Jaballah v. Canada (Public Safety and Emergency Preparedness)

Jaballah v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2008-01-04
Neutral citation
2008 FC 9
File numbers
DES-4-01
Decision Content
Date: 20080104
Docket: DES-4-01
Citation: 2008 FC 9
BETWEEN:
MAHMOUD ES-SAYYID JABALLAH
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
and THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] Mr. Jaballah is the subject of a security certificate under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). On April 12, 2007, he was released from detention on conditions that equate to house arrest. In accordance with the directive of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 (Charkaoui), the conditions of release must be regularly reviewed. Mr. Jaballah’s conditions of release were reviewed on October 22, 23, 24, 25, November 26, 27, 28, 29 and December 4 of 2007. The hearing was public. These reasons detail the changes to be made to the existing conditions. The amended conditions of release will be attached to my order as Schedule “A”.
Background
[2] Mr. Jaballah’s case has entailed many hearings and proceedings that are well-documented in various decisions of the Federal Court and the Federal Court of Appeal. The factual background is extensively reviewed in Mr. Justice MacKay’s decision, Re. Jaballah (2006), 58 Imm. L.R. (3d) 267 (F.C.) (Re. Jaballah) and need not be repeated. A chronological history is depicted in Appendix “A” to Justice MacKay’s reasons. That document was updated to reflect subsequent events and was attached to my reasons in Jaballah v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 296 F.T.R. 1 (Jaballah), a decision related to another of Mr. Jaballah’s detention reviews.
[3] In Jaballah, Mr. Jaballah conceded that he is a danger to national security. However, as indicated at paragraph 38 of my reasons, I would have arrived at that conclusion in any event. Because Mr. Jaballah is a danger to national security, within the meaning of the IRPA, he must be detained unless the degree of danger that he poses can be neutralized by the imposition of appropriate terms and conditions. Although cognizant of the fact that stringent release conditions seriously limit individual liberty, in Jaballah I determined that restrictive conditions were required to neutralize the degree of danger. The imposition of onerous conditions was due, in part, to the supervisory deficiency that existed with respect to one of the primary supervising sureties (Mr. Jaballah’s wife, Ms. Al-Mashtouli). With the co-operation and assistance of counsel for all parties, conditions of release were drafted. Those conditions were attached to my order dated April 12, 2007, as Schedule “A”. There were problems with some of the conditions.
[4] Prior to Mr. Jaballah’s release, difficulties were encountered regarding satisfaction of condition 3 (video surveillance). After hearing the submissions of counsel and, on the consent of all counsel, I concluded that Mr. Jaballah’s release should not be further postponed. I allowed his release and ordered that, pending resolution of condition 3, Mr. Jaballah was to remain inside his residence or on the immediate property (in the front or back yard of the residence) except with the prior approval of the Canada Border Services Agency (CBSA), or in the event of medical emergency (in which case CBSA was to be notified in accordance with paragraphs 8(iii) or (iv) of the order).
[5] The matter was not resolved as expeditiously as anticipated. On May 31, 2007, Mr. Jaballah requested that condition 3 be deleted from Schedule “A” while the Ministers requested that visitors, other than visitors for the children, be prohibited. I denied both requests and concluded that, in the absence of evidence indicating abuse, the temporary compensatory measures implemented by CBSA regarding visitors could continue on an interim basis. Additionally, I permitted Mr. Jaballah to be absent from his residence in accordance with condition 8.
[6] On September 26, 2007, upon being informed and satisfied that CBSA had approved a proposed change of residence for Mr. Jaballah and his family, I approved Mr. Jaballah’s request for a change of residence on condition that there were no occupants, other than the Jaballah family, in the residence. At the time, I indicated to counsel that if suitable tenants for the basement apartment were located and CBSA-approved, I would consider a request that tenants be permitted at a future time. I additionally ordered that CBSA have discretion, where it considers it appropriate to do so, to extend Mr. Jaballah’s curfew time beyond 9:00 p.m.
[7] On this detention review, both sides seek variations in the conditions. Additionally, it has become apparent that, in spite of the best efforts of counsel for the parties and the Court, the wording in some of the conditions is ambiguous and requires clarification.
