Jaballah (Re)

Jaballah (Re)
Court (s) Database
Federal Court Decisions
Date
2010-05-11
Neutral citation
2010 FC 507
File numbers
DES-6-08
Notes
Digest
Decision Content
Date: 20100511
Docket: DES-6-08
Citation: 2010 FC 507
Ottawa, Ontario, May 11, 2010
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)
1. Introduction 1-10
2. Relief Sought Pursuant to Subsection 24(1) of the Charter 11
a. The issues raised and the submissions advanced by Mr. Jaballah 12-15
Section 7 of the Charter 16
Section 15 of the Charter 17
Section 12 of the Charter 18-19
Section 9 of the Charter 20
b. Has the factual basis for the claim to relief under the Charter
been established? 21-22
i. Can Mr. Jaballah be removed from Canada? 23-31
ii. Will the conditions of Mr. Jaballah’s release continue
indefinitely? 32-29
c. Consequences of Findings of Fact 40-42
d. The Ferguson Decision 43-57
3. Relief sought pursuant to Subsection 82(4) of the Act 58-59
a. Positions of the Parties
i. Position of Mr. Jaballah on the review of conditions 60-62
ii. Position of the Ministers in response 63
iii. The Ministers’ motion 64
b. Applicable legal principles 65-66
c. Application of the legal principles to the evidence 67
i. Reasons for the imposition of stringent conditions 68-140
ii. The length of detention and release on stringent conditions 141-144
iii. Reasons for the delay in deportation 145-150
iv. Anticipated future length of conditions 151-153
v. Alternatives to the existing conditions 154
vi. Conclusion with respect to the Charkaoui I factors 155
d. Appropriate modification of conditions
i. The children 156-160
ii. Other modifications
Home Alone 161-170
Outings 171-178
e. The Ministers’ motion 179
Infra-red illuminators 180-183
Garage security camera 184
Jean Smith 185-188
f. Conclusion 189-190
g. Parting comments 191-196
1. Introduction
[1] Mahmoud Jaballah is named in a security certificate that was issued in February, 2008. In this certificate, the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (Ministers) assert their belief that there are reasonable grounds to believe that Mr. Jaballah is inadmissible to Canada on grounds of national security.
[2] Mr. Jaballah has previously been subject to two security certificates. The first, issued in April, 1999, was quashed by the Court in November, 1999. The second, issued in August, 2001, was found to be reasonable by the Court in May, 2003. That decision was set aside by the Federal Court of Appeal in June, 2004, and the matter was returned to this Court. On October 16, 2006, the Court again found the certificate to be reasonable.
[3] Subsequently, 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 of no force or effect. The declaration of invalidity was suspended for a period of one year. At that time, Mr. Jaballah was subject to the second security certificate and was in detention.
[4] While the declaration of invalidity was suspended, this Court ordered that Mr. Jaballah be released from detention on strict conditions. Those conditions have been reviewed by the Court on two subsequent occasions, as reflected in reasons dated January 4, 2008 and March 20, 2009.
[5] At this time, Mr. Jaballah moves for an order, pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms (Charter), cancelling the conditions of release imposed upon him on the grounds that the continuation of those conditions will violate sections 7, 9, 12 and 15 of the Charter. All sections of the Act and the Charter referred to in these reasons are set out in the Appendix to these reasons.
[6] More specifically, Mr. Jaballah asserts that:
(a) He cannot be removed from Canada.
(b) The conditions of release will continue indefinitely.
[7] In consequence, Mr. Jaballah argues that the conditions are no longer connected to the original purpose for which the security certificate was issued and detention was imposed. The conditions are said to be "unhinged" from the purpose of determining inadmissibility and removal. It follows, he says, that:
(a) His detention and conditions of release are excessive, unreasonable in length, punitive and arbitrary, thus violating section 7 of the Charter.
(b) The conditions are indefinite and divorced from their purpose, thereby amounting to arbitrary detention contrary to section 9 of the Charter.
(c) The conditions constitute cruel and unusual treatment, thus violating section 12 of the Charter.
