Canada (Citizenship and Immigration) v. Jaballah

Canada (Citizenship and Immigration) v. Jaballah
Court (s) Database
Federal Court Decisions
Date
2006-02-01
Neutral citation
2006 FC 115
File numbers
DES-04-01
Notes
Reported Decision
Decision Content
Date: 20060201
Docket: DES-04-01
Citation: 2006 FC 115
BETWEEN:
IN THE MATTER OF a certificate pursuant to
Section 40.1 of the Immigration Act, R.S.C. 1985,
c. I-2, now deemed to be under s-s 77(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27;
AND IN THE MATTER OF the referral of that
certificate to the Federal Court of Canada;
AND IN THE MATTER OF Mahmoud JABALLAH,
Applicant
and
The Attorney General of Ontario
Intervenor
REASONS FOR ORDER: Re continuing detention and the Charter
MacKAY D.J.:
Introduction and background
[1] This is an application by Mahmoud Es Sayy Jaballah, pursuant to s-s. 52(1) of the Constitution Act, 1982 and s-s. 24(1) of the Charter of Rights and Freedoms (the "Charter"), for his release from detention until the matters concerning him before this Court, in this security certificate proceeding under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act" or "IRPA"), are finally determined.
[2] Mr. Jaballah, a foreign national who is a citizen of Egypt, has been held in detention since August 14, 2001, when a security certificate was issued against him under s. 40.1 of the Immigration Act (1978), now continued in effect by s-s. 77(1) of the Act. Mr. Jaballah and his family had earlier arrived in Canada, in 1996, and then claimed Convention refugee status, a claim not determined when he was detained in 1999 under an earlier security certificate that was later quashed by Mr. Justice Cullen in November 2000. He remained in Canada as a foreign national pending determination of his refugee claim. That claim was denied, but that decision was set aside on judicial review in October, 2000 and the refugee claim was still outstanding when he was the subject of a second security certificate of the Ministers, and he was detained, without a warrant, on August 14, 2001. Mr. Jaballah's refugee claim, after it was heard again, was denied in April 2003, but the claims of his wife and four of his children were allowed and they were declared to be Convention refugees.
[3] The second certificate, issued by the Minister of Citizenship and Immigration and the then Solicitor General of Canada, the latter now replaced by the Minister of Public Safety and Emergency Preparedness of Canada, set out their opinion that Mr. Jaballah is inadmissible to Canada on specified grounds of national security. He was detained, without warrant or order in accord with s-s. 82(2) of the Act, and the certificate was referred to this Court, and to me as a judge designated in accord with the Act, for determination whether the certificate is reasonable.
[4] That determination has been delayed longer than anyone might have contemplated. These proceedings I summarize very briefly.
1) In July 2002 Mr. Jaballah applied under IRPA to be found to be a person in need of protection and, in accord with the Act (s-s. 79(1)), the proceedings for consideration of the certificate were suspended.
2) In August 2002 an immigration department PRRA officer completed a risk assessment, which was released to Mr. Jaballah, indicating the officer's opinion that the respondent would be at risk of torture, death or cruel or unreasonable treatment if he were returned to Egypt. That determination was subsequently found by this Court not to constitute, by itself, the decision required of the Minister under the Act and Regulations concerning the application for protection made by Mr. Jaballah.
3) After repeated urging by the Court to counsel for the Minister of Citizenship and Immigration that a decision be made on the application for protection, all to no avail, this Court on a motion by Mr. Jaballah, heard in April 2003, found that in the circumstances failure to determine the application for protection constituted an abuse of process under IRPA. The Court then proceeded to consider the reasonableness of the Ministers' certificate, and that certificate was upheld as reasonable on May 23, 2003 (see Re Jaballah, [2003] 4 F.C. 345, [2003] F.C. J. No. 822, 2003 FCT 640).
