Canada (Citizenship and Immigration) v. Canada (Public Safety and Emergency Preparedness)

Canada (Citizenship and Immigration) v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2009-01-15
Neutral citation
2009 FC 34
File numbers
DES-7-08
Decision Content
Date: 20090115
Docket: DES-7-08
Citation: 2009 FC 34
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Applicants
and
MOHAMED ZEKI MAHJOUB
Respondent
REASONS FOR ORDER
MACTAVISH J.
[1] Mohamed Zeki Mahjoub has for many years been the subject of Security Certificates, the most recent of which was signed by the Minister of Citizenship and Immigration and the Minister of Public Security and Emergency Preparedness. After spending a number of years in detention, Mr. Mahjoub was released from custody in April of 2007 on a series of very strict terms and conditions.
[2] The question of the reasonableness of the most recent Security Certificate is currently the subject of proceedings before the Federal Court. Justice Layden-Stevenson is also dealing with a request for the variation of the terms and conditions of Mr. Mahjoub’s release from detention.
[3] In the meantime, Mr. Mahjoub has brought a motion seeking “to clarify the parameters of the conditions imposed by the Court”. By order of the Chief Justice, this motion was scheduled to be heard together with a similar motion brought by Mahmoud Jaballah, another individual who is also the subject of a Security Certificate. A separate set of reasons is being issued simultaneously with this decision with respect to Mr. Jaballah’s motion.
[4] Messrs. Mahjoub and Jaballah each assert that in purporting to monitor their compliance with the terms and conditions of their release, the Canada Border Service Agency has effectively imposed additional terms and conditions on them, which have not been judicially authorized. They further assert that the way in which the CBSA is monitoring their compliance with the terms and conditions of their release violates sections 7 and 8 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.
[5] It should be noted that this motion was heard on the basis of both affidavit evidence and viva voce testimony. Transcripts from other proceedings were also filed with the Court on the consent of the parties, as were all of the previous public decisions relating to Mr. Mahjoub. The entire hearing in relation to this motion took place in public, on the basis of a public record. As was agreed to by the parties, the Court has not reviewed any of the evidence that has been received in camera in other proceedings.
I. Background
[6] While the proceedings involving Mr. Mahjoub have a lengthy history, for the purpose of this motion, it is only necessary to identify a few key facts.
[7] On June 26, 2000, Mr. Mahjoub was detained on the basis of a security certificate signed by the then Solicitor General of Canada and Minister of Citizenship and Immigration, pursuant to the provisions of paragraph 40.1(3)(a) of the former Immigration Act. After a hearing before Justice Nadon, the certificate was found to be reasonable: Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2001 FCT 1095.
[8] On February 15, 2007, Justice Mosley ordered that Mr. Mahjoub be released from detention upon a number of terms and conditions: Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2007 FC 171. Minor variations have since been made to these conditions by Justice Mosley in subsequent proceedings. The terms and conditions currently in effect for Mr. Mahjoub are attached as an appendix to these reasons.
[9] As a result of the decision of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (Charkaoui #1), it was determined that the procedure prescribed in the Immigration and Refugee Protection Act, S.C. 2001, c. 27, for the judicial approval of Security Certificates was inconsistent with the Charter, and was thus of no force or effect. The Court’s declaration was suspended for one year from the date of the judgment, so as to allow the government to make the necessary amendments to the Act.
[10] On February 22, 2008, a new Security Certificate was issued with respect to Mr. Mahjoub. As was noted earlier, the reasonableness of this second Certificate is the subject of proceedings before this Court, and Justice Layden-Stevenson is currently dealing with a request to vary the terms and conditions of Mr. Mahjoub’s release.
[11] On August 8, 2008, Mr. Mahjoub brought the motion that is the subject matter of this decision. In his October 14, 2008 order scheduling the hearing of this matter, the Chief Justice expressed his concern that this motion not duplicate other proceedings pending before this Court, and that the judge hearing this motion not be called upon to encroach on matters being dealt with by other judges.