(d) The conditions of release now relate solely to national security concerns and not to removal. Since citizens who pose a security risk cannot be subject to the same restrictions, this constitutes a breach of section 15 of the Charter.
[8] In the alternative, Mr. Jaballah argues that even if the conditions have not become unhinged from the purpose of removal, the ongoing and stringent conditions imposed upon him, and their indeterminate length, amount to indefinite detention and so constitute cruel and unusual treatment contrary to section 12 of the Charter. He therefore seeks a remedy, pursuant to subsection 24(1) of the Charter, whereby "ordinary non-intrusive conditions of release" would be imposed. In oral argument counsel clarified that such conditions would be similar to those generally imposed pursuant to section 56 or subsection 58(3) of the Act.
[9] In the further alternative, Mr. Jaballah seeks to have his current conditions of release varied pursuant to subsection 82(4) of the Act.
[10] The Ministers respond that Mr. Jaballah's allegations that he cannot be removed from Canada and that the terms and conditions of release will continue indefinitely are without merit and premature. It follows, in their submission, that the terms and conditions of release have not become "unhinged" from the removal process, nor is the treatment cruel and unusual. The Ministers ask that the terms and conditions be maintained subject to their cross-motion. In such cross-motion, the Ministers ask for the following amendments to the existing terms and conditions:
a. Infra-red illuminators be installed on the security cameras located at the entrances to the Jaballah home;
b. A contact alarm be installed on the door to the basement apartment in the Jaballah home;
c. The security camera in the garage of the Jaballah home be reactivated;
d. Mr. Jaballah not be permitted to remain home alone; and
e. Mr. Jaballah be prohibited from communicating with Ms. Jean Smith.
2. Relief Sought Pursuant to Subsection 24(1) of the Charter
[11] In light of the view I take of the factual issues raised before me, I believe it is helpful to set out Mr. Jaballah's submissions in more detail.
a. The issues raised and the submissions advanced by Mr. Jaballah
[12] As noted above, Mr. Jaballah seeks relief under subsection 24(1) of the Charter for the alleged breaches of sections 7, 9, 12 and 15 of the Charter. The relief originally sought was "an order pursuant to s. 24(1) of the Charter of Rights and Freedoms that s. 77 and all consequent provisions of the Immigration and Refugee Protection Act (IRPA) and s. 81 and all consequent provisions of that Act are of no force or effect in respect of Mr. Jaballah." Some confusion arose during the hearing of this motion about the nature of the relief sought by Mr. Jaballah and the basis upon which he sought such relief. I believe that the confusion arose as a result of the Court raising, on the first day of oral argument, the issue of whether the relief sought under subsection 24(1) of the Charter was available in light of the Supreme Court of Canada’s decision in R. v. Ferguson, [2008] 1 S.C.R. 96. More will be said about this issue later.
[13] For the purpose of this portion of the reasons it is sufficient to state that by written submissions dated December 18, 2009, the Court was advised that after discussions between counsel for Mr. Jaballah and the Ministers, the Ministers understood, and implicitly accepted, that Mr. Jaballah had abandoned his claim that sections 77, 81 and others of the Act were of no force or effect in respect of him. The Court was also advised that Mr. Jaballah sought no relief at this time pursuant to subsection 52(1) of the Constitution Act, 1982. Thus, Mr. Jaballah’s arguments on this motion are restricted to the conditions themselves and not to the constitutionality of the regime.
[14] I understand that ultimately Mr. Jaballah’s position may be summarized as follows. The Charter constrains the exercise of the broad judicial discretion conferred by paragraph 82(5)(b) of the Act. Mr. Jaballah contends that this discretion has been exercised in a manner that has violated his rights under sections 7, 9, 12 and 15 of the Charter. He further submits that the Court has lost jurisdiction to impose conditions because the conditions have become unhinged from their purpose. The remedy he requests for “what he submits is an exercise of the Court’s discretion that gives rise to a Charter violation” is to have the stringent conditions of release cancelled entirely. In the alternative, he seeks to have the conditions cancelled and replaced with ordinary non-intrusive conditions of release that are routinely imposed in immigration cases.
[15] Mr. Jaballah's Charter arguments that underlie this claim for relief may be summarized as follows.
