweat glands, the effect which drugs might have on the test) as well as some of the more technical aspects of the test (ohms versus pH, whether pressure was measured in millimetres, and so on) might raise questions.
[63]In any case, in proceedings such as the one at bar, seeking to give a certain weight to this kind of testimony and to conclude from it that it corroborates the credibility to be given to Mr. Charkaoui's position or to his testimony, is clearly an improper delegation of the judge's function of deciding himself on the credibility to be given to the position of a party and to testimony. (See for other reasons the Supreme Court's position in R. v. Béland, [1987] 2 S.C.R. 398, and in particular the comments by McIntyre J. for the majority.)
[64]At this point, Mr. Charkaoui's testimony (summarized in paragraphs 15-18 of this judgment) does not alter the decisions taken in the preceding three detention reviews. Having said that, and as mentioned above, I do not intend to decide here on the reasonableness of the certificate, only to determine whether Mr. Charkaoui is still a danger and is unlikely to appear at a proceeding or for removal.
[65]His testimony enabled me to have a somewhat better understanding of the concerns identified earlier (see paragraph 51 hereof) and Mr. Charkaoui's position in response to those concerns. The Court will only be in a position to take a full and final position following the hearing on the reasonableness of the certificate.
[66]To repeat, the detention is a preventive one to guard against events which could threaten national security or the safety of any person, or to ensure the presence of the person concerned at proceedings and/or for removal, if applicable.
[67]Detention reviews are questions of fact peculiar to each situation. In the case at bar, the imprisonment, the passage of time, the media attention to the proceedings, the presence of the family, the community support, and the testimony of the person concerned are examples of situations to be taken into account in assessing whether a danger still exists or whether it is likely the person will not appear at a proceeding and/or for removal, if applicable.
[68]Mr. Charkaoui has been in preventive detention since May 21, 2003. Twenty-one months have elapsed and the second anniversary of his arrest is not far off. During this period, his contacts with the outside world have been extremely limited and his comings and goings have been limited to the prison setting. If a danger was imminent, it goes without saying it has been neutralized as a result.
[69]Further, his contacts with certain individuals before his arrest, which could have been problematic at that time as such, should no longer be so. Certain contacts have been interrupted for about 21 months, which should neutralize what should be neutralized.
[70]Mr. Charkaoui's journeys have ceased since his last voyage to Morocco, ending in January 2001. If the journeys were a source of concern, they should no longer be so as he has not travelled for over four years.
[71]The presence of Mr. Charkaoui's father and mother and of his wife and two children on the same floor in an apartment building is a situation to be taken into account.
[72]The media attention given to the proceeding and to Mr. Charkaoui means that his conduct in public will have to be exemplary and above suspicion.
[73]The support given to him by part of the community requires Mr. Charkaoui to act so as not to disappoint them.
[74]If 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.
[75]That is my finding. The danger to national security and the safety of any person has decreased with the passage of time and the interaction of the group of circumstances mentioned above. I would even say that at the time of this assessment, the danger has been neutralized.
[76]As regards his attendance at proceedings and/or for removal (if necessary), I conclude that for the reasons mentioned above it is unlikely he would not appear at the proceeding and/or for removal. I would add that the family presence (father, mother, wife and two children) is, as we know from everyday life, an engaging and absorbing aspect of personal affairs. Mr. Charkaoui's testimony on this point was useful to me.
[77]In summary, considering the evidence as a whole, I conclude on the basis of "reasonable grounds to believe" that the danger associated with Mr. Charkaoui has been neutralized and it is not unlikely that he will not appear at a proceeding and/or for removal (if necessary). This is what subsection 83(3) requires of the designated judge in a detention review. In order to ensure that the danger continues to be neutralized, I invite the reader to read the following.
If the danger has been neutralized, should preventive conditions be considered? If so, what are they?
[78]The Court has already mentioned that it was reserving a ruling on the reasonableness of the certificate and this could not be done before the end of the scheduled hearings, once all the evidence has been submitted. At this point, the Court limits its conclusions to the questions of danger and of appearance when proceedings are held, as well as, if necessary, for removal. As it has not heard all the evidence, and to ensure continued neutralization of the danger, the Court intends to impose conditions most of which are accepted by Mr. Charkaoui. In the opinion of the Court, the conditions are preventive. This is not the first such occasion. In Suresh (Re), [1998] F.C.J. No. 385 (T.D.) (QL), my brother Teitelbaum J. released Mr. Suresh on conditions after validating the Ministers' certificate.
[79]At the hearing, indicating that I was putting forward a hypothesis, I asked counsel to agree on conditions to suggest to the Court if the latter concluded that release was appropriate.
[80]The parties did not agree and each submitted his conditions.
[81]After indicating that Mr. Charkaoui was still a danger, the Ministers told the Court that the conditions they were suggesting would not suffice to design an adequate supervision plan, that would make it possible to ensure there was no danger to national security. The conditions they were proposing accordingly vary between remaining in the apartment except for medical emergencies or attendance at court, and prohibiting Mr. Charkaoui and immediate members of his family from using means of communication.
