Jaballah (Re)

Jaballah (Re)
Court (s) Database
Federal Court Decisions
Date
2009-03-20
Neutral citation
2009 FC 284
File numbers
DES-6-08
Decision Content
Date: 20090320
Docket: DES-6-08
Citation: 2009 FC 284
Ottawa, Ontario, March 20, 2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
IN THE MATTER OF a certificate signed pursuant
to section 77(1) of the Immigration and Refugee
Protection Act (IRPA);
AND IN THE MATTER OF the referral of a
certificate to the Federal Court pursuant to
section 77(1) of the IRPA;
AND IN THE MATTER OF
MAHMOUD ES-SAYYID JABALLAH
REASONS FOR ORDER
INDEX (by paragraph numbers)
Introduction 1-5
Procedural History 6-7
The Relief Sought on this Application
Mr. Jaballah’s requested variations 8-9
Mr. Jaballah’s requested restrictions upon the CBSA 10-11
The CBSA’s requested variations 12-14
Applicable Legal Principles
The Charkaoui 1 factors 15-18
The interests of Mr. Jaballah’s children 19-25
Application of Legal Principles to the Evidence
Charkaoui 1 factors 26
Reasons for the imposition of stringent conditions 27-44
The length of detention and release on
stringent conditions 45-46
Reasons for the delay in deportation 47
Anticipated future length of conditions 48-51
Alternatives to the existing conditions 52
Conclusions with respect to the Charkaoui 1 factors 53-57
Matters Not Opposed 58
Addition of supervisors 59-64
Travel outside geographic boundary 65-66
Afnan’s cellphone 67-69
CBSA access to the Jaballah residence 70-72
Mr. Jaballah’s Contested Requested Variations
Removal of video surveillance equipment 73
Removal of Ahmad Shehab as a surety 74-79
Home without a supervising surety 80-89
Front and backyard access 90-93
Outings 94-100
Ahmad’s laptop and the PSP 101-104
Live monitoring of telephone lines 105
Mail interception 106
Ahmad’s wedding and reception 107-115
The basement apartment 116-117
Revocation of Ahmad Jaballah’s authorizations 118
Electrical costs of video surveillance equipment 119
Reimbursement of parking expenses 120-121
Requested Restrictions upon the CBSA 122
Overview comment 123-127
Overt surveillance 128-138
Photographing Mr. Jaballah and his family 139-141
Mail interception 142-147
Telephone intercepts 148-151
The CBSA Requests for Variations 152
Mail interception 153-155
Notification of deliveries 156-158
OnStar prohibition 159-160
Photographing CBSA officers 161-166
Geographic boundary 167-176
Conclusion 177-180
Introduction
[1] In Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 (Charkaoui 1), the Supreme Court of Canada declared the then existing provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) dealing with security certificates to be inconsistent with the Charter, and so to be of no force or effect. This declaration of invalidity was suspended for a period of one year. At the time, Mahmoud Jaballah, the respondent in this proceeding, was the subject of a security certificate and was in detention.
[2] While the declaration of invalidity was suspended, this Court ordered that Mr. Jaballah be released from detention on strict conditions.
[3] Following the decision of the Supreme Court in Charkaoui 1, the provisions of the Act with respect to security certificates were amended, and a new security certificate was issued in respect of Mr. Jaballah and referred to the Court by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration (Ministers). In that circumstance, the transitional provisions of the legislation that amended the Act provided that:
(i) Mr. Jaballah would remain released from detention under the previously ordered conditions.
(ii) Mr. Jaballah was entitled to apply for a review of the reasons for the continuation of conditions.
[4] The conditions of release that were continued in effect by the transitional provisions were those contained in Schedule A to the Court's order of January 17, 2008. Schedule A to that order is attached to these reasons as Appendix A.
[5] Mr. Jaballah applied, as he was entitled to do, for a review of the conditions of his release. These reasons deal with that application.
