Jaballah v. Canada (Public Safety and Emergency Preparedness)

Jaballah v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2007-04-12
Neutral citation
2007 FC 379
File numbers
DES-4-01
Decision Content
Date: 20070412
Docket: DES-4-01
Citation: 2007 FC 379
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 which has been determined by the Federal Court to be reasonable. He has been in detention for more than 5½ years and seeks an order for release, on conditions, under the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2] Mr. Jaballah concedes that he is a danger to national security within the meaning of the legislation. Notwithstanding, he contends that the degree of danger that he poses can be neutralized by release with the imposition of stringent conditions. He also asserts that such conditions will alleviate any concern that he would not appear for a proceeding or for removal.
[3] For the reasons that follow, I conclude that Mr. Jaballah should be released on conditions that equate to house arrest.
Background
Procedural
[4] 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 FC 1230, F.C.J. No. 1706, and need not be repeated. A chronological history is depicted in Appendix “A” to Justice MacKay’s reasons. That document, updated to reflect subsequent events, is also attached to these reasons as Appendix “B”.
[5] This is not Mr. Jaballah’s first detention review. His initial request for release was dismissed on February 27, 2004. A second request was dismissed on February 1, 2006. His third detention review was initiated in September of 2006 under subsection 83(2) of the IRPA. My decisions in Re Jaballah 2006 FC 1316, F.C.J. No. 1645 and Re Jaballah 2006 FC 1514, F.C.J. No. 1903 discuss the termination of the subsection 83(2) review for reasons related to jurisdiction. The subsection 84(2) detention review began on February 13, 2007. Upon the consent of the parties, the evidence from the aborted subsection 83(2) detention review was read in, in its entirety, as evidence on the subsection 84(2) detention review. Additional evidence was also presented.
[6] On February 23, 2004, the Supreme Court of Canada issued its reasons in Charkaoui v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), 2007 SCC 9, F.C.J. No. 9 (Charkaoui). The Supreme Court struck down subsection 84(2) of the IRPA as unconstitutional. Section 83 was saved by reading in the words “foreign national” and striking the words “until a determination is made under subsection 80(1)” from subsection 83(2). Unlike the situation regarding the other provisions of the IRPA that the Supreme Court determined to be unconstitutional, the remedy regarding subsection 84(2) was not suspended for one year.
[7] On March 6, 2007, as a result of a teleconference initiated by the court, the parties submitted revised oral arguments addressing the specific factors identified by the Supreme Court as being relevant to the issue of release.
Factual
[8] Synoptically, the factual background follows. Mr. Jaballah, an Egyptian national, came to Canada on May 11, 1996, with his wife, Husnah Mohammad Al-Mashtouli, and their first four children. Ms. Al-Mashtouli and the four children are Convention refugees. Mr. Jaballah is not. Two children, born after the family’s arrival in Canada, are Canadian citizens.
[9] Mr. Jaballah has been in detention since August 14, 2001, after a security certificate was signed by the Minister of Citizenship and Immigration and the Solicitor General. The Solicitor General has since been replaced by the Minister of Public Safety and Emergency Preparedness. The certificate was signed pursuant to section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act), but is now governed by the provisions of the IRPA by virtue of section 190 of the current legislation.
[10] The effect of Justice MacKay’s determination – that the security certificate is reasonable – is twofold. First, it constitutes conclusive proof that Mr. Jaballah is inadmissible. Second, it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing. In the normal course, Mr. Jaballah would be deported to his country of origin. However, Justice MacKay’s order prohibits the Minister of Citizenship and Immigration (the Minister) from removing Mr. Jaballah “to any country where and when there is a substantial risk that he would face torture, death or cruel and unusual treatment”. Justice MacKay’s reasons refer specifically to Egypt (in the context of his discussion regarding deportation where there is a substantial risk of torture or violation of rights as a human being).
The Legislation
[11] The text of section 83, as revised and dictated by the Supreme Court of Canada is set out below. The recitation is an unofficial one. The statutory provisions of the former Act and the IRPA relating to security certificates are attached to these reasons as Appendix “C”.
