Mahjoub v. Canada (Citizenship and Immigration)

Mahjoub v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2007-12-24
Neutral citation
2007 FC 1366
File numbers
DES-1-00
Decision Content
Date: 20071224
Docket: DES-1-00
Citation: 2007 FC 1366
Ottawa, Ontario, December 24, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MOHAMED ZEKI MAHJOUB
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1] The applicant was detained in custody under a security certificate from June 26, 2000 until April 13, 2007, at which time he was released subject to strict terms pending the outcome of the Government’s efforts to remove him from Canada. He now moves to vary the release conditions. The respondent Ministers consent to certain of Mr. Mahjoub’s proposed changes, oppose others and have submitted their own requests for variances. Having heard evidence and representations from both parties, I am satisfied that some of the terms of Mr. Mahjoub’s release should be modified.
BACKGROUND
[2] I think it useful to outline the background to this application in some detail as the history of events became a matter of some controversy at the hearing.
[3] Mr. Mahjoub, an Egyptian national, was declared a Convention refugee by the Immigration and Refuge Board in 1996, approximately one year after his arrival in Canada from Sudan. He subsequently met and married Ms. Mona El Fouli, a Canadian citizen. Together they have two pre-teen sons, Yusuf and Ibrahim. Ms. El Fouli also has a son, Haney aged 23.
[4] On June 26, 2000 Mr. Mahjoub was detained on the basis of a security certificate signed by the Solicitor General (now Minister of Public Safety & Emergency Preparedness) and the Minister of Citizenship and Immigration (collectively referred to as the Ministers). The security certificate was found to be reasonable by the Federal Court in Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2001 FCT 1095, [2001] 4 F.C. 644.
[5] Applications by Mr. Mahjoub for conditional release were denied by the Court in 2003 and 2005 on the grounds that the imposition of the suggested conditions and use of the proposed sureties would be insufficient to neutralize the danger that his release would pose to national security or to the safety of any person. On the second application, Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2005 FC 1596, [2005] F.C.J. No. 1948, the Court noted that it remained open to Mr. Mahjoub to apply again for release and to provide better sureties and evidence that could be capable of convincing the Court that the danger he poses could be neutralized.
[6] A further hearing was held in December 2006 to review the status of Mr. Mahjoub’s continued detention. At the time of that hearing, a decision was pending upon an application for judicial review of a determination by a Minister’s Delegate that Mr. Mahjoub could be returned to Egypt. That determination was quashed in a ruling issued on December 14, 2006 by my colleague Justice Danièle Tremblay-Lamer and the matter was remitted for re-consideration. Thus it became apparent that Mr. Mahjoub would not be removed from Canada within a reasonable time, one of the requirements for the exercise of the Court's discretion to conditionally release him under subsection 84(2) of the Immigration and Refugee Protection Act, as it then read.
[7] In reasons for decision released on February 15, 2007, based on the evidence heard in December 2006, I held that Mr. Mahjoub had also met the second requirement for release, namely that appropriate sureties and conditions could neutralize his risk. I emphasized that this release would amount to a form of house arrest and that Mr. Mahjoub would be returned to custodial detention if he violated the terms and conditions. Draft terms and conditions, based largely on those proposed by applicant’s counsel at the December hearing, were attached to the reasons and the parties were given seven days within which to comment on them before they were to be incorporated in a formal Order: Mahjoub v. Canada (Minister of Citizenship and Immigration), 2007 FC 171, [2007] F.C.J. No. 206.
[8] On February 23, 2007 the Supreme Court of Canada released its decision in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] S.C.J. No. 9. The Court determined that the procedure for determining whether a certificate was reasonable and the detention review procedures under the Act infringed section 7 and were not justified under section 1 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The Supreme Court suspended its declaration of invalidity of the certificate procedure for one year to allow Parliament to enact remedial legislation.
[9] The Supreme Court found that the detention review provisions were defective as they denied foreign nationals a prompt review of their detention after confirmation of the reasonableness of the security certificate. The remedy imposed, with immediate application, was to strike subsection 84(2) of the Act, to read the words “foreign nationals” into section 83 and to strike the words "until a determination is made under subsection 80(1)" from subsection 83(2). The effect was that persons arrested subject to a security certificate were to be entitled to a review of detention without the 120 day delay required by former subsection 84(2), and to further reviews on a six month basis thereafter.