[8] Before turning to the matter at hand, a consideration of the basic premises upon which I intend to proceed is in order.
Basic Premises
[9] It is common ground that the governing authority is the Supreme Court’s Charkaoui decision. There, a unanimous Court concluded that persons, such as Mr. Jaballah, must have meaningful opportunities to challenge their continued detention or the conditions of their release. A meaningful process of ongoing review is one that takes into account the context and circumstances of the individual case (paragraph 107). The review process must also take into account the existence of alternatives to the conditions. The conditions of release must not be a disproportionate response to the nature of the threat (paragraphs 116 and 117). Reviewing courts must adhere to these guidelines when reviewing detentions or conditions of release (paragraph 123). At the hearing, counsel for the parties aptly described the exercise of tailoring the conditions to the individual case as one of proportionality. I agree.
[10] There has been no retraction of Mr. Jaballah’s concession that he is a danger to national security. Nor has there been any suggestion that I erred in concluding that he is such a danger. No one has proposed that Mr. Jaballah’s release should be unaccompanied by conditions. My task, in reviewing Mr. Jaballah’s conditions of release, is to consider Mr. Jaballah’s unique circumstances and to adhere to the noted Charkaoui guidelines. Reliance on what has been ordered in other reviews for other persons yields little guidance. Mr. Jaballah’s case turns on its own distinct facts.
The Conditions Generally
[11] Mr. Jaballah’s release was contingent upon 24 conditions. Most of the conditions are not in issue and some of the proposed changes are not contested. At the time of this review, the Court and counsel for all parties, together, scrutinized the existing conditions for potential ambiguities. Words and phrases that have been, or could be, open to more than one interpretation were re-drafted in an effort to alleviate any possibility of confusion. The re-drafting has been incorporated in Schedule “A” of my order and I will say no more about it. The uncontested variations that I have approved are discussed in these reasons. They too are incorporated in Schedule “A”. The contested requests are also addressed in these reasons. Where changes to the conditions have been determined to be appropriate, they are reflected in Schedule “A”.
The Uncontested Variations
The Dedicated Line
[12] Condition 2 of my order dated April 12, 2007 requires Mr. Jaballah to arrange, at his expense, for the installation, in his residence, of a separate dedicated land-based telephone line meeting the CBSA’s requirements to allow effective electronic monitoring. The Ministers ask that CBSA be responsible for the installation of the dedicated line.
[13] This request arises as a result of the disconnection of the dedicated line on August 10, 2007. Having heard the evidence of Mr. Jaballah, Ahmad Jaballah and Mr. Terrence Pearce of CBSA, I find that the only reasonable explanation for the disconnection is that Bell Canada made an error in entering the work order into its data base. I do not find that there was any effort on Mr. Jaballah’s part to defeat the electronic monitoring system. Mr. Jaballah insisted that he requested a disconnection (at the former residence) and a re-connection (at the new residence) for August 30th. Such request was consistent with a second request for the disconnection and re-connection of the residence land-based telephone line.
[14] However, the error rendered the electronic monitoring system inoperative. Because of privacy considerations, CBSA encountered difficulty in its efforts to remedy the situation. Moreover, the proposed move that precipitated Mr. Jaballah’s request was not approved by the Court until September 26th. Counsel agree, and I concur, that it is desirable to eliminate the barriers that preclude direct communication between CBSA and Bell Canada regarding the dedicated line. This can be accomplished by vesting responsibility for the installation of the dedicated line with CBSA. The condition will be amended accordingly.
Change of Residence
[15] The present order restricts Mr. Jaballah from changing his residence without prior approval of the Court. The Minister seeks an amendment requiring 60 clear days notice to CBSA of any proposed change of address. Mr. Jaballah consents to the amendment and I view it as a prudent one. There was confusion and delay in effecting the Jaballah family’s move from its former residence to its current residence. This could easily have been averted with sufficient notice. The condition will be so amended.