Immigration and Refugee Protection Act,
S.C. 2001, c. 27
83. (1) Not later than 48 hours after the beginning of detention of a permanent resident or a foreign national under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require.
(2) The permanent resident or foreign national must be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.
(3) A judge shall order the detention to be continued if satisfied that the permanent resident or foreign national continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal
Loi sur l’immigration et la protection des réfugiés,
L.C. 2001, ch. 27
83. (1) Dans les quarante-huit heures suivant le début de la détention du résident permanent ou l’étranger, le juge entreprend le contrôle des motifs justifiant le maintien en détention, l’article 78 s’appliquant, avec les adaptations nécessaires, au contrôle.
(2) L’intéressé ou l’étranger comparaît au moins une fois dans les six mois suivant chaque contrôle, ou sur autorisation du juge.
(3) L’intéressé ou l’étranger est maintenu en détention sur preuve qu’il constitue toujours un danger pour la sécurité nationale ou la sécurité d’autrui ou qu’il se soustraira vraisemblablement à la procédure ou au renvoi.
Issue
[12] The only issue is whether Mr. Jaballah should be released from detention on terms and conditions pursuant to subsection 83(3) of the IRPA.
Preliminary Observations
[13] It should be noted that the submissions of the parties had been completed shortly before the release of the Supreme Court’s decision in Charkaoui. In its reasons for judgment, the court delineated a non-exhaustive list of factors for consideration on a review of detention under section 83 of the IRPA. Although the parties had addressed those factors, they had done so from a materially different perspective. Because I was not comfortable importing the previous submissions into the new contextual framework without the benefit of further submissions from counsel, I requested revised submissions to accord with the factors enumerated in Charkaoui.
[14] Although counsel were content to accommodate my request, Mr. Jaballah waived any opportunity to argue “other substantive aspects” of the Supreme Court’s decision regarding the procedural approach to the detention review hearing. Similarly, he wished to forego a revision of his submissions regarding the question of “danger to national security”, preferring instead to rely on his earlier submissions. The objective, according to Mr. Jaballah’s counsel, was to secure his release rather than prolong incarceration. Therefore, although the parties specifically addressed the factors from Charkaoui, many of their earlier arguments remained intact.
[15] Before delineating the applicable factors, it should also be noted that the Ministers maintain that Mr. Jaballah constitutes a threat to national security. They do not allege that he is a threat to the safety of any person. Nor do they suggest that he has personally committed an act of violence. For his part, Mr. Jaballah concedes that he is a danger to national security. However, he contends that the degree of danger is such that it can be mitigated, and indeed neutralized, by the imposition of restrictive conditions. He is amenable to any form and number of conditions, no matter how stringent, as long as he can be released.
The Applicable Charkaoui Principles
[16] Chief Justice McLachlin, writing for a unanimous court in Charkaoui, dictated a non-exhaustive list of relevant factors to be taken into account on a review of detention under the security certificate provisions of the IRPA. The factors, as described by the Supreme Court at paragraphs 111 to 116 of Charkaoui, are reiterated here and will henceforth be referred to as the Charkaoui factors.
The reasons for detention are to be considered. In this respect, detention pursuant to a security certificate is justified on the basis of a continuing threat to national security. Although the criteria for release under section 83 of the IRPA also include the likelihood that a person will appear at a proceeding or for removal, a threat to national security is a more important factor for the purpose of justifying continued detention. The more serious the threat, the greater will be the justification for detention.
The length of the detention to date is an important factor. The longer the period of detention, the less likely it is that an individual will remain a threat to security. A longer period of detention will also provide the government with more time to gather evidence establishing the nature of the threat posed by the detained person. The government’s onus will be heavier when it has had more time to investigate and document the threat.