4) The Ministers initiated an appeal of the decision insofar as it determined an abuse of process, and Mr. Jaballah initiated a cross-appeal and a separate appeal concerning the finding that the certificate was reasonable.
5) On November 20, 2003, this Court heard a motion for Mr. Jaballah that he be released from detention, in accord with s-s. 84(2) of the Act, after continuing in detention more than 120 days after the certificate had been found to be reasonable. That motion was denied (see See Jaballah v. Canada(Minister of Citizenship and Immigration), [2004] F.C. J. No. 420, 2004 FC 299).
6) On December 30, 2003, Mr. Jaballah was advised by the Minister of Citizenship and Immigration that his July 2002 application for protection was denied. The Court was advised of the result but not of the decision by letter received January 6, 2004. Mr. Jaballah sought judicial review of that decision of the Minister, an application not heard before the appeals were considered.
7) In July 2004, the Federal Court of Appeal determined the appeals by the Ministers and by Mr. Jaballah concerning the May 2003 decisions, respectively that there was abuse of process and that the Ministers' certificate was reasonable. The former determination was upheld as was this Court's remedy of the abuse, that is the August 2002 PRRA decision should be deemed to be that of the Minister of Citizenship and Immigration concerning the risk to Mr. Jaballah if he were to be returned to Egypt. Yet the Court was found to have acted without authority in its decision concerning the reasonableness of the certificate since that decision was taken without waiting for a Ministerial decision on the application for protection. The decision on the certificate was quashed and the matter was referred to this Court for reconsideration. The Court, with the undersigned as designated judge, then resumed reconsideration of the certificate pursuant to the Act, s-s. 79(2) of IRPA.
8) After hearing arguments in August 2004 and considering further written submissions of counsel, in March 2005 I found the Minister's decision concerning Mr. Jaballah's application for protection was not lawfully made. That decision was quashed and proceedings with respect to the certificate were again suspended, in accord with s-s. 80(2), to allow the Minister of Citizenship and Immigration to make a new decision on the application for protection.
9) By Order of July 7, 2005, I directed that in continuing proceedings
a) this Court's determination of May 23, 2003, that the PRRA assessment of August, 2002 continue to be deemed to be the determination of the Minister concerning the risk to Mr. Jaballah if he were now returned to Egypt;
b) the matters for reconsideration by the Minister, to be reported to Mr. Jaballah and to the Court in accordance with subparagraph 113(d)(ii) of IRPA and s-s. 172(2) of the Regulations, are the danger that Mr. Jaballah constitutes to the security of Canada if he remains in this country, and the determination whether, despite the risk to him if he now be returned to Egypt, his application for protection should be refused; and
c) the Minister's decision on the application for protection should be filed on or before September 26, 2005, as it subsequently was, after Mr. Jaballah had opportunity to comment on the record to be considered by the Minister or his delegate.
This application
[5] Then this application by Mr. Jaballah was initiated in this Court on August 24, 2005. That followed an application for habeas corpus and other relief made before Mr. Justice Trafford of the Ontario Superior Court of Justice. He stayed that proceeding on application of counsel for the federal Ministers and also for the Attorney General of Ontario, in expectation that Mr. Jaballah could bring an application for timely relief in this Court (Jaballah v.Attorney General of Canada, Attorney General of Ontario et al., Court file M-77-05, 2005/08/22 Ont. S.C.J.). Copies of affidavits originally sworn in May 2005, by the respondent, his family members and proposed sureties, for habeas corpus proceedings in the Ontario Court, were filed under direction of this Court in support of Mr. Jaballah in this application.
[6] By a telephone conference with counsel for the parties and the Court on August 29, 2005 arrangements were made for the hearing of this application for release from detention to commence in Toronto on September 7, 2005. That hearing, which the Court considered to be a matter of urgency, continued for 5.5 days. Then counsel for Mr. Jaballah advised that it was not possible to make oral submissions immediately, that time was required for preparation of appropriate submissions, and counsel for the parties were not all free again until October 19th, some six weeks thereafter. With regret, the Court recessed until the latter date.
