Jaballah (Re), 2010 FC 870

Federal Court

Cour fédérale

 

Date: 20100902

Docket: DES-6-08

Citation: 2010 FC 870

 

PRESENT:     The Honourable Madam Justice Hansen

 

BETWEEN:

IN THE MATTER OF a certificate signed pursuant

to section 77(1) of the Immigration and Refugee

Protection Act (IRPA);

 

AND IN THE MATTER OF the referral of a

certificate to the Federal Court pursuant to

section 77(1) of the IRPA;

 

AND IN THE MATTER OF

MAHMOUD ES-SAYYID JABALLAH

 

 

REASONS FOR ORDER

 

[1]        Mr. Jaballah (Respondent) is named in a security certificate in which the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (Ministers) state their belief that there are reasonable grounds to believe that Mr. Jaballah is inadmissible to Canada on grounds of national security. 

 

[2]        Since his release from detention on strict conditions, Mr. Jaballah has had three reviews of the conditions of his release.  The most recent review resulted in Justice Dawson’s May 11, 2010 reasons and subsequent July 13, 2010 order.  Other than for a few limited outings and the right to be at home without supervision provided that certain conditions are met, the July 13, 2010 order requires that Mr. Jaballah be supervised at all times.  These reasons arise from an application brought by Mr. Jaballah “to review/vary conditions of release” provided in the July 13, 2010.  For the purpose of clarity, it should be noted that in the reasons delivered orally, the Respondent’s application is referred to as a “motion” as it was framed by him in the materials filed with the Court.  Throughout the rest of these reasons, I have referred to this matter as an application in accordance with the language of the legislation. 

 

[3]        There are two parts to these reasons. Paragraphs 4 to 19 are the reasons given orally in relation to a request by counsel for both parties to resolve the preliminary issue as to whether the Respondent was entitled to bring an application for a review of the conditions of his release at this time. They have been corrected for grammatical error and clarity. The remaining paragraphs are my reasons on the application to vary the conditions of release.

 

[4]        The Respondent, Mr. Jaballah, brings this motion “to review/vary conditions of release.”  In particular, he brings this motion to review the conditions of his release pursuant to section 82 (4) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA).  Alternatively, he asks for an order varying the conditions of his release pursuant to section 82.1(1) of the IRPA.  He seeks an order permitting him to attend at certain places on advance notice to the CBSA unaccompanied by a supervisor; namely, the mosque for Friday prayers and the evening prayers during Ramadan; court hearings and his counsel's office; and walks in his neighbourhood and to a nearby gym for exercise purposes.

 

[5]        In addition to the matters identified in the Respondent's motion record, given the delays associated with the work permit application he has filed, he asks for permission to accompany his son when he is attending to business matters without being employed by his son's company.  An additional matter was referenced yesterday in relation to taking his children to school.

 

[6]        Mr. Jaballah takes the position that he is entitled to have a full review of the conditions of his release six months from the date of the conclusion of the previous hearing concerning the review of conditions.  He states he recognizes that a full review may take some time to schedule and determine and for this reason he is limiting the present motion for review to the specific matters set out above with the view to having a full review of his conditions of release at a later date to be scheduled.

 

[7]        The Ministers dispute Mr. Jaballah's assertion that he is entitled to a review of conditions of release six months from the conclusion of the hearing and submit that the six-month period runs from the date of the decision of the previous review of conditions.

 

[8]        Counsel for the Ministers and for Mr. Jaballah ask the Court to resolve the preliminary question as to whether Mr. Jaballah is currently entitled to a review of conditions at this time before proceeding any further with the motion.

 

[9]        Section 82 provides for mandatory and optional reviews of detention and conditions of release.  Subsections 82(1), (2) and (3) apply to detention. Subsection 82(1) provides for a mandatory review 48 hours after the detention begins.  Subsection (2) concerns the period prior to a determination in relation to the reasonableness of the certificate and requires that a judge commence another review of the reasons for the continued detention at least once in the six-month period following, “the conclusion of each preceding review.” Subsection (3) concerns the period after a certificate has been determined to be reasonable and provides that a person being detained may apply for a review of the reasons for the continued detention if a period of six months has elapsed, “since the conclusion of the preceding review.”

