Date: 20051125
Docket: DES-1-00
Citation: 2005 FC 1596
Ottawa, Ontario, Friday the 25th day of November 2005
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Applicants
- and -
MOHAMED ZEKI MAHJOUB
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] These are the final reasons of the Court with respect to Mr. Mahjoub's application, pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act"), that he be released from detention. In these reasons I find that:
(i) Mr. Mahjoub has satisfied me that he will not be removed from Canada within a reasonable period of time;
(ii) Mr. Mahjoub has not satisfied me that his release would not pose a danger to national security or to the safety of any person;
(iii) The imposition of conditions and the existence of sureties is not sufficient to neutralize the danger that I believe Mr. Mahjoub's release would pose.
[2] In the result, the application for release is dismissed.
TABLE OF CONTENTS
HISTORY OF PROCEEDINGS [3]
ISSUES [4]
THE ORAL EVIDENCE [9]
THE PSYCHOLOGIST'S REPORT [10]
HAS MR. MAHJOUB MET THE ONUS OF PROOF UPON HIM TO SATISFY THE COURT THAT HE WILL NOT BE REMOVED FROM CANADA WITHIN A REASONABLE PERIOD OF TIME?
(i) Relevant principles [12]
(ii) Length of detention [14]
(iii) Delay and causes of delay [15]
(iv) Forward-looking [25]
(v) Can time spent pursuing the legal remedies be considered in determining what is a "reasonable time"? [31]
(vi) Conditions of detention [33]
(vii) Conclusion with respect to reasonable time [40]
HAS MR. MAHJOUB MET THE ONUS UPON HIM TO SATISFY THE COURT THAT HIS RELEASE WILL NOT POSE A DANGER TO NATIONAL SECURITY OR TO THE SAFETY OF ANY PERSON?
(i) Applicable Legal Principles [43]
(ii) Application of the Legal Principles to the Evidence [49]
(iii) Mr. Mahjoub's Evidence with respect to the Danger, if any, posed by his Release [50]
(iv) The Manner in which the Evidence Adduced on the Ministers' Behalf ex Parte and in Camera was assessed [54]
(v) The Ministers' Responding Evidence [58]
(vi) Analysis of the Danger, if any, Mr. Mahjoub's Release Would Pose [60]
(a) Mr. Mahjoub's past support for Islamic extremism [61]
(b) Mr. Mahjoub's non-eschewal of the Islamic extremist cause [75]
(c) Mr. Mahjoub's potential to re-associate with Islamic extremists [78]
(d) Mr. Mahjoub's prior untruthful statements to the Court [83]
(e) Conclusions to be drawn from the above with respect to danger [86]
(vii) Can such Danger be Neutralized or Contained by the use of Sureties and the Imposition of Conditions [94]
ORDER [105]
APPENDIX A - Chronology of Events Pages 95 to 105
APPENDIX B - DIRECTION Pages 106 to 109
NAMES OF COUNSEL AND SOLICITORS OF RECORD Last page
HISTORY OF PROCEEDINGS
[3] The proceedings have been protracted. A detailed chronology of events is appended to these reasons as Appendix A. To summarize, the following are the most significant events:
June 26, 2000 Mr. Mahjoub is detained on the basis of a security certificate signed by the Minister of Citizenship and Immigration ("Minister") and the Solicitor General of Canada (together the "Ministers").
October 5, 2001 The certificate is found to be reasonable by Justice Nadon of this Court.
March 25, 2002 Mr. Mahjoub is found to be inadmissible to Canada and a deportation order is issued.
October 18, 2002 Mr. Mahjoub moves for release from detention.
October 31, 2002 The application for release is scheduled to be heard on January 28 and 29, 2003.
December 16, 2002 A summary of confidential information is provided to Mr. Mahjoub.
January 24, 2003 The hearing is adjourned at Mr. Mahjoub's request and subsequently set for March 29, 2003.
March 28, 2003 Mr. Mahjoub is served with the documents that are to be placed before the Minister for the purpose of making a decision, pursuant to paragraph 115(2)(b) of the Act, as to whether Mr. Mahjoub should be removed to Egypt. Mr. Mahjoub's responding submissions are to be provided before May 23, 2003.