Procedural History
[6] Mr. Jaballah's initial application for review of the conditions governing his release from detention was filed on April 22, 2008. Following the filing of that application, a number of events occurred, including the filing of a motion in which counsel for Mr. Jaballah sought public funding for his representation. On June 9, 2008, the Court issued two orders. The first appointed Paul Cavalluzzo and John Norris to act as special advocates in this proceeding. The second set out a schedule of open and closed hearings dealing with both the conditions of release and the reasonableness of the security certificate. All hearing dates were set with the consent of the parties and the special advocates.
[7] The Court has now sat for 19 days in camera and 13 days in public. The Court has received the Ministers' evidence with respect to both the reasonableness of the certificate and the conditions of release, and Mr. Jaballah's evidence with respect to the conditions of release. The evidence adduced in public and in camera relevant to the review of the conditions of release was all subjected to full cross-examination. The Court has received both public and in camera submissions with respect to the conditions of release. Mr. Jaballah will not challenge the Ministers’ evidence with respect to the reasonableness of the certificate until after he receives the disclosure of further information that he is entitled to receive pursuant to the decision of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 S.C.R. 326 (Charkaoui 2). Hence, the Ministers’ evidence with respect to the reasonableness of the certificate has not been subjected to cross-examination.
The Relief Sought on this Application
Mr. Jaballah's requested variations
[8] After filing his motion for a review of the conditions of release on April 22, 2008, Mr. Jaballah filed a second motion on September 2, 2008. However, for the purpose of this application, it is agreed that all of the changes that Mr. Jaballah seeks are contained in a document his counsel filed with the Court on November 20, 2008.
[9] Mr. Jaballah seeks to have the following provisions of Schedule A to the Court’s order of January 17, 2008 varied:
1. Paragraph 3: Mr. Jaballah asks that the video surveillance equipment installed at the front and back doors to his home be removed. If, however, he is permitted to be allowed to remain in the home without a supervisor, he is content to allow the cameras to remain.
2. Paragraph 4: Mr. Jaballah asks that Ahmad Shehab be removed as a surety and that the sum of $5,000.00 be repaid to Mr. Shehab.
3. Paragraph 6: Mr. Jaballah asks that he be permitted to remain in his residence (including in the garage) without a supervisor being present. If permitted, he would not receive visitors while alone. I note, however, that while the November 20, 2008 document asks that Mr. Jaballah be permitted to be alone in the garage, under cross-examination he stated that he does not request that he be allowed to be alone in the garage. See: transcript January 20, 2009, page 65, line 4 and following. For the purpose of this review, I will proceed on the basis that the request to remain home alone does not include a request that Mr. Jaballah be allowed to be alone in the garage.
4. Paragraph 7: Mr. Jaballah asks that he be permitted to remain in his front and backyards without a supervisor being present. If permitted, he would not receive visitors while alone in either yard.
5. Paragraph 8: Four variations are sought to this clause. First, Mr. Jaballah wishes to extend the hours during which he may leave his residence. He is now permitted to be out of the residence between the hours of 8 a.m. and 9 p.m. He wishes to be able to leave the residence between 8 a.m. and 11 p.m. Second, he is seeking to eliminate the restrictions on his activities outside of his residence. Specifically, he wishes to delete the requirement that the Canada Border Services Agency (CBSA) must give prior approval to his absences from the residence. Instead, he wishes to simply be able to telephone representatives of the CBSA for the purpose of telling them where he will be going. He submits that if there are specific places that the CBSA does not wish him to attend, those locations should be spelled out in advance by the CBSA. Third, he wishes to add two additional supervising sureties who would be permitted to accompany him both within the residence (pursuant to paragraph 6) and on outings from the residence (pursuant to paragraph 8). The two new proposed sureties are Zahra Malek and Sandra Noe. Finally, while Mr. Jaballah does not wish to vary the geographic area in which he is entitled to travel (pursuant to paragraph 10(i) of the release order), he asks that the CBSA be authorized to permit him to travel outside that geographic area so long as he makes such a request one week in advance of the requested outing.
6. Paragraph 12: Three variations are sought. First, Mr. Jaballah asks that his son Ahmad be permitted to have a wireless laptop computer and that his youngest children be permitted to use the PlayStation Portable (PSP) unit that was seized from the family by the CBSA. When in the residence, both the wireless laptop computer and the PSP unit would be kept in the locked computer room. Second, he requests that his daughter Afnan be permitted to have a cellphone, on the same conditions as those which apply to his son Ahmad. Third, he requests that all monitoring of the residence telephone line and his wife's cellphone be done on a "live monitoring" basis so that only those calls which bear upon a breach or potential breach of the Court's order would be recorded.