II. The Issues on this Motion
[12] Mr. Mahjoub has identified three areas of concern with respect to the conduct of the CBSA. These relate to:
1. The opening of all the mail addressed to Mr. Mahjoub and his family members, the making and retention of photocopies of that mail, and the use that is made of those photocopies by the CBSA;
2. The taking of photographs of Mr. Mahjoub, the members of his family, and people coming into contact with Mr. Mahjoub and his family, as well as the interior of the Mahjoub home. Mr. Mahjoub also objects to the use that is made of these photographs by the CBSA;
3. The constant and intrusive overt physical surveillance of Mr. Mahjoub when he is on outings outside of the family home.
[13] Each of these issues will be considered in turn.
III. The Issues Relating to the Mail
[14] Amongst the other terms and conditions contained in Justice Mosley’s February 15, 2007 order releasing Mr. Mahjoub from detention is the following:
13. Prior to his release from incarceration, Mr. Mahjoub and all of the those persons who reside at the residence shall consent in writing to the interception, by or on behalf of the CBSA, of incoming and outgoing written communications delivered to or sent from the residence by mail, courier or other means. Prior to occupying the residence, any new occupant shall similarly agree to provide such consent. The form of consent shall be prepared by counsel for the Ministers.
This condition has not been varied, and remains in effect at this time.
[15] On March 31, 2007, Mr. Mahjoub signed a consent to the interception of his mail in the following terms:
I, MOHAMED ZEKI MAHJOUB, hereby authorize the Canada Border Services Agency or anyone acting on its behalf to obtain any mail in the possession of the Canada Post Corporation destined to or originating from me. I further authorize the Canada Border Service Agency or anyone acting on its behalf to obtain anything in the possession of any commercial or private courier destined to or originating from me.
The adult members of Mr. Mahjoub’s family have also signed similar consents.
a) The Opening of all of the Mail
[16] Mr. Mahjoub has objected to the fact that CBSA is opening all of the mail coming to both him and to his family members. While recognizing that Justice Mosley’s order permits the interception of the mail, counsel argued that the Court’s condition should be subject to a “reasonableness standard”.
[17] That is, correspondence such as that emanating from government sources, bank and credit card statements and the like, which, Ms. Jackman says, could in no way ever engage any justifiable concern on the part of CBSA, should not be opened.
[18] Ms. Jackman confirmed that there is no issue in this case with respect to the interception of solicitor and client communications. It appears that Mr. Mahjoub does not usually correspond with his counsel in writing, and the two letters that he has recently received from his lawyers were not opened by the CBSA.
[19] In her reply submissions, Ms. Jackman did acknowledge that the interception of the mail addressed to Mr. Mahjoub and his family was specifically authorized by Justice Mosley, and was consented to by Mr. Mahjoub and the adult members of his family. There is no limitation contained in Justice Mosley’s order as to which types of mail should or should not be opened. To now impose limitations on CBSA’s ability to open certain types of mail, in the context of this motion, would result in the modification of one of the conditions of release imposed on Mr. Mahjoub by Justice Mosley. That is not the function of this Court on this motion, and I decline to do so.
[20] If Mr. Mahjoub has concerns with respect to the types of mail that are being opened by the CBSA, it is open to him to raise the issue in the context of the motion to vary the conditions of his release which is presently ongoing before Justice Layden-Stevenson. Indeed, from a review of the transcripts filed in this proceeding of evidence that was adduced before Justice Layden-Stevenson, it appears that Mr. Mahjoub is doing precisely that.
b) The Photocopying of the Mail, and the Use Being Made of the Copies by the CBSA
[21] At the time that this motion was initially brought, Mr. Mahjoub’s concern was that the CBSA was making and retaining photocopies of all of the family’s mail, while forwarding the original correspondence on to them. In Mr. Mahjoub’s view, Justice Mosley’s order did not authorize the making or retention of photocopies of the intercepted mail. As a consequence, he argued that the CBSA’s conduct amounted to an unreasonable search and seizure, contrary to the provisions of section 8 of the Charter.
[22] At some point after the completion of the first set of hearing days with respect to this motion, Mr. Mahjoub and his counsel became aware of evidence adduced in the proceedings before Justice Layden-Stevenson that significantly expanded the nature and depth of Mr. Mahjoub’s concerns with respect to the CBSA’s treatment of the family’s mail.