Section 7 of the Charter
[16] The Ministers concede that Mr. Jaballah’s liberty interest is engaged. At the second stage of the section 7 analysis, Mr. Jaballah argues that the maintenance of strict conditions in spite of “the inability of the state to remove him from Canada” has led to a deprivation of liberty which is not in accordance with the principles of fundamental justice. Mr. Jaballah submits that the following three principles of fundamental justice apply: (i) legislation should not be arbitrary, (ii) individuals who have done nothing wrong should not be punished, and (iii) laws should not be overbroad.
Section 15 of the Charter
[17] Mr. Jaballah’s section 15 submissions are again premised on the proposition that the result of the certificate provisions has become divorced from the objectives. He asserts because he cannot be removed that “[t]he sole remaining purpose of the conditions is the protection of Canada’s national security”. This offends section 15 of the Charter since the process is uniquely reserved for non-citizens: there are no corresponding provisions which would similarly affect citizens of Canada who pose threats to national security.
Section 12 of the Charter
[18] Mr. Jaballah acknowledges that, by reason of the regular opportunities for a detainee to challenge his detention or conditions of release, the Supreme Court found the security certificate process did not violate section 12 of the Charter. However, he submits the review process is no longer meaningful. This is said to be because the reviews “are not being conducted with a view to removing [Mr. Jaballah] from Canada.” The release under conditions “has become unhinged from the legislative intent of the [Act].” Judicial review is “simply a façade propping up an unconstitutional process.”
[19] The absence of a meaningful review creates a situation where the ongoing conditions are cruel and unusual for the purposes of section 12. Moreover, he alleges the Court is in “real danger of […] implicating itself in the perpetuation of cruel and unusual treatment.”
Section 9 of the Charter
[20] Mr. Jaballah cites R v. Burke (1997), 153 Nfld. & P.E.I.R. 91, a decision of the Newfoundland Court of Appeal, in order to explain section 9. That decision characterised “arbitrarily” as the dividing line between capricious, illegitimate detentions and lawful, necessary detentions. Drawing on language used by the Court in Burke, Mr. Jaballah argues that the case against him is based on “little more than a ‘hunch’ on the part of CSIS that he continues to pose a threat”. More importantly, he submits that an articulable cause for his detention no longer exists. This is so because an articulable cause cannot be found without reference to its purpose. Since the purpose of his detention (i.e. removal) no longer exists, any continuing conditions are arbitrary.
b. Has the factual basis for the claim to relief under the Charter been established?
[21] The above summary of Mr. Jaballah’s submissions demonstrates that all of his Charter arguments are premised upon his assertions that:
(a) he cannot be removed from Canada; and
(b) the conditions of his release will continue indefinitely.
[22] If the evidence does not establish those assertions, the Charter arguments lack a foundation in the evidence and must, accordingly, fail. Each assertion will therefore be considered in turn.
i. Can Mr. Jaballah be removed from Canada?
[23] In support of his assertion that he cannot be removed from Canada, Mr. Jaballah relies upon the following facts:
· he is a citizen of Egypt and no other country;
· in Canada he has been found to be a person in need of protection;
· in the second security certificate proceeding Mr. Justice MacKay concluded, in October, 2006, that no exceptional reasons had been presented by the Ministers to justify Mr. Jaballah's return to Egypt where he would face arbitrary, indefinite detention and torture. This determination was based upon the August 15, 2002 decision of a pre-removal risk assessment officer that there were substantial grounds for believing that Mr. Jaballah faced a risk of torture and a risk to his life or of cruel and unusual treatment or punishment if removed to Egypt; and,
· country condition documentation, including a recent opinion from Amnesty International, demonstrates that conditions in Egypt have not changed since Justice MacKay made his determination.
[24] Mr. Jaballah argues that, to the best of his knowledge, he remains the subject of criminal charges in Egypt in relation to allegations that he was a member of a terrorist organization in Egypt. In addition to the risk of torture, he also faces a sentence of death or hard labour for life if returned to Egypt. Thus, Mr. Jaballah submits, he may not be removed from Canada.