 

[10]      Subsection (4) provides that a person who has been released from detention on conditions may apply for another review of the reasons for continuing the conditions if a period of six months has expired since, “conclusion of the preceding review.” The phrase “conclusion of the preceding review” is not defined in section 82.

 

[11]      Section 82.1 provides for the variation of orders.  It reads:

 

 

 

[12]      Mr. Jaballah submits that it is not entirely clear whether the reference in subsection 82.1 (2) to, “the decision under subsection (1)” is just to subsection (1) in section 82.1 or to subsections (1) in both sections 82 and 82.1.  But it is clear that in the case of either one or both of these provisions, Parliament specifically provided that for the purpose of calculating the six month period the conclusion of the preceding review is the date of the decision.

 

[13]      Mr. Jaballah argues that the absence of a similar provision in relation to all of the other release or detention review provisions leads to the conclusion that Parliament intended that the start of the six month time period in subsections 82(2), (3) and (4) would be from what would ordinarily be considered the conclusion of the proceeding, that is the date when all the evidence and submissions have been made. Mr. Jaballah maintains that this interpretation is consistent with the Supreme Court of Canada decision in Charkaoui v. The Minister of Citizenship and Immigration, 2007 1 S.C.R. 350 at paragraphs 117 and 123.  Further, to adopt the interpretation advanced by the Ministers would deprive him of this right to timely reviews consistent with the principles of natural justice.

 

[14]      Section 82.2 which deals with the circumstance where there are reasonable grounds to believe that a person named in a certificate has contravened or is about to contravene a condition of release is relevant to this discussion. It reads:

 

 

 

[15]      The parallel structure of section 82.2 to that of section 82.1 and in particular subsection 82.2(4) and subsection 82.1(2) points to the conclusion that the calculation of the period for the next review in these subsections only applies to orders made under subsections 82.2(3) and 82.1(1) respectively. This interpretation finds further support in the fact that these two subsections are deeming provisions.  Even though the orders made pursuant to sections 82.1 and 82.2 are not orders in relation to a review of detention or conditions of release, for the purpose of subsection 82(2), (3) or (4) the “conclusion of the preceding review” is deemed to be the day on which the decision under either subsection 82.1(2) or 82.2(4) is made.

 

[16]      In my view, these provisions reflect Parliament's intent in relation to the specific circumstances of a motion to vary or an arrest under section 82.2.  No inference can be drawn from these two provisions that Parliament, therefore, must have intended that the six month period is to be calculated in some other fashion under section 82.

 

[17]      Having said this, the question remains as to how the six month period under section 82 is to be calculated.  I reject the Respondent's argument that the ordinary meaning of “the conclusion of the preceding review” is the date on which all of the evidence and submissions are concluded.  Apart from the assertion, the Respondent did not offer any authority for the assertion.  In my view, a proceeding is concluded at the time a decision is rendered.

 

[18]      The Ministers take the position that at the earliest the decision is made on the date of the delivery of the reasons or, at the latest, the date of the order.  In light of this position and the fact that at the time of the filing of this motion for a review of conditions neither of these dates has been reached it is not necessary to consider this question further.

 

[19]      Accordingly, I conclude that six months have not elapsed since the date of the conclusion of the preceding review.  Mr. Jaballah is not entitled to a review of conditions at this time. It also follows from these reasons that I agree with the submissions of counsel that if a motion to vary is brought, the date of the decision of the motion to vary will determine the date on which the Respondent will be entitled to a review.  In view of the time constraints involved in preparing these reasons, I reserve the right to correct and amplify these oral reasons for grammatical error and clarity.