[10] At paragraph 116 of Charkaoui, the Supreme Court noted that stringent release conditions, while less severe than incarceration, seriously limit individual liberty. Accordingly, the Court stated, release conditions must not be a disproportionate response to the nature of the threat.
[11] With the consent of the parties, the evidence heard and the findings made on Mr. Mahjoub’s application under subsection 84(2) were applied as if they had been heard and made in respect of an application under subsection 83(2), as it read following Charkaoui. Comments were received from counsel for the parties by correspondence dated February 22, 2007 on the draft terms and conditions attached to the February 15th decision. These included requests from the respondents for the Court to require the installation of video surveillance cameras and a two-way video conferencing system at the Mahjoub residence. These requests were incorporated into the Order issued on March 1, 2007 that Mr. Mahjoub was to be released when the terms and conditions set out therein were satisfied.
[12] Despite the best efforts of counsel for both parties, it took some time to address all of the terms and conditions specified in the March 1st Order. Difficulties were encountered with several of them, notably the installation of the video surveillance cameras and facilities to monitor internet access at the home. These difficulties and other logistical problems were discussed with counsel at conferences on March 9th, March 22nd and April 5th.
[13] In an effort to facilitate Mr. Mahjoub’s release, the parties agreed that interim measures could be adopted while they continued to work towards resolving these issues. On April 10th counsel for the applicant submitted a list of proposed amendments to which the respondents had consented. A Revised Order was issued by the Court on April 11th. This order allowed for the applicant’s release prior to the installation of the exterior cameras on the condition that he remain at his home except with prior approval by the Canada Border Services Agency (CBSA) or in the case of medical emergency. The existing Internet connection to the home was also to be disconnected. With those revisions to the conditions, Mr. Mahjoub was released from detention on April 13, 2007.
[14] A hearing was held in Toronto on May 24, 2007 with respect to a number of outstanding issues, notably the video surveillance question. The applicant’s landlord was represented at that hearing and opposed the installation of exterior video cameras in the interests of the privacy of the other residents of the complex. The applicant raised but did not press the issue of the video-conferencing equipment. The respondents took the position that there was no need to pursue the issue of interior cameras. A conference was conducted by telephone on June 4th to clarify certain matters arising out of the May 24th hearing. The parties reached agreement on the geographical limits within which Mr. Mahjoub could have outings within the City of Toronto and the Court was advised of this by letter dated June 8, 2007.
[15] On June 14, 2007 the Court issued an order amending the Revised Order of April 11th to delete the requirement for the installation of exterior video cameras and to incorporate the geographical parameters agreed to by the parties. Until that time, Mr. Mahjoub had been effectively confined to his home apart from brief outings approved by CBSA. Two other minor amendments requested by the respondents and not opposed by the applicant were also made at that time. No change was made to the condition that a two-way monitoring device be installed in his home to allow for direct communications by way of videoconference as required by the March 1st and April 11th Orders.
[16] Following a scheduling teleconference with counsel on September 25, 2007, a further amending order was issued on September 27th to allow CBSA to extend the time-period for Mr. Mahjoub’s outings beyond 9:00 p.m. The present application was scheduled at the September 25th teleconference for hearing in Toronto on November 5-9, 2007.
[17] The applicant’s requests for variation were outlined in correspondence from counsel dated October 10, 2007 and elaborated upon in his motion record and supporting affidavit filed October 29th. The respondents stated their position in a letter dated November 2, 2007 and filed a Notice of Motion and record on November 5th.