Outings
[16] The issue of Mr. Jaballah’s outings will be discussed in more detail later in these reasons. At this point, I will address only the non-contentious features. The first is the notice requirement in relation to Mr. Jaballah’s absence from the residence. Generally, the conditions permit Mr. Jaballah, with the prior approval of CBSA, to leave his residence three times per week (with provision for a specified number of extended outings). Requests for CBSA approval of outings are to be made on a weekly basis with not less than 72 hours notice. The Ministers ask that the notice requirement be amended to provide for 72 business hours notice. Mr. Jaballah, after hearing Mr. Pearce’s evidence with respect to the operational requirements and functions of CBSA, agreed to the Ministers’ request. I do not see the Court’s role as an operational one. Given the agreement of the parties, I am content to grant the requested amendment which I regard as a matter of fine-tuning rather than fundamental change.
[17] Mr. Jaballah currently attends a mosque on Friday evenings for prayers. At present, his attendance is regarded as one of his three permissible weekly outings. Mr. Jaballah asks that the Friday attendance at prayers be permitted, but not be regarded as an outing. The evidence indicates that Mr. Dawud accompanies Mr. Jaballah each Friday and the arrangement has worked well. The Ministers accede to Mr. Jaballah’s request and I do not have any difficulty with it. Mr. Jaballah’s attendance at mosque each Friday evening will not be counted as an outing.
[18] In a similar vein, Mr. Jaballah asks that CBSA be “permitted to reasonably exercise its discretion to accommodate requests for Mr. Jaballah to attend significant religious observances” such as Ramadan and Eid. The issue of Ramadan was raised earlier and I granted CBSA the discretion to extend Mr. Jaballah’s curfew beyond 9:00 p.m. There is no evidence regarding the Eid celebrations. The Ministers noted that there have been Eid celebrations conducted at the Rogers Centre in Toronto and that CBSA could not reasonably be expected to approve attendance at the Rogers Centre because of operational difficulties. I agree. However, there was no suggestion that all Eid observances take place at the Rogers Centre. I am prepared to vest CBSA with the requested discretion, trusting that it will be exercised responsibly.
[19] Mr. Jaballah also requests that CBSA be granted permission to deal with unanticipated daily matters. The specific examples provided were: “If fuse blows for stove and have to pick one up, or if need to pick up milk on way home from an outing”. Notably, there was no evidence that the Jaballah family had encountered any such situations. In the absence of any evidence, I question whether the request is legitimate or illusory. However, the Ministers have not taken exception to it. In the absence of any objection, I am prepared to provide CBSA with the requested permission with the caution that CBSA should not be inundated with requests regarding unanticipated matters that heretofore have not arisen. It will be for CBSA to assess the merit of any such request.
[20] The noted variations with respect to attendance at Friday mosque, attendance at significant religious observances, and unanticipated daily events necessitate an addition to the existing conditions. The insertion appears as condition 8 (vi).
[21] I regard the matter of outing routes as a dead issue. Consequently, it need not be addressed.
Happenstance Encounters
[22] Mr. Jaballah requests clarification with respect to meeting people outside of the home. His request is worded as follows: “the order permits visits with ‘any person approved by the CBSA’ – believe that persons approved to visit the home should be considered as approved when outside of the home, eg. If run into someone in the grocery store, or in a park who is approved, CBSA takes the position that Jaballah cannot talk with the person”.
[23] There was no evidence called in relation to this request for clarification. The single, remotely-connected evidential reference was that of Mr. Pearce when he described a Jaballah family outing in the park. During the outing, a CBSA officer unobtrusively approached Mr. Jaballah and inquired about the identity of a young man (unknown to the officer) whom Mr. Jaballah had embraced.
[24] I have reviewed the existing conditions several times over. I am unable to locate the alleged prohibition. There is a proviso that Mr. Jaballah not have contact with any person when he is delivering his children to school or picking them up from school. It is my understanding that Mr. Jaballah would not be on foot when he is engaged in this venture. Therefore, I have difficulty conceptualizing how the issue could arise in that circumstance.
[25] There are several enumerated exceptions to the prohibition against Mr. Jaballah meeting any person by prior arrangement as mandated in condition 10. I do not understand Mr. Jaballah’s counsel to be seeking any variation of this condition (other than one specific, contingent request that will be referred to later under the miscellaneous heading). Because I encountered difficulty in understanding the basis of this request, I pressed counsel for greater clarity. What I take from their explanations follows.