[82]On the other hand, Mr. Charkaoui considered that certain conditions submitted by the Ministers amounted to house arrest, which infringed his personal dignity, unnecessarily threatened his private life, his liberty and the dignity of third parties against whom no allegation or charge had been made, and deprived his family of tools of communication necessary for life.
[83]By the combined effect of section 85 and subsection 58(3) of the IRPA and its regulations, the Court must make a decision and select the preventive conditions to attach to Mr. Charkaoui's release, taking into account the conclusion that the danger has been neutralized, but also with the purpose of ensuring that such neutrality should continue, subject to a final determination on the reasonableness of the certificate to be made later.
[84]In the event that a conditional release was the Court's conclusion, the Ministers asked for a hearing pursuant to paragraph 78(e) of the IRPA, and counsel for Mr. Charkaoui objected, arguing that paragraph 78(e) did not apply. In a teleconference call with counsel for the parties, the objection was dismissed on the basis that subsection 83(1) of the IRPA authorizes such a hearing, Parliament having provided that section 78 applied to control of the detention "with any modifications that the circumstances require". In arriving at a ruling on the conditions, I have taken into account the concerns relating to national security raised by the Ministers.
[85]Mr. Charkaoui may be released provided he accepts in writing each of the conditions set out below and acknowledges that the breach of any one of the conditions will result in his detention. The document to be signed by Mr. Charkaoui will be prepared by his counsel and submitted to the Ministers for their prior approval. If agreement is not reached, an application may be made to the Court for decision. The release shall not take place until the document has been signed and filed in court. If necessary, the Court will sign an order to that effect. The conditions may be revised on request, depending on the circumstances.
[86]The preventive conditions are as follows:
1. Bail in the amount of $50,000, $25,000 of which will be entered in the Registry of the Court before release and $25,000 will be deposited by March 31, 2005 at the latest, pursuant to rule 149 of the Federal Courts Rules, SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2). If this order is breached, the amount will become payable to the Attorney General of Canada following an order by the Court.
2. Residing at -- (the address is deleted to give the family as much privacy as possible) with his wife and children and being at that address between 8:30 p.m. and 8:00 a.m. each day of the week, except for a medical emergency in his family. If Mr. Charkaoui has to be away from the apartment during the hours permitted, he must be accompanied at all times by his father or mother or by Larbi Ouazzani. The latter and Mohammed Charkaoui (Mr. Charkaoui's father) will have the responsibility for and supervision of Mr. Charkaoui and will have to ensure that he complies fully with the preventive conditions of release. Before Mr. Charkaoui is released, they will each be required to sign a document in which they accept responsibility. This document will be drawn up by Mr. Charkaoui's counsel and must be approved by the Ministers, and the document will then be deposited with the Court Registry. If the parties do not agree, the Court will intervene on application. At the end of each month, they will be required to file a report in the Court Registry. They may be requested to report to the Court on their supervision. Counsel for Mr. Charkaoui may accompany him outside in order to prepare him for any hearings before the Court.
3. Mr. Charkaoui must not directly or indirectly use a cellular telephone or computer of any kind, including hand-held message terminals such as the Blackberry, fax machines, pagers and portable transceivers. However, he may use a conventional telephone, but only the one at his apartment.
4. At the Ministers' request, an electronic monitoring device bracelet (GPS) will be worn by Mr. Charkaoui.
5. Mr. Charkaoui will allow employees of the Canada Border Services Agency or any peace officer access to his residence at any time.
6. Mr. Charkaoui undertakes to be present at hearings of the Court and at any place determined for removal (if applicable).
7. Before release, Mr. Charkaoui will surrender his passport and any other travel document to an officer of the Canada Border Services Agency. The Ministers will inform him as to the name of such officer.
8. Mr. Charkaoui undertakes not to possess any weapon, imitation weapon or explosive and chemical substances.
9. When he goes out, Mr. Charkaoui undertakes not to leave the island of Montréal.
10. Mr. Charkaoui undertakes not to communicate directly or indirectly with the following persons:
- Abousofiane Abdelrazik;
- Raouf Hannachi;
- Samir Ait Mohammed;
- Abdellah Ouzghar;
- Karim Saïd Atmani;
- the Ottawa individual known as "Abdeslam the Canadian";
- any person with a criminal record.
This list may be amended by the parties on application to the Court. Further, Mr. Charkaoui shall not knowingly associate with any persons who represent a threat to national security. It goes without saying that Mr. Charkaoui's counsel may communicate with such persons in preparing the Court record, if necessary.
11. Mr. Charkaoui undertakes to keep the peace and to be of good conduct.
12. Mr. Charkaoui acknowledges that if he does not observe each of the preventive conditions, he will again be incarcerated following an order by the Court.
13. The preventive conditions may be amended, depending on the circumstances, at the parties' request. However, the Court reserves the right at any time to cancel the release and preventive conditions if circumstances warrant, and more particularly, if necessary, after the decision on the reasonableness of the certificate (if applicable) or that on the legality of the Minister's decision. Having said that, the Court will review the preventive conditions at a hearing every three months, and the period for review may change with time.
14. Mr. Charkaoui will be required to report at a specific place once a week (or more often) to an officer of the Border Services Agency to be identified.