[7] The hearing of this matter concluded on October 21, 2005. Thereafter the Court spent considerable time in review of the information previously withheld from release to Mr. Jaballah and his counsel to assess whether any of that information could now be released. While that task was primarily directed to future proceedings concerning the lawfulness of the September 26, 2005 decision of the Minister's delegate on Mr. Jaballah's application for protection and concerning the reasonableness of the security certificate, until the review was completed it was uncertain whether any information that might now be released could be relevant for consideration of the application for release from detention.
[8] After that review was completed counsel requested, and opportunity was granted, for submissions to be made in regard to two recent decisions concerning other applications for release from detention, in the cases of The Minister of Citizenship and Immigration and the Solicitor General of Canada v. Mohamed Zeki Mahjoub, 2005 F.C. 1596 (per Dawson J., November 25, 2005), (hereafter "Mahjoub"), and The Minister of Citizenship and Immigration and the Solicitor General of Canada v. Hassan Almrei, 2005 FC 1645 (per Layden-Stevenson J. December 5, 2005) (hereafter "Almrei"). Written submissions were received from counsel for Mr. Jaballah and for the Ministers of Canada, on December 12 and 19, 2005 respectively.
[9] In addition to these decisions, this Court has considered Re Charkaoui [2005] 3 F.C.R. 389, [2005] F.C.J. No 269 (Q.C.) (F.C.) (per Noel J.) and Harkat v. The Minister of Citizenship and Immigration, 2005 F.C. 1740 (per Lemieux J.). In all these cases the courts were concerned with applications for release from detention under the requirements of s-ss. 83 and 84(2) of IRPA, requirements not specified as applicable under the Act in relation to continuing detention under s-s. 82(2).
[10] After full consideration of the evidence relevant to the application for release from detention and of the submissions of counsel, for the reasons set out hereafter, my conclusions are as follows.
i) The Court has authority to consider this application for relief made pursuant to the Charter and the Constitution Act 1982.
ii) I n this case the long continuing detention of Mr. Jaballah under s. 82(2) as a foreign national, without statutory opportunity for review of that detention pending consideration of the reasonableness of the Ministers' certificate, results in loss of his equality before the law and his right to equal benefit of the law on a discriminatory basis contrary to s-s. 15(1) of the Charter when compared with the circumstances for a permanent resident similarly detained under a security certificate under s. 83 of IRPA, because of Mr. Jaballah's status as a foreign national, a ground analogous to those set out in s-s. 15(1).
iii) Those circumstances warrant, as a remedy under s-s. 24(1) of the Charter, an exemption from the continuing application of s. 82(2) of IRPA unless his detention is ordered by a judge, in these proceedings this judge, following review of his detention on the same grounds as are applicable in the case of a permanent resident similarly detained, under s-s. 83(3) that is
83 (3) A judge shall order the detention to be continued if satisfied that the permanent resident 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.
83 (3) L'intéressé 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.
iv) Having considered this application, I conclude that I am satisfied Mr. Jaballah continues to be a danger to national security of Canada, and that his detention should be continued, pending any further Order.
v) The application for release from detention by Mr. Jaballah is dismissed.
vi) The provisions for detention under ss. 82 to 85 or IRPA have been held by the Court of Appeal not to infringe upon the rights guaranteed by ss. 7, 9 and 12 of the Charter. This Court is bound by those decisions. This Court makes no determination on the issue raised concerning the constitutional validity of s-s. 82(2) in light of s-s. 15(1) of the Charter, and that provision remains in force.
Detention and consideration of a security certificate
[11] IRPA provides for detention of permanent residents and foreign nationals in a variety of circumstances, including those when a certificate is issued under s-s. 77(1) that such a person is inadmissible to Canada on grounds of security. The provisions concerning detention in these circumstances include the following
Detention
82. (1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in s-s 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.