[26] If Mr. Jaballah is on an outing (in the park, for example) and he encounters “happenstance” an individual who is a CBSA-approved visitor to the Jaballah home, it is unfair to prohibit Mr. Jaballah from speaking with that individual. That is, he should not be restricted to a “greeting”; he should be able to speak to the person. I can find nothing in the existing conditions that prohibits such behaviour. The conditions prevent Mr. Jaballah from meeting, by prior arrangement, persons other than those specified in the paragraph. The Ministers do not object to Mr. Jaballah passing the time of day with a CBSA-approved visitor whom Mr. Jaballah encounters “happenstance” while on an outing. Consequently, no amendment is required in this regard.
Wireless Laptop
[27] The terms of the April 13th order provide that “no computer with wireless internet capability shall be brought into the residence”. At the time of Mr. Jaballah’s previous detention review, Ahmad Jaballah’s laptop computer did not have wireless capability. Therefore, only the condition applicable to all computers with internet capability was relevant to his laptop. Ahmad testified that two weeks before the commencement of this hearing, the screen of his laptop died. As I understand the evidence, Ahmad’s laptop is dead and is beyond redemption. That is, it cannot be repaired. Ahmad claimed that he searched at Costco and Future Shop and was unable to locate a laptop without wireless capability. He stated that “all the new computers that are being sold have built-in wireless capability”.
[28] Ahmad’s evidence in this respect was largely corroborated by Mr. Jerry Lukac, the IT specialist for the Greater Toronto Enforcement Centre (GTEC), called by the Ministers. Mr. Lukac testified that it is very difficult to purchase a new laptop without wireless capability. I take it, from Mr. Lukac’s evidence, that acquisition of a laptop without wireless capability would require communication with, and a special order from, the manufacturer.
[29] Ahmad testified that he would disable the wireless capacity of his laptop when it was in the Jaballah residence. Having heard Mr. Lukac, I am not persuaded that the matter is quite so simple. Moreover, there are other difficulties regarding internet service in the Jaballah residence that will be addressed later in these reasons.
[30] Having given considerable thought to Ahmad’s request, I have determined that there is nothing in the existing conditions that prevents him from purchasing a laptop computer with wireless capability. The prohibition relates to him bringing it into the Jaballah residence.
[31] The evidence indisputably indicates that Ahmad spends a great deal of his time at the university. He is at home with his father in the mornings while his mother is volunteering at the Um Al Qura School. He leaves when his mother returns at noon or 1:00 p.m., except on Mondays when he often stays at home until later in the afternoon to enable his mother to spend the day at school.
[32] After he leaves for the university, it is Ahmad’s practice to remain there, usually until midnight or 1:00 a.m. He has an office on campus because of his position as vice-president of student equity. His position requires that he be in his office at least 15 hours per week. Ahmad stated that, if he is not needed urgently at home, he stays on campus to get his studying and his work done. He did not say that he studied at home or that he required his laptop at home.
[33] Although it is not impossible to fashion conditions that would enable Ahmad to bring his laptop home, it is not a simple task. The conditions would be intricate and complex. There is also the matter of the wireless router that would have to be addressed. The router is not a live issue if there is no computer with wireless capability in the house. Given the totality of the evidence (I will have more to say about this when I deal with some of the contentious requests), the difficulties that have occurred in interpreting some of the existing conditions, and Mr. Lukac’s evidence with respect to disabling wireless capability, I conclude that there is a simple solution to the dilemma. Moreover, it is the solution that I favour. Ahmad Jaballah is free to purchase a laptop with wireless capability, but he must not bring it into the Jaballah residence. He may leave the laptop in his office at the university or any location of his choice, other than the Jaballah residence.
[34] The remaining requests require more elaboration. The Ministers take no exception to some of Mr. Jaballah’s proposals. There are other requests (consented to initially) that the Ministers objected to during final submissions. In fairness to the Ministers, their position was, at least in part, the result of developments that evolved as the hearing progressed. It is important to remember (as I reminded counsel during the hearing) that the Ministers’ consent is a factor that carries significant weight. However, it is not determinative. At the end of the day, it is the Court’s responsibility and obligation to ensure that the conditions of release will neutralize the threat.