7. Paragraph 13: Three changes are sought with respect to the condition that incoming and outgoing written communications be intercepted. First, Mr. Jaballah asks that mail interception be defined to be the simple opening and verification of the contents of the mail, so that no intercepted mail would be copied unless there are reasonable and probable grounds to believe that the information would be of assistance in determining if there has been a breach of the Court's order of release. Second, where the contents of any intercepted mail to date have been copied but do not meet this threshold, copies would be "sequestered and caveated." Third, Mr. Jaballah asks that CBSA be instructed that mail that is intercepted must be forwarded to the residence within 24 hours of the time of interception.
8. Paragraph 14: Mr. Jaballah asks that the condition be varied to provide that the power to search his residence is subject to the requirement that any search of the belongings of a female member of the household, or any search in relation to any area of the residence primarily used by a female member of the household, be conducted by a female member of the CBSA.
9. Additional request: Mr. Jaballah seeks approval to attend his son Ahmad’s wedding ceremony at a mosque to be selected by Ahmad, and to be present with the marriage party. He also asks for approval to "attend a location of Ahmad Jaballah’s choice for the celebration of his marriage, including a boat in the Toronto Harbour for the party if that is the choice of Ahmad Jaballah and his wife, and to take part in those celebrations as is expected of the father of the groom."
10. Additional request: Upon their marriage, Ahmad Jaballah and his wife wish to become tenants in the apartment located in the basement of Mr. Jaballah's residence. Mr. Jaballah asks for approval that the apartment be considered to be a separate home in the same manner as is presently the case for the current tenant. There is one exception to the notion of a separate residence. Mr. Jaballah asks that, when required, his supervision could be effected by Ahmad Jaballah or his wife from the basement apartment.
11. Additional request: After his son Ahmad’s marriage and move to the basement, or any other location, Mr. Jaballah asks that Ahmad’s name be removed as one of the adults living in the Jaballah residence, and all authorizations which Ahmad signed in respect of the Court's order would become null and void.
12. Additional request: If the video surveillance cameras remain in place, Mr. Jaballah asks that the CBSA pay the cost for the electricity used to operate the base unit and video surveillance cameras.
13. Additional request: Mr. Jaballah asks that the Ministers reimburse his parking expenses incurred during the hearing.
Mr. Jaballah's requested restrictions upon the CBSA
[10] Mr. Jaballah objects to certain practices which he says that CBSA officers currently or recently engage or engaged in. He therefore asks the Court to impose limitations or restrictions upon the CBSA. To some extent these proposed restrictions overlap with the variations that Mr. Jaballah seeks, as set out above. The requested restrictions are contained in a document provided, at the Court’s request, by Mr. Jaballah’s counsel in the course of oral submissions. The four restrictions sought by Mr. Jaballah are:
1. CBSA be prohibited from conducting "eyes on surveillance" of Mr. Jaballah when he is on family outings. This limitation is said not to preclude covert surveillance of Mr. Jaballah when he is on family outings if the CBSA, on the basis of an individualized assessment, determines this to be necessary. Nor does this limitation preclude overt "eyes on surveillance" by the CBSA of Mr. Jaballah when he is out of his home and not with his children if, as a result of an individualized assessment, the CBSA determines this to be necessary.
2. CBSA be prohibited from taking pictures of Mr. Jaballah and his family while they are on outings unless officers perceive a potential breach of any of the conditions governing Mr. Jaballah's release or conclude that a photograph is required in order to monitor the threat that Mr. Jaballah poses. Existing photos which do not relate to a breach or a threat should be caveated.
