Date: 20090618
Docket:
DES-6-08
Citation:
2009 FC 645
Ottawa, Ontario, June 18, 2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
IN THE MATTER OF a certificate signed pursuant
to
section 77(1) of the Immigration and Refugee
Protection Act (IRPA);
AND
IN THE MATTER OF the referral of a
certificate
to the Federal Court pursuant to
section 77(1)
of the IRPA;
AND
IN THE MATTER OF
MAHMOUD
ES-SAYYID JABALLAH
REASONS FOR ORDER
[1] Mr.
Jaballah is named in a security certificate which has been referred to the
Court pursuant to section 77 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27. The Court has not made any determination as to the
reasonableness of the certificate. While originally detained, Mr. Jaballah was
released from detention in May, 2007 on stringent conditions of release. One
condition required him to be fitted with an electronic monitoring device (GPS
device) as arranged by the Canada Border Services Agency (CBSA), and to wear
the GPS device at all times. This condition remains in effect.
[2] Mr.
Jaballah was originally fitted with a GPS device manufactured by Behavioural
Intervention (BI). In March, 2009 he was required by the CBSA to change to a
GPS device manufactured by Omnilink Systems (OS). The change was necessitated
because the CBSA had entered into a new contract with respect to the provision
of GPS units.
[3] Mr.
Jaballah has moved for an order that the OS GPS device be removed, and the BI
GPS device be re-installed in its place, because the OS device is said to be
causing Mr. Jaballah considerable and unwarranted pain and discomfort.
The Ministers assert that Mr. Jaballah has not demonstrated that he is entitled
to the relief sought.
The Issue and the Legal Basis
for the Motion
[4] The
issue before the Court is a simple one: should the OS GPS device be removed and
BI GPS device be re-installed in its place?
[5] The
legal basis of the motion is said by the parties to be more complex. Mr.
Jaballah argues that his liberty or security of the person interests, which are
protected by section 7 of the Canadian Charter of Rights and Freedoms
(Charter), are engaged and are infringed. He also argues that, while he is not
currently subjected to cruel and unusual treatment, over time his situation
will convert from mere mistreatment to cruel and unusual treatment violating
section 12 of the Charter.
[6] The
Ministers acknowledge that section 7 of the Charter is engaged, but argue that
Mr. Jaballah has not demonstrated that principles of fundamental justice
have been breached. The Ministers also argue that the CBSA's direction that
Mr. Jaballah wear the OS GPS device is not excessive treatment for the purposes
of either section 7 or section 12 of the Charter. In the alternative,
they say that Mr. Jaballah has failed to demonstrate that the actions of the
CBSA are grossly disproportionate so as to violate either section 7 or section
12 of the Charter.
Consideration of the Issue
[7] While
the parties frame this motion in terms of the Charter, I do not find it
necessary to resort to the Charter in order to adjudicate upon the motion.
[8] The
Federal Court is a statutory court, without inherent jurisdiction. However,
the Court possesses, by implication, such powers as are reasonably and
practically necessary for the Court to fully exercise its jurisdiction. See: R.
v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 at paragraph 70. One such
power is the power to set aside or vary an order of the Court for reasons that
include a matter arising or being discovered after the order was made. This jurisdiction
is reflected in Rule 399(2) of the Federal Courts Rules, and was
acknowledged by the parties during oral argument.
[9] In
that context, the following circumstances are pertinent.
Reasons for the imposition of
strict conditions of release
[10] In
reasons reported at 2009 FC 284, the Court reviewed the conditions that govern
Mr. Jaballah's release from detention. At paragraphs 27 to 44, the Court
considered the reasons that underlie the need for strict conditions of release.
There is no need to repeat those reasons here. It is sufficient to state that
the Court has concluded that neutralization of the risk posed by Mr. Jaballah's
release from detention requires stringent conditions and strict monitoring of
Mr. Jaballah. (See also the reasons of Justice Layden-Stevenson reported
at 2008 FC 9 at paragraph 46.)
[11] The
requirement of electronic monitoring was central to the regimen of conditions
imposed by the Court, and therefore is central to Mr. Jaballah's continued release
from detention.
The operational role of the CBSA
[12] Within
the context of the framework of conditions designed by the Court to neutralize
the threat posed by Mr. Jaballah’s release, the Court generally does not have
an operational role. A number of operational details are best, at least
initially, resolved between counsel. However, where dispute exists, such
dispute may be resolved by the Court. This would include disputes about the
efficacy of a particular GPS device.