[35] Before turning to the remaining requests, I wish to briefly refer to the rapport between the Jaballah family and CBSA.
CBSA and the Jaballah Family
[36] The relationship between the Jaballah family and CBSA, by all accounts and with one exception, has been a productive one. Mr. Pearce, the Acting Chief of the GTEC has been the primary CBSA contact. Mr. Pearce reports to his immediate supervisor, the GTEC Director, Mr. Reg Williams. Someone is always available to respond to Mr. Jaballah’s concerns. Mr. Pearce testified that in an average week, he would be on the telephone with Mr. Jaballah between 10 to 20 times. “It could be more, but never less”. CBSA is available to respond to Mr. Jaballah’s concerns “24/7”.
[37] Mr. Jaballah and Ahmad Jaballah testified that they had encountered difficulty with only one CBSA officer. That officer is no longer in contact with them. Both stated that they have a good working relationship with Mr. Pearce. Ahmad characterized his relationship with “Mr. Terry” as a strong one. Mr. Jaballah said that the CBSA enforcement officers are “nice” and he has “no problem with them”. It is evident that Mr. Pearce has been diligent in his efforts to be respectful of the Jaballah family while monitoring the conditions imposed by the Court.
The Contested Issues
[38] Although there are subsidiary issues, I am satisfied that the outstanding issues can be subsumed under six headings:
(a) outings and Mr. Jaballah’s request to teach;
(b) additional supervisors;
(c) the fax machine;
(d) the internet;
(e) visitors;
(f) video surveillance.
Outings and Mr. Jaballah’s Request to Teach
[39] These topics are joined because of the manner in which they were presented. Mr. Jaballah requests that the number of his permissible outings be increased. He also asks that he be permitted to teach Arabic and the Koran at Um Al Qura School, or alternatively, that he be permitted to do administrative work at the school. In the further alternative, should his plan to work at the school be unacceptable, he proposes to teach students in the basement apartment of the Jaballah residence. If he is permitted to teach, he withdraws his request to increase the number of his outings.
[40] After serving three months as principal at Salaheddin Islamic School and teaching privately from his home for six months, Mr. Jaballah founded Um Al Qura School in July of 2001. Shortly after the school opened, Mr. Jaballah was detained (August 14, 2001). The school houses grades one to eight although it is primarily comprised of students in grades one to six. Its original enrolment was 178 students. Now, there are approximately 50 students. The school was approved by the Ontario Ministry of Education. Classes in Arabic and the Koran are offered in addition to the prescribed provincial curriculum. It is a non-profit operation. Teachers’ salaries (and presumably those of non-volunteer staff) are paid after expenses. The school is administered by a four-person board of directors. One of the board’s members has been absent from the province for three years. Ms. Al-Mashtouli is a member of the board.
[41] The school staff consist of four teachers, one assistant teacher, and four volunteers. There is a principal (Ms. Al-Mashtouli) and a vice-principal. It is not clear from the record whether the principal and vice-principal are included in the teaching complement. There is also a secretary.
[42] According to Mr. Jaballah’s evidence, the only reason that he wants to teach (or to do administrative work for the school) is to provide financial support to the family. The rent in his former residence was $400 per month. The rent for the current residence is $1,200 plus hydro. He anticipates a global amount of $1,500 per month. Additionally, he has assumed responsibility for the $900 monthly rent for the basement apartment located in the Jaballah home. He feels obliged to make the latter payment because the tenants (of the former owner) were not approved by CBSA due to criminal records. Mr. Jaballah testified that he would do any kind of work for any number of hours provided that he could earn some money to support his family.
[43] The family presently receives welfare benefits of $1,500 per month and three child benefit payments of $250 for a total monthly income of $2,250. Ahmad contributes $800 (sometimes $900) per month. Ms. Al Mashtouli’s volunteer work at Um Al Qura School is in exchange for free tuition for the two Jaballah children attending the school. It equates to approximately $5,000 per year. Mr. Jaballah claims that he can earn income of up to $800 per month without incurring a reduction in his welfare benefits.
