June 04, 2009. Tonda MacCharles. Toronto Star

OTTAWA–A federal judge has blasted a heavy-handed search by border agents of Mohamed Harkat’s home less than three weeks before the government’s case into deporting the alleged terror suspect was to be heard. “I just find the exercise went really far. Dogs? Explosives? Guns? … I just found the whole thing blew up. It appears out of proportion,” Justice Simon Noel told a federal lawyer yesterday.

Although Noel reserved decision on the legality of the May 12 search by the Canada Border Services Agency and what should happen with 12 boxes of seized documents and tapes, he vented his concerns in court.

“Weren’t you concerned about going in with 16 officers and three dogs that you were extremely intrusive and it wasn’t necessary to be as intrusive as this?” the judge asked the team’s supervisor, Jasmine Richard.

“It’s a small army coming in.”

Richard said she decided that for “efficiency” she needed such a big team.

Richard and another witness said the searchers intended to turn over any intelligence or information to analysts preparing a “risk assessment” on Harkat for the upcoming effort to deport him.

Security certificates – deportation orders issued under immigration law against persons deemed to be national security threats – are not criminal law matters, but Noel pointed out the Supreme Court of Canada ruled they’re close when it ordered greater legal protections for people such as Harkat.

The issues at stake, such as an individual’s right to liberty and security of the person, are similar under the law, Noel said.

The border agency – responsible for monitoring bail orders in security certificate cases – should have considered that “times have changed.”

“We’re talking about a search that’s the most intrusive and I don’t think anyone wants this in their life, but I hear you say on behalf of the ministers’ it’s justified?” the judge challenged the government’s lawyer.

He noted a similar house search in Toronto took one supervisor and three border agency officials, and no dogs.

“We’re dealing with human beings here … who required a minimum of dignity and fairness in treatment,” the judge said, noting the government is “calling the shots.”

“Fairness has to prevail, c’mon,” he said. He noted none of the top level CBSA officials testified in the agency’s defence.

Government lawyer David Tyndale promptly dropped his original argument that the search was merely to ensure Harkat was complying with bail conditions.

The court heard of a trail of emails and conversations that painted a picture of an agency taking a scatter-gun approach to the search, with no clear idea of what it was looking for nor any specific reason to believe a breach of Harkat’s bail conditions had occurred.

Tyndale argued the search was lawful under the terms of a strict 2006 bail order that said border services agency officials could enter the Harkat home at any time and seize any item.

He said the way the search was carried out was reasonable, and urged the court to allow the CBSA to keep or copy the materials seized.

Harkat’s lawyer, Matthew Weber, insisted the whole seizure was arbitrary, unconstitutional, and the judge should refuse the government access to any of the seized material.

The judge suggested to Weber the bail order did indeed grant sweeping search powers, and suggested perhaps some of the seized material could remain with CBSA.

The search team seized more than a dozen boxes of material, including more than 200 floppy discs, CDs, DVDs, videocassettes, his wife’s laptop computer and three of her calendar agendas, as well as documents that were communications with Harkat’s lawyer.

The court has already denied the legal communications to CBSA, citing solicitor-client privilege.