[23] On the resumption of the hearing of this motion, transcripts of the evidence of two CBSA witnesses who testified before Justice Layden-Stevenson were filed with the Court, on the consent of the parties. These witnesses were Philip Whitehorne and Mohammed Al-Shalchi.
[24] Mr. Whitehorne evidently testified in camera before Justice Layden-Stevenson. Redacted transcripts of his evidence were subsequently provided to counsel for Mr. Mahjoub, and it was these redacted transcripts that were filed with the Court on this motion.
[25] Mr. Whitehorne is the Chief of Operations for CBSA’s Northern Ontario Region. He is responsible for the management of the Immigration Enforcement Program, which is in turn responsible for the monitoring of Mohamed Harkat, an individual residing within the Northern Ontario Region who is himself the subject of a Security Certificate.
[26] Mr. Al-Shalchi is an Enforcement Supervisor at the Greater Toronto Enforcement Centre of the CBSA. He is responsible for supervising and implementing the terms and conditions of the court orders that govern both Mr. Mahjoub and Mr. Jaballah. Mr. Al-Shalchi also provided an affidavit on behalf of the CBSA in this proceeding, and was cross-examined at some length before this Court.
[27] Mr. Whitehorne testified that a framework for the treatment of intercepted mail by the CBSA is set out in a National Manual. The Manual itself has not been produced to either Mr. Mahjoub or Mr. Jaballah, nor was it provided to the Court, as the CBSA has objected to its production on the grounds of national security.
[28] In the case of Mr. Harkat, Mr. Whitehorne explained that once the intercepted mail is received by the CBSA, it is reviewed at the regional office in an effort to identify any issues of risk, or any potential breach of any of the terms and conditions of Mr. Harkat’s release. All of the mail is photocopied, and copies of the mail are then forwarded to the Counter-terrorism Unit in the National Security Directorate at CBSA’s national headquarters.
[29] According to Mr. Whitehorne, the Counter-terrorism Unit is responsible for reviewing, from a strategic standpoint, any information that would suggest that any of the individuals being held on Security Certificates could pose a risk. He stated that the Counter-terrorism Unit would have greater expertise than the regional office with respect to strategic intelligence assessments.
[30] Mr. Whitehorne stated that it is his understanding that the CBSA’s Counter-terrorism Unit would then analyse the photocopied mail in order to determine whether there were any discernable patterns in the documents, or whether there was anything in the mail that could raise any question of risk to the supervising officers or to the public.
[31] Mr. Whitehorne also testified that it is CBSA’s regional office that is responsible for monitoring Mr. Harkat, whereas one of the principle objectives of the Counter-terrorism Unit is the gathering of intelligence about the target, and the target’s contacts.
[32] Mr. Al-Shalchi’s evidence was largely consistent with that of Mr. Whitehorne. He explained that in the case of Messrs. Mahjoub and Jaballah, local CBSA Standard Operating Procedures stipulate that an inspection of the mail is to be carried out by officers at GTEC. The original mail is forwarded on to the addressees, and a record of the receipt and delivery of the mail is recorded in the CBSA’S Monitoring Activity Reporting System or “MARS”. Two sets of photocopies of the mail are also made at GTEC.
[33] By making photocopies of the mail, GTEC is able to get the mail into the hands of the addressees more quickly than would otherwise be possible. Keeping copies of the mail at GTEC also assists in tracking mail, in the event that there is ever any question about correspondence that may have gone missing, and not been received by the addressee.
[34] According to Mr. Al-Shalchi, inland enforcement officers at GTEC carry out a “superficial” analysis of the mail. Because the officers at GTEC do not have expertise in intelligence analysis, one set of photocopies is forwarded to the Manager of the Counter-terrorism Unit in Ottawa for analysis, with the other set of copies being retained at GTEC.
[35] Where Mr. Al-Shalchi and Mr. Whitehorne differ in their evidence is in relation to the purpose of the review of the mail that is carried out by the Counter-terrorism Unit in Ottawa. Mr. Whitehorne was of the view that one of the purposes of the Counter-terrorism Unit’s analysis of the mail of individuals subject to Security Certificates was to gather intelligence about the target, and the target’s contacts.