The reasons for the delay in deportation are to be considered. In assessing whether the delays have been caused by the detainee or the government, recourse by either party to applicable provisions of the IRPA that are reasonable in the circumstances and recourse by the individual to reasonable Charter challenges should not count against either party. An unexplained delay or lack of diligence should count against the offending party.
The anticipated future length of detention must be considered. If there is likely to be a lengthy detention before deportation or if the future detention time cannot be ascertained, this factor should weigh in favour of release.
The availability of alternatives to detention must be explored. Stringent release conditions seriously limit individual liberty. However, they are less severe than incarceration. The release conditions must not be a disproportionate response to the nature of the threat.
[17]The following additional propositions from Charkaoui are also relevant to this matter.
· The Ministers bear the initial burden of establishing that the criteria in section 83 are met (para. 100).
· The appropriate standard to be applied when reviewing a continuation of detention is that of “reasonable grounds to believe”. This requires the judge to consider whether there is an “objective basis…which is based on compelling and credible information” (para. 39 citing Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100).
· The legislation authorizes the reviewing judge to fashion conditions that would neutralize the risk of danger upon release and to order the release of the detainee (para. 120).
Analysis
[18] The Ministers’ penultimate position is that terms and conditions cannot mitigate the danger posed by Mr. Jaballah. Not surprisingly, Mr. Jaballah takes the opposite position.
[19] The parties concur that, on a review of detention, all relevant factors must be considered and addressed by the court. It is common ground that the material facts are cognizable by reference to the Charkaoui factors. The parties have addressed each of the factors and I will do likewise, although not necessarily in the order argued by counsel. Some factors can be reviewed and disposed of more easily than others. Consequently, I will approach this analysis by dealing with the least contentious factors first.
Length of Detention to Date
[20] There is no debate regarding the length of Mr. Jaballah’s detention. He has been detained since August 14, 2001, a period of more than 5½ years. The Ministers maintain that the overarching principle to be extrapolated from Charkaoui is that extended periods of detention, pending deportation under the certificate provisions of the IRPA, in and of themselves, do not violate sections 7 or 12 of the Charter. Lengthy detention is not unconstitutional provided that regular opportunities for review of detention, taking into account all relevant factors, are available. The Supreme Court did not suggest that persons who constitute a danger to national security could not be detained for lengthy periods.
[21] Mr. Jaballah notes that the Supreme Court considered this factor to be an important one because it recognized that the longer the period of detention, the less likely it is that an individual will remain a threat to security.
[22] Additionally, Mr. Jaballah submits that regard should also be had to the overall length of time that he has been subject to the security certificate proceedings. This is the second proceeding. When the antecedent proceeding is factored in, the time frame totals nearly 8 years, much of which has entailed detention. Thus, the court should be able to conclude with confidence that any danger that he may have posed to the security of Canada, which would justify his detention, has now been brought within a manageable level because of his lengthy detention, the disruption of any contact he may once have had, and his public exposure as an alleged member of Egyptian Al Jihad.
[23] Further, Mr. Jaballah asserts that the longer the period of detention, the greater the evidentiary onus on the government to justify its continuance. He maintains that the government cannot discharge that heavier onus having regard to the elapse of time since these proceedings began.
[24] In my view, there is little doubt that this factor favours Mr. Jaballah’s position. The detention is of sufficient duration to trigger the observations noted by the Supreme Court, specifically disruption of the contact and communication with extremist individuals or groups previously engaged in by Mr. Jaballah.
Reasons for Delay in Deportation
[25] The Ministers observe that Charkaoui represents a marked departure from the previous pronouncements in Almrei v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 142 (C.A.) in relation to this factor. The government, at various times throughout this process, reasonably has relied upon the statutory provisions of the IRPA, including provisions pertaining to danger to the security of Canada. At the end of the day, only delay that is unexplained or displays a lack of diligence will operate to the detriment of a party. Here, despite the good faith and efforts of all concerned, the delay has been lengthy.