 

[20]      Turning to the application to vary the conditions of release, as indicated earlier, Mr. Jaballah seeks a variation that would permit him to attend at various places without supervision.  The affidavits of Mr. Jaballah’s son, Ahmad, and Mr. Dawud, a supervising surety, were submitted in support of the application.  Ahmad also testified at the hearing. 

 

[21]      Ahmad gave evidence concerning the ongoing difficulties Mr. Jaballah and his family are having getting the required supervision.  He explained the circumstances of the various supervisors and the burden it places on them to assist with supervision and the reluctance on the part of Mr. Jaballah and his family to ask the supervisors to assist with supervision.  He also explained that he, his mother and his spouse are the core supervisors who carry the bulk of the supervisory load.  He elaborated on the difficulties he will have supervising once he begins his full-time studies in September.  He also explained the burden it places on his mother and his spouse. 

 

[22]      On cross-examination, Ahmad stressed that this application is not about needing more supervisors.  He stated that the circumstances of the supervisors have changed over time, they have their own lives and issues with which to deal and that they cannot be expected to disrupt their work and family lives to help out for a number of years.  He testified that with compliance it would be expected over time that the conditions would become more lenient. 

 

[23]      Mr. Dawud, stated in his affidavit that he has been a supervising surety for Mr. Jaballah since his release in 2007.  In that role, he has accompanied Mr. Jaballah to the mosque several times.  However, due to the location of the mosque Mr. Jaballah may attend and the distance between his home and that of Mr. Jaballah, accompanying him to the mosque requires a major time commitment.  He adds that taking Mr. Jaballah to the mosque during Ramadan would result in a major disruption to his schedule. 

 

[24]      Mr. Jaballah’s submissions may be summarized as follows.  He claims that there is no common definition as to what may constitute a “material change in circumstances”.  However, citing R. v. Matthiessen, 1998 ABCA 219, at para 4; Morin v. R., [1997] O.J. No. 217; R. v. Adams, [1995] 4 S.C.R. 707, at p. 274; and R. v. Daniels, [1997] O.J. No. 4023 (C.A.), at p. 13 (QL), he submits that it generally is taken “to include changes which relate to a matter which led to the issuance of the original order and which might have resulted in a different order had the changed circumstances been considered by the original judge.”

 

[25]      Mr. Jaballah points out that at the time of his last review he asked for the cancellation of all of the conditions of release and did not request any specific variations to the existing order.  Given the length of time that has elapsed since the last review of conditions hearing, of necessity some changes are needed and appropriate on an immediate basis. In view of the test for a material change in circumstances and that his liberty interests are engaged, the Respondent contends that the changes he now requests are related to the past order and had they been brought to the attention of the previous Judge might well have resulted in the order being sought on this application. 

 

[26]      The Respondent takes the position that section 82.1(1) specifically authorizes the Court to reconsider the earlier order.  But even in the absence of the statutory authority, as Justice Sopinka stated in Adams, at paragraph 28, “…it may be desirable and in keeping with the purpose and objects of the section to permit reconsideration and revocation of the order if the circumstances which justified its making have ceased to exist.”  From this, the Respondent argues that the general rule is whether a change is warranted, whether the justification for the order continues to exist, or whether there is new evidence that warrants a change. 

 

[27]      Although the Respondent notes that in Matthiessen and Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FC 628 the passage of time and delay were relevant considerations, the Respondent states that he does not take the position that delay or the passage of time alone would be sufficient to establish a material change in circumstances.  Rather, the passage of time taken together with other factors, for example, that Ahmad will be starting full-time studies in the fall, is a material change in circumstances that impacts on his and his family’s ability to cope with the conditions.  Mr. Jaballah maintains that his requested changes to the earlier order are reasonable in light of the material changes in his circumstances and that there is no justification for not making the changes. 

