OTTAWA–A Federal Court judge has declared a sweeping search of Mohamed Harkat's home overly intrusive, even for a security certificate case.
Justice Simon Noel says the Canada Border Services Agency must return all information, equipment and records seized from the home of Harkat, and his wife Sophie, and destroy any copies of the data.
"The breach of Mr. Harkat's Charter rights was significant," the judge said. Although he did not find the agency acted "in bad faith," Noel wrote the 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," Noel wrote in a decision released early this afternoon.
Harkat is one of five men that Ottawa is seeking to deport on national security grounds, under extraordinary immigration warrants known as security certificates.
The case has plodded through the courts for years, and Harkat was released on strict conditions in 2006 while his challenge to the government's move to send him back to Algeria proceeds.
Today, the judge said the agency should have to seek a warrant if it has valid concerns the strict bail order isn't being followed by Harkat.
Noel mentioned evidence which suggested Mrs. Harkat failed to arm an alarm system to a computer room when she left her husband home alone (Harkat's lawyers had suggested CBSA left the family the wrong code for the alarm).
Yet Noel equally warned the Harkats of the importance of respecting his release conditions to the letter, and guarding "that inattention does not lead to a breach.
At a hearing earlier this month, Noel had voiced many of his concerns that the search was over the top. It involved 16 agents and police, including three canine teams, coming just before a full hearing on whether Harkat should be deported to his native Algeria.
Today, he said the CBSA must "carefully review the discretion granted to them by this Court with a view to ensuring that any interpretation they may be using is based in common sense and a respect for the privacy rights, diminished though they may be, of Mr. Harkat."
Harkat's Ottawa-based lawyer Matthew Webber said he is "gratified" the court accepted his argument that the search was unreasonable.
"(It was) outside the rights of law to do what they did," Webber said today.
Webber said that while Harkat had to give up some of his privacy in exchange for his release he did not give up his rights in their entirety.
"Those rights are sacrosanct in this country," Webber said.
Neither the CBSA nor government lawyer David Tyndale immediately responded to a request for comment.
A spokesperson for Public Safety Minister Peter Van Loan said the government is carefully reviewing the decision.
