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Date: 20060504

Docket: DES-3-03

Citation: 2006 FC 555

Ottawa, Ontario, the 4th day of May 2006

Present: The Honourable Mr. Justice Simon Noël

 

BETWEEN:

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 (IRPA);

 

IN RE the filing of the said certificate in the

Federal Court of Canada pursuant to subsection 77(1)

and sections 78 and 80 of the IRPA;

 

IN RE the application by Adil Charkaoui to amend the

conditions for release and discharge of the person concerned;

 

AND IN RE

Mr. Charkaoui.

 

REASONS FOR ORDER AND ORDER

 

[1]               Mr. Charkaoui is essentially asking the Court to cancel most of the preventive conditions for his release set out in a judgment of the undersigned dated February 17, 2005 (see Charkaoui (Re), 2005 FC 248), the said conditions having been slightly amended subsequently in response to new circumstances (see the order of November 10, 2005 restating the initial conditions and incorporating successive amendments, and the order of March 8, 2006). In the alternative, Mr. Charkaoui is asking for the discharge of some of the preventive conditions so that he can have greater freedom to look after his family, continue his studies and carry out his employment duties. Mr. Charkaoui is also seeking authorization to be supervised by someone other than his father, his mother and Larbi Ouazzani, in view of the heavy burden entailed by such an assignment.

 

[2]               The Ministers objected to the application to annul the preventive conditions but indicated they were prepared to consider certain adjustments, provided the principles reflected in the preventive conditions were not diluted and national security and the safety of persons recognized. The Ministers asked for an in camera hearing without the presence of Mr. Charkaoui and his counsel to make their submissions, pursuant to subsections 78(e), (f), (g) and (h) of the IRPA.

 

[3]               Through his counsel, Mr. Charkaoui objected to the holding of such a hearing and the undersigned rejected the objection in a decision supported by reasons on March 30, 2006 (see Charkaoui (Re), 2006 FC 410).

 

[4]               On or about March 22, 2005, Mr. Charkaoui asked that the review of the reasonableness of the certificate be suspended to allow the Ministers to dispose of a protection application as provided for in subsection 112(1) of the IRPA. This application to suspend was granted by order, as required by subsection 79(1) of the IRPA. To date, the suspension is still in effect as the protection application is still pending.

 

 

I.          In camera hearing and summary of evidence

 

[5]               The in camera hearing in the absence of Mr. Charkaoui and his counsel took place before the public hearing simply so that Mr. Charkaoui and his counsel could be informed of the results of the hearing, thus enabling them to have acess to all the material that could be communicated in such circumstances. Accordingly, a summary of the evidence was prepared and given to Mr. Charkaoui and his counsel at the start of the public hearing and the undersigned explained the summarized evidence to the parties, consistent with subsection 78(h) of the IRPA.

 

[6]               At the in camera hearing, the Ministers called two witnesses. These witnesses filed documentary evidence, which only included classified records containing “information” as defined in section 76 of the IRPA. For nearly three hours the undersigned, in the presence of counsel for the Ministers, reviewed the documents, determined their veracity and inquired as to their origin. The undersigned examined and cross-examined witnesses as to their experience and expertise on the origin of the documents, their reliability and their content. The undersigned indicated several times that he was examining the evidence and questioning the witnesses solely in relation to the application to cancel Mr. Charkaoui’s preventive conditions. In the course of the review, the undersigned identified a classified record which was not relevant to Mr. Charkaoui’s application. Therefore, the undersigned ordered that this document be immediately withdrawn from the documentation file pursuant to subsection 78(f) of the IRPA. The document in question was excluded from the file.

 

[7]               The evidence summary indicated to Mr. Charkaoui and his counsel that the Ministers had obtained information leading them to believe that Mr. Charkaoui was a danger which had not abated and that they reserved the right, if necessary, to subsequently file a motion asking that the preventive conditions be cancelled. The evidence summary further disclosed that there was information favourable to Mr. Charkaoui in the Ministers’ file (the latter had a duty to disclose it pursuant to the Supreme Court’s judgment in Ruby v. Canada, 2002 SCC 75, at paragraph 47). However, this information cannot be released for reasons of national security. At the hearing, the undersigned informed Mr. Charkaoui and his counsel that the latter was in compliance with the preventive conditions and this could be taken into account in the presentation of the evidence. At the in camera hearing, the undersigned sought to identify specific and detailed information which could be released. If disclosed, the records which I examined would create a danger to national security or the safety of persons. That is my conclusion after a detailed review of the records.