 

[28]      The Ministers submit that this application raises two issues: whether the Respondent has met the statutory threshold of a material change in circumstances and, if so, what is an appropriate and proportional response to the changed circumstances.  The Ministers take the position that the Respondent has not provided any evidence of any attenuation of the threat he poses to national security.  The fact that the Respondent is having difficulties with the existing terms and conditions of release does not warrant a variation of the order.  The Ministers argue that the Respondent cannot rely on factors that existed at a time which predated the order.

 

[29]      In support of their position, the Ministers rely on jurisprudence in family law, on motions for reconsideration and the criminal law.  In Gordon v. Goertz, [1996] 2 S.C.R. 27, the Supreme Court of Canada considered the principles applicable to an application to vary custody and access brought pursuant to subsection 17(5) of the Divorce Act, R.S.C. 1985, c. 3.  This provision requires that before making a variation order the court must be satisfied that there has been “a change in the condition, means, needs or other circumstance of the child… occurring since the making of the custody order or the last variation order…”.  Chief Justice McLaughlin observed that a material change in the circumstances of the child was a threshold condition that had to be met before a consideration of the merits of the application.  This means that an application to vary cannot be used as an indirect way of attacking the original order and the correctness of the original decision must be assumed. 

 

[30]      In addressing the question as to what constitutes a material change in the circumstances of the child, she stated that change alone was not sufficient.  The change must have altered the child’s needs or the parents’ ability to meet those needs in a fundamental way.  She framed the question, at paragraph 12, as “whether the previous order might have been different had the circumstances now existing prevailed earlier.”  She added “[m]oreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.”

 

[31]      The Ministers point out that in Harkat, Justice Dawson questioned the Ministers’ reliance on the Gordon decision in view of the liberty interest at stake but concluded that it was not necessary to resolve the question given that Mr. Harkat had established “a substantial change in circumstance since the previous application.”

 

[32]      As noted above, the Ministers also refer to Federal Court of Appeal jurisprudence in relation to motions to set aside or vary an order pursuant to the reconsideration rule.   In Saywack v. Canada (Minister of Employment and Immigration) [1986] 3 F.C. 189, an application for reconsideration under Rule 1733, the predecessor to the current Rule 399 of the Federal Courts Rules, the Federal Court of Appeal held that to obtain the requested relief an applicant must establish that the new matter was discovered subsequent to the impugned decision, it could not have been discovered with reasonable diligence sooner and if it had been brought forward earlier would have altered the outcome of the decision.

 

[33]      In Zolfiqar v. Canada Minister of Citizenship and Immigration) (1998), 48 Imm. L.R. (2d) 149, at paragraph 12, Justice Rothstein made the following observation in relation to motions for reconsideration pursuant to Rule 399:

The general rule is that judicial decisions are final. Reconsideration is a narrow exception to the rule of finality.  Matters arising subsequent to the making of a decision or discovered subsequent to the making of a decision may provide grounds for reconsideration.  A judgment obtained through fraud may also be reconsidered. …  However, the party seeking reconsideration must exercise due diligence to obtain all relevant information prior to the original decision being rendered.  Further, the new information must indeed be new and not the same information that was previously available put in another form or brought in through another witness.

                 

[34]      The Ministers also note the term “material change in circumstances” in the criminal context in relation to a second application for interim release pursuant to the Criminal Code that the Courts have held that the threshold test is “whether there has been a material change in circumstance from those that existed at the time of the original application.”  Therefore in the context of a second application for interim release, there must be additional information that could lead the judge hearing the application to alter the previous assessment:  R v. Robinson, 2009 ONCA 205 at paras. 6-7; R. v. Baltovich (2000), 144 C.C.C. (3d) 233 at paras 3, 6, 7; and R. v. Abdel-Rahman, 2010 BCSC 189, at paras. 47-51.

 

[35]      The Ministers point out that with the exception of attendance at a gym, the matters raised on this application are all matters that were in issue prior to the last review of the terms and conditions of Mr. Jaballah’s release and are based on his assertion that his supervisors are not available to supervise him.  Having regard to the jurisprudence set out above, the Ministers contend that this does not constitute a material change in circumstances.