(2) A foreign national who is named in a certificate described in s-s 77(1) shall be detained without the issue of a warrant.
83. (1) Not later than 48 hours after the beginning of detention of a permanent resident 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 must, until a determination is made under s-s 80(1), 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 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.
84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.
(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
Détention
82. (1) Le ministre et le solliciteur général du Canada peuvent lancer un mandat pour l'arrestation et la mise en détention du résident permanent visé au certificat dont ils ont des motifs raisonnables de croire qu'il constitue un danger pour la sécurité nationale ou la sécurité d'autrui ou qu'il se soustraira vraisemblablement à la procédure ou au renvoi.
(2) L'étranger nommé au certificat est mis en détention sans nécessité de mandat.
83. (1) Dans les quarante-huit heures suivant le début de la détention du résident permanent, le juge entreprend le contrôle des motifs justifiant le maintien en détention, l'article 78 s'appliquant, avec les adaptations nécessaires, au contrôle.
(2) Tant qu'il n'est pas statué sur le certificat, l'intéressé comparaît au moins une fois dans les six mois suivant chaque contrôle, ou sur autorisation du juge.
(3) L'intéressé 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.
84. (1) Le ministre peut, sur demande, mettre le résident permanent ou l'étranger en liberté s'il veut quitter le Canada.
(2) Sur demande de l'étranger dont la mesure de renvoi n'a pas été exécutée dans les cent vingt jours suivant la décision sur le certificat, le juge peut, aux conditions qu'il estime indiquées, le mettre en liberté sur preuve que la mesure ne sera pas exécutée dans un délai raisonnable et que la mise en liberté ne constituera pas un danger pour la sécurité nationale ou la sécurité d'autrui.
[12] Of course, if the designated judge finds that the security certificate is not reasonable the certificate is quashed (s-s. 80(2)), and the person detained under the certificate is released. Moreover, the Minister of Citizenship and Immigration, on application by a detained person, whether a permanent resident or a foreign national, may order release to permit his or her departure from Canada (s-s. 84(1)).
[13] The Act makes no provision for review of the continuing detention of a foreign national under s-s. 82(2), except upon application by a detained person who has not been removed from Canada within 120 days after the Federal Court determines the certificate issued by the Ministers to be reasonable. If that statutory right should occur, as it did previously for Mr. Jaballah in 2003, the reviewing judge may order a foreign national's release from detention under terms and conditions, if satisfied that the person concerned will not be removed from Canada within a reasonable time and that release will not pose a danger to national security or the safety of any person (s-s. 84(2), IRPA). In this case, since there has been no effective determination of the reasonableness of the certificate in the four and a half years since he has been detained, Mr. Jaballah has no statutory right under IRPA to have the basis for his continuing detention reviewed.
[14] The situation of Mr. Jaballah, as a foreign national, is different than if he were a permanent resident of Canada. If a person in the latter class is detained under a security certificate, within 48 hours of commencement of the detention, a judge shall commence a review of the continuing detention. The reviewing judge shall order the detention to continue if satisfied that the person 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 (s-s. 83(3), IRPA). If not released following a review of detention, a permanent resident must, until the reasonableness of the certificate is determined, be brought back before a judge at least once in the six-month period following each preceding review, and at any other time the judge may authorize (s-s. 83(2), IRPA).
[15] The situation of a Canadian citizen who is considered to present a risk to national security may be contrasted with that of a foreign national or a permanent resident considered to present a similar risk. A citizen may only be detained if arrested and charged with an offence, or in exceptional circumstances for preventive arrest subject to review, under the Criminal Code. In those circumstances, prosecution follows, with criminal standards of proof. No prosecution of a permanent resident or a foreign national is required before deportation may be ordered following a determination by the Court that a security certificate is reasonable.
Procedural matters
[16] Certain procedural issues were raised at the commencement of the hearing on September 7, 2005.