 

[8]               In addition, I am also of the view that the evidence heard in camera does not have to be used to decide this application. The public evidence is quite sufficient for me to carry out my judicial duties and deal with the points of law at issue here. The evidence that cannot be disclosed is still relevant but does not necessarily have to be used in connection with this application, given the sufficiency of the public evidence. The latter contains material for assessing the preventive conditions, in light of earlier decisions and the relief sought by this proceeding.

 

 

II.        Parties’ arguments

 

 

A.   Arguments by Mr. Charkaoui and his counsel

 

 

[9]               Mr. Charkaoui asked that the preventive conditions be lifted because he considered that, over time, the conditions have lost their validity, they had been complied with and [translation] “he deserved to be trusted by the Court at the time he was released in February 2005”. Therefore, Mr. Charkaoui argued that he does not pose a danger to national security or to the safety of any person. He added that cancelling the conditions would not compromise national security or the safety of any person and he would still be exposed to judicial proceedings or removal, if necessary.

 

[10]           In the alternative, Mr. Charkaoui asked that the preventive conditions be amended so as to allow him to work without restrictions in order to support his family and to continue his studies freely. In this regard, he asked the Court to give other individuals (in addition to his father, mother and Larbi Ouazzani) the right to act as supervisor when he leaves his residence. Sixteen persons filed affidavits and fifteen testified at the public hearing. At the hearing in February 2005, several persons offered to act as supervisor but the Court only accepted three.

 

 

B. Ministers’ arguments

 

 

[11]           For their part, the Ministers reiterated their initial position in the case, namely that they considered Mr. Charkaoui a member of Osama Bin Laden’s Al Quaeda network and that he should be held inadmissible for security reasons pursuant to paragraphs 34(1)(c), (d) and (f) of the IRPA. The Ministers further considered that Mr. Charkaoui is linked to the Groupe Islamique Combattant Marocain (GICM), an organization with ties to Al Quaeda and allegedly responsible for the bomb attacks that occurred in Casablanca on May 16, 2003 and in Madrid on March 11, 2004. In the Ministers’ submission, Mr. Charkaoui gave the GICM the sum of $2,000 and a laptop computer. The Ministers noted that, in earlier decisions dealing with the review of the detention, the undersigned had found that the evidence was serious, and that the preventive conditions had been imposed to ensure that the danger associated with Mr. Charkaoui was neutralized.

 

[12]           At the hearing, one of the Ministers’ counsel indicated that the latter were objecting to the application to lift the preventive conditions but were prepared to consider certain adjustments.

 

[13]           However, they argued that no other measure could effectively replace the supervision and the escorting of Mr. Charkaoui by a person recognized by the Court. In this regard, the Ministers again drew the Court’s attention to the principles underlying the supervision and the escorting of Mr. Charkaoui as set out in the earlier decisions.

 

[14]           As to Mr. Charkaoui’s request to be able to use a cell phone, messaging terminal, blackberry and faxes, pagers, transceivers and computers with Internet for study and other purposes, the Ministers contended that they agreed to several measures of accomodation since February 2005 and objected to such an application as, in their submission, giving Mr. Charkaoui greater freedom would pose a danger to national security or the safety of any person. Similarly, the Ministers insisted that the GPS bracelet mentioned in condition 4 should remain. In their submission, this was a complement or addition to the supervisory function, making it possible to [translation] “minimize” the danger to national security or the safety of any person.

 

[15]           In the Ministers’ submission, the curfew imposed on Mr. Charkaoui does not have to be abolished and the attention of the undersigned was drawn to the fact that adjustments have been made since February 2005. The Ministers added that the curfew was consistent with the supervision and the escorting [translation] “central to the preventive conditions developed by the Court”. However, the Ministers remained willing to accommodate Mr. Charkaoui.