3. Mail sent to the family residence should be intercepted for the limited purposes of monitoring the threat that Mr. Jaballah poses, and monitoring compliance with the conditions of release. Therefore:
a. "Mail interception" shall be defined as the simple opening and verification of contents.
b. No intercepted mail shall be copied unless there are reasonable grounds to believe that the information would be of assistance in determining the threat that Mr. Jaballah poses, or whether there has been a breach of the Court order. In the alternative, if such mail is copied, it must be fully caveated once it is determined that it does not relate to the threat which Mr. Jaballah presents or to compliance with the terms and conditions of release. The alternative of caveating copied mail is not the preferred option.
c. Any copies made to date of mail that do not satisfy the above criteria shall be sequestered and caveated.
d. Mail which is intercepted must be forwarded within 24 hours of the time of interception.
4. “Phone interception” should be clarified to mean that telephone communications are intercepted for the limited purpose of monitoring the threat that Mr. Jaballah poses and compliance with the conditions of release. To this end, recordings of telephone calls which are unrelated to this purpose shall be destroyed or caveated.
[11] When reference is made to material being “caveated” what is contemplated by Mr. Jaballah is that non-threat related material would remain within the possession of the CBSA. Further, the CBSA can use this material only for the purposes of monitoring the threat Mr. Jaballah poses to national security and his compliance with the terms and conditions of release.
The CBSA’s requested variations
[12] The government department charged with monitoring Mr. Jaballah's compliance with the conditions of release is the CBSA, and the supervisor of the unit in Toronto that is responsible for monitoring Mr. Jaballah is Mr. Mohammed Al-Shalchi. Through Mr. Al-Shalchi, the CBSA makes the following requests for modifications of the terms of release:
1. Paragraph 13 of the conditions of release be varied. The order currently permits the interception of "incoming and outgoing written communications delivered to or sent from the residence by mail, courier or other means". CBSA asks that the word "written" be deleted so that other forms of communications may be intercepted, for example a DVD.
2. In the event that any item is delivered to the residence by persons other than officers of the CBSA, Mr. Jaballah be required to immediately notify the CBSA of this and to make the item available for inspection by the CBSA. This would include any mail that is not addressed to any resident of the Jaballah residence, but is nonetheless received there.
3. Paragraph 12 of the conditions of release be varied to prohibit Mr. Jaballah from travelling in a vehicle that is equipped with OnStar or similar technology.
4. Mr. Jaballah and members of his family be prohibited from taking photographs, video tapes, or audio tapes of CBSA officers.
5. The current supervisory scheme be reviewed so that the CBSA is not required to supervise Mr. Jaballah. The duty to supervise Mr. Jaballah rests with the Court appointed supervisors and not the CBSA.
[13] Before leaving this enumeration of the relief sought by the parties, on January 23, 2009, I advised counsel that I would not consider any request or suggestion for variation that emerged in the course of the examination or cross-examination of a witness. The Court and the party opposite are entitled to know with some certainty the position taken by each party. Subsequently, no party sought to amend their written requests for variations.
[14] I now turn to the legal principles that govern this application.
Applicable Legal Principles
The Charkaoui 1 factors
[15] The parties agree that the principles which govern this application are those articulated by the Supreme Court of Canada in Charkaoui 1. Those principles include the following:
1. Where a person is subject to onerous conditions of release for an extended period of time, the conditions must be subject to a meaningful process of ongoing review that "takes into account the context and circumstances of the individual case." The person named in the certificate must have a meaningful opportunity to challenge the conditions of release (paragraph 107).
2. Conditions of release must be subject to a review which takes into account all relevant factors, including the reasons for the initial detention and the imposition of stringent conditions, the length of detention/conditions, the reasons for any delay in removing the person from Canada, the anticipated future duration of conditions and the existence of alternatives to the conditions (at paragraphs 110-117).
3. Stringent release conditions must not be a disproportionate response to the nature of the threat posed by the individual (paragraph 116).
4. The Ministers bear the initial burden of establishing the need for the continuation of stringent conditions (paragraph 100).
[16] To this I would add three points. First, when considering what terms or conditions are required in order to neutralize or contain the threat posed by Mr. Jaballah's release, it is necessary to consider the cumulative effect of the conditions. Some conditions may be of lesser value than others, but that does not make the aggregate of the conditions inadequate or inappropriate. What is important is whether, in the aggregate, the conditions are adequate and appropriate. See: Harkat v. Canada (Minister of Citizenship and Immigration) (2006), 353 N.R. 307 (F.C.A.).