[36] In contrast, Mr. Al-Shalchi’s understanding was that the mandate of the Counter-terrorism Unit was simply to monitor the subject’s compliance with the terms and conditions of his release, particularly as it related to the potential for unauthorized communications.
[37] To this end, Mr. Al-Shalchi says that analysts in the Counter-terrorism Unit examine the mail, looking for patterns and trends that might not be immediately obvious in a more superficial inspection of the documents. Counter-terrorism Unit analysts also have experience with codes, which local GTEC officers do not. By retaining photocopies of the mail, Counter-terrorism Unit analysts would be able to go back and re-review earlier correspondence, in the event that a coded message is detected in later correspondence.
c) The Positions of the Parties with Respect to the Mail
[38] Messrs. Mahjoub and Jaballah acknowledge that they cannot assert section 8 Charter rights on behalf of the members of their family who are affected by CBSA’s interception of the families’ mail. As a result, the only issue before the Court is whether the copying of Messrs. Mahjoub and Jaballah’s own mail, and the forwarding of copies of that mail to the CBSA’s Counter-terrorism Unit in Ottawa violates their rights under section 8 of the Charter.
[39] Insofar as the photocopying of their own mail is concerned, Messrs. Mahjoub and Jaballah acknowledge that “interception”, as the term is used in the context of the Criminal Code, R.S.C. 1985, c. C-46, contemplates the copying of the intercepted material. Indeed, they accept that some copying of their mail could be appropriate, where there are “reasonable and probable grounds to believe” or, alternatively, a “reasonable suspicion” that an unauthorized communication may have taken place, in contravention of the terms and conditions of their release.
[40] That said, Messrs. Mahjoub and Jaballah contend that there is nothing in the consents that they provided in compliance with the orders of Justice Mosley in Mr. Mahjoub’s case, and Justice Layden-Stevenson, in the case of Mr. Jaballah, that contemplates the photocopying of all of their mail, and the retention of these copies by the CBSA. In such circumstances, and in the absence of any basis for believing that there has been a breach of a term or condition of a Court order, they submit that the making and retaining of copies of the mail amounts to an unauthorized seizure, contrary to the provisions of section 8 of the Charter.
[41] Moreover, Messrs. Mahjoub and Jaballah contend that the consents that they signed were provided for one purpose and one purpose only, namely to allow the CBSA to monitor their compliance with the terms and conditions of their release. Neither Mr. Mahjoub nor Mr. Jaballah ever consented to having his mail reviewed by the CBSA for intelligence gathering purposes.
[42] Messrs. Mahjoub and Jaballah say that the Canadian Security Intelligence Service is the government agency charged with statutory responsibility for intelligence gathering, not the CBSA. If the Government of Canada wishes to be able to gather additional intelligence in relation to either Mr. Mahjoub or Mr. Jaballah, it is open to CSIS to seek judicial authorization for such activities through the means provided for in sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23.
[43] Mr. McIntosh submits on behalf of the CBSA that what is being sought here in relation to the mail is not the “clarification” of the parameters of the terms and conditions imposed by this Court on Messrs. Mahjoub and Jaballah. Rather, Messrs. Mahjoub and Jaballah are seeking the amendment of those terms and conditions, so as to limit CBSA’s ability to photocopy the mail to certain specified situations: that is, when a specified threshold of suspicion has been satisfied.
[44] While acknowledging that the terms and conditions of Messrs. Mahjoub and Jaballah’s release do not explicitly authorize the CBSA to make photocopies of the mail, Mr. McIntosh argues that such a power can be implied, in light of all of the circumstances.
[45] The Court’s orders do contemplate the CBSA reviewing the mail so as to ensure that there has been no unauthorized communication by either individual. Given the uncontradicted evidence of Mr. Al-Shalchi that GTEC does not have the necessary expertise to carry out a fulsome analysis of the intercepted mail, it is entirely reasonable, Mr. McIntosh argues, for copies of the mail to be sent to the section of the CBSA with the requisite expertise.
[46] This practice could actually operate to the benefit of Messrs. Mahjoub and Jaballah, says Mr. McIntosh, as it limits the possibility of there being a “rush to judgment” in relation to a potential breach by someone without sufficient expertise to make a proper assessment.