 

[16]           Finally, the Ministers noted that Mr. Charkaoui had said nothing about condition 5(i): access to the residence by a member of the Canada Border Services Agency (CBSA); condition 6: presence of the respondent at the hearings and possible removal; condition 8: prohibition from possessing a weapon, imitation weapon or explosive and chemical substances; condition 10: prohibition from contacting certain individuals.

 

 

III.       Analysis

 

 

[17]           Since his release from the Rivière des Prairies institution under preventive conditions Mr. Charkaoui has:

-           successfully proceeded with his studies for a Master’s degree teaching French;

-           become the father of a third child, born in Canada;

-           taken part in public debates on immigration law and other matters;

-           despite his preventive conditions, and due to his vigorous efforts, been able to obtain independent employment income (affidavit by Mr. Charkaoui dated February 22, 2006, paragraphs 11(e), (f), (g) and (h), 16, 17 and 18).

 

[18]           Mr. Charkaoui’s achievements are to be ackowledged, especially in view of the many preventive conditions imposed on him to ensure that any danger remains neutralized. I would add that, since his release in February 2005, the preventive conditions have been amended five times at Mr. Charkaoui’s request, and often with the approval of the Ministers so as to adapt them to his everyday life.

 

[19]           It will be recalled that, in Charkaoui (Re) on February 17, 2005, supra, I identified more than 15 preventive conditions to ensure that the danger to national security or the safety of any person would be neutralized. In arriving at such a decision, I sought to reconcile the purpose of neutralizing any danger with giving Mr. Charkaoui a certain degree of independence, taking his everyday needs into account. Underlying each of the preventive conditions was a concern to minimize this danger while, in the circumstances, allowing Mr. Charkaoui to enjoy some freedom in view of his obligations. Accordingly, the function of supervisor and escort assigned to Mr. Charkaoui’s father and mother and to Larbi Ouazzani (who is also part of the family and was the largest contributor to the bail associated with the release) is based on family or other ties, some influence over the person concerned, knowledge of the latter for several years and a personal interest in him. The proximity between Mr. Charkaoui’s residence and that of his parents and sister also tended to reassure the Court. Despite a move since February 2005, that proximity remains. These are the circumstances in which the preventive conditions were developed and the right to act as supervisor assigned to certain individuals and not to others.

 

[20]           Undoubtedly, the preventive conditions are restrictive and impair the freedom and autonomy of Mr. Charkaoui and his family. In view of the legislation, its purposes and the circumstances of the case at bar, this situation is inevitable and there is no miraculous solution that will reduce the limitations on Mr. Charkaoui’s freedom.

 

[21]           The Court will eventually have to rule on the reasonableness of the certificate, which will make it possible to contemplate a termination of this matter. For the time being, the review of the reasonableness of the certificate has been stayed pursuant to subsection 79(1) of the IRPA at Mr. Charkaoui’s request. It is thus not possible to put an end to the hardships associated with the security certificate nor to decide once and for all whether the Ministers’ allegations are valid. It should be recalled that the Ministers alleged Mr. Charkaoui was inadmissible for “engaging in terrorism” (paragraph 34(1)(c) of the IRPA); “being a danger to the security of Canada” (paragraph 34(1)(d) of the IRPA); “being a member of an organization which there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraphs (a), (b) or (c)” (paragraph 34(1)(f) of the IRPA).

 

[22]           Abolishing the preventive conditions, as Mr. Charkaoui is asking the Court to do, would amount to a decision favourable to Mr. Charkaoui on the merits of the case, namely the reasonableness of the certificate. How could I cancel the conditions without making a ruling on the validity of the Ministers’ allegations against Mr. Charkaoui? This would be to act contrary to the stay of proceedings provided for by Parliament (subsection 79(1) of the IRPA), but more than that, I would thereby make a ruling on the merits of the case without having all the tools at my disposal, including the benefit of a hearing in which all the evidence is put forward by the parties so that an informed decision may be made. At the close of the hearing, I had informed the parties that I could not abolish the conditions for the reasons given above. However, I told them that Mr. Charkaoui could submit suggestions for adjustments that could be made and the Ministers could subsequently make their comments on these. I indicated that I would intervene if necessary and that I was keeping an open mind about amending the conditions of release so long as the foregoing comments were taken into account.