[26] Mr. Jaballah claims that there are three primary factors that contributed to the delay. First, the Federal Court’s 2003 determination that the security certificate is reasonable was set aside by the Federal Court of Appeal on jurisdictional grounds. Second, the Ministers’ 2005 determination denying Mr. Jaballah protection was set aside on judicial review, thereby necessitating a reconsideration of that issue. Third, Mr. Jaballah’s prevalent concern regarding risk of torture and other human rights abuses (if deported) undoubtedly contributed to the length of time the government required to arrive at its determinations in this matter.
[27] Neither party has suggested that the other failed to proceed with reasonable diligence. Mr. Jaballah pursued the various legal challenges that were lawfully available to him. In accordance with Charkaoui, he cannot be penalized for having done so. Similarly, the Ministers relied upon the security certificate regime of the IRPA that, until the issuance of Charkaoui, was repeatedly held to be constitutional. Unfortunately, this proceeding has been protracted. While regrettable, absent the benefit of hindsight, it cannot be said to have been foreseeable. In circumstances where the parties, expeditiously and in good faith, availed themselves of accessible remedies or relied upon lawful statutory provisions, they should not be faulted. That, in my view, is precisely the situation here. Consequently, I consider this factor to be neutral.
Anticipated Future Length of Detention
[28] The Ministers acknowledge, in fairness to Mr. Jaballah, that the future length of detention in this matter “cannot really be ascertained if one looks at it from the point of view of when removal will be effected, which is the purpose of the entire statutory scheme and these provisions in particular”. The Ministers note the Supreme Court’s admonition that the IRPA does not permit detention per se in the absence of a reasonable prospect of removal. Accordingly, the Ministers concede that this factor militates in Mr. Jaballah’s favour.
[29] In response, Mr. Jaballah contends that this factor not only favours him, it weighs heavily in favour of his release. He opines that the basis for the Ministers’ concession is twofold. First, Justice MacKay’s order prohibits the Ministers from removing him to Egypt or to any other country where he would face significant risk of violations of his rights as a human being. Second, the evidence of the Manager, Investigations and Removals, Inland Enforcement, Canada Border Services Agency (CBSA), clarifies the current status regarding deportation. According to the witness, insofar as she is aware, the only option being considered for Mr. Jaballah is deportation to Egypt. Therefore, although Justice MacKay’s order does not prohibit absolutely Mr. Jaballah’s removal from Canada, there is no evidence that options other than removal to Egypt are being considered, let alone pursued.
[30] Further, says Mr. Jaballah, Charkaoui itself yields uncertainty in relation to the suspended declaration of invalidity. Reading paragraph 140 of the Supreme Court’s reasons, Mr. Jaballah asserts that “even if [he] does not move to quash the certificate, if the government intends to rely on the certificate as a basis for removal, the court appears to be saying that there must be a fresh determination of reasonableness under whatever new process may be devised by Parliament”. Mr. Jaballah submits that the comment in paragraph 140 is puzzling, leaves matters very uncertain, and reinforces his point regarding the indeterminacy of whatever fate awaits him. This state of affairs with its attendant uncertainty and indeterminacy is such that he believes that it moves his situation into the realm of indefinite detention. Finally, he notes that although the Ministers filed an appeal of Justice MacKay’s order prohibiting them from removing Mr. Jaballah to Egypt, they have not requested that the appeal be expedited.
[31] It is indisputable that this factor weighs heavily in Mr. Jaballah’s favour when consideration is given to the length of time that he has already spent in detention and the fact that it is improbable that he will be removed from Canada within the near future. This factor is highly significant because the detention must be “hinged” to the purpose of deportation. At this point, while Mr. Jaballah’s case is borderline, there is nothing before me to suggest that the Ministers have abandoned the intention to deport him. Rather, the evidence of the CBSA witness was to the contrary. The problem is that, thus far, they have seemingly failed to explore any options other than deportation to Egypt.
[32] With respect to indefinite detention, I understand the Supreme Court to have specifically stated in Charkaoui that detention is not indeterminate if robust and regular, and ongoing judicial review is available. I consider that to be the situation here. Thus, while this factor is to be accorded considerable weight in the resolution of this matter, it is to be assessed in conjunction with the other factors and does not trump them. In short, it is not determinative.
