Federal Court


Terms and conditions disproportionate to assessment of danger

Application to vary terms and conditions of release, specifically that Global Positioning System (“GPS”) ankle bracelet be removed, that notice requirement to travel outside Ottawa be changed and that applicant be granted right to access mobile phone and laptop computer. Applicant was released from detention with conditions in 2006. Court’s objective in determining appropriate terms and conditions of release was to neutralize danger posed by applicant. As time passed and as result of threat assessments made by Canadian Security Intelligence Service (“CSIS”), terms and conditions of release were adapted to evolving circumstances surrounding applicant. Most recent threat assessment was done by CSIS in September 2009, and most recent public hearing dealing with terms and conditions of release resulted in October 7, 2009 decision. Court decided to maintain these terms and conditions as it found that they were essential to neutralize danger as it was then assessed. In decision on reasonableness of certificate dated December 9, 2010, this court found that compared to 1995 when he posed high risk, this risk was “much lower” as of December 9, 2010. For purposes of his motion seeking order reviewing terms and conditions of release pursuant to s. 82(4) of Immigration and Refugee Protection Act (Can.), applicant filed affidavits signed by him and others in support of motion. Applicant contended that he had complied scrupulously with terms and conditions, that they were invasive and seriously affected his health and that they impacted negatively on his quality of life and his family. Medical evidence indicated that applicant presented significant depressive, post-traumatic stress and anxiety symptoms. New terms and conditions established. Terms and conditions were disproportionate to assessment of danger to security of Canada which was now at lower end of spectrum. Court concluded that time for GPS had passed, and mobile phone, having only capacity of receiving and making calls and text messaging could be used by applicant as long as applicant agreed to Canada Border Services Agency (“CBSA”) supervision by having telephone number and access to information detained by service provider. Applicant may have access to desktop computer with internet capacity at home and every month, applicant to make computer available so that it can be accessed by CBSA for inspection. Applicant not to use his computer to access jihad sites or any other sites of this nature and not to communicate with anyone who may have direct or indirect connections with jihad or terrorism.

Harkat v. Canada (Minister of Citizenship and Immigration) (Jul. 17, 2013, F.C., Simon Noël J., File No. DES-5-08) 230 A.C.W.S. (3d) 516.

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