[44] The Ministers strenuously oppose Mr. Jaballah’s request. Mr. Pearce pointed to the conditions that restrict contact with other persons and noted that there would be teachers, school custodians and parents with whom Mr. Jaballah could come into contact. He testified as to the necessity for CBSA to be constantly “running a site assessment” because of the school’s location in an industrial area with large numbers of tractor trailers in the immediate vicinity. The GPS system could be compromised because there must be a clear area within the school to pick up the signal. Mr. Pearce did not know what the proximity would be between Mr. Jaballah and the supervisor. The cell phones belonging to students, teachers and other staff would also be problematic. In short, Mr. Pearce felt that CBSA would not be able to effectively monitor Mr. Jaballah if he were permitted to teach (or do administrative work) at the school.
[45] Mr. Jaballah testified that the students’ parents would have to be informed of his situation. He could communicate with them regarding their children by telephone (the rationale being that CBSA has a tap on his telephone line and could listen). He submitted that he is permitted to deliver and pick up his children to and from the school and that CBSA has allowed him to enter the school on some of his outings. Further, people are present when he goes to the mosque or to the shopping mall. His obligation is to not have contact with unauthorized people. The same sort of obligation could be extended to his teaching or working at the school.
[46] The CBSA concerns are legitimate. It is evident from the restrictive nature of the conditions as well as my reasons in relation to Mr. Jaballah’s previous detention review that, in my view, neutralization of the risk requires strict monitoring of Mr. Jaballah and his activities. The monitoring requirement is not disproportionate to the threat.
[47] It is not necessary for me to undertake a lengthy analysis of the various concerns raised by the CBSA. The Court and counsel for all parties attended the school for a site inspection. Mr. Jaballah’s counsel described the school as a “shoestring operation”, but rightly noted that the characterization does not detract from the education that the children may be receiving. Considering Mr. Pearce’s apprehension regarding the GPS monitoring system (and having heard the evidence of the difficulties that can be encountered with it), combined with a viewing of the facility, I am nearly certain that the GPS system would fail to function.
[48] While there have been difficulties with the GPS system during outings, CBSA has been able to compensate for those difficulties through physical surveillance. There is an enormous difference between physical surveillance during a specified number of pre-determined weekly outings and physical surveillance on a daily basis at a school where the overwhelming majority of the students are children of tender years.
[49] More importantly, Mr. Jaballah would be supervised primarily by Ms. Al-Mashtouli during his time in the school. Ahmad stated that if his mother were to fall ill, he would be happy to stand in her stead for that day. I need not reiterate the significant credibility issues that arose with respect to Ms. Al Mashtouli (Jaballah at paragraphs 61-65). Nothing has alleviated those concerns. Ms. Al Mashtouli chose not to testify at this hearing. Notably, when she is supervising Mr. Jaballah at home, the base unit functions in conjunction with the ankle bracelet. Thus, there is capacity for CBSA to monitor Mr. Jaballah. The GPS tracking unit is an altogether different matter. Without a proper signal, the system does not function and the monitoring falls to Ms. Al-Mashtouli. This scenario is simply not acceptable.
[50] I place little stock in Ms. Fauzia Abdullah’s evidence that there would be no problem with Mr. Jaballah teaching at the school. Ms. Abdulla was certainly well-intentioned. However, it is obvious that she viewed Mr. Jaballah’s proposed return as a mechanism to increase the student population for she believed that people would send their children there if he returned. She had not consulted with or spoken to anyone other than one member of the board of directors (in passing, on the morning of her appearance in court).
[51] I reject Mr. Jaballah’s evidence that Hashem Siwalen could act as supervisor while supply teaching. Mr. Jaballah testified that the school used Mr. Siwalen “sometimes it is for one month, sometimes it is for one week”. Mr. Siwalen’s evidence was that he has no qualifications to supply teach, he helps as a volunteer and does so rarely, maybe once or twice a year.
[52] In summary, I am not prepared to alter the conditions to enable Mr. Jaballah to teach or to do administrative work at Um Al Qura School. I take no exception to Mr. Jaballah undertaking the administrative tasks he described (scheduling, timetables) at home. It seems to me that remuneration should be commensurate with the quantity and quality of the work product. If Mr. Jaballah completes administrative work from home, he should be compensated. He claimed that he had never asked to be paid for work he did at home. In view of his current financial circumstances, he should consider it.