[18] As matters stand, Mr. Mahjoub's continued release from detention is subject to the following conditions which I consolidate and paraphrase for convenient reference. This list does not include the performance bonds that were executed prior to his release and is not to be taken as a substitute for the specific terms of the Orders:
he is required to submit to electronic monitoring by bracelet and GPS tracking device, to allow installation of a separate dedicated land-based telephone line and a two-way monitoring device inside the home to allow for direct communications by way of video conference; he is required to remain in his residence except as otherwise provided and is to be supervised at all times by a Court- approved supervising surety; he is allowed to go in to the backyard of his residence between 8 a.m. and 9 p.m., under supervision, and may meet only approved persons while there; casual greetings to adjacent neighbours are permitted; he is allowed to go on approved outings between 8 a.m. and 9 p.m. wearing the tracking device and accompanied by a supervisor; CBSA may extend its approval beyond 9 p.m. at its discretion; three approved short (under four hours) outings per week are allowed; approval must be applied for on a weekly basis, 72 hours in advance specifying the location; he must contact CBSA before leaving and after returning; applications for longer family outings may be made up to three times per month; applications for approval must be made on a weekly basis for the following week, and 72 hours’ notice is required; escorted by a supervisor, he may accompany the younger children directly between home and school between 8:00 to 9:15 a.m. and 3:00 to 4:30 p.m. having no contact with any person en route; school locations, routes and the school calendar must be provided to CBSA; attending the school in case of emergencies is permitted provided that he is accompanied and notifies CBSA before leaving and after returning; upon 48 hours’ notice, he may attend medical or psychological appointments on notice before leaving and after returning; proof of attendance is required; in the case of a medical emergency requiring hospitalization, the situation and his location must be provided to CBSA as soon as possible, and CBSA must be notified on his return to his residence; in an emergency involving family members, he may accompany his supervisor and the family member to hospital until another supervisor is available, provided he informs CBSA as soon as possible and again on return to his residence; should he be too unwell to accompany the supervisor, CBSA must be notified immediately; only a specified list of persons are permitted to enter the residence; this includes immediate family members, sureties, legal counsel, emergency professionals, children under the age of 15 years who are friends of the minor children, the building superintendent and repair persons employed by the superintendent, and persons approved in advance by the CBSA; approval requires the name, address and date of birth of the person for whom approval is sought; prior approval need not be acquired for subsequent visits by a previously approved person; the CBSA may withdraw its approval at any time; on outings he is to remain within a defined geographic area and not go to any unapproved location; he shall not enter upon the property of any airport, train station, subway station, bus station or car rental premises or board any boat or vessel; he shall not meet any person by prior arrangement other than his solicitors or persons approved by CBSA upon providing the person’s name, address and date of birth; this restriction does not apply to family members, sureties and supervisors; he is not to have any association with persons he knows or should know are supportive of or have connections with terrorist or jihadist groups, or persons with criminal records other than Matthew Behrens; he is not to possess or have access to or use any communication devices except as provided; Mona and Haney El Fouli's cell phones are to be kept from Mr. Mahjoub; their cell phone numbers must be provided to CBSA; Mona El Fouli must consent to the interception of calls on her phone and Haney must provide CBSA monthly billing records showing calls made to and from his cell phone; the cell phones are to be used within the residence solely in a locked area to which only Mona and Haney have keys; Mr. Mahjoub may use a conventional telephone line in the residence subject to consenting to the interception of all communications using that service; he may also use a landline telephone outside his residence to inform CBSA in the case of a medical emergency; all written communications to and from the residence are subject to interception by CBSA; he must permit access to the residence at any time by CBSA employees, persons designated by CBSA or any peace officer for the purposes of verifying his presence in the residence and to ensure compliance with the terms and conditions, including to search the premises and the removal, installation or service of any device; the sureties and supervisors may be interviewed or asked to provide reports on Mr. Mahjoub's compliance with the conditions; all travel documents are to be surrendered and Mr. Mahjoub is prohibited from applying for, obtaining or possessing any passport or travel document or ticket and entitling him to travel; this does not prevent travel on public surface transit within the city of Toronto, including the Toronto Island ferry, or within the city of Mississauga; he shall report for removal from Canada if so directed; he is not to possess any weapon, imitation weapon, noxious substance or explosive, or any component thereof; he is to keep the peace and be of good conduct and is subject to arrest and detention without warrant by any CBSA officer or peace officer having reasonable grounds to believe that any term or condition of his release has been breached; the Court will determine whether a breach has occurred within 48 hours of his detention and whether he should be detained in custody; he may not change his place of residence without prior approval of the Court and no person may occupy the residence without CBSA approval;
ISSUES:
[19] The applicant seeks a number of changes to the terms and conditions in the April 11th Order, as amended:
Re-installation of the Internet connection to be used by his step-son and sons, subject to controls on access; Permission to install a “fax machine”, that is the capacity for facsimile transmission of documents to facilitate communication with doctors, social services and lawyers’ offices; Relaxation of the restrictions on outings; An extension of the time limits and unsupervised access to the backyard of the home; Removal of the requirement for installation of a video-conferencing device; Addition of Mathew Behrens to the list of court-approved supervisors; Relaxation of the notice requirements for visitors.