[47] Mr. McIntosh further submits that as the interception of Messrs. Mahjoub and Jaballah’s mail has been specifically authorized by court order, neither man could have any reasonable expectation of privacy in relation to his mail. In the absence of such a reasonable expectation of privacy, there can be no breach of section 8 of the Charter.
[48] Mr. McIntosh also argues that a “bright line” cannot always be drawn between monitoring compliance with the terms and conditions of Messrs. Mahjoub and Jaballah’s release, and intelligence gathering. In his submission, both activities are proper, as both relate to the question of whether either Mr. Mahjoub or Mr. Jaballah is inadmissible to Canada.
[49] Moreover, Mr. McIntosh says that the CBSA is empowered to carry out intelligence gathering as part of its mandate in relation to persons named in Security Certificates. As authority for this proposition, he points to paragraph 113 of the decision of the Supreme Court of Canada in Charkaoui #1.
[50] That is, in Charkaoui #1, the Supreme Court discussed the factors to be considered by the Federal Court in the context of detention reviews. The Court identified the length of detention as a relevant consideration, observing that:
A longer period of detention would also signify that the government would have had more time to gather evidence establishing the nature of the threat posed by the detained person. While the government's evidentiary onus may not be heavy at the initial detention review […], it must be heavier when the government has had more time to investigate and document the threat. [emphasis added]
[51] According to Mr. McIntosh, with this comment, the Supreme Court of Canada has invited “the government”, including the CBSA, to engage in intelligence gathering with respect to national security matters.
ANALYSIS
i) Is the CBSA Entitled to Photocopy the Mail?
[52] Section 8 of the Charter provides that “Everyone has the right to be secure against unreasonable search or seizure”. While I am satisfied that the making and retaining of photocopies of Messrs. Mahjoub’s and Jaballah’s mail amounts to a “seizure” within the meaning of section 8 of the Charter, it is not “unreasonable”, in light of all of the surrounding circumstances.
[53] First of all, as the Supreme Court of Canada observed in Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., [1984] 2 S.C.R. 145, while section 8 of the Charter protects the right of privacy, the guarantee against unreasonable search and seizure contained in section 8 only protects a reasonable expectation of privacy.
[54] Messrs. Mahjoub and Jaballah each acknowledge having consented to the interception of their mail for the purpose of enabling the CBSA to monitor their compliance with the terms and conditions of their release from detention. These terms and conditions were imposed by the Court for the purpose of ensuring that the threat to national security posed by each individual was neutralized.
[55] As such, neither Mr. Mahjoub nor Mr. Jaballah could have any reasonable expectation of privacy in relation to his mail, to the extent that the information contained in the correspondence is being utilized by the CBSA for the purpose of monitoring the threat posed by Messrs. Mahjoub and Jaballah, and their compliance with the terms and conditions of their release.
[56] Secondly, the making of photocopies is arguably implicitly authorized by the wording of the orders of Justice Mosley and Justice Layden-Stevenson, both of which authorized the “interception” of Messrs. Mahjoub and Jaballah’s mail upon receipt of consents signed by each individual. Indeed, Ms. Weaver conceded in argument that some photocopying of the mail was indeed authorized by the orders of the Court.
[57] In the provisions of the Criminal Code dealing with the invasion of privacy, the interception of communications is defined as including the recording or copying of the communication in question. By way of example, as it relates to the interception of private communications by the use of electro-magnetic, acoustic, mechanical or other devices, section 183 of the Code states that “intercept” includes “listen to, record or acquire a communication or acquire the substance, meaning or purport thereof” [emphasis added].
[58] Similarly, in relation to the Code provisions dealing with the unauthorized use of computers, section 342.1 defines “intercept” as “listen to or record a function of a computer system, or acquire the substance, meaning or purport thereof” [emphasis added].
[59] Finally, and in any event, there are a number of reasons why the making and retaining of photocopies of the mail is entirely reasonable, in all of the circumstances. Firstly, it allows for the timely forwarding of the mail to the Mahjoub and Jaballah families. This is especially important in light of the families’ complaints that delays in getting bills into their hands are having an adverse effect on their credit ratings.