[17] Second, when assessing conditions, the Ministers' consent to a condition is a factor that carries significant weight. Nonetheless, the consent of the parties is not determinative. It is ultimately for the Court to decide what conditions are required in order to contain the threat or danger.
[18] Finally, within the context of a framework of conditions designed by the Court to neutralize the threat, the Court does not have an operational role. Therefore, there are a number of operational details within the framework set by the Court that are best initially resolved between counsel, and then placed before the Court for approval.
The interests of Mr. Jaballah's children
[19] Mr. Jaballah submits that when considering whether to vary the conditions of his release order, the Court must take into account the best interests of his children and his family unit. This obligation is said to flow from the requirement in Charkaoui 1 that the review of conditions must take into account the "context and circumstances of the individual case." It is also said to flow from Canada's international human rights obligations, specifically articles 17, 23 and 24 of the International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47 and article 3 of the Convention on the Rights of the Child, Can. T.S. 1992 No. 3.
[20] As to the role to be played by consideration of the children's interests, Mr. Jaballah does not argue that the presence of his children by itself requires "lighter" conditions. Rather, he acknowledges that any threat posed by his release must be contained. He says, however, that conditions may have to be "[c]rafted differently to achieve the same effect." For example, he says that when there are children on a family outing who may be adversely affected by overt surveillance conducted by the CBSA, consideration of the children's interests may require that the surveillance be covert.
[21] In oral argument, counsel for the Ministers did not disagree with this position as evidenced by the following exchange:
THE COURT: I think the way that I put the question to Ms. Jackman was, if we posit the hypothetical situation where we have two individuals, each of whom poses an identical threat to […] Canada’s national security or safety of any person, one of those people has children, the other does not, as a matter of law, what is required when considering the conditions for each?
And I think the answer that Ms. Edwardh passed on through Ms. Jackman was, if I have it right, that the threat remains constant, the threat had to be neutralized, but that different conditions may be required in the case of the individual with children. The conditions had to, at one and the same time, neutralize the threat, but do so in a manner that was sensitive to the interests of the children.
Can I ask, Ms. Edwardh, have I got the answer?
MS. EDWARDH: Yes. The conditions would be, in some cases, required to be different, but they would have the effect, although different, of neutralizing the threat.
THE COURT: Is that a position at law that the Ministers would agree with?
MR. MacINTOSH: I’m not sure that one could say that simply because one has children, that the conditions would have – I mean, the children’s interests would have to be taken into account, but I’m not sure they would be taken into account to such an extent that they would modify the terms and conditions.
THE COURT: I take your point. The interest has to be taken into account. However, they can’t trump national security interests.
MR. MacINTOSH: That would be my position.
THE COURT: They would be taken into account, and their interest would be [reflected] to the extent that the Court at the same time, neutralized the threat posed by the hypothetical individual.
MR. MacINTOSH: Yes, I agree with that formulation.
THE COURT: Thank you.
[22] In view of this apparent agreement, I am prepared to assume, without deciding, that the interests of Mr. Jaballah's children must be taken into account when the Court reviews the conditions of release, and when the CBSA decides how to monitor Mr. Jaballah's compliance with the terms of the release order. I will, therefore, be cognizant of the best interests of Mr. Jaballah’s children.
[23] This conclusion is consistent with the Supreme Court's requirement that any review of the conditions of release must take into account the context and circumstances of the individual. In Mr. Jaballah's case, the context and circumstances include the fact that his children share his residence and so are impacted by the conditions of release and the actions of the CBSA as they monitor compliance.
[24] An important caveat to be placed upon consideration of the children's interests is that those interests do not outweigh other considerations. Thus, a person named in a security certificate may be subject to detention or release on strict terms and conditions even if it is not in his children's best interests. Any threat posed by an individual must be neutralized if the individual is to be released from detention. Put simply, the presence of children does not call for a certain result and does not trump national security concerns. See, for example, Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) at paragraph 12. As the Ministers submitted, "it is not because the interests of the children favour less stringent terms and conditions that the Court must be bound to exercise its discretion in a manner that is most favourable to [Mr.] Jaballah."