[20] By cross-motion, the respondents seek an Order:
Allowing CBSA to install the two-way videoconferencing device on the first floor of the applicant's residence in a location that is easily accessible; Allowing CBSA to require 72 business hours’ notice when the applicant requests an outing; That the applicant not enter any area where CBSA deems that electronic monitoring is ineffective; That the applicant not change addresses without a prior risk assessment done by CBSA and prior approval by the Court, at least 60 days prior to the move; Allowing CBSA to request, for the purpose of background checks, the name, address and date of birth of persons seeking approval, and also, their home and cell phone numbers, two pieces of photo identification, signature and any other information deemed necessary by CBSA for the completion of security checks; Allowing CBSA to require 48 hours’ notice prior to any visit by an approved person; Requiring the applicant to maintain a visitor’s log to be provided by CBSA and available to them for inspection on request; Requiring that persons attending the residence appear before the two-way videoconferencing device in order to confirm their identity; and That the applicant not possess a video camcorder, or audio-tape or video-tape CBSA officers at any time.
DISCUSSION:
Applicant’s Requests:
Internet Access
[21] Clause 12 of the April 11th Order provides that Mr. Mahjoub shall not possess, have access to or use, directly or indirectly any equipment capable of connecting to the Internet. It further provides that the Internet connection for the home computers used by Mr. Mahjoub's stepson and his two sons shall be terminated prior to Mr. Mahjoub's release from detention. Removal of the Internet connection was agreed to by the applicant as effective monitoring of access at the home could not be achieved through the means initially proposed by the respondents, video-surveillance.
[22] The respondents do not oppose re-installation of the internet connection provided that the room in which the computer through which the connection is made is properly secured with a lock, and that only Ms. El Fouli and Haney El Fouli hold the keys and the Internet access password. They are opposed to Yusuf and Ibrahim having an Internet connection in their own room on the rationale that the boys would be more susceptible to the applicant’s control and influence. It is not disputed that Haney El Fouli requires Internet access for his courses. He now has access at his college with his portable computer but it would be more convenient for him to have a connection at home as well. The respondents suggest that the boys, in grades five and three respectively, could access the Internet at school or at a public library for the limited access required for their projects.
[23] The applicant counters that given the restrictions on his movements and corresponding obligations on Mona and Haney El Fouli as supervising sureties, they do not have the time to accompany the boys to a library or remain with them at school for this purpose. The applicant proposes that access to the internet for the boys be by way of a wired connection between the computer in their room and that in Haney's, activated as required, so that the two sureties could supervise the boys’ access to the Internet at all times.
[24] The Internet has become a valuable resource for educational purposes and access to it from their home could assist the boys in researching their school projects, although the extent to which that is necessary at their ages and grade levels is questionable. The Internet also provides increasingly effective means to communicate. To reiterate a point made at the outset, the Court must be satisfied that the applicant’s release conditions adequately neutralize the risk that he poses to national security or to the safety of any person. As specified in the release conditions, the means to neutralize that risk includes barring access to communications devices.
[25] It was accepted by the applicant, Ms. El Fouli and Haney El Fouli, when they testified at the December 2006 release hearing that the terms and conditions imposed would have an impact on the family’s living conditions and privacy. This included the requirement to consent to the interception of communications through the telephone landline at the home and Mona El Fouli's cell phone. A less intrusive condition was imposed upon Haney El Fouli. He was required to provide CBSA with monthly billing records reflecting the calls made from and received by his cell phone. Those were, in my view, proportionate responses to the risk posed by the applicant.
[26] The applicant is opposed to any monitoring of Internet usage from the home if the condition is varied to allow re-connection of the service. That position is not acceptable as the Internet could be used to defeat any attempt to monitor Mr. Mahjoub’s communications. An alternative raised by the Court during the hearing was that the applicant and his family consent to periodic disclosure by the chosen Internet Service Provider (ISP) to the CBSA of information about the websites visited and the e-mail addresses to or from which messages were sent or received from the connection at the Mahjoub residence. In my view this would achieve a proportionate balance between the liberty of the individual and adequate measures to neutralize the risk. If the applicant and his family are not prepared to accept that condition, the prohibition on Internet access will remain in place.