March 28, 2003 The application for release is adjourned and subsequently set for May 10, 2003.
May 10, 2003 Evidence is led and the application for release is heard. The parties agree to bifurcate the proceedings so that if Mr. Mahjoub's application is not successful on the merits, the matter will resume for argument on the constitutionality of his detention.
July 30, 2003 The Court determines that Mr. Mahjoub has not met the onus of showing that he will not be removed from Canada within a reasonable time and that his release from detention will not pose a danger to national security or to the safety of any person. Counsel are directed to correspond with the Registry of the Court with respect to scheduling the resumption of the hearing for the purpose of considering the constitutional issues.
November 20, 2003 After counsel fail to contact the Registry, and after the Court issues three directions and holds a case management conference, the hearing is ordered to be resumed on January 10 and 11, 2004.
January 9, 2004 Mr. Mahjoub's motion to adjourn the scheduled hearing is allowed. The motion is brought on the ground that Mr. Mahjoub had retained new counsel "but they are unable to proceed with the application for release as currently scheduled given the state of application".
March 8, 2004 Mr. Mahjoub's further motion for leave to raise new issues and to adduce additional evidence is allowed.
May 31-June 4, 2004 Mr. Mahjoub's application for release is heard by the Court.
July 22, 2004 The Minister determines that Mr. Mahjoub should be removed from Canada and be returned to Egypt.
September 7-8, 2004 Further evidence is heard with respect to Mr. Mahjoub's application for release.
September 8, 2004 The Court stays Mr. Mahjoub's removal to Egypt, pending determination of the application for judicial review of the Minister's decision to remove him.
October 21, 2004 Mr. Mahjoub's written submissions are filed with respect to his application for release.
November 23, 2004 The Ministers' written submissions are filed.
December 3, 2004 Mr. Mahjoub advises that he will not be filing reply submissions.
December 13, 2004 As a result of the issuance of the reasons of the Court of Appeal in Charkaoui (Re), 2004 FCA 421, the Court inquires if counsel wish to make further submissions.
December 17, 2004 The Court hears the application for judicial review of the Minister's decision to remove Mr. Mahjoub to Egypt. At this hearing filing deadlines are agreed between counsel for the filing of additional submissions with respect to new jurisprudence, including Charkaoui (Re), supra. Such submissions are to be considered in both the judicial review application and the application for release from detention.
January 31, 2005 The application for judicial review is allowed, and the Minister's decision to remove Mr. Mahjoub to Egypt is set aside.
January 31, 2005 The Court issues a direction which expresses concern that when its reasons of July 30, 2003 were issued, the Court did not contemplate that as of January 31, 2005 it would still be awaiting final written argument with respect to the constitutionality of Mr. Mahjoub's detention, and notes that a number of circumstances have arisen or changed since July 30, 2003. Submissions were sought from counsel as to whether the detention review should be reopened by filing new evidence and argument. The full text of the Court's direction is set out at Appendix B to these reasons.
February 4, 2005 Counsel advise that they wish to adduce further evidence relevant to the criteria set out in subsection 84(2) of the Act. The Court will sit on February 11, 2005.
February 8, 2005 The Court directs that on February 11, 2005 it will hear submissions from counsel as to which constitutional issues remain live as a result of the decision of the Federal Court of Appeal in Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, released on that day.
February 11, 2005 At the commencement of the hearing, counsel for Mr. Mahjoub concedes that as a result of the binding authority of the Federal Court of Appeal's decision in Almrei, supra, no constitutional issues remain live. Mr. Mahjoub does not abandon the constitutional arguments, but does not intend to argue them again and expects the Court to dismiss the constitutional issues in accordance with the decision of the Federal Court of Appeal. Counsel for the Ministers adopt the submission that all of the constitutional issues have been decided in Almrei, against Mr. Mahjoub, and states that it is not necessary for the Court to hear submissions. The Court sits to hear new evidence relevant to the statutory criteria for release.
March 14-15, 2005 Further evidence is adduced with respect to Mr. Mahjoub's application for release.
March 18, 2005 The Court hears further evidence ex parte and in camera. This hearing is adjourned so that further information may be obtained in response to the Court's questions.