Reasons for Detention
[33] The reason underlying Mr. Jaballah’s detention is the Ministers’ opinion that he poses a danger to national security as reflected in the security certificate. The certificate has been determined to be reasonable. There is no debate that a determination of the reasonableness of a security certificate does not constitute conclusive proof that a person is a danger to the security of Canada: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh).
[34] Detention is also permissible under the legislation in circumstances where the individual is unlikely to appear at a proceeding or for removal. The expression “flight risk” is commonly used to describe such an individual. In Charkaoui, the Supreme Court noted that a threat to national security is a more important factor for the purpose of justifying continued detention. The more serious the threat, the greater will be the justification for detention.
[35] As to the appropriate standard to be used, from Charkaoui, it appears that a “designated judge, when reviewing a continuation of detention under the certificate provisions of the IRPA”, is to apply the standard of reasonable grounds to believe. The judge must determine “whether there exists an objective basis… which is based on compelling and credible information” (para. 39). I assume that this standard relates to the determination of whether the individual constitutes a danger to national security given that it is one (and the more important) of the two factors that will justify continuing detention.
[36] The Ministers maintain that Mr. Jaballah is a member of the Egyptian Islamic Al Jihad (AJ), a terrorist organization that is closely aligned with Al Qaida. The latter has identified Canada as a target. They assert that Mr. Jaballah’s release from detention will pose a danger to national security because it will enable him to reassociate with Islamist extremist contacts. His profile as a detainee will cause extremists to seek him out.
[37] As stated earlier, Mr. Jaballah concedes that he is a danger to national security. The focus of his argument is that the degree of danger he poses can be neutralized by the imposition of stringent conditions on release. Most of Mr. Jaballah’s submissions in this respect go to the “alternatives to detention” factor. However, he does ask that the court, in assessing the degree of danger he presents, consider the implications of the analysis in Charkaoui concerning the unfairness of the certificate hearing process. Referring specifically to paragraphs 51, 63 and 64 of Charkaoui, Mr. Jaballah observes that many of the considerations described there have an impact on the assessment of danger. Moreover, he claims that Justice MacKay’s determination was made pursuant to a process that has been determined to be constitutionally infirm and the court should bear in mind the observations of the Supreme Court.
[38] The issue of danger to national security is fundamental to the “reasons for detention” factor. But for the Ministers’ belief that Mr. Jaballah is a danger to national security, there would be neither a security certificate nor detention. Mr. Jaballah’s concession that he constitutes a danger to national security certainly expedited the detention review hearing. However, it is important to state that, if Mr. Jaballah had not conceded this point, I would have concluded that he is a danger to national security in any event. I am satisfied, on a balance of probabilities, that there is sufficient credible and compelling information before me to found an objective basis that provides reasonable grounds to believe that he is such a danger.
[39] The record is clear with respect to the terrorist activities of the AJ and Al Qaida as well as the affinity between the two organizations. Both are designated as terrorist organizations pursuant to subsection 83.05(1) of the Criminal Code, as amended by S.C. 2001, c. 41, s. 4.
[40] Regarding Mr. Jaballah’s membership in AJ, I am in agreement with Justice MacKay that Mr. Jaballah’s contacts “with a number of persons in Canada and abroad, who are known or believed to be or to have been associated with terrorist activities or organizations” support the Ministers’ position that “Mr. Jaballah was in communication with leading figures in the AJ in a manner that only a person of reasonably senior status in the organization could have been”. The various allegations – along with the supporting evidence and information – against Mr. Jaballah are extensively canvassed in paragraphs 37 to 55 of Justice MacKay’s reasons of October 16, 2006. I see no need to repeat all of that information here. Although Justice MacKay’s task was to determine whether the security certificate is reasonable, the evidence and information detailed by him in paragraphs 40, 41, 48 and 50-54 is also before me. The evidence and information support a finding that there are reasonable grounds to believe that Mr. Jaballah was a senior member of the AJ who acted as a communicator among terrorist cells of the AJ and Al Qaida. He therefore constitutes a danger to national security. For the reasons that I discuss later, unrestricted, Mr. Jaballah is a continuing threat.