 

[23]           While Mr. Charkaoui persisted in asking that the preventive conditions be cancelled completely, he submitted his suggestions for minimizing them, since it was not possible to cancel them. The Ministers objected to several of the suggested changes.

 

[24]           To fully indicate the nature of these requests and clarify the spirit in which they were suggested, I include them here in their entirety, excluding personal information associated with Mr. Charkaoui and his family (the exclusion does not affect understanding the suggestions).

 

[translation]

 

(a)        First, it seems advisable for Mr. Charkaoui to mention, or to repeat, to the Court that he is the father of three young children, the eldest of whom will begin school in September. For the children’s welfare, he has to be away from his residence in various cases, for instance when he has to take the children to a medical clinic, in emergencies or otherwise, undertake family, cultural or educational outings or simply to run errands. In these circumstances, he would like to be authorized to go out alone with his wife and/or his children. For example, to go and take his daughter back to school in September . . .

 

(b)               He would also like the Court to amend condition No. 2 to allow him to be unaccompanied at all times within a radius of a minimum of fifteen metres from his property located at . . . In this way, he could at any time have access to the yard of his residence, his parents’ apartment or his car without fearing an infringement of the conditions. If the Court allowed him to move about within a larger area unaccompanied, he could supervise his children when they were playing outside in the neighbourhood. The existing condition may be interpreted as requiring him to be in his apartment when he is not accompanied by persons approved by the Court and during his curfew.

 

(c)                Mr. Charkaoui also wishes to support his family and he could for this purpose have obtained several jobs since his release but for the escorting conditions, prohibition on use of communication tools and restriction from leaving the Island of Montréal. Accordingly, he would like to be able to be exempted from the conditions for employment purposes and after having given reasonable notice to the Canada Border Services Agency, notice which could for example be set at 72 hours. The Agency could object to Mr. Charkaoui’s plans in this regard on reasonable grounds, and in such a case the Court could resolve the dispute at Mr. Charkaoui’s request.

 

(d)               Mr. Charkaoui would also like to be able to go to the mosque to pray on Fridays, when no one is available to accompany him. He would like to be able to make his prayers at the mosque closest to his residence, namely . . .

 

(e)        He would also like permission to go to and/or be at the . . . without escort for training.

 

(f)         Mr. Charkaoui would like to be able to leave the Island of Montréal on certain occasions: (1) to attend the hearing of his case in the Supreme Court on June 13, 2006; (2) to go to the residence of Larbi Ouazzani in Châteauguay; (3) to go on various family outings with his children; and (4) to look for work. In all these circumstances, Mr. Charkaoui submits he could be authorized to do so when he is with his father or mother and/or Larbi Ouazzani, who would then report to the Court accordingly. Similarly, he could notify the Canada Border Services Agency of his plans to leave the Island of Montréal, including dates and addresses, within a time frame approved by the Agency.

 

(g)                Considering the limited availability of Mr. Charkaoui’s escorts, it would be desirable for the curfew to be expanded so as to enable him to have sufficient time during the day to carry out his obligations and activities. Thus, he considers that a curfew from 11 p.m. to 6 a.m. would not be in any way inconsistent with the public safety objectives.

 

(h)                If, despite the evidence submitted, the Court is still of the view that the escorting condition should be maintained, Mr. Charkaoui would like persons who filed affidavits in Court in connection with the motion to amend the release conditions to replace Mohammed Charkaoui, Latifa Radwan and Larbi Ouazzani so as to enable him to leave his residence. These individuals could then report to the Court on their escorting, as mentioned by these individuals.

 

(i)                  Mr. Charkaoui would like the Court to authorize him to have access to the Internet from his residence. This communication tool would enable him to contact his attorneys, do research connected with his case and exchange information with his employers and teachers. He submits that the Canada Border Services Agency could in return have access to his communications and computer if necessary to ensure that the conditions were observed. He could then also provide the Agency and/or the Court with all information on the addresses and suppliers of services used.

 

(j)                 Mr. Charkaoui considers that if the Court feels that the escorting condition should be continued, the wearing of the GPS bracelet is superfluous, and asks that he accordingly be excused from doing so.