[60] Moreover, the Court’s orders allow the “CBSA” to intercept Messrs. Mahjoub and Jaballah’s mail. The interception power conferred by the orders is not limited to GTEC. Given the apparent lack of expertise at the GTEC office, it is reasonable for GTEC to forward photocopies of the mail to those within the CBSA with the necessary expertise to analyze the mail for the purposes of ensuring that there has been no breach of any of the terms and conditions governing either Mr. Mahjoub’s or Mr. Jaballah’s release from detention.
[61] Retaining copies of the mail also allows for the tracking of mail that may not have been received by Messrs. Mahjoub and Jaballah or their families, as occurred with respect to drug eligibility cards that had evidently gone astray. Keeping copies of the mail would also allow for a re-review of the mail by the CBSA, in the event that a code or pattern in the mail is subsequently detected.
[62] Lastly, the destruction of copies of the mail held by the CBSA could raise concerns insofar as the document retention requirements of the Government of Canada are concerned. The destruction of copies of the mail could also potentially give rise to fairness concerns in subsequent proceedings involving either Mr. Mahjoub or Mr. Jaballah: see Charkaoui v. Canada (Citizenship and Immigration), [2008] S.C.J. No. 39 (Charkaoui #2).
ii) What is the CBSA Entitled to do with the Photocopies of the Mail?
[63] Given that I am satisfied that the making and retaining of photocopies of Messrs. Mahjoub and Jaballah’s mail does not breach section 8 of the Charter, the next question is whether there is any limitation on the use that the CBSA may make of the copies of the mail.
[64] In this regard, I agree with Messrs. Mahjoub and Jaballah that the consents that they provided to the CBSA in relation to the interception of their mail were limited in scope, and did not provide the CBSA with carte blanche to use their mail for any and all purposes.
[65] In coming to this conclusion, I would start by observing that contrary to the position of the CBSA in this matter, it is evident from a reading of paragraph 113 of Charkaoui #1 that this portion of the Supreme Court of Canada’s decision does not purport to confer authority on the Government of Canada to engage in intelligence gathering in the context of national security proceedings, where such authority might not otherwise exist.
[66] While the orders of Justices Mosley and Layden-Stevenson clearly authorize the CBSA’s interception of Messrs. Mahjoub and Jaballah’s mail, the orders are equally clear that such interception could only take place once Messrs. Mahjoub and Jaballah consented to it happening.
[67] I also note that the conditions imposed by Justices Mosley and Layden-Stevenson, including the condition relating to the interception of the mail, were imposed in the context of detention reviews, and were intended as a means of neutralizing the threat posed by the release of Mr. Mahjoub and Mr. Jaballah from custody.
[68] To this end, the terms and conditions imposed by the Court, including conditions such as those allowing for the interception of the mail, the monitoring of telephone calls, and the right to inspect Messrs. Mahjoub and Jaballah’s homes were all clearly intended to provide the CBSA with the ability to monitor the compliance of Messrs. Mahjoub and Jaballah with the terms and conditions of their release.
[69] There is nothing in any of the reasons or orders of either Justice Mosley or Justice Layden-Stevenson that would suggest that the terms and conditions imposed by the Court were also intended to provide an additional investigative tool to the CBSA to assist it in building its case against either Mr. Mahjoub or Mr. Jaballah in relation to the Security Certificate proceedings.
[70] Moreover, the fact that Messrs. Mahjoub and Jaballah have consented to the interception of their mail by the CBSA for the purpose of enabling the CBSA to monitor the threat that they pose and their compliance with the terms and conditions of their release from detention does not mean that they have waived their section 8 Charter rights in relation to their mail for all purposes.
[71] As the Supreme Court of Canada observed in R. v. Dyment, [1988] 2 S.C.R. 417, at paragraph 26, “the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person's consent”.
[72] However, even if a person has consented to the giving up of property or information for one purpose, it does not follow that this consent will necessarily amount to an effective waiver of section 8 Charter rights for all purposes.
[73] By way of example, in R. v. Wills, (1992), 7 O.R. (3d) 337), the Ontario Court of Appeal found that the voluntary provision of a breath sample for the purposes of a Breathalyser analysis nevertheless amounted to an unlawful seizure, where the consent of the accused was vitiated by the non-disclosure or innocent mis-representation of material facts.