[25] The Ministers respond that they have demonstrated a continuing intention to establish Mr. Jaballah’s inadmissibility on security grounds and to obtain a deportation order against him. The Ministers state that they intend to remove Mr. Jaballah, but cannot do so unless and until the Court finds the security certificate to be reasonable and Mr. Jaballah has the opportunity to make an application for protection. Thus, the Ministers submit that it is premature to deal with issues of removal at this time.
[26] The foundation of Mr. Jaballah's position that he cannot be removed from Canada is the 2006 decision of Mr. Justice MacKay that no exceptional circumstances had been established that would justify Mr. Jaballah's deportation to face torture. However, Justice Mackay was careful to state that this conclusion did not mean that Mr. Jaballah could not be deported from Canada. Justice MacKay’s findings in this regard are set out in his reasons, reported as (2006), 301 F.T.R. 102 at paragraph 82 to 84. There, he wrote:
82 Here, no case has been argued that Mr. Jaballah's circumstances are exceptional, or that they could be so qualified under s.1 of the Charter. I have found the Ministers' certified opinion to be reasonable. By inference that opinion signifies that his continuing presence in Canada, without restraints, would constitute a danger to the security of the country. Yet there is no case argued that he has been personally involved in violence.
83 I conclude that the facts of this case do not create an exceptional circumstance that would warrant Mr. Jaballah's deportation to face torture abroad.
84 This does not mean that he may not be deported. The MCI has a responsibility to deport him, as soon as may be reasonably done if he does not leave Canada voluntarily (s-s. 48(2) of the IRPA). But deportation to Egypt or to any country where and so long as there is a substantial risk that he would be tortured or worse would violate his rights as a human being, guaranteed by s. 7 of the Charter. The MCI may not exercise discretion in a manner that would violate Mr. Jaballah's rights under the Charter. The Minister has significant discretion under IRPA and if that is not sufficient it may be amended by regulatory or legislative change. Under the Act now he may discharge his responsibility by deporting Mr. Jaballah to a country where he does not face the prospect of torture. If that proves impossible in a reasonable time, then if conditions should change, so that the substantial risk of torture if he is returned to his own country can be judged to have been essentially eliminated, he may then be deported to his own country or another which is now perceived to present to him a substantial risk of torture, or worse. [Emphasis added.]
[27] I do not conclude, and it is not necessary for me to conclude, that Mr. Jaballah may at this time be returned to Egypt or that he may be deported to a safe third country. Mr. Jaballah may not be removed unless a valid removal order exists. The point is that Justice MacKay’s determination that exceptional circumstances had not been established is not conclusive of whether or not Mr. Jaballah may at a future date be removed from Canada. It is not conclusive on the point because Justice MacKay himself contemplated the possibility of Mr. Jaballah’s removal from Canada. Further, Mr. Jaballah has not established that he cannot be removed at a future date to another country where he does not face a risk of torture.
[28] I therefore find as a fact that Mr. Jaballah has not established that he cannot be removed from Canada. It follows that he has failed to establish that the conditions of release have become unhinged from the purpose of the Act.
[29] I accept the submissions of the Ministers that it is premature to deal with issues relating to removal at this time. Subsection 48(2) of the Act requires the Minister to enforce removal orders as soon as reasonably practicable. Mr. Jaballah concedes that the Ministers have demonstrated a continuing intention to remove him from Canada. Mr. Jaballah can only be removed if this Court finds the security certificate to be reasonable. Only then, by operation of section 80 of the Act, will a removal order be in place so as to permit the Ministers to make removal arrangements (subject to Mr. Jaballah's right to apply for protection). Only when removal becomes a legal possibility can an assessment be made, based upon updated and current information, as to whether it is possible in all of the circumstances.
[30] In reaching this conclusion, I have noted Mr. Jaballah’s submission that the Ministers failed to adduce any evidence contradicting his own. However, the burden of proof to establish an evidentiary basis for his Charter challenges rests upon Mr. Jaballah. In the absence of a more cogent evidentiary record from Mr. Jaballah, no tactical burden of persuasion shifted to the Ministers. Only if Mr. Jaballah had produced sufficient evidence to meet his burden of proof would there be a basis in law for the drawing of an adverse inference against the Ministers. See: Chippewas of Kettle & Stony Point First Nation v. Shawkence, [2005] F.C.J. No. 1030 at paragraphs 42 to 44; aff’d [2006] F.C.J. No. 655 (F.C.A.).