[25] Having set out the applicable legal principles, I turn to the application of those principles to the requests made of the Court and the evidence before it.
Application of Legal Principles to the Evidence
Charkaoui 1 factors
[26] Each factor identified by the Supreme Court of Canada in Charkaoui 1 is considered in turn.
Reasons for the imposition of stringent conditions
[27] The more serious the threat posed by Mr. Jaballah's continued release, the greater the justification for the continuation of onerous conditions of release.
[28] The parties agree that for the purpose of this review, I may rely upon all of the findings of fact made by Justice Layden-Stevenson when she released Mr. Jaballah from detention and when she later reviewed the conditions of release. Such findings form the starting point for consideration of the threat now posed by Mr. Jaballah.
[29] In her decision releasing Mr. Jaballah from detention, reported at (2007), 296 F.T.R. 1, (first decision) Justice Layden-Stevenson found that:
· Mr. Jaballah posed a danger to national security (paragraph 38).
· Mr. Jaballah was a senior member of the Al Jihad, a terrorist organization that is closely aligned with Al Qaeda. Mr. Jaballah acted as a communication link between cells of the Al Jihad and Al Qaeda (paragraph 40).
· No allegation was made that Mr. Jaballah: posed a danger to the safety of any person, personally committed any act of violence, acted against Canada, or aided anyone in acting against Canada (paragraph 47).
· The contacts Mr. Jaballah once had with persons or organizations of a terrorist nature had been disrupted (paragraph 47).
· The government's evidence, with minor exceptions, was as it was at the time Mr. Jaballah was detained (paragraph 47).
· Without restrictive conditions, Mr. Jaballah could, and possibly would, communicate and associate with individuals or organizations with terrorist beliefs and objectives (paragraph 69). Onerous conditions were not disproportionate to the threat posed by Mr. Jaballah's release (paragraph 70).
[30] In reasons reported at [2008] F.C.J. No. 2, (second decision) Justice Layden-Stevenson reviewed the conditions of Mr. Jaballah's release and found that he continued to pose a danger to national security. Justice Layden-Stevenson also concluded that neutralization of the risk required strict monitoring of Mr. Jaballah and his activities (paragraphs 10 and 46).
[31] Additionally, a representative of the Canadian Security Intelligence Service (Service), David, testified about the view of the Service on the risk or threat posed now by Mr. Jaballah. It was David’s opinion, as an experienced intelligence officer, that Mr. Jaballah currently poses a threat to the security of Canada. Such opinion was based upon the facts that Mr. Jaballah is a senior member of a Sunni-Islamic extremist group, Al Jihad, and remains committed to its cause. The latter conclusion was based upon the fact that Mr. Jaballah had been interviewed by the Service on three occasions prior to his arrest, but was not deterred by those interviews, and upon David's view that the commitment that allowed Mr. Jaballah to rise to a senior position in Al Jihad would not change over time with incarceration. It was to be remembered that prior to his arrest, Mr. Jaballah had recruited individuals for the extremist movement, and had served as a communications relay.
[32] Also relevant to the assessment of the threat posed now by Mr. Jaballah are events which have occurred since Justice Layden-Stevenson’s findings were made. Relevant considerations include:
· Mr. Jaballah was released from detention in May of 2007.
· It remains the case that no allegation is made that: he poses a danger to the safety of any person, personally committed any act of violence, acted against Canada, or assisted anyone in acting against Canada.
· It remains the case that the contacts Mr. Jaballah once had with persons or organizations of a terrorist nature have been disrupted, and there is no evidence of any resumption or attempted resumption of contact.
· It remains the case that the government’s evidence, with minor exceptions, is as it was at the time Mr. Jaballah was detained.
· There are only two suggestions of any breach of any condition by Mr. Jaballah since the Court last reviewed the conditions of his release. The first is that he has been a passenger in two new trucks purchased by his son Ahmad Jaballah. The trucks are equipped with OnStar technology, but neither Mr. Jaballah nor his son informed the CBSA about the presence of this technology in the trucks. The second problematic matter is that during an inspection of the Jaballah residence, conducted by the CBSA, a PSP unit was discovered in the family room in the residence. This is a handheld computer with wireless capabilities. (These two concerns will be dealt with later in these reasons.)