[41] I will comment briefly on the phone records in evidence – which have been the subject of evolving commentary from Mr. Jaballah after he initially denied having had any contact with persons abroad after his arrival in Canada – because they were not satisfactorily explained at this hearing. Although provided with the opportunity to address the 72 calls to Yemen, the 47 calls to Azerbaijan, the 75 calls to London, England (primarily to the International Office for Defence of the Egyptian People (IODEP), believed to be a front for Al Qaida operations), and the 20 calls to the United Kingdom, Yemen, Azerbaijan and Pakistan within a two-day time frame, Mr. Jaballah either failed to do so or was evasive when he spoke to some of them. Similarly, explanations were lacking with respect to his contacts with persons of concern to the Ministers because of their ties to terrorist activities and organizations, both within Canada and abroad. His testimony regarding the post office box in Toronto remained unchanged from that provided at the certificate hearing.
[42] On this detention review, Mr. Jaballah’s position was to deny the accuracy of the allegations “one hundred percent”. At various points during his testimony, he asserted, “if you have evidence of my involvement in terrorism, then show me; prove it”. This perspective brings me to his request that I consider the “unfairness” and constitutional infirmity of the process when considering the degree of danger that he poses.
[43] For two reasons, I am not inclined to place much emphasis on this request. First is the Supreme Court’s one-year suspension of its declaration of invalidity of the security certificate provisions of the IRPA. I do not believe that the Supreme Court intended that previous rulings are to be revisited or that current proceedings necessarily are to be altered as a result of its determination. Indeed, the court specifically stated that “if the government chooses to go forward with the proceedings to have the reasonableness of Mr. Charkaoui’s certificate determined during the one-year suspension period, the existing process under the IRPA will apply”.
[44] Second is the fact that the public record in this matter is voluminous. The summary of the Ministers’ evidence with respect to Mr. Jaballah is extensive and has been amended and expanded over time. There is little to distinguish the evidence (documents and testimony submitted by the parties on the public record) from the information (which for convenience I will call the classified information although it is more appropriately characterized as defined in section 76 of the IRPA).
[45] To illustrate, I will provide an example. The Ministers contend that Mr. Jaballah had contact with Ahmed Said Khadr (a Canadian, now deceased, who is believed to have been a senior member of Osama bin Laden’s group). Mr. Jaballah acknowledges meeting Mr. Khadr in Toronto only after he (Mr. Jaballah) came to Canada. The Ministers claim that Mr. Jaballah had contact with Khadr in Peshawar before Mr. Jaballah came to Canada. Missing from the public record is the detail as to the manner in which the Ministers’ acquired that knowledge. Mr. Jaballah does not require the “missing” information in order to respond to the allegation. He is fully aware of its substance. And so it is in relation to the other allegations against him.
[46] The fact that there are reasonable grounds to believe that Mr. Jaballah is a danger to national security requires that he be detained unless the degree of danger that he poses can be neutralized by the imposition of appropriate terms and conditions.
