Wednesday, June 24, 2009

Justice, in dribs and drabs

A hat trick:
  • Shyldon Safruk, the Ottawa cop who was reported to have beaten up a taxi driver in Ottawa in front of a number of witnesses, shouted racist remarks, then flashed his badge around with a smirk on his face and finally drove off with a couple of colleagues, has been charged with assault after a provincial Special Investigations Unit looked into the matter. That's quite something, because the SIU has just come under fire from the provincial ombudsman, André Marin, for conducting investigations "with blue-coloured glasses."
  • Federal Justice Simon Noël has torn a strip off the Canadian Border Services Agency for its massive and lengthy raid on the residence of Mohamed Harkat on May 12. (I blogged about that at the time.)

    It seems that the CBSA had been granted broad powers to tumble Harkat's residence, but had not exercised them. Believing that it was a case of "use it or lose it," the raid was organized by CBSA supervisor Jasmine Richard, who apparently saw it as a bit of a lark ("We need all the info we can gather lol").

    In Justice Noël's words:

    The evidence reveals that the primary purpose of the search conducted on May 12, 2009 was twofold: to use the search power so as to demonstrate to the Court that it had not been abandoned by the CBSA; and, to gather intelligence and information to be used in the preparation of the risk assessment ordered by the Court on March 6, 2009. Neither of these purposes is found in paragraph 16 of the former order which is limited to entry to verify that the Harkats “are complying” with the terms and conditions of release.

    Consequently, I conclude that the actions of the CBSA on May 12, 2009, exceeded the authorization granted it by paragraph 16 of the former order. The evidence indicates that the seizure of information was conducted in accordance with the list of relevant items provided by the counterterrorism branch to Ms. Richard. Items which could have little if any use in verifying Mr. and Mrs. Harkat’s compliance with the terms and conditions of release were seized, for example CDs, diskettes, and aged agendas and the use of a currency dog where there was no prohibition relating to the possession of currency. All of this indicates a search that far exceeded a verification of the compliance with the terms of the order. I therefore conclude that the verification of the Harkats’ compliance with the former order was incidental to the primary purposes of the search.


    Evidence adduced concerning the manner in which the search was conducted leads inevitably to the conclusion that it was not done in a reasonable manner. The participation of 16 peace officers and three dogs was excessive. The close to six-hour duration of the search was excessive. The seizure of out of date agendas, video cassettes, CDs and any document with Arabic writing on it was excessive. The use of male officers to search through Mrs. Harkat’s private drawers was unreasonable and surely not minimally intrusive.


    Little consideration was given to the dignity of the Harkats who were required to witness this excessively intrusive search into the most intimate details of their private life.

    The judge was not happy with the broad discretion that had been granted to the CBSA:

    All future searches will be authorized, circumscribed, and supervised by a designated judge of the Federal Court after hearing the submissions of both the CBSA and any special advocates appointed to protect Mr. Harkat’s interests in closed hearings.

    He issued an order "requiring the return of all information, equipment and records seized from the Harkat residence as well as the destruction of any copies made thereof is the appropriate remedy for the infringement of Mr. Harkat’s right to be secure from unreasonable search and seizure." And he pointed out the obvious:

    The breach of Mr. Harkat’s Charter rights was significant. While the CBSA may not have acted in bad faith, they acted with disregard for the terms of the former order and the requirements of section 8 of the Charter. This Court cannot condone the type of intrusive search undertaken by the CBSA. Mr. Harkat may have a diminished expectation of privacy, but that does not give the state a “carte blanche” to unreasonably intrude on what privacy is left to him.

  • And in a couple of hours I shall be at the Ottawa Airport to see off Abousfian Abdelrazik's lawyer, the hard-working Yavar Hameed, as he departs for Khartoum to pick up his client.
As my kid said when he was much younger: "Today--is a happy day."

UPDATE: Our fellow-citizen, having been issued his travel document, will be arriving in Toronto on Saturday.

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