· Mr. Al-Shalchi testified that he would describe his relationship with Mr. Jaballah to be "very amicable" and that Mr. Jaballah "has proven to be extremely cooperative".
[33] In order to assess the threat Mr. Jaballah now poses, it is necessary to deal first with the two alleged breaches of the current conditions of release. It is of some significance, in my view, that the Ministers did not bring any motion before the Court when they learned of the conduct now characterized to amount to breaches of the release order. Instead, the matters are raised in Mr. Al-Shalchi’s affidavit filed in opposition to Mr. Jaballah’s application.
[34] With respect to the OnStar issue, the existence of OnStar technology in cars manufactured by General Motors is a well-advertised and well-known fact. For the purpose of this application, the contentious feature is the existence of the hands-free calling system. This is a function akin to a built in cellular telephone.
[35] Ahmad Jaballah testified that as vehicles manufactured by General Motors, his trucks came with 30 free minutes of hands-free calling, the period of free usage has expired, he did not activate the feature, but he could activate the feature in the future and this is a possibility. Ahmad Jaballah agreed that he had not notified the CBSA that these General Motors vehicles were equipped with OnStar.
[36] Mr. Al-Shalchi testified that he had no knowledge of any instance where Mr. Jaballah was left alone in a truck equipped with OnStar and that he did not know whether the hands-free calling feature had been activated after the expiry of the 30 free minutes.
[37] In my view, the presence of this technology in Ahmad Jaballah's trucks does not, by itself, constitute a breach of any term of the release order. Supervisors are permitted to have and to use cellphones. The order prohibits Mr. Jaballah from using such a device directly or indirectly. Indirect usage would include, for example, asking someone to place a call for him. Just as possession of a cellphone or a BlackBerry by a supervisor does not by itself breach the current conditions of release, the existence of OnStar technology does not breach the conditions of release. Those conditions would be breached if Mr. Jaballah was to use, directly or indirectly, the hands-free calling feature.
[38] The existence of OnStar does, however, pose an increased challenge to the ability of the CBSA to monitor Mr. Jaballah's compliance with the terms of release. This is because the hands-free feature prevents an observer from visually ascertaining whether Mr. Jaballah is speaking to someone in a truck, or speaking on the telephone. Accordingly, I will further address OnStar when I come to consideration of the requested changes to the terms and conditions of the release order.
[39] With respect to the PSP, when this unit was seized both Mr. Jaballah and his son Ahmad denied knowing of its wireless capabilities. Mr. Al-Shalchi could not recall whether, at the time the PSP was seized, any attempt was made to see whether the PSP could in fact access the internet from the Jaballah residence. After its seizure, the CBSA conducted a forensic examination of the PSP and concluded that no one in the Jaballah residence had used it to connect to the internet.
[40] The presence of the PSP in the family room of the residence did breach paragraph 12 of the release order. The PSP is a handheld computer with wireless capability. Paragraph 12 of the order requires every computer with internet capability to remain in the computer room.
[41] However, on the evidence before me, I find no breach of the terms and conditions of the release order which directly engages national security concerns. This is because the forensic examination concluded that the PSP unit had not been used to connect to the internet. Because the PSP was not used to connect to the internet and because it was purchased secondhand (and so may well have come without all of the original packaging and instructions), I accept that this was an inadvertent or negligent breach of the conditions.
[42] Notwithstanding, I stress to Mr. Jaballah and to his supervisors that, before any electronic equipment is brought into the residence, a full inquiry should be made about the capabilities of the equipment. If in doubt, advice should be sought from the CBSA. In view of this admonition, any subsequent breach of this nature is less likely to be characterized as inadvertent.
[43] Having dealt with the two alleged breaches of the conditions of release, in my view the most salient considerations when assessing the threat and the reasons for the continuation of conditions are that:
· The government did not argue that Mr. Jaballah poses a threat to the safety of any person or that he is a flight risk. The risk is that he will associate or communicate with individuals who hold terrorist beliefs or objections.