Availability of Alternatives to Detention
[47] Charkaoui instructs that consideration of this factor is mandatory. For practical purposes, it is the heart of this matter. To consolidate what I have already stated when addressing the other factors, the aspects of this matter militating in favour of releasing Mr. Jaballah on conditions are the following:
• there is no allegation that he is a danger to the safety of any person;
• there is no allegation that he personally committed an act of violence;
• there is no evidence that he has acted against Canada or Canadian interests;
• there is no evidence that he has aided anyone in acting against Canada or Canadian interests;
• he has been in detention for more than 5 ½ years in relation to the second security certificate and for much longer when the first certificate proceeding is considered;
• the contacts that he once had with persons or organizations of a terrorist nature have been disrupted;
• there is no suggestion that he has had contact with the individuals listed in the summaries since he was detained;
• the only evidence of contact with individuals whom the Ministers believe to be terrorists has occurred in the present detention facility where Mr. Jaballah interacts daily with Messrs. Mahjoub and Almrei;
• the government’s evidence, with minor exceptions, is as it was at the time when he was detained;
• his public exposure and notoriety may make him attractive to jihadists (as J.P. testified) although it is equally plausible that those engaged in surreptitious activity would avoid contact with him lest their activities be discovered by the authorities;
• there is no evidence to suggest that there is a reasonable prospect that he will be deported from Canada within the near future;
• he claims to be willing to accept any conditions that will allow him to be close to his children, not for his own sake, but for his children’s sake “because they need their father to be with them to guide them and to provide a proper authority for them”;
• he claims that he would abide by the conditions, regardless of their nature, because his religion requires that he honour his promise and because otherwise, he “would be putting his children into even more trouble and would make their lives more miserable”;
• he recognizes that a breach of the conditions could result in his return to detention.
[48] The next consideration is the nature of the proposed conditions.
[49] Mr. Jaballah candidly acknowledges that the primary proposed supervisory surety is his wife, Ms. Al-Mashtouli. His son, Ahmad Jaballah, and his friend, Mr. Jamal Azawi, are also proffered as supervisory sureties. For emergencies and in the unlikely event that one of the supervisory sureties is not available, he proposes that Ms. Ash-Shaymaa Es-Sayyid, Mr. Mohammed Dawud, Ms. Hayat Mabrouk or Mr. Adel Qablawi be approved to stand in. Additionally, there are a number of individuals who were unable to offer tangible supervisory assistance, but were prepared to offer financial support ranging from symbolic to significant. Those individuals include Mubarach Adan, Remzi Bekri, Mahmoud Idris, James Loney, Raza Mohammad Ahmad Shehab, Adnan Srajeldin, John Valleau, Meili Faille, Omar Alghabra, Bill Siksay, Andrew Telegdi and Dr. Aly Hindy.
[50] At the outset, I note, in relation to Dr. Hindy, that my colleague, Mr. Justice Mosley, in Mahjoub v. Canada (Minister of Citizenship and Immigration), 2007 FC 171, F.C.J. No. 206 concluded that Dr. Hindy’s “published statements are open to the inference that he is supportive to or at least defensive of the threats of Islamic terrorism”. Justice Mosley did not consider Dr. Hindy to be an acceptable surety, nor do I. I concur with Justice Mosley’s reasoning and adopt it in its entirety.
[51] Ahmad Jaballah is an eloquent and persuasive young man who, as the eldest child in the Jaballah household, assumed considerable familial responsibility in the wake of his father’s absence. He is a second-year student, pursuing a major in neuroscience, at the University of Toronto. In addition to his studies, he managed to hold down part-time employment and save $3,000, which he proposes to post as a cash bond to assist in securing his father’s release. He is also willing to act as a supervising surety for his father at home and on excursions.
[52] Ahmad indicated that his class schedule is such that he can remain at home every morning and early afternoon, except Wednesday, until 3:00 p.m. He affirmed his commitment to ensure that his father complies with all of the terms and conditions of release because of the “great responsibility” he feels that he owes to the community who came forward to support his family. He testified convincingly that he would call the police if he discovered that his father breached any condition imposed by the court.
[53] While Ahmad’s support is both impressive and admirable, recognition of his responsibilities outside the home is a factor. Class schedules change from one semester to the next. His role as a supervisor, realistically, will involve significantly less time with his father than the time assumed by his mother.
[54] Mr. Jamal Azawi is a Canadian citizen who immigrated to Canada from Iraq. He is married and has five children. He operates a used-car dealership and has offered to post a $10,000 cash bond to secure Mr. Jaballah’s release. He has known Mr. Jaballah since 1996. The families became friends and exchanged several visits before Mr. Jaballah was detained on the first security certificate in 1999. The families have continued to maintain contact and Mr. Azawi has visited and phoned Mr. Jaballah throughout the period of his detention.