[17] First, notice of constitutional questions arising, in particular in relation to possible relief sought on grounds alleging breach of the Charter of Rights and Freedoms, in accord with s. 57 of the Federal Courts Act, R.S.C. 1985, c. F-7 as amended, was directed to be given by counsel for Mr. Jaballah without delay, to the Attorneys General of provinces and of the territories except that of Ontario who was aware of the hearing. Confirmation of service to them, by facsimile, was subsequently filed with the Court.
[18] Second, counsel for the Attorney General of Ontario sought leave to intervene in the proceedings related to the application for release from detention. He did so in anticipation of notice of constitutional issues raised, confirmed orally at commencement of the hearing, and because that Attorney General had a particular interest, in expected allegations that conditions of detention for Mr. Jaballah, in the provincial remand centre where he has been detained, are such that they give rise to described breaches of certain Charter rights. After hearing from counsel for the parties and from the Attorney General of Ontario, the Court directed that the latter's motion to intervene was allowed, for the purposes of admission of evidence by affidavit and submissions, with advance notice to other counsel, concerning the conditions of detention and their effect, if any, on Charter rights. Leave to examine or cross-examine any witness, if that were desired, was left to be dealt with as counsel for the Attorney General of Ontario might request. Requests were subsequently made and granted for his examination of the acting Superintendent of the Toronto West Detention Centre, where Mr. Jaballah has been detained, who was called as a witness by Mr. Jaballah, and for cross examination of Mr. Jaballah in regard to medical services rendered to him while detained.
[19] Third, a further procedural issue referred to but not disputed by counsel for the parties, concerned the jurisdiction of this Court to consider the prime remedy here sought, that is, release from detention for Mr. Jaballah on grounds alleged of infringement, by the provisions of IRPA, or by their application to Mr. Jaballah, of rights guaranteed by the Charter. All counsel before the Court acknowledge Mr. Justice Trafford's opinion in the Ontario Court that this Court lacks statutory jurisdiction to issue habeas corpus, except as specifically provided for in relation to members of the armed forces under s. 17 of the Federal Court Act. Yet all were in support of the Court's authority to deal with the application for release from detention in this case where the Court is urged to grant relief under s-s. 24(1) of the Charter, or under s-s. 52(1) of the Constitution Act, 1982, on the ground that rights guaranteed by the Charter have been infringed.
[20] In my opinion following the decision of the Federal Court of Appeal in Charkaoui v. the Minister of Citizenship and Immigration and the Solicitor General of Canada, 2004 FCA 421, there can be no doubt of this Court's jurisdiction to determine the issues raised in this application. As a designated judge under IRPA it is my responsibility to hear and determine constitutional questions arising in the context of proceedings concerning the reasonableness of the security certificate, including the related proceedings in this case to review of the continuing detention of Mr. Jaballah. (See Charkaoui, supra, per Décary and Létourneau, JJ.A, at para. 144.)
The grounds for relief
[21] The grounds for the relief sought here by Mr. Jaballah's motion are:
i. Mr. Jaballah's continued detention pursuant to sections 82 to 85 of the Immigration and Refugee Protection Act (referred to as the IRPA), which provide for the automatic and mandatory detention of a foreign national subject to a security certificate issued under s. 77 of the Act and prohibit any possibility of a review of the need to detain until after the security certificate is upheld and the person is not removed from Canada within 120 days thereafter, in failing to provide for a fair and timely review on acceptable standards for release contravene the principles of fundamental justice pursuant to section 7 of the Charter of Rights and Freedoms and in applying solely to non-citizens deny the applicant equality before and under the law, and equal protection and benefit of the law without discrimination contrary to s. 15 of the Charter of Rights and Freedoms;
ii. Mr. Jaballah's continued detention at a provincial remand facility under conditions which are cruel and unusual breach his rights under s. 12 of the Charter of Rights and Freedoms and breach the principles of fundamental justice under section 7 of the Charter of Rights and Freedoms;
iii. Mr. Jaballah's continued detention at the Toronto West Detention Centre, a provincial remand facility, without the availability of any other form of detention in a long term facility, constitutes cruel and unusual treatment contrary to section 12 of the Charter of Rights and Freedoms, is not in accordance with standards of fair treatment required by the principles of fundamental justice under section 7 of the Charter of Rights and Freedoms, and in that the treatment is accorded to the applicant as a non-citizen and as a Muslim contravenes the right to equality before and under the law, and deny him equal protection and benefit of the law without discrimination contrary to s. 15 of the Charter of Rights and Freedoms.