[27] Another question arises over the possible use in the Mahjoub residence of Internet based telephony services, via Voice over Internet Protocol (“VOIP”) and programs such as “Skype” or “MSN Voice” which allow computer to computer and computer to land-line voice and visual communication. This was not raised at the hearing but subsequently came to the attention of the Court as a potential concern. Counsel were asked to provide post-hearing submissions in writing as to whether there was any need for the revised Order to address this issue.
[28] In correspondence to the Court, counsel for the respondents advised that the Ministers wished to provide evidence and make submissions on this question in private. Counsel for the applicants requested that Internet based telephone services be permitted and that they be allowed to make further submissions should the Ministers oppose this or request that it be limited by conditions. The Court agreed to allow the Ministers to tender evidence and submissions which were received in private on December 17, 2007. In light of that evidence and submissions, the Court considers it necessary to pursue the matter. Applicant’s counsel are invited to make submissions either orally or in writing as to whether such programs should be permitted and, if so, under what conditions. In the interim, such programs are not to be installed and if installed already in the computers at the home are to be removed or disabled and no microphones are to be connected to the computers. Subject to that proviso and the others discussed above, the Court will order that the terms and conditions of Mr. Mahjoub’s release be varied to permit installation of an Internet connection.
Fax Capacity
[29] Clause 12 of the April 11th Order also prohibits the applicant’s possession of or any access to a fax machine. The applicant’s request is not that Mr. Mahjoub be permitted to personally make use of a fax machine but that one be allowed in the house for his wife's use or that of his stepson under the same terms for controlling access as proposed for the Internet connection. Ms. El Fouli’s evidence was that from time to time she has had to fax documents to doctors’ offices, to social services offices and to the applicant's lawyers. To do so she has had to go to a store that provides fax services and this has been very inconvenient, as another supervisor must remain with the applicant, and also costly. It is suggested that access to a fax machine within the residence would also facilitate communications with the CBSA.
[30] The respondents are opposed to this request as they consider that it would be difficult to effectively monitor the use of a fax machine as a communications device. The respondents tendered a statutory declaration from an information technology specialist regarding the capacities and limitations of intercepting fax transmissions from land-line fax machines or computer-based fax modems. The Court’s understanding is that fax machines scan paper documents and transmit copies by way of landlines to a remote telephone line connected to a fax printer. Computer-based fax programs use a modem to transmit documents composed on the computer to the remote telephone and printer.
[31] It appears from the evidence of Haney El Fouli that he has an existing fax capacity in his room through a device called an "all-in-one" which also includes a printer and a scanner. He testified that he had tried to use it once, unsuccessfully as he was unable to obtain a dial tone. If it had been operative, a question might have arisen as to whether this constituted a breach of the terms of the April 11th Order.
[32] Haney El Fouli acknowledged that he could also scan and e-mail documents using this device. The respondents suggested that this capacity might serve as an alternative to the installation of a separate fax machine, subject to the proviso that the device remain in Haney's locked room with access limited to him and Ms. El Fouli.
[33] The addition of a fax machine using the conventional land based telephone line would not, in my view, materially increase the risk posed by the applicant having access to certain communication devices, such as the telephone. As noted above, the applicant and Ms. El Fouli were required under the terms of the April 11th Order to consent to the interception, by or on behalf of the CBSA, of all communications conducted using the conventional land based telephone line service to the home. I am satisfied that this consent covers the interception of any fax transmission using that landline. However, the evidence of the CBSA technical specialist is that interception of fax transmissions at the land-line service provider would require a Court Order. I am prepared to include a term to that effect in the revised Order granting permission to install a fax machine.
[34] I think it prudent to require that the applicant and Ms. El Fouli also provide a list of all persons and offices to whom they propose to send fax transmissions together with their respective telephone numbers, to be updated periodically as needed or as required by CBSA.
Outings
[35] The applicant seeks relaxation of the restrictions on outings in four respects: a) that he be permitted one hour per week day of exercise and fresh air outside of the home when proceeding to or from the boys’ school and also during school holidays; b) greater freedom for religious observance; c) participation in Islamic Sunday School and recreational programs for the boys as extra outings; and d) permission to use the subway to attend doctors’ offices for medical appointments.