 

(k)               Mr. Charkaoui would like to be able to use a cell phone, a copy of the user contract for which he would give to the CBSA, to guarantee his safety and that of the members of his family when he is away from his residence. He could by this means reach the Canada Border Services Agency at any time and in the same way be called by the Agency at any time. He is prepared to relinquish all confidentiality regarding the use of this cell phone, if authorized by the Court, to ensure that the conditions are observed.

 

(l)                  Finally, as to the requirement of reporting to the CBSA once a week, Mr. Charkaoui would like not to be required to report to any specific officer but simply to indicate his presence in writing to the responsible official so as to reduce the length of his time spent at the Agency each Wednesday.

 

(I have identified the requests by the letters (a), (b), (c) and so on for purposes of reference.)

 

[25]      In response, the Ministers objected to the complete lifting of the preventive conditions. However, they agreed with the following subsidiary requests by Mr. Charkaoui:

-           request (b): going out unaccompanied within a certain area around the family residence;

-           request (f)(1): attendance by Mr. Charkaoui at the hearing of his appeal in the Supreme Court;

-           request (g): partial consent as to curfew (during which Mr. Charkaoui must remain at home), so that Mr. Charkaoui should be at his residence from 10 p.m. to 7 a.m., rather than 11 p.m. to 6 a.m., as requested by Mr. Charkaoui; the curfew currently in effect under the order of November 10, 2005 extends from 10 p.m. to 8 a.m.

 

 

[26]      The Ministers repeated their objections to the other requests to alter the preventive conditions. In their view, the Court should not appoint new individuals to act as supervisors and escorts. The Ministers further objected to the following requests:

-           request (i): requests for Internet access;

-           request (k): use of cell phone;

-           request (j): discontinuance of wearing GPS bracelet;

-           request (l): weekly visits to BSA office.

 

[27]      At the same time, the Ministers indicated that they were somewhat receptive to request (a) regarding family outings. However, in this regard, they would like Mr. Charkaoui’s wife to be recognized by the Court as a supervisor and escort, provided she follows the necessary procedure (Mr. Charkaoui’s counsel would have to make a request, which would have to be supported by an affidavit by Mr. Charkaoui’s wife, and she would then have to be prepared to testify if requested to do so). Further, the Ministers were receptive to approving a departure from the Island of Montréal (request (c)) for specific interviews or work, but felt this did not warrant the cancellation of the preventive condition as a whole. They were also receptive to the family outing request (request (f)(3)), but felt such requests should be considered on a case-by-case basis.

 

[28]      There is no doubt that the function of supervisor and escort assigned to Mr. Charkaoui’s parents and to Larbi Ouazzani is very demanding, and that it requires a great deal of time and energy. These individuals have their own professional, family and personal obligations which must be added to their responsibilities as supervisor and escort. Is there a better way of dividing this heavy responsibility?

 

[29]      Several persons testified in order to offer their services as supervisor and escort from time to time, in replacement of Mr. Charkaoui’s father and mother or Larbi Ouazzani. I have already explained the concept of the supervisor and escort and the type of person who could be appointed. I have listened to, and understood, each person’s testimony. I recognize that these individuals had a sense of civic duty and in some cases devotion to a noble cause and concern for the well-being of another person. However, these observations cannot be a basis for my assigning the heavy burden of supervisor and escort to any of these individuals. I thank them for their gesture, indicating a degree of humanitarianism and concern for another’s well-being. The Court is prepared to assign the function of supervisor and escort to persons other than those already named, but feels it is not sufficient for the individuals in question to have known Mr. Charkaoui and his family for a short time. It is even less likely that the individuals who indicated their willingness to undertake supervisory functions and have no connection with Mr. Charkaoui could be worthy of the Court’s confidence. The function of supervisor and escort is a burdensome duty which requires not only a connection with the person mentioned in the security certificate but also objectivity, assiduity, an ongoing concern for the safety of others and detachment.

 

[30]      The public hearing enabled the Court to have a better understanding of Mr. Charkaoui and become more familiar with his family situation. I remain confident that it will be possible to identify persons who could perform the duties of supervisor and escort so as to lighten the burden on the shoulders of Mr. Charkaoui’s parents and of Larbi Ouazzani, while bearing in mind the concerns expressed in the decision of February 17, 2005, supra, and in this decision.