[31] No evidence or convincing argument was advanced that would lead me to conclude that the Act is being used for improper purpose. The Ministers have a continuing intention to establish Mr. Jaballah's inadmissibility and to remove him from Canada.
ii. Will the conditions of Mr. Jaballah’s release continue indefinitely?
[32] Mr. Jaballah submits that the imposition of detention and controls will continue indefinitely and that the Court's continued reviews are “based on a constructed myth - that removal is imminent and not so remote as to be illusory”.
[33] The Ministers respond that the present proceedings are finite in nature. While there may not be any certainty with respect to the length of time that Mr. Jaballah may remain subject to strict conditions, that situation is mitigated through regular and meaningful reviews.
[34] In Jaballah (Re) (F.C.), [2006] 4 F.C.R. 193, Justice Mackay considered the nature of Mr. Jaballah's detention in the context of an application brought by Mr. Jaballah for his release from detention. At paragraph 63, Justice MacKay wrote:
63 The duration of his detention cannot be considered without at least acknowledging its purpose is to hold a foreign national who is considered by two Ministers of the Crown to be inadmissible to Canada because he presents a risk to national security, as a preventive measure, not indefinitely but only so long as that ministerial determination is contested and, if that be upheld as reasonable, then pending his departure from Canada. […] In the context of the provisions for detention, read as a whole, the future duration of any continuing detention is indeterminate only in the sense that a date for Mr. Jaballah's release cannot be predicted with any certainty. [emphasis added]
[35] Such analysis is equally applicable to the duration of conditions of release. Such conditions will continue only for so long as the reasonableness hearing continues and, if the certificate is found to be reasonable, then pending Mr. Jaballah's removal from Canada.
[36] The duration of the reasonableness hearing is finite. While the hearing has continued for an extended period, this has largely reflected the time required for the Ministers to comply with the Court's order of November 19, 2008 (Charkaoui II disclosure order) and for the special advocates to review the Charkaoui II disclosure.1
[37] An outline of the Charkaoui II chronology is contained in endnote 1. I believe that the Ministers and the special advocates were diligent in the discharge of their duties. I do not believe that initially anyone anticipated the volume of the Charkaoui II disclosure. Even when the volume was known, I am not satisfied that anyone anticipated the time reasonably required to marshal and produce the disclosure, or the time reasonably required by the special advocates to assimilate the material, or the time reasonably required to summarize the material requested by the special advocates.
[38] All of this is to say that the further duration of the reasonableness hearing is finite. Should the certificate be found to be unreasonable, all of the conditions in respect of Mr. Jaballah's release will be at an end. If the certificate is found to be reasonable, the conditions of release will continue until Mr. Jaballah is removed from Canada or the Court terminates the conditions. Situations where the Court would remove onerous conditions would include the situation where, at a certain point, the Court concluded that continuation of the conditions would constitute cruel and unusual treatment or be inconsistent with the principles of fundamental justice. See: Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 (Charkaoui I) at paragraph 123.
[39] On the evidence before me, I find as a fact that Mr. Jaballah has not established that the conditions of release will continue indefinitely. While such conditions do remain in place, the Court will continue to conduct meaningful reviews as requested by Mr. Jaballah.
c. Consequences of Findings of Fact
[40] In oral submissions, counsel for Mr. Jaballah first conceded that all of Mr. Jaballah’s Charter based arguments depend upon the Court finding that he cannot be removed from Canada so that the ongoing conditions of release have become unhinged from the legislative intent of Division 9 of the Act. She later argued that even if the conditions are not unhinged, the detention can still be indefinite or indeterminate, which converts the process into cruel treatment.
[41] I believe that all of the arguments do depend upon a finding that Mr. Jaballah cannot be removed from Canada so that the conditions have become unhinged. I have found that Mr. Jaballah has failed to establish that he cannot be removed from Canada. It follows that there is no evidentiary basis for his submissions that the conditions of release have become unhinged.