[36] I think it worth noting that, from the evidence, including that of the applicant and his wife, CBSA officials appear to have been generally flexible in their interpretation of the conditions respecting outings and that the officers have acted professionally in carrying out their duties. As of the dates of the hearing, they had approved approximately 42 outings by the applicant. A handful were refused for various reasons. Approval was withheld for a short time after an incident in August which will be discussed below. In general, however, the parties are agreed that the Mahjoub family and the officers have developed a good working relationship. Particular credit for this must be given to Mr. Terence Pearce, Enforcement Supervisor at the Greater Toronto Supervisor Centre ("GTEC"), who is one of the primary contacts with the family and has worked diligently to resolve problems. The applicant and Ms. El Fouli both acknowledged the constructive role of "Mr. Terry” in their testimony.
[37] For the most part Mr. Mahjoub and his family appear also to have made careful efforts to comply with the conditions and to cooperate with CBSA officials. They have been careful to contact CBSA before leaving the home and upon returning and to inquire of Mr. Pearce and others if unsure about the scope and effect of the conditions. The only incident which I consider to give rise to a serious concern arose with respect to the installation of the videoconferencing device which I will discuss below.
[38] Evidence was led with respect to an incident that occurred at Ontario Place when Mr. Mahjoub, on an outing with his family, boarded a small ferry used to transport visitors between attractions and made use of a paddle boat with one of his sons. While this could be construed as a technical breach, it seems to have arisen from a genuine misunderstanding about the scope of the terms of the Order. The object of the condition is to prevent Mr. Mahjoub from entering upon a "boat or vessel" to evade monitoring or to leave the geographical area to which he is restricted. It was not intended to impose restrictions on the applicant’s enjoyment of an amusement park with his family. I note that there were CBSA officers in the immediate vicinity who did not see fit to intervene. While I do not wish to encourage the applicant to commit even minor breaches of the conditions, I place no weight on the incident.
Daily Exercise
[39] With respect to the request to be permitted an hour per weekday for exercise and fresh air, the applicant and Ms. El Fouli both testified that it would be beneficial for their health. Ms. El Fouli stated that she had been advised by her physicians to seek additional exercise. This has been difficult to achieve in light of her responsibilities to the family and as a supervisor for her husband. The applicant proposes that this remain subject to the requirement that he notify CBSA before leaving and upon returning and that he would have the GPS tracking unit with him at all times. He did not press the request, at this time, that this practice be permitted during school vacations.
[40] The respondents are opposed to this request because of a number of problems which CBSA agents had observed with the applicant's use of the GPS tracking device. These problems were described in Mr. Pearce’s evidence. The system needs to be programmed to track Mr. Mahjoub's location when he leaves the home. There were a number of occasions where the signal from the tracking unit was not captured by the system when Mr. Mahjoub left the home or the signal was subsequently lost and not recaptured for varying periods of time. Mr. Pearce was very fair in his evidence and did not suggest that this was due to any deliberate attempt on the part of Mr. Mahjoub to impair or test the limits of the electronic tracking system. But this problem does not appear to have been experienced in other cases where this system is employed.
[41] Mr. Mahjoub was generally under physical surveillance during these outings so the losses of the signal, while disturbing, do not mean that he has not been effectively monitored. CBSA took steps to verify that the system was working as it should and provided Mr. Mahjoub with a refresher course in how to capture and maintain the signal. In his testimony, Mr. Pearce acknowledged that in recent weeks there had not been a problem with the operation of the GPS tracking unit.
[42] The Court would be very concerned if there were any evidence that Mr. Mahjoub was deliberately attempting to test the limits or to defeat the electronic tracking system. That does not appear to be the case. It is not clear from the evidence whether he has become more adept in using the GPS unit or the CBSA programming has become more effective. Whatever the reason, I do not believe that the early problems with this system should count against the applicant's request to have an hour per weekday outside the home for fresh air and exercise en route to or from the boys’ school. I am satisfied that with the combination of the electronic system and the use of physical surveillance at the discretion of CBSA, the applicant can be effectively monitored. Accordingly, this variation will form part of the revised order. Mr. Mahjoub will, of course, have to advise CBSA of when he intends to take this time and where he will be during the hour.
Greater Freedom for Religious Observances
[43] The applicant requests that he be permitted to attend prayers at a mosque on Friday afternoons and evening prayers during Ramadan and not have this count as weekly outings. The respondents have no objection to these changes provided that the mosque has been approved by CBSA. I understand this to mean that CBSA can effectively monitor the applicant's presence at that location, and not that they propose to monitor the actual prayers. There does not appear to have been any major problem in this regard since Mr. Mahjoub's release. Indeed, the variation made in September to allow for the daily curfew to be extended at CBSA's discretion was a jointly submitted response to accommodate the applicant during Ramadan. Accordingly, the Court will accede to these requests.