 

[31]      I have carefully reviewed Mr. Charkaoui’s subsidiary requests, keeping in mind my concern to preserve a balance between the objectives of national security and Mr. Charkaoui’s wish to enjoy a measure of freedom. For the reasons stated herein, I cannot at this time upset that balance. The review of the reasonableness of the certificate has been stayed and I would not like to directly or indirectly contravene this by making too substantial an alteration of the preventive conditions. However, that does not mean that I am closing the door to some adjustments and individual requests in future, as the situation changes.

 

[32]      Taking the Ministers’ comments into account, I approve requests (b) (going out within a certain area around the family residence), (f)(1) (leaving to attend the hearing of the appeal in the Supreme Court of Canada in Ottawa) and (g) (the curfew). Accordingly, I would ask Mr. Charkaoui’s counsel, Ms. Larochelle, to prepare a plan for amending the preventive conditions to be submitted to counsel for the Ministers before being submitted to the Court. As to request (f)(1), if Mr. Charkaoui’s presence in Ottawa is for longer than one day, it would be important to indicate where he will be staying. The curfew will remain in effect. On request (g), the curfew will be from 10 p.m. to 7 a.m.

 

[33]      As to request (l), I would like the following approach to be followed. Simply signing a register would be sufficient when a meeting with a Canada Border Services Agency officer is not required, the purpose being that Mr. Charkaoui’s attendance at the CBSA should not take too long if an interview is not scheduled. As requested above, I would ask Ms. Larochelle to prepare a draft amendment indicating the objective mentioned and to forward it to counsel for the Ministers before submission to the Court.

 

[34]      Mr. Charkaoui’s other applications are dismissed, but the Court continues to be open to possible adjustments in accordance with the facts submitted and the changing situation.

 

IV.       Additional comments

 

[35]      To give a full indication of the way in which the hearing was held ex parte, I told Mr. Charkaoui and Ms. Larochelle that Maurice Archdeacon would be present as an observer. For 18 months, Mr. Archdeacon has been working with the Chief Justice and the undersigned to establish a training program for designated judges dealing with human rights and national security. As a former Inspector General, appointed under the Canadian Security Intelligence Agency Act, R.S.C. 1985, c. C-23, and former executive director of the Security Intelligence Review Committee, Mr. Archdeacon has the experience necessary to perform this task. He was an observer at the ex parte hearing in this capacity.

 

 

 


ORDER

 

 

FOR THESE REASONS, THE COURT ORDERS THE FOLLOWING:

 

-           the application to amend Mr. Charkaoui’s conditions of release is allowed in part;

-           the parties will submit a draft order amending the preventive conditions to the Court, based on the reasons for the order, and subsequently a new order will be made.

 

“Simon Noël”

Judge

 

 

 

 

 

Certified true translation

François Brunet, LLB, BCL


FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          DES-3-03

 

STYLE OF CAUSE:                          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 (IRPA);

IN RE the filing of the said certificate in the Federal Court of Canada pursuant to subsection 77(1) and sections 78 and 80 of the IRPA; and

IN RE MR. ADIL CHARKAOUI

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATES OF HEARING:                    April 6 and 7, 2006

 

REASONS BY:                                  The Honourable Mr. Justice Simon Noël

 

DATED:                                             May 4, 2006

 

 

APPEARANCES:

 

Daniel Roussy

Luc Cadieux

Daniel Latulippe

FOR THE SOLICITOR GENERAL OF CANADA AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Dominique Larochelle

FOR ADIL CHARKAOUI

 

 

SOLICITORS OF RECORD:

 

John H. Sims, Q.C.

Deputy Attorney General of Canada

83 St-Paul West

Montréal, Quebec

 

FOR THE SOLICITOR GENERAL OF CANADA AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

Des Longchamps, Bourassa, Trudeau et Lafrance

Montréal, Quebec

Telephone: 514-283-5115

Fax: 514-283-3856

ADIL CHARKAOUI

 

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Date Modified: 2014-10-23