The intent of the CBSA with
respect to the switch to the OS GPS device
[13] The
CBSA must keep up with new technology. I accept that the CBSA had valid
reasons for wishing to switch from the BI GPS device to the OS GPS device.
Those reasons included:
·
the OS GPS device allows indoor tracking, using both GPS and
cellular signals;
·
its software is "substantially better";
·
the OS GPS device does not require a dedicated telephone line or
a base unit; and
·
the OS GPS device does not require any handheld unit.
Mr. Jaballah's personal
circumstances
[14] Mr.
Jaballah was originally detained in April, 1999 pursuant to a security
certificate. The certificate was quashed, and Mr. Jaballah was released from
detention in November, 1999. Mr. Jaballah was detained again in
August, 2001 on the basis of a second certificate. He was released from
detention in May, 2007 on strict conditions. Since then, Mr. Jaballah has been
required to wear a GPS device. He will be required to continue to wear such
device until further order of the Court.
[15] Dr.
Donald E. Payne provided a psychiatric report that states that Mr. Jaballah
suffers from symptoms of chronic Post-Traumatic Stress Disorder. There is no
opposing medical evidence on this point.
[16] Dr.
Roland Wong, an Occupational Medicine Consultant who is certified as a medical
specialist in Community Medicine, provided his opinion that Mr. Jaballah
suffers from mild degenerative changes in his hips and from degenerative
changes within his right knee joint. The Ministers do not appear to take issue
with this diagnosis.
[17] The
requirement that the conditions of release be proportionate to the threat posed
by an individual carries with it the requirement that the GPS device selected
by the CBSA should, at least to the extent possible, avoid aggravating Mr.
Jaballah's medical condition. When selecting a GPS device the CBSA should also
be mindful about the length of time Mr. Jaballah has worn, and will likely be
required to wear, a GPS device.
The disadvantages of the OS GPS
device
[18] There
are a number of disadvantages to the wearer that are inherent in the OS GPS
device when compared with the BI GPS device. They include:
1. The
OS GPS device is heavier. It weighs 7.3 ounces compared to just under 4 ounces
for the BI GPS device (not including the weight of the BI portable tracking
unit that maybe handheld or hung from a belt).
2. It
is almost twice as thick.
3. The
strap on the OS GPS device is almost twice as high and twice as thick, and is
more rigid, than the strap on the BI GPS device. The OS GPS device strap is
also less capable of fine adjustment.
4. One
end of the OS GPS strap feeds through the device and then overlaps the other
end of the strap. This forms a seam which lies against the skin of the wearer.
The BI GPS strap has no such seam.
5. The
pressure exerted by the OS GPS device against the wearer's ankle area appears
to be greater than that exerted by the BI GPS device.
6. The
wearer of the OS GPS is required to plug the device into an electric outlet for
two hours a day in order to charge the device. While the wearer may use an
extension cord in order to increase his mobility, the wearer is nonetheless
limited in his movements. Any interruption of charging requires the wearer to
recommence and continue the charging session for a full two hours. According
to Mr. Al-Shalchi of the CBSA, the charging cannot take place while the wearer
is lying down or sleeping. The OS GPS device carries with it no similar
charging requirement.
[19] Additionally,
Mr. Jaballah says that the OS GPS device irritates the skin around his ankle,
causes calf pain and interferes with his sleep because the device strikes the
opposite leg when he moves.
[20] Dr.
Wong reports that Mr. Jaballah does suffer from a rash and that the type of rash
is compatible with mechanical skin irritation. The rash responded to treatment
with cortisone cream. However, Dr. Wong’s evidence is that "in the long
run" cortisone cream is not the proper way to treat the condition because
it may "thin out the skin." The GPS device may, in his view,
exacerbate the symptoms caused by the degenerative changes. Dr. Wong is also
of the view that due to the difference in weight between Mr. Jaballah's two
legs caused by wearing the device on one leg, on the basis of "bio-mechanical
reasoning, there is a good chance" that Mr. Jaballah's low back and
knees can be affected.
[21] The
affidavit of Hassan Almrei was filed in support of Mr. Jaballah's motion. Mr.
Almrei swears that the OS GPS device is too heavy for his leg and that if he
wears it without wearing socks his skin is irritated. Mr. Almrei was not
cross-examined on that evidence. Hearsay evidence was also filed with respect
to bruising and lacerations said to be caused to another individual who wears
the OS GPS device.