[44] CBSA refused to permit the applicant to celebrate the festival of Eid ul-Fitr at the Rogers Centre, a very large facility capable of holding many thousands of persons. The request was refused because the agency determined that the Centre was not a secure venue and officers concluded that they could not effectively monitor an outing to that location. The respondents are not opposed in principle to the applicant's request to attend these celebrations or those of Eid ul-Adha in December, subject, again, to the proviso that the location is secure and the applicant can be effectively monitored.
[45] I understand that these events are important occasions in the Islamic calendar and that they provide an opportunity for family members to share in both religious observances and festivals. Ms. El Fouli testified about how much the boys enjoyed attending these events and missed the opportunity to share the experience with their father this year. Nonetheless, the determination of whether the location is secure and will permit effective monitoring is an operational decision best left to the discretion of CBSA officials.
[46] Counsel for the applicant acknowledged in closing argument that this is not a field upon which the Court should venture but expressed the hope that CBSA could be encouraged not to adopt a restrictive view based solely on the size of the venue. I am reluctant to comment as there was no evidence before me as to the options which might be available to participate in these celebrations in other venues where there may be less concerned about security and monitoring.
Islamic Sunday School and recreational programs for the boys
[47] Prior to the applicant's release from detention the two younger boys were enrolled in recreational programs within the local community and attended Islamic Sunday School between 10:00 a.m. and 2:30 p.m. Since his release, they have not enrolled in the programs or attended the Sunday School because of the restrictions imposed on their father's movements and their mother’s and stepbrother’s responsibilities as supervisors. The applicant seeks permission to take the boys to the recreational programs and to attend the Sunday school with them and his wife and not to have these count against his weekly outings. Ms. El Fouli previously taught at the Sunday school and wishes to resume teaching there.
[48] The respondents’ position is that the applicant may apply to CBSA for approval to attend the recreational programs as part of his weekly outings. They are opposed to his request to attend Sunday School with his sons because CBSA regards this as operationally unfeasible. Their objection is not based on the nature of the event nor the premises in which it is conducted, a school vacant for the weekend. Mr. Pearce's evidence was that the agency's ability to monitor would be compromised. It is unlike the regular school situation where the applicant merely escorts the children to the school and collects them. He would remain present at the Sunday School for over four hours. Mr. Pearce testified that the agency would have to obtain information about the other participants, inform them that the applicant is a national security risk and obtain their agreement to being approved by CBSA. This was vigorously contested on cross examination and in closing argument. CBSA has not imposed the same requirements in approving requests for outings to locations where other persons will be present such as to shopping malls and restaurants. The same no-contact rules which apply to those situations could be imposed for the Sunday School outings.
[49] It is evident that CBSA officials are concerned that they may not be permitted access to the Sunday School venue and would not be able to monitor the applicant's activities while he was there. These are valid concerns. The Court is not prepared to countenance any situation in which the applicant could not be effectively monitored for an extended period of time or would be engaged in teaching. But I do not think it necessary that CBSA identify each of the other participants at the Sunday School, inform them of the applicant's status and obtain their consent to being approved. Ms. El Fouli testified that she would ensure that her husband remained with her and that he would play no active role at the school. On that understanding and with the proviso that CBSA would have access to the school to monitor the applicant’s activities, I see no reason why this attendance could not be approved as one of the applicant’s weekly outings.
[50] Counsel for the applicant conceded that given a choice between a trip to a shopping mall or restaurant and Sunday School, the latter would take priority. It was argued, however, that the applicant should not have to make that choice as the other outings such as to shopping malls and restaurants were also important to the family. That may be a question for further consideration at a later date. At this point in time, with only seven months of experience of the practical operation of these conditions, I am not prepared to increase the number of weekly outings.
Use of the Subway
[51] At present, the applicant is prohibited from using the Toronto subway for any of his outings, including trips to his doctors. Evidence was provided as to the location of the doctors’ offices, distances from the applicant’s home and likely times required to travel between them by surface public transit. The family, as of the dates of the hearing, did not have a functioning automobile and the applicant has been dependent upon the goodwill of friends a