15. Before taking a decision on a change of address, Mr. Charkaoui will discuss the matter with the Court. Leave may subsequently be considered.
16. A breach of this order will constitute an offence within the meaning of section 127 [as am. by R.S.C., 1985 (1st supp.), c. 27, s. 185] of the Criminal Code, R.S.C., 1985, c. C-46.
[87]The Court reserves jurisdiction following determination of the reasonableness of the certificate (if applicable) and the legality of the Minister's decision.
[88]The Ministers may request a hearing in the absence of Mr. Charkaoui and his counsel if review of information or evidence is necessary, and the disclosure of the latter might threaten national security or the safety of any person, pursuant to paragraph 78(d) of the IRPA.
FOR THESE REASONS, THE COURT MAKES THE FOLLOWING ORDER:
- Mr. Charkaoui is released provided he signs a document to be prepared by Mr. Charkaoui's counsel and approved by counsel for the Ministers, in which he undertakes to comply with each of the preventive conditions, and certain of them are met before release. The preventive conditions are the following:
| 1. Bail in the amount of $50,000, $25,000 of which will be entered in the Registry of the Court before release and $25,000 will be deposited by March 31, 2005 at the latest, pursuant to rule 149 of the Federal Courts Rules, SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2). If this order is breached, the amount will become payable to the Attorney General of Canada following an order by the Court. |
| 2. Residing at -- (the address is deleted to give the family as much privacy as possible) with his wife and children and being at that address between 8:30 p.m. and 8:00 a.m. each day of the week, except for a medical emergency in his family. If Mr. Charkaoui has to be away from the apartment during the hours permitted, he must be accompanied at all times by his father or mother or by Larbi Ouazzani. The latter and Mohammed Charkaoui (Mr. Charkaoui's father) will have the responsibility and supervision of Mr. Charkaoui and will have to ensure that he complies fully with the preventive conditions of release. Before Mr. Charkaoui is released, they will each be required to sign a document in which they accept responsibility. This document will be drawn up by Mr. Charkaoui's counsel and must be approved by the Ministers, and the document will then be deposited with the Court Registry. If the parties do not agree, the Court will intervene on application. At the end of each month, they will be required to file a report in the Court Registry. They may be requested to report to the Court on their supervision. Counsel for Mr. Charkaoui may accompany him outside in order to prepare him for any hearings before the Court. |
| 3. Mr. Charkaoui must not directly or indirectly use a cellular telephone or computer of any kind, including hand-held message terminals such as the Blackberry, fax machines, pagers and portable transceivers. However, he may use a conventional telephone, but only the one at his apartment. |
| 4. At the Ministers' request, an electronic monitoring device bracelet (GPS) will be worn by Mr. Charkaoui. |
| 5. Mr. Charkaoui will allow employees of the Canada Border Services Agency or any peace officer access to his residence at any time. |
| 6. Mr. Charkaoui undertakes to be present at hearings of the Court and at any place determined for removal (if applicable). |
| 7. Before release, Mr. Charkaoui will surrender his passport and any other travel document to an officer of the Canada Border Services Agency. The Ministers will inform him as to the name of such officer. |
| 8. Mr. Charkaoui undertakes not to possess any weapon, imitation weapon and explosive and chemical substances. |
| 9. When he goes out, Mr. Charkaoui undertakes not to leave the island of Montréal. |
| 10. Mr. Charkaoui undertakes not to communicate directly or indirectly with the following persons: |
| - Abousofiane Abdelrazik; |
| - Raouf Hannachi; |
| - Samir Ait Mohammed; |
| - Abdellah Ouzghar; |
| - Karim Saïd Atmani; |
| - the Ottawa individual known as "Abdeslam the Canadian"; |
| - any person with a criminal record. |
| This list may be amended by the parties on application to the Court. Further, Mr. Charkaoui shall not knowingly associate with any persons who represent a threat to national security. It goes without saying that Mr. Charkaoui's counsel may communicate with such persons in preparing the Court record, if necessary. |
| 11. Mr. Charkaoui undertakes to keep the peace and to be of good conduct. |
| 12. Mr. Charkaoui acknowledges that if he does not observe each of the preventive conditions, he will again be incarcerated following an order by the Court. |
| 13. The preventive conditions may be amended, depending on the circumstances, at the parties' request. However, the Court reserves the right at any time to cancel the release and preventive conditions if circumstances warrant, and more particularly, if necessary, after the decision on the reasonableness of the certificate (if applicable) or that on the legality of the Minister's decision. Having said that, the Court will review the preventive conditions at a hearing every three months, and the period for review may change with time. |
| 14. Mr. Charkaoui will be required to report at a specific place once a week (or more often) to an officer of the Border Services Agency to be identified. |
| 15. Before taking a decision on a change of address, Mr. Charkaoui will discuss the matter with the Court. Leave may subsequently be considered. |
| 16. A breach of this order will constitute an offence within the meaning of section 127 [as am. by R.S.C., 1985 (1st Supp.) c. 27, s. 185] of the Criminal Code, R.S.C., 1985, c. C-46. |