[22] The
Ministers take issue with much of the testimony of Mr. Jaballah and Dr. Wong. I
am particularly mindful of the numerous objections the Ministers made with
respect to Dr. Wong’s evidence, including: that the evidence of medical
problems is lacking, speculative, and is “highly equivocal with respect to
causation.” I am also mindful of the objections to the completeness of Dr.
Wong’s records and his being unaware of which of Mr. Jaballah’s ankles the GPS device
was placed. However, it is not necessary for me to consider those objections
in detail because the existence of the rash located proximate to the GPS device
was not seriously challenged and the long-term effects of a steroid-based cream
are not disputed.
[23] I
accept that the device causes Mr. Jaballah a rash and that currently Mr. Jaballah
treats the rash with the cortisone cream. I also accept that this is not a
long-term solution for the reason given by Dr. Wong. While other solutions
were suggested by the Ministers during the cross-examination of Mr. Jaballah,
none were tried or apparently suggested in the period following Mr. Jaballah's
initial complaint. It would be speculative to rely on other alternate
solutions now, particularly when the BI GPS device previously caused no skin
problems.
[24] I
also accept that, due to its increased thickness, the OS GPS device makes it
more likely that the wearer's sleep will be disturbed due to the device
colliding with the opposite leg.
[25] On
all of the evidence, including the affidavit of Mr. Almrei and my observation
of the BI and OS GPS devices, I am satisfied that the OS GPS device is
materially less comfortable to wear and much less user-friendly in that the
wearer is subjected to restrictive movements for two hours a day while the
device charges.
[26] Mr.
Al Shalchi was not able to say that the CBSA gave consideration to the health
issues of the people, including Mr. Jaballah, who would be wearing these
devices when the decision was made to switch GPS devices.
[27] There
is one other disadvantage to the OS GPS device. That is that the relationship
between Mr. Jaballah and the CBSA has deteriorated since the New Year. While
the CBSA is of the view that the OS GPS device is a minimal factor in the
deterioration, it is nonetheless a factor.
[28] I
have set out the respective benefits and disadvantages of the two GPS systems.
Before moving to an assessment of that evidence it is significant to note the
absence of evidence on two points.
Matters not in evidence
[29] No
evidence has been adduced on two significant matters.
[30] First,
there is no evidence that the BI GPS device does not provide adequate
electronic monitoring when compared to the OS GPS device. Mr. Al-Shalchi
testified that the BI software "is still good" and that both the BI
and OS systems have suffered breakdowns which have affected the ability to
monitor Mr. Jaballah.
[31] Second,
there is no evidence that the BI system is no longer available to the CBSA. I
infer from the absence of this evidence that the BI GPS device is still
available to the CBSA. Indeed, Mr. Al-Shalchi agreed that it is possible that
Mr. Charkaoui, another person named in a security certificate, may continue to
wear a BI GPS device.
Conclusion
[32] Having
set out the advantages and disadvantages of the two GPS devices, I find that
the technical advantages delivered by the OS GPS device do not outweigh the
adverse physical disadvantages to Mr. Jaballah. This is particularly so where
there is no suggestion that the device he prefers is either inadequate or
unavailable, where the device now in use is responsible for at least some
deterioration in Mr. Jaballah's relationship with the CBSA, and where Mr.
Jaballah will be required to wear the device at least until the next review of
his conditions.
[33] It
follows that the OS GPS device should be removed and be replaced with a BI GPS
device. An order will issue to that effect on the basis that the difficulties resulting
from the use of the OS GPS device are matters that arose or were drawn to the
Court's attention subsequent to the making of the order that required Mr. Jaballah
to wear an electronic monitoring device. I note, parenthetically, that on the
last review of the conditions of release Mr. Jaballah did not ask that this
requirement be amended. The current motion was filed after the evidence and
argument was received with respect to the review of conditions.
[34] Notwithstanding
this conclusion, I wish to stress that technology does not stand still. The
CBSA is to be commended for wishing to use the best technology. However, experience
teaches that often the first generation of a new technology lacks the
refinements of successive generations. If the new electronic monitoring technology
can be coupled with a more wearer-friendly bracelet and GPS device, there is no
reason why the CBSA should not in future ask to fit Mr. Jaballah with such a
new device.
Costs
[35] Counsel for Mr. Jaballah did not press their claim for
costs and I do not consider this to be an appropriate case for an award of
costs.
“Eleanor R. Dawson”
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