[42] In the event that the argument advanced under section 12 of the Charter has a component that is independent from the “unhinged” argument, I have found that Mr. Jaballah has failed to establish that the conditions of release will continue indefinitely. It follows that there is no evidentiary basis for the submissions that the conditions are cruel and unusual treatment because of their indefinite or indeterminate nature.
d. The Ferguson Decision
[43] As referenced above, at the commencement of the oral hearing I raised the issue of the potential application of the Ferguson decision. The concern that I expressed was that in Ferguson the Court explained that the sole remedy for unconstitutional laws (as opposed to unconstitutional governmental actions) is found in subsection 52(1) of the Constitution Act, 1982. Unconstitutional laws are to be found of no force or effect. Constitutional exemptions should not be fashioned under either subsection 52(1) or 24(1) of the Charter.
[44] It was agreed that the parties would make submissions on this point at a later date after they had the opportunity to review the case and consider their position. Ultimately, the parties provided written submissions dated December 10, 2009 and further written submissions on December 18, 2009.
[45] In his written submissions, Mr. Jaballah states that he had previously abandoned his request for declaratory relief. His requests that the conditions be cancelled, or be replaced by “ordinary non-intrusive conditions”, did not constitute a request that he be declared exempt from the provisions of the Act that govern release from detention or the review of conditions of release. Instead, he asks that the discretion granted under paragraph 82(5)(b) be exercised in accordance with his constitutional rights.
[46] The Ministers do not quibble with Mr. Jaballah’s statement that the sections 7, 9 and 12 arguments do not constitute requests for a constitutional exemption. However, they respond that two arguments advanced by Mr. Jaballah do constitute a request for constitutional exemption. The first is the argument that the Court has lost jurisdiction to impose conditions on Mr. Jaballah’s release because the conditions have become unhinged from the purpose for which they could be imposed. The second is the argument advanced under section 15 of the Charter that the imposition of conditions only to protect national security is discriminatory.
[47] With respect to the first argument, paragraph 82(5)(a) of the Act requires continued detention if the concerned person’s release under conditions would be injurious to national security. Release has been granted where the Court has been satisfied that conditions will neutralize the injury to national security. The Ministers submit that national security must be considered throughout the proceeding. Therefore, Mr. Jaballah would require a constitutional exemption in order to allow the Court to overlook the requirements of national security and order release without terms and conditions.
[48] Regarding the second argument, Mr. Jaballah is not requesting relief under section 52 of the Constitution Act. The Act permits detention on the ground that one is a danger to national security. Thus, the Ministers state that the second argument constitutes a clear request for a constitutional exemption.
[49] Notwithstanding that Mr. Jaballah has abandoned his claim to declaratory relief, it is not clear to me that while this matter was being argued orally Mr. Jaballah had abandoned the position that the legislation is unconstitutional in his case. Paragraph 12 of his notice of motion states:
12. Because Mr. Jaballah cannot be removed from Canada and/or because the imposition of detention and controls on release will continue with no fixed time frame for final resolution, the continuation of the security certificate proceedings and the continued imposition of extremely stringent conditions of release violate ss. 7, 9, 12 and 15 of the Charter of Rights and Freedoms:
a. The continuing imposition of the security certificate and/or the extremely stringent conditions of release are no longer related to the purpose for which the certificate was imposed and the conditions for release authorized […]
b. The continuing imposition of the security certificate and stringent conditions of release are arbitrary and violate s. 9 of the Charter […]
c. The continuing imposition of the security certificate and/or the stringent conditions of release pursuant to the certificate breach s. 15 of the Charter […]
This engages not only the conditions of release but the continuation of this proceeding and the imposition of the certificate itself.
[50] Equally, paragraphs 32, 43, 45, 46, 74, 75 and 79 of his written submissions direct the Charter challenges not only to the conditions but also to the proceedings and the legislative scheme itself.
[51] In oral argument, Ms. Jackman submitted the following in respect of section 7 of the Charter:
In any event, the courts have recognized that legislation which is overbroad can be characterized as arbitrary, overbroad. In any event, it is contrary to the principles of fundamental justice.