[53] Mr. Jaballah’s proposal for teaching at home is to instruct students in the basement apartment. Many of the same concerns arise particularly with respect to contact with unauthorized persons and cell phones. Moreover, it is not at all clear to me what Mr. Jaballah actually intends to do. He stated (when questioned) that his students would range from 14-16 years of age. Persons over the age of 15 require CBSA approval to “visit” the Jaballah home.
[54] Originally, he claimed that his plan was to teach approximately 20 students. When Mr. Pearce raised concerns regarding potential inspections by the fire marshal and other municipal authorities as well as issues surrounding adherence to regulations and codes for operating a business, the proposal was changed in mid-stream. The plan was converted to “tutoring” two or three students. Mr. Jaballah suggested that he would place “flyers” in various mosques. He had no idea if anyone would respond. If the proposal is to tutor two or three students, query why in the basement apartment?
[55] I should mention that following the site inspection of the school, the Court and counsel attended at the Jaballah residence. It was obvious that Mr. Jaballah has been working industriously to improve the basement apartment. However, his evidence as to its utilization was totally inconsistent. Mr. Jaballah proposed tenants, he proposed teaching, he proposed that his sons Ahmad and Munzir live in the basement and he proposed that Ahmad and his future wife (in time) live in the basement. He expressed a desire that his family occupy the residential structure without any outsider.
[56] Yet, concurrent with Mr. Jaballah’s expression of these various options, a prospective tenant was found and the individual’s name was submitted to CBSA for approval. The Court was so advised on Tuesday, November 29th. I questioned the impact that a tenant would have on Mr. Jaballah’s alternative request to teach in the basement. His counsel stated:
In part, there was desire as a teacher to be able to teach, but there was also the economic factor as well. If the basement was going to be standing empty for a time, the suggestion was that he could use that as an area to teach and thus be able to generate some income. If there is a tenant there, the need for income will be lessened because there will be money coming into the family.
[57] The Ministers’ counsel was quick to advise that if the prospective tenant did not have a criminal record and passed the security checks, counsel would recommend, subject to Court approval, that the Jaballah family be permitted to have the tenant living there. In counsel’s view, a prospective tenant should be seriously considered and preferred (for income purposes).
[58] Five days later, the Court was informed that “there are now no longer prospective tenants at the moment. That makes the family’s financial circumstances more pressing”. The stated reason was that CBSA approval had not materialized in a timely way.
[59] It strikes me as anomalous that upon Mr. Jaballah learning that the income derived from the prospective tenant might be regarded as sufficient to fulfill his stated purpose for working, the tenant prospect evaporated almost immediately.
[60] At this point in time, the conditions of release have been in effect for approximately eight months. The changes required to accommodate Mr. Jaballah’s proposal to teach are fundamental. Although Mr. Jaballah’s counsel presents the request coherently, the evidence in support is thin. It is my view that stringent monitoring of Mr. Jaballah and his movements is essential to neutralize the threat that he poses to national security. I am not persuaded that the conditions should be altered to accommodate his request to teach because I find that his actions could not be effectively monitored. It remains open to Mr. Jaballah to supplement his income by performing administrative tasks for the school from his home. It also remains open to him to proffer prospective basement tenants for CBSA and Court approval.
[61] Having rejected Mr. Jaballah’s request to teach, I must examine the issue of increased outings. The conditions presently permit Mr. Jaballah to have four-hour outings three times per week between the hours of 8:00 a.m. and 9:00 p.m. CBSA has discretion to consider special requests for family outings and to allow one of the weekly outings to extend beyond four hours as well as to extend outings beyond 9:00 p.m. There are a maximum of three extended outings per month. It should be noted that when Mr. Jaballah takes his children to school on Tuesdays, Wednesdays and Thursdays, neither the deliveries nor the pick-ups are counted as outings. Similarly, appointments with doctors or lawyers are not counted as outings, regardless of numbers.