 

[36]      In my view, the positions advanced by the parties with regard to what constitutes a material change in circumstances as contemplated in subsection 82.1(2) are flawed.  For ease of reference subsection 82.1(1) is repeated here.  It reads:

 

[37]      As indicated earlier, section 82.1(1) is not defined in the IRPA and has not been judicially considered and, in particular, the statutory threshold that must be met has not been the subject of judicial interpretation.  From the above summary of the positions of the parties, it can be seen that both parties focus their analyses on the meaning of “a material change in circumstances”.  An examination of the meaning given to “a material change in circumstances” in other areas of the law may be a useful exercise, however, section 82.1(1) requires that it be “a material change in the circumstances that led to the order.” (Emphasis added). 

             

[38]      Although the Respondent’s formulation of the general rule, set out at paragraph 24 of these reasons, reflects the notion that the change must be in relation to a matter that led to the initial order, the Respondent’s additional formulation of the general rule, set out at paragraph 26, fails to take into account this qualification.  Further, the question is not whether the continuation of the order is justified in light of the change in circumstances.  It must first be shown that there has been a material change in the circumstances that led to the order.  If the threshold test has been met, the question is what is an appropriate and proportional response to the changed circumstances.

 

[39]      Similarly, the jurisprudence concerning the variation of custody and access orders is of limited utility given that in that context there is no requirement that the material change must be to circumstances that led to the initial order.  As to the Ministers’ reference to case law in connection with motions for reconsideration pursuant to the Rules, there is a qualitative difference between a motion for reconsideration and an application to vary.  A motion for reconsideration is aimed at changing the initial order because of matters that if known at the time the order was made might have altered the outcome.  On an application to vary, the correctness of the initial decision is assumed.  

 

[40]      Although made in the context of a discussion concerning the revocation or variation of an order made in relation to the conduct of a trial, Justice Sopinka’s comments in Adams, in my view, capture the essence of the threshold test in subsection 82.1(1).  He stated, at paragraph 30, “[a]s a general rule, any order relating to the conduct of a trial  can be varied or revoked if the circumstances that were present at the time the order was made have materially changed.”  He added that “[i]n order to be material, the change must relate to a matter that justified the making of the order in the first place.”  In Morin, citing this excerpt from Adams, the Court of Appeal for Ontario framed the analysis as follows;

Where the order in question is a discretionary one, the circumstances that are relevant are, in like manner, those circumstances that justified the making of the order in the first place.  Where those circumstances do not change, there cannot be, as a general rule, the required material change of circumstances to warrant revocation.

             

[41]      In the present case, to determine whether there has been a material change in the circumstances that led to the making of the July 13, 2010 order, it is necessary to review the May 11, 2010 reasons for the order.

 

[42]      As were the earlier orders, the most recent order of July 13, 2010 is based on the premise that Mr. Jaballah must be supervised at all time.  As Justice Dawson stated in her reasons of May 11, 2010 at paragraph 138, this is to address “[t]he chief risk is that he [Mr. Jaballah] will associate or communicate with individuals who hold terrorist beliefs or objectives” and “[f]or that reason, it remains important to monitor Mr. Jaballah’s communications.” This same concern is reflected in Justice Dawson’s observations, at paragraph 161 in relation to the conditions under which Mr. Jaballah may be at home without supervision which are to ensure that “… if alone, Mr. Jaballah will not be able to communicate in an unsupervised manner with unknown individuals.”  Although Justice Dawson made some modifications to the conditions that permit Mr. Jaballah to go to the grocery store and attend at medical appointments unsupervised, the overall supervisory conditions remained in place.