[22] When this application was heard counsel for Mr. Jaballah made clear that the primary request before the Court was that he be exempt from the operation of the provision for his continuing detention as a remedy pursuant to s-s. 24(1) of the Charter or s-s. 52(1) of the Constitutional Act, 1982, because application of the IRPA provisions in this case constituted a breach of rights guaranteed by the Charter. If relief of that nature is not found appropriate, counsel asks that those provisions of IRPA be struck down as infringing on Mr. Jaballah's rights guaranteed by the Charter.
[23] Either course of action proposed would be based on similar contextual factors, including applicable legislation and the evidence relevant to the application for release from detention. I propose to review the evidence before the Court before turning to the submissions of counsel.
[24] It may be worth emphasizing that this application proceeds without a statutory basis other than Canada's Constitution including the Charter. Relatively little evidence was introduced by testimony and documents directed to the grounds set out for ordered judicial release from detention under s-s. 83(3) for permanent residents, or under s-s. 84(2) for foreign nationals held for four months after a Ministers' security certificate be found reasonable. Thus, other decisions concerned with applying those provisions for release by a judge are of limited relevance here. In this case constitutional arguments related to the facts, in particular the continuing detention of Mr. Jaballah with no statutory right to review the detention until determination is made on the reasonableness of the certificate, or if it be upheld, until four months after that. At this stage one might reasonably expect that the earliest of those opportunities is likely to be a minimum of two months from the filing of this decision.
[25] I turn to review the relevant evidence before the Court upon which this application is based.
Evidence on conditions of detention
[26] Following his arrest on August 14, 2001, Mr. Jaballah was held for approximately six weeks at Millbrook, a federal penal institution. After September 11, 2001, he was there sequestered in solitary confinement, as he was from mid-October, 2001 when he was moved to the Toronto West Detention Centre ("TWDC"), a provincial regional remand centre.
[27] Conditions of solitary confinement in both institutions were unpleasant, with virtually 24 hours a day spent alone in a very small solitary cell, at first with no running water or regular toilet facilities, and very restricted opportunities for contact, whether by visiting or by telephone, with his family or others. Meals were provided to be eaten in the cell. The only time out of the cell was brief, for a shower, a brief period in the "yard" or a very short visit. All personal effects, including toothbrushes, and reading materials including a prayer book, were kept outside the cell and could only be obtained from a willing guard. No shoes were permitted in the cell. Bedding was limited and in Mr. Jaballah's view was often unclean when supplied. For a few days Mr. Jaballah was kept naked in his cell, a condition that was offensive to his religious beliefs particularly since he was subject to observation at all times. Reasons for his detention in solitary had nothing to do with his own conduct while in detention, and the basis for it was not explained to him.
[28] The Acting Superintendent of TWDC, testifying at the hearing, explained that Mr. Jaballah's assignment to solitary detention was initiated for his own security and the general security of other inmates and staff of the institution, in keeping with policy and practices of Ontario regional detention centres. In circumstances of general uncertainty about the risk presented by the presence of persons held on security certificates in the aftermath of September 11, 2001, he emphasized a concern about Mr. Jaballah's safety in the general institutional population. There was no evidence, apart from Mr. Jaballah's references to occasional difficulties with individual guards or other inmates, that he was treated other than in accord with policies and practices generally applicable to those held in solitary confinement.
[29] For about a month in December 2001 and January 2002 Mr. Jaballah was transferred to a general range at TWDC, but then because of advice about the security risk his presence created, he was again transferred to solitary confinement. In July 2002 he was transferred, still at TWDC, to a protective custody range and there he has since remained.
[30] TWDC is a maximum security institution. As a regional remand centre, its principal function is for detention of persons charged but not yet tried or sentenced for criminal offences, mainly serious offences, for whom no assessment of risk classification has been made. That assessment is made only after sentence, when a convicted person is to be moved to a provincial detention centre or has been moved to a federal penal institution. Without such assessment, those held at TWDC are subject to general practices for a maximum security institution.
[31] In the protective custody range where Mr. Jaballah is held, cells are designed to hold two people each but for a substantial portion of the time he has been there some cells have had to accommodate three, with the third person sleeping on the floor. Inmates move from their cells to a common room for the range, usually from morning until 7:30 p.m. The common room has fixed metal tables and chairs. Television may be available. Meals are taken in the common room and all activities are conducted in public there, except frequent strip searches of those who have been moved out of the range for a visit or other purpose. In a room for visiting privileges, family or others, including counsel, are restricted and visiting may be cancelled without advance notice because of institutional security concerns, major public health concerns such as SARS, or labour difficulties with institutional employees. Lockdowns, when the institution is closed to visitors, and inmates are required to return to or remain in their cells, are not infrequent occurrences for security reasons.
[32] For Mr. Jaballah, a devout Muslim, detention has infringed on his religious practice and beliefs. Initially, in solitary he had trouble obtaining a copy of the Koran. His prayers have sometimes been without expected washing, without a prayer mat, and said in public with other detainees as onlookers and occasional hecklers. There have been only infrequent visits by an Iman. Initially he found the food provided had not been prepared in Halal fashion, and he still questions whether that is the case despite policy and described practices to ensure that Halal food is provided, by guaranteeing outside caterers, for Muslim detainees. Strip searching, done regularly under institutional policy, for security reasons after movement out of the range for any purpose, offends his religious principles.
[33] I accept the evidence of Mr. Jaballah's wife Husnah Mohammed Al-Mastouli, and of his eldest son Ahmed, who is now starting university studies, concerning the great difficulties for his family that his separation by reason of detention has meant. I accept also Mr. Jaballah's own testimony that the separation from his family and the limitations his detention impose on any exercise of responsibilities for his family are the most painful and distressing aspect of his detention. Even when his wife and children are able to visit him, they are always separated from him by a glass partition and they communicate only by telephone. He is, in accord with institutional policy, unable to touch or to hold any of them. I note that with the cooperation of the security officers who accompany Mr. Jaballah to court hearing days on this application, brief touch visits were permitted in the Courtroom when proceedings recessed for a mid-day break.
[34] I accept also the evidence of Paul Evan Greer, Acting Superintendent of TWDC, concerning the bases for maximum security policies, for the regime of detailed regulations and their application. I accept also his description of institutional efforts, particularly in recent years, to foster non-discriminatory application of policies and practices except, where possible, to recognize significant religious or social practices of certain of the inmates. The latter efforts, for Muslims, include provision of prayer books, and mats, the obtaining of Halal food from outside caterers, special arrangements for serving of food for Muslims during Ramadan, and regular weekly volunteer visits by an Iman.
[35] I accept also Mr. Greer's evidence, from TWDC records, that Mr. Jaballah has made few formal complaints, under the established process, about mistreatment by guards or other inmates and, apart from Jaballah's concerns about health conditions, the only significant recorded complaints from him concern the lack of Halal food on occasion. I accept also that the circumstances of detention probably discourage complaints, as both Mr. Greer and Mr. Jaballah testified. The evidence also indicates that any serious physical health concerns of Mr. Jaballah have been addressed by medical assistance arranged by TWDC.