[62] I have previously determined that Mr. Jaballah’s attendance at mosque on Friday evenings should not be counted as an outing. As noted, nearly eight months have passed since Mr. Jaballah’s release. Mr. Pearce testified that the outings have gone well and without incident. He also testified that CBSA would accede to whatever number of outings the Court considered to be appropriate.
[63] I am prepared, in view of the evidence, to increase the number of outings per week from three to five and the number of hours from four to five. Given the frequency of Mr. Jaballah’s absences from his residence (including those not counted as outings), further changes are not warranted at this time.
Supervisors
[64] Mr. Jaballah seeks to have three additional supervisors. The stated reason is the onerous burden on the primary supervisors to be available to Mr. Jaballah. Ms. Al Mashtouli cannot go for groceries if Ahmad is at school because she has to stay with Mr. Jaballah. Many of the alternate supervisors work and it is difficult for them to be readily available. If additional supervisors were added, it would assist the family by relieving and easing the heavy load carried by Ahmad and Ms. Al-Mashtouli. This reasoning stands in sharp contrast to the evidence of Ms. Al-Mashtouli and Ahmad Jaballah tendered at the previous detention review.
[65] The proposed supervisors are Hashim Siwalen, Raza Mohammed and Matthew Behrens. The Ministers consent to Hashim Siwalen and Raza Mohammed being supervisors. They object to Mr. Behrens.
[66] Mr. Siwalen has been a friend of Ahmad Jaballah’s since high school. Although both Mr. Jaballah and Ahmad describe him as a student, he is currently employed and does not begin his studies until January of 2008 when he will attend Centennial College. Mr. Siwalen was approved as a visitor to the Jaballah home shortly after Mr. Jaballah’s release. He is familiar with the conditions of release. He testified that he is prepared to ensure that Mr. Jaballah obeys the conditions.
[67] Mr. Siwalen helped the Jaballah family move to their new residence, he has picked the children up from school and he has been a babysitter for the children. He visits the Jaballah residence at least once each week. He stated that he has, and will have, sufficient time to be available to the Jaballah family both during the week and on weekends.
[68] I presume, in the face of the Ministers’ consent, that the appropriate checks have been completed in relation to Hashim Siwalen. On that basis and on the basis that he is a long-standing associate of Ahmad Jaballah and has rendered much assistance to the family since Mr. Jaballah’s release, I will approve Hashim Siwalen as a supervisor.
[69] Raza Mohammad executed a performance bond in the amount of $5,000 in support of Mr. Jaballah’s application for release from detention. He testified at the previous detention review and again at this hearing. As a surety, he is familiar with the terms and conditions of release.
[70] Mr. Mohammad has known the Jaballah family for six years. The association began when he was a volunteer at the Toronto Youth Assessment Centre. Through his work with troubled youths, he met Munzir Jaballah. Mr. Mohammad is now married and has a child. He continues to work with three youths, one of whom is Munzir. Thus far, his contact with Mr. Jaballah has been in relation to Munzir. He feels that he has established a good relationship with Mr. Jaballah.
[71] Mr. Mohammad works in real estate. He claimed that his profession allows for flexible hours. He could be available, if needed. His home is twenty minutes from the Jaballah residence. He anticipated that his involvement with Mr. Jaballah could require his attention four or five times per month. He stated that he would not hesitate to report a breach of any condition. Mr. Mohammad, as a conditional surety, has a vested interest in ensuring Mr. Jaballah’s compliance with the conditions. I will approve Mr. Mohammad as a surety.
[72] Matthew Behrens is an editor and has known and assisted the Jaballah family for a number of years. His hours are flexible and he testified that he can be available to the Jaballahs on a moment’s notice, at any time.
[73] Mr. Behrens testified at length as to the various ways in which he has assisted the Jaballah family. The one thing that he has been unable to do is relieve the supervisors. He is an approved visitor and is specifically excluded, by my order, from the prohibition regarding visitors with criminal records. In addition to assisting the family directly, he apparently does a voluminous amount of work for Mr. Jaballah’s counsel.
[74] The Ministers rigorously oppose Mr. Behrens’s appointment as a supervisor. The basis of their objection is the articles authored by Mr. Behrens in which he is critical of judges of the Federal Court and their decisions regarding security certificate cas