[74] In order for a consent to constitute an effective waiver of section 8 Charter rights, the Ontario Court of Appeal held that the following conditions had to be established by the Crown, on a balance of probabilities:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary […] and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
(vi) the giver of the consent was aware of the potential consequences of giving the consent. (Wills at para. 69)
[75] It is the fourth and sixth of the Wills conditions that are at issue in this case.
[76] It should be noted that the Wills approach to the issue of effective waiver has been approved by the Supreme Court of Canada. That is, in R. v. Borden, [1994] 3 S.C.R. 145, the Supreme Court found that a blood sample voluntarily provided by a suspect in connection with one suspected sexual assault nevertheless amounted to an unlawful seizure in violation of section 8 of the Charter, where the sample was in fact used in connection with the investigation of a different sexual assault.
[77] In finding that the consent of the accused did not amount to an effective waiver of his section 8 Charter rights in relation to the blood sample for all purposes, the Supreme Court held that in order for a consent to amount to an effective waiver, the suspect must possess “the requisite informational foundation for a true relinquishment of the right”. That is, the ability to consent “requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful”: see Borden, at para. 34.
[78] As to the extent of the information that must be provided in order for a waiver of section 8 rights to be effective, the Supreme Court held in Borden that:
The degree of awareness of the consequences of the waiver of the s. 8 right required of an accused in a given case will depend on its particular facts. Obviously, it will not be necessary for the accused to have a detailed comprehension of every possible outcome of his or her consent. However, his or her understanding should include the fact that the police are also planning to use the product of the seizure in a different investigation from the one for which he or she is detained: at para. 40.
[79] Similarly, in R. v. Colarusso, [1994] 1 S.C.R. 20, at p. 55, the Supreme Court recognized that a consent to the taking of a blood sample could be limited to the taking of the blood for certain purposes only. Commenting on Colarusso in Borden, the Supreme Court recognized that “This concept reveals a link between the scope of a valid consent and the scope of the accused's knowledge in relation to the consequences of that consent”: see Borden, at para. 35.
[80] Implicit in the reasoning of the Supreme Court is that for a waiver of section 8 rights to be effective, knowledge of the purpose for which the search or seizure is sought to be made is a vital component of the “requisite informational foundation” necessary for there to be a true relinquishment of the right.
[81] A further example of where a consent given for one purpose was held not to amount to a waiver of section 8 rights for all purposes occurred in R. v. Smith, 1998 ABCA 418. In Smith¸ the Alberta Court of Appeal found that the warrantless search of the basement of a private home was unreasonable, even though the accused had consented to the police entering the first floor of his home to verify that an individual who had placed a 911 call was safe.
[82] In excluding the evidence obtained through the search of the basement, the Alberta Court of Appeal held that “Even if the entry onto the premises was legal, consent to entry was for a limited purpose, namely, to ensure the safety of the telephone complainant. This does not imply that a search of those premises for other purposes is allowable”: Smith at para. 8.
[83] I recognize that the cases discussed above are all criminal jurisprudence, whereas Messrs. Mahjoub and Jaballah’s cases are not criminal proceedings. However, having regard to the significant liberty interests that are engaged in Security Certificate proceedings, and the fact that the failure to comply with the terms and conditions of their release could amount to a criminal offence, I am satisfied that it is appropriate to draw an analogy to the law that has developed in the criminal context in determining what is required for there to be an effective waiver of section 8 Charter rights in the present cases.
[84] The consents provided in the cases of Messrs. Mahjoub and Jaballah were provided for the purpose of allowing the CBSA to monitor the threat that each posed to national security, and their compliance with the terms and conditions of their release.
[85] Mr. Al-Shalchi candidly acknowledged in his testimony that neither Mr. Mahjoub nor Mr. Jaballah was ever told that his mail was being sent to the CBSA’s Counter-terrorism Unit in Ottawa. Nor is there any evidence that either man was ever made aware that his mail could be scrutinized by the CBSA for the purpose of gathering intelligence, or for any other purpose.