[55] Ms. Ash-Shaymaa Es-Sayyid is Mr. Jaballah’s oldest daughter. She is married and the mother of a 9-month-old boy. Although she does not live in the Jaballah household, she is willing to supervise her father when need be.
[56] Mr. Mohammed Dawud is a friend of Mr. Jaballah’s. Their initial meeting was through their respective employment at the Toronto-Dominion Bank. Mr. Dawud’s children later attended the school where Mr. Jaballah served as principal. Mr. Dawud testified that he does not believe that Mr. Jaballah would violate the conditions of release. He offered a $10,000 conditional bond in support of this belief and is willing to supervise Mr. Jaballah as needed.
[57] Ms. Hayat Mabrouk has known the Jaballah family for five or six years. She is a retired widow with three adult children, all of whom are married and settled. She has complete trust in Mr. Jaballah and his family to adhere to the conditions of release and is prepared to post a cash bond of $4,000 and a conditional bond of $10,000. She is also prepared to supervise Mr. Jaballah when others are not available or not able.
[58] Mr. Adel Qablawi is a permanent resident of Canada. He owns Pro Master Garage Door Services. He is married and has two children. Three years ago, he met Mr. Jaballah through Mr. Qablawi’s brother-in-law who was also detained at the Toronto West Detention Centre. His family developed a friendship with the Jaballah family and Mr. Qablawi became involved in assisting the family in various ways. He provided employment for Mr. Jaballah’s two oldest sons and arranged Mr. Jaballah’s daughter’s marriage to Ahmed Ali. Mr. Qablawi feels that he really knows Mr. Jaballah; he trusts him and his family. He proposes to post a cash bond of $10,000 and a conditional bond of the same amount to secure Mr. Jaballah’s release. He is also willing to fill in as a supervisor when need be.
[59] Ms. Al-Mashtouli has been a de facto single parent of six children for the duration of her husband’s detention. Years ago in Pakistan, she supported the family, albeit a smaller one, from 1994-1996 while Mr. Jaballah was in Yeman and Azerbaijan. Although she has been the beneficiary of community support in Canada, it is clear that she has strength, independence and capability. She is educated and claims that she and her husband discuss everything and have no secrets. She is aware of the nature of the allegations against her husband. Her family is supported by public assistance and she does not have the means to post a cash bond to secure her husband’s release.
[60] Ms. Al-Mashtouli proposes to be her husband’s primary supervisor, if he is released. She testified that she believes he would comply with the conditions of release because he needs to be with his children. She stated that she would call the police to take action against him if he were to breach a condition because, through Islam, pledges or covenants must be honoured rather than violated. She stated that she would agree to any conditions, no matter how severe, as long as Mr. Jaballah could come home to his family. Her only request was that the children, specifically their transportation to school, be considered.
[61] The principal difficulty that arises in relation to Ms. Al-Mashtouli as the primary supervisor is that she is not credible in several respects. She previously lied to the court regarding her husband’s travels to Winnipeg. There is information that reveals that she has not been honest regarding Mr. Jaballah’s association with certain individuals before coming to Canada.
[62] While I acknowledge that there was considerable confusion for the Jaballah family in relation to the issue of three-way calling, Ms. Al-Mashtouli was adamant that she spoke with the CBSA Manager of the Kingston Immigration Holding Centre on only one occasion when she discussed her husband’s hunger strike. The CBSA manager testified that although he had never met Ms. Al-Mashtouli, they had spoken on the telephone on five separate occasions. He had specific recollection regarding both the times and the contents of the telephone conversations. He was certain that he discussed with her the prohibition regarding the use of cell phones and three-way calls. Notwithstanding, Ms. Al-Mashtouli facilitated three-way calls and forwarded calls to her cell phone. I prefer the specific recollection of the manager over Ms. Al-Mashtouli’s evidence in this respect.
[63] Additionally, although witn