[36] I turn to evidence provided by written report only, by Dr. Michael Bagby, a registered clinical psychologist and a member of the Department of Psychiatry at the University of Toronto, who, on request of Mr. Jaballah's counsel, examined and reported on his assessment of the psychological effects upon Mr. Jaballah of his detention. The assessment was done on the basis of two interviews in person in a private room at TWDC in mid-July 2005, administered test results and interviews of others by telephone.
[37] At the risk of oversimplifying the assessment of Dr. Bagby, I summarize his conclusions thus. Mr. Jaballah has some psychological problems, in particular panic disorder and depression, sometimes serious, especially when he learns of difficulties for his wife and children. His continuing detention causes him considerable stress, from "worry about the welfare of his family, his health and safety, and the uncertainty of his future". His arrest and continuing detention are said to be direct causes of his current psychological and emotional difficulties. For those difficulties he refuses pharmaceutical treatment, except non-prescription analgesics and anti-inflammatory agents. Dr. Bagby's report concludes thus:
Barring a change in his legal fortunes and faced with the prospect of indefinite incarceration, his prognosis appears poor. Mr. Jaballah is already experiencing a stress reaction and his mental status appears to be in a process of decline.
[38] Despite the difficulties his continuing incarceration present for Mr. Jaballah and for his family, his treatment, both while in solitary confinement and in the protective custody range, has been in keeping with institutional policies applicable to all inmates in the respective institutions. Moreover his assignment for different detention conditions has been made pursuant to those policies and practices, with no evidence before me that those have been unreasonably applied, or applied with adverse discriminatory effect, to Mr. Jaballah, or to other Muslims generally. As we shall see submissions about discriminatory treatment and possible breach of his right to equality of treatment under the law pursuant to section 15 of the Charter are based not on differences in practical terms but on differences in legal consequences under provisions of IRPA.
[39] I note for the record that in the course of the hearing counsel for the Minister of Citizenship and Immigration read into evidence a statement on behalf of the Minister concerning intended changes in arrangements for detention of individuals who are subject to security certificates (Transcript, October 19, 2005 p. 830, line 3 to p. 832, line 20). That statement is as follows:
MR. MacINTOSH: I have something to apprise the Court of. The following is the position of the Government of Canada, and I have been authorized to apprise the Court of this.
There has been a decision by the Government of Canada to assume the detention of persons subject to a security certificate and currently detained in the Province of Ontario. These persons will be detained in a federal detention facility.
The regime contemplated under the federal government regime will ameliorate conditions of detention for the individuals who are the subject of security certificates.
The location will be at a place where the necessary and appropriate facilities and infrastructure are available in Ontario.
It is contemplated that a federal facility will be ready to house the security certificate detainees within four to six months. This is the earliest that a facility can be made ready in order to properly outfit and retrofit a facility for these individuals and also to ensure that they are not housed with the general convicted population.
Also I have been authorized to outline some details with respect to conditions of detention.
Subject to any security concerns that may exist in individual cases and generally, the detainees will be allowed to:
1. Wear their own clothing;
2. Purchase at their own expense a personal TV and radio for use in their cell;
3. Purchase at their own expense personal hygiene products in addition to basics that will be supplied;
4. Subscribe to print material (newspapers and periodicals);
5. Have outdoor exercise that meets the standard for federal inmates, to be reviewed as circumstances permit, but not to be less than an hour;
6. Subject to determining the logistics, they will be permitted to have access to books from the penitentiary library;
7. Meals will be in conformity with penitentiary standards;
8. They will be permitted to have supervised access to a phone;
9. They will be permitted to have religious visits and ceremonies in the unit, subject to logistics;
10. They will be permitted to have access to essential medical and dental care;
11. They will be permitted to have contact visits, sub