[86] As a consequence, in the event that the CBSA is indeed using the mail of Messrs. Mahjoub and Jaballah for purposes beyond the monitoring of the threat that either man poses to national security, or their compliance with the terms and conditions of their release - a question that will be addressed in the next section of these reasons - such use would be unauthorized, and would violate the section 8 rights of the two individuals.
[87] Mr. McIntosh points out that both Mr. Mahjoub and Mr. Jaballah have been represented by experienced counsel throughout these proceedings, and that their counsel was actually involved in the drafting of the consents. According to Mr. McIntosh, it was incumbent on Messrs. Mahjoub and Jaballah to put limitations on the consents that they signed, if they did not intend that the consents be open-ended.
[88] I do not agree.
[89] Although the interception of the mail was specifically contemplated by the orders of Justices Mosley and Layden-Stevenson, the CBSA’s ability to intercept the mail was made contingent upon the provision of the consents of Messrs. Mahjoub and Jaballah. Absent such consent, or subsequent specific judicial authorization, the CBSA has no power to do anything in relation to Messrs. Mahjoub and Jaballah’s mail.
[90] The fact that Messrs. Mahjoub and Jaballah may have been assisted by counsel in relation to the execution of the consents does not assist the CBSA. The advice of counsel can only be as good as the information upon which it is based.
[91] While Messrs. Mahjoub and Jaballah do undoubtedly have a greatly diminished expectation of privacy with respect to their mail in light of the consents that they have signed, they have not relinquished all of their privacy rights in their mail for all purposes. They have most certainly relinquished their section 8 rights so as to allow for monitoring by CBSA of the threat that each poses, as well as their compliance with the terms and conditions of their release. However, they have not been provided with a sufficient informational foundation as to enable them to provide an effective waiver of their section 8 rights in relation to their mail for any other purpose.
[92] The next question, then, is whether the CBSA has in fact been subjecting Messrs. Mahjoub and Jaballah’s mail to a form of scrutiny that has been neither judicially authorized, nor consented to by either individual.
iii) Has CBSA’s Treatment of the Mail Gone Beyond What is Authorized by the Consents?
[93] For the reasons that follow, I am not prepared to make any finding as to whether the CBSA is in fact exceeding its authority in relation to its treatment of Messrs. Mahjoub and Jaballah’s mail.
[94] This motion proceeded in a somewhat unusual fashion. Counsel originally asked that the affidavits filed in support of the motion be treated as the deponents’ evidence in chief, that the deponents be allowed to provide viva voce evidence to update information in relation to the matters covered by their affidavits, and that each deponent be made available for cross-examination at the hearing.
[95] While the hearing of this motion was ongoing, the motion to vary the terms and conditions of Mr. Mahjoub’s release was also proceeding before Justice Layden-Stevenson. As was mentioned earlier, it was in the course of the proceedings before Justice Layden-Stevenson that additional information emerged through the testimony of Messrs. Whitehorne and Al-Shalchi as to what it was that the CBSA was actually doing with the photocopies of Messrs. Mahjoub and Jaballah’s mail.
[96] The parties then filed 10 volumes of transcript with the Court of testimony given by Messrs. Whitehorne and Al-Shalchi in the hearing before Justice Layden-Stevenson, to be considered as evidence on this motion. As was noted earlier, portions of Mr. Whitehorne’s in camera evidence were redacted from the transcripts, and were not provided to counsel for Messrs. Mahjoub and Jaballah or to the Court on this motion.
[97] I have previously identified the conflict in the evidence of Messrs. Whitehorne and Al-Shalchi with respect to the purpose of the review of Messrs. Mahjoub and Jaballah’s mail that is carried out by CBSA’s Counter-terrorism Unit in Ottawa.
[98] In the course of hearing this motion, I expressed my concern to the parties as to the way in which this matter had unfolded and the potential for overlap in the issues before me, and the matters currently before Justice Dawson, in the case of Mr. Jaballah, and, in particular, before Justice Layden-Stevenson in the case of Mr. Mahjoub. Indeed, the parties acknowledged the very difficult position in which the Court had been placed in relation to this motion.
[99] These difficulties are graphically illustrated by the fact that mid-way through Mr. McIntosh’s closing submissions, I was advised by couns