· The government's evidence relevant to assessing the risk or threat posed by Mr. Jaballah is largely as it was when he was arrested.
· The concern identified by Justice Layden-Stevenson was that Mr. Jaballah could, and perhaps would, communicate with individuals or organizations with terrorist beliefs or objectives. It therefore remains important to monitor Mr. Jaballah’s communications.
· The public record before the Court does not allege that, since his last arrest in 2001, Mr. Jaballah has had contact, or attempted contact, with any of the individuals listed in the amended public summary of the security intelligence report, or with any other person or organization whom the Ministers believe to be terrorists (with the exception of his fellow detainees at the Kingston Immigration Holding Center).
· There is no allegation of any such contact, or attempted contact, since Mr. Jaballah's release from detention in May of 2007 (again, except for any authorized contact Mr. Jaballah may have had with Mr. Mahjoub at their lawyers' offices).
· While it remains important to monitor Mr. Jaballah’s communication, it must be remembered that it is well-known that he remains of interest to Canadian authorities and that he is closely monitored by the CBSA. Anyone who contacts Mr. Jaballah must be taken to know that this will draw the attention of Canadian authorities to them.
· Mr. Jaballah’s ability to be of use to any extremist activity has been adversely affected by his exposure, detention and the monitoring that accompanied his release.
· Mr. Al-Shalchi characterizes his relationship with Mr. Jaballah to be “very amicable”, and characterizes Mr. Jaballah to be "extremely cooperative."
[44] The existing terms and conditions have ensured that the threat posed by Mr. Jaballah has been contained. The absence of any breach of the terms and conditions of release that directly engages any national security concern, and the co-operation that Mr. Jaballah and his supervisors have shown, convince me that the threat has not increased. The Ministers have failed to persuade me that the threat posed by Mr. Jaballah has not attenuated to a degree since the conditions were last reviewed by the Court.
The length of detention and release on stringent conditions
[45] The Supreme Court of Canada found in Charkaoui 1 that the longer a person is in detention, the less likely it is that an individual will remain a threat to national security (paragraph 112).
[46] Mr. Jaballah was detained on August 14, 2001 after the issuance of a second security certificate. He was released from detention on May 20, 2007. In her first decision, Justice Layden-Stevenson concluded that the length of Mr. Jaballah’s detention was “of sufficient duration to trigger the observations noted by the Supreme Court, specifically disruptive of the contact and communication with extremist individuals or groups previously engaged in by Mr. Jaballah.”
Reasons for the delay in deportation
[47] Counsel agree that on the facts now before the Court, this is not a significant factor. See: transcript of argument January 22, 2009, page 98 at line 15 and following; transcript January 23, 2009, page 23 at line 6 and following. I agree that this is a neutral factor.
Anticipated future length of conditions
[48] The Supreme Court held in Charkaoui 1 that if the future duration of detention or onerous conditions of release cannot be ascertained, this is a factor that weighs in favour of the person named in the security certificate (paragraph 115).
[49] At paragraph 113 of its reasons, the Supreme Court also noted that the government’s evidentiary onus must be heavier when the government has had more time to investigate and document the threat alleged to be posed by an individual.
[50] Here, counsel agree that the date of any future removal of Mr. Jaballah from Canada is uncertain. See: transcript January 22, 2009, page 99 at line 3 and following and January 23, 2009, page 27 at line 23 and following. My colleague Justice MacKay, in reasons reported at (2006) 301 F.T.R. 102, concluded that, as of that date, Mr. Jaballah could not be removed "to Egypt or to any country where and so long as there is a substantial risk that he would be tortured or worse" (paragraph 84). Thus, there is no certainty as to the length of time that Mr. Jaballah will remain bound by strict terms and conditions.
[51] This consideration is ameliorated to some extent because of the requirement that those conditions be subject to a meaningful process of ongoing review.
Alternatives to the existing conditions
[52] At paragraph 116 of its reasons in Charkaoui 1, the Supreme Court of Canada admonished that stringent release conditions must not be disproportionate to the nature of the threat posed.
Conclusion with respect to the Charkaoui 1 factors
[53] As set out above, th