 

[43]      With the exception of attendance at a gym, the present application is brought, in effect, to remove the requirement of supervision in relation to certain activities that he is otherwise permitted to engage in with supervision under the existing order.  However, he has not provided any evidence of change in relation to the “chief risk” identified by Justice Dawson or any other evidence that could lead to the conclusion that supervision of these activities is no longer necessary to address the perceived risk.  In my opinion, the evidence adduced does not demonstrate that there has been a material change in the circumstances that led to the July 13, 2010 order.  Accordingly, there is no need to consider the specific variations requested.

 

[44]      By taking the position that in view of the difficulties with the current supervisors he should be permitted to go out alone, that this is not about adding supervisors and by not offering any alternatives, Mr. Jaballah is, in effect, taking issue with the underlying premise of the July 13, 2010 order which is more properly the subject of an application for a review of conditions.  This applies equally to the expectation of an easing of conditions with demonstrated compliance and the passage of time.

 

[45]      In oral argument, Mr. Jaballah’s counsel pointed to the activities that other persons named in certificates have been and are now permitted to do without supervision.  Given that the factual situations of other persons named in certificates are not the same as Mr. Jaballah’s, this is not a relevant consideration.

 

[46]      Counsel also observed that the requirement to be supervised when Mr. Jaballah attends at the mosque amounts to a denial of his right to practice his religion.  In my view, this is inaccurate.  Mr. Jaballah is free to practice his religion at two mosques.  The issue is supervision and not the freedom to practice his religion.

 

[47]      Three additional matters require comment.  At the hearing, counsel for the Ministers acknowledged that there is no qualitative difference for the purpose of this proceeding between Mr. Jaballah attending appointments with his physician and attending appointments with his counsel.  As the hearing on the reasonableness of the certificate will be starting in the fall and it is reasonable to expect that counsel will want to meet with Mr. Jaballah more frequently in preparation for the hearing, it is hoped that counsel can arrive at a mutually agreeable arrangement to facilitate appointments with counsel.

 

[48]      As to Mr. Jaballah’s attendance at a gym, leaving aside the minimal evidence adduced in support of the request, I note that the July 13, 2010 order does not exclude the possibility of going to a gym with a supervisor for reasons of health.  It may be that with a properly formulated request, this could be accommodated by agreement between the parties.

 

[49]      Lastly, as the Court had been informed at the hearing that Ramadan would begin on August 11, 2010, a teleconference was convened with the parties before the start of Ramadan to inform them that the requested variation to attend the Ramadan nightly prayers would not be granted for reasons that would follow.            

 

[50]      For the above reasons, the application to vary will be dismissed.   Section 82.3 of the IRPA permits an appeal from a decision made under section 82.1 provided if a serious question of general importance is certified.  Submissions regarding the certification of a question should be served and filed within seven days of the date of these reasons.  Submissions in response should be served and filed within fourteen days of the date of these reasons.

 

 

 

 

“Dolores M. Hansen”

 

 

FEDERAL COURT

SOLICITORS OF RECORD

 

DOCKET:                        DES-6-08

 

STYLE OF CAUSE:             

 

IN THE MATTER OF a certificate signed pursuant

to section 77(1) of the Immigration and Refugee

Protection Act (IRPA);

 

AND IN THE MATTER OF the referral of a

certificate to the Federal Court pursuant to

section 77(1) of the IRPA;

 

AND IN THE MATTER OF

MAHMOUD ES-SAYYID JABALLAH

 

PLACE OF HEARING:        Toronto, Ontario

 

DATES OF HEARING:        July 26, 27, 28, 2010

 

REASONS FOR ORDER BY:  Madam Justice Hansen

 

DATED:                                 September 2, 2010

 

APPEARANCES:

 

Ms. B. Jackman                                               For Mr. Jaballah

Ms. A. Weaver

 

Mr. D. MacIntosh Mr. J. Provart Mr. D. Engel

For the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness

 

Mr. John Norris                                    Special Advocate

Mr. Paul Cavalluzzo                              Special Advocate

 

SOLICITORS OF RECORD:

 

John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario

For the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness