Jaballah (Re)

Jaballah (Re)

Applicant failed to prove on the evidence that he cannot be removed or that the conditions will continue indefinitely; therefore Charter challenges lacked evidentiary foundation and the requested cancellation amounted to an impermissible constitutional exemption; however, on a s.82(4) review the Court found the security risk has attenuated and granted targeted modifications to the release conditions (including children‑focused protections, adjusted outing and work rules, and procedures for home‑alone arrangements), denied intrusive technical requests (infra‑red illuminators, garage camera activation) as disproportionate, and accepted a signed undertaking prohibiting contact with Jean Smith.

Citation
2010 FC 507
Parties
Named Person/respondent: Mahmoud Es‑Sayyid Jaballah; Applicants/ministers: Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness; Special Advocate: John Norris
Court
Federal Court
Jurisdiction
Canada
Judgment Date
11 May 2010
Procedural Posture
Security Certificate Under Irpa; Review of Conditions and Reasonableness Referral / Application Under S.24(1) Charter and Application Under S.82(4) Irpa; Ministers' Cross‑motion to Vary Conditions
Outcome
Charter relief under s.24(1) dismissed for lack of evidentiary foundation and as amounting in substance to an impermissible constitutional exemption; application under s.82(4) granted in part and conditions of release varied as specified; Ministers' cross‑motion to impose additional intrusive measures largely denied
Legal Topics
Security Certificates, Detention and Conditions of Release, Charter Remedies S.24(1), Constitutional Exemption Doctrine (ferguson), Subsection 82(4) Review, Evidence and Burden of Proof, Charkaoui Factors
Source Language
English
Immigration Law Constitutional Law Administrative Law National Security Law Family Law/child Welfare Security Certificates Detention and Conditions of Release Charter Remedies S.24(1) +4 more

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Parties

Mahmoud Es‑Sayyid Jaballah

Named Person/respondent

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

Applicants/ministers

John Norris

Special Advocate

Procedural Posture

Security Certificate Under Irpa; Review of Conditions and Reasonableness Referral / Application Under S.24(1) Charter and Application Under S.82(4) Irpa; Ministers' Cross‑motion to Vary Conditions

Legal Issues

  1. 1 Whether the continuation of stringent conditions violates ss.7, 9, 12 and 15 of the Charter
  2. 2 Whether Mr. Jaballah cannot be removed from Canada and thus the conditions are unhinged from their purpose
  3. 3 Whether the conditions are indefinite and therefore cruel and unusual

Ratio Decidendi

Applicant failed to prove on the evidence that he cannot be removed or that the conditions will continue indefinitely; therefore Charter challenges lacked evidentiary foundation and the requested cancellation amounted to an impermissible constitutional exemption; however, on a s.82(4) review the Court found the security risk has attenuated and granted targeted modifications to the release conditions (including children‑focused protections, adjusted outing and work rules, and procedures for home‑alone arrangements), denied intrusive technical requests (infra‑red illuminators, garage camera activation) as disproportionate, and accepted a signed undertaking prohibiting contact with Jean Smith.

Court Disposition

Charter relief under s.24(1) dismissed for lack of evidentiary foundation and as amounting in substance to an impermissible constitutional exemption; application under s.82(4) granted in part and conditions of release varied as specified; Ministers' cross‑motion to impose additional intrusive measures largely denied