[…] We are not arguing that you strike out section 180, that you strike out the sections at issue here. It is that they can’t be applied in this case. I will deal with the constitutional exemption issue later.
[52] She went on to submit that:
In the context of the case before you, we say that the law has been tailored to permit state controls for the protection of the public for a temporal time to enable a state to remove a non-citizen. This law in its application continues indefinitely, forever, even where the purpose of imposing the controls as a means of protecting, pending removal -- when that purpose no longer exists. The means chosen are too broad, too wide. The law goes further than necessary because it continues to impose controls when the purpose is lost. In that sense, it is both disproportionate and arbitrary.
THE COURT: On the facts of this case.
MS. JACKMAN: On the facts of this case, yes.
[53] The effect of the weight of the written and oral submissions was that the Act has created an unconstitutional result because it is overbroad, disproportionate and arbitrary. Counsel for Mr. Jaballah did not submit that the legislation be struck out, but rather that it should not be applied. The weight of the submissions belies the arguments now advanced in the submissions responding to Ferguson that what is in issue is an unconstitutional exercise of discretion or a loss of jurisdiction.
[54] Mr. Jaballah asked for a personal remedy to the effect that the provisions of the Act relating to detention and release do not apply to him. This is, in substance, a constitutional exemption because it leaves the legislation in full force and effect except in its application to him. This is relief that by application of the principles articulated in Ferguson is not, as a matter of law, available.
[55] That said, Mr. Jaballah now apparently disavows those arguments. I am prepared to accept that. However, I accept the submission of the Ministers for the reasons given in their submissions of December 18, 2009 that both the unhinged and the section 15 arguments continue to constitute requests for a constitutional exemption.
[56] I prefer to rest my reasons upon the lack of an evidentiary basis for Mr. Jaballah’s Charter challenges. However, had I not disposed of the “unhinged” motion on that basis, Mr. Jaballah would not have persuaded me that irrespective of considerations of national security he is entitled to the relief he seeks cancelling the existing conditions or imposing ordinary non-intrusive conditions of release. Such relief amounts to an impermissible request for a constitutional exemption.
[57] Having considered Mr. Jaballah's Charter based arguments, I now turn to his second alternate claim for relief under subsection 82(4) of the Act.
3. Relief sought pursuant to subsection 82(4) of the Act
[58] Subsection 82(4) of the Act permits a person such as Mr. Jaballah, who has been released from detention under conditions, to apply for another review of the reasons for continuing the conditions. Such an application may be brought if a period of six months has expired since the conclusion of the last review.
[59] The reasons issued in respect of the last review of conditions are reported at 2009 FC 284, (2009), 340 F.T.R. 247 (Reasons). The current order that contains the conditions of release is the order of May 21, 2009, as amended by consent on August 20, 2009 (Order). The conclusions reached in the last review of conditions are summarized at paragraph 178 of the Reasons. Paragraph 178 is set out in Appendix B to these reasons. It should be noted, however, that while the Reasons and Order authorized Mr. Jaballah to stay home without supervision on certain conditions, Mr. Jaballah declined to take advantage of that provision. This was because Mr. Jaballah refused to permit the installation of contact switches on the door of the room in his home where computers with internet capability are located, and on the entrances to his residence (including the door to the separate basement apartment). As the contact switches were not installed, Mr. Jaballah is currently not permitted to be what counsel refer to as “home alone,” that is to be at home while not accompanied by a supervisor.
a. Positions of the Parties
i. Position of Mr. Jaballah on the review of conditions
[60] During his direct examination, Mr. Jaballah advised that he had no objection to conditions which would require him to:
· advise the Canada Border Services Agency (CBSA) before changing his address
· continue cash and performance bonds
· appear at a given time and place to comply with a requirement such as removal
· report monthly to the CBSA, either in person or by a voice authenticated call-in
· surrender his passport
· cooperate with requests for documents or questionnaires relating to identity or travel documents
· not associate with persons with criminal records or who believe, or engage, in terrorism
· obtain an authorization for employment
· be subject to a reasonable curfew instead of, in his words, “house arrest”
· continue to wear the GPS [Global Positioning System] bracelet (although he says it causes psychological problems for him and his children)
· advise the CBSA if he is to leave the “present geographic area”
· be restricted from attendance at airports, train stations, and the Toronto harbour
· have his calls intercepted
· have his mail intercepted and copied
· sign an undertaking not to receive mail through his wife or children
· promise to have his porch light on if someone was coming to visit (so long as the CBSA pays for the extra hydro).
[61] Mr. Jaballah objects to any conditions that would:
· require video surveillance equipment to remain at the entrances to his residence
· authorize him to stay home without a supervisor, but still require him to obtain permission to leave the residence
· require him to obtain permission to leave the residence to go anywhere
· require him to call the CBSA to notify it every time he leaves the residence and returns
· require him to obtain approval for visitors
· restrict him from using the Toronto subway
· restrict him from meeting people while he is out
· restrict his children’s use of cell phones and wireless computers
· authorize the interception of his wife’s and children’s telephone calls or internet chatting
· authorize the interception of his wife’s and children’s mail
· authorize the CBSA to be able to search his home without a court order
· require him to request an outing in order to visit the separate basement apartment
· require the installation of contact switches on doors.
[62] In oral argument, his counsel submitted:
MS. JACKMAN: I should note that you know our principle ‑‑ you may be frustrated by some of the lack of evidence, but what we have done all along is I feel we've sold our clients out. We come to you and we say, All right, he's willing to accept this condition, he's willing to accept that condition, and that's what ends up happening.
The position Mr. Jaballah wanted to take before this court and which we have taken is that these conditions are not justified. He should not be subject to these conditions. You don't then get into saying, All right, but you can do this and you can do that, because that's where you're going to go. That is not what he wants.
We don't want it justified on the evidence, and if you go there, I think you should be the one working out the proportionate balance in a way that will not cause further harm to him and his family. (Transcript December 14, 2009 at page 147.)
ii. Position of the Ministers in response
[63] The Ministers assert that Mr. Jaballah has not been compliant with the Order. Particulars of the alleged breaches are set out below. As a result of that behaviour, the Ministers submit that the danger posed by Mr. Jaballah has not attenuated since the last review of conditions. Therefore, they say, Mr. Jaballah's request that the conditions be modified should be dismissed.
iii. The Ministers' motion
[64] Additionally, the Ministers move for an order amending the Order. They request that the Order be amended so as to:
a. Require infra-red illuminators to be installed on the security cameras located at the entrances to the Jaballah residence.
b. Require a contact switch to be installed on the door to the basement apartment in the Jaballah residence.
c. Require the security camera in the garage of the Jaballah residence to be reactivated.
d. Remove the inchoate right for Mr. Jaballah to be home alone.
e. Prohibit Mr. Jaballah from communicating with Ms. Jean Smith.
b. Applicable legal principles
[65] At paragraphs 15 to 24 of the Reasons, I summarized the legal principles that apply to a review of conditions under subsection 82(4) of the Act. During the oral argument of this motion, counsel were invited to express any disagreement with the Court's prior exposition of the law. Counsel for Mr. Jaballah expressed concern with comments made at paragraphs 29 and 56 of the Reasons which, to the extent relevant to these reasons, will be discussed below. Counsel for the Ministers expressed no concern.
[66] Accordingly, to promote brevity, I incorporate by reference into these reasons paragraphs 15 to 24 of the Reasons.
c. Application of the legal principles to the evidence
[67] In Charkaoui I, the Supreme Court of Canada identified a number of relevant factors to be taken into account on applications of this nature. Each of those factors is considered below.
i. Reasons for the imposition of stringent conditions
[68] The more serious the threat posed by Mr. Jaballah's continued release, the greater the justification for the continuation of onerous conditions of release.
[69] The parties continue to agree that, for the purpose of this review, I may rely upon all of the findings made by Justice Layden-Stevenson when she released Mr. Jaballah from detention and when she later reviewed the conditions of release. Those findings, therefore, form the starting point for consideration of the threat now posed by Mr. Jaballah. Justice Layden-Stevenson's findings were summarized at par