March 22, 2005 Oral submissions are made by counsel for the parties, subject to the right to address further submissions following the further in camera session.
May 2-3, 2005 Further evidence is received in camera and ex parte.
May 12, June 21,
and June 29, 2005 Public summaries are released summarizing information received ex parte and in camera.
June 17, 2005 Counsel for Mr. Mahjoub advises that a psychologist has been found who is willing to assess Mr. Mahjoub and a written report is to be filed with the Court.
July 6, 2005 The psychological assessment is received by the Court.
July 15, 2005 Counsel for the Ministers advise they will not be filing any responsive evidence, but ask for the opportunity to address final oral submissions to the Court.
August 3, 2005 Final oral submissions are made to the Court. Mr. Mahjoub is given one week to submit a clarification of the psychologist's report.
August 9, 2005 Clarification of the report is filed by Mr. Mahjoub's counsel.
August 22, 2005 The most recent public summary is amended by the Court to provide further disclosure.
ISSUES
[4] As can be seen from the chronology, Mr. Mahjoub raised a number of issues with respect to the constitutionality of his detention. Counsel agreed, however, that all of the constitutional issues raised by Mr. Mahjoub were decided against him by the Federal Court of Appeal in Almrei, supra. Both counsel for Mr. Mahjoub, Ms. Jackman and Mr. Norris, and counsel for the Minister, Mr. MacIntosh, were before the Court of Appeal in Almrei, and I agree that no purpose would be served by requiring them to reargue what they advise are the same issues. For the purpose of preserving Mr. Mahjoub's rights of appeal, the issues decided by the Federal Court of Appeal are deemed to be decided by me for the reasons given by the Federal Court of Appeal.
[5] Turning then to subsection 84(2) of the Act, as noted in the above chronology, in July of 2003 the Court determined that Mr. Mahjoub had not met the onus upon him to show that he would not be removed from Canada within a reasonable period of time and that his release would not pose a danger to national security, or to the safety of any person. Notwithstanding, in Almrei, supra, at paragraph 36 the Court of Appeal endorsed an expansive interpretation of subsection 84(2) which could encompass successive applications for release. In the present case, all counsel agreed in January of 2005 that because of the effluxion of time it was appropriate to reopen the hearing and hear new evidence and submissions with respect to the statutory criteria. I am satisfied this was an appropriate exercise of discretion consistent with Parliament's objective of appropriate judicial examination of detention.
[6] Subsection 84(2) of the Act is as follows:
| 84(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.
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84(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.
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[7] There is no dispute that at least 120 days have elapsed since the security certificate was found to be reasonable and that Mr. Mahjoub has not been removed from Canada.
[8] The issues remaining to be decided by the Court are, therefore:
1. Has Mr. Mahjoub met the onus of proof upon him to satisfy the Court that he will not be removed from Canada within a reasonable time?
2. Has Mr. Mahjoub met the onus of proof upon him to satisfy the Court that his release will not pose a danger to national security or to the safety of any person?
THE ORAL EVIDENCE
[9] In my reasons of July 30, 2003, I summarized the public evidence then before the Court. What follows is a summary of the public evidence given subsequently as a result of Mr. Mahjoub's counsel's successful motion to reopen the evidence, and the Court's step in January of 2005 to again reopen the evidence. This summary is organized by reference to the date the testimony was given.
May 31, 2004
Peter Dietrich (Acting Director - Enforcement Programs, Canadian Border Services Agency ("CBSA"))
· When people are detained under the Act, they are put in one of two places. People who do not pose a risk are maintained in an immigration detention centre. People who are considered to pose a risk are detained in provincial facilities.
· Without being able to give a definite answer, by and large, people who are detained and then removed from Canada, are detained for less than four years.
· The federal government does not have a secure detention facility for federal immigration detainees; the only facilities available are the provincial facilities. There is an unwritten agreement with the provinces to accept these detainees into their facilities. The care and welfare of those detainees is the responsibility of the province.
· When asked whether CBSA addresses cases differently when a person has been detained on a federal detention order for a lengthy period of time, Mr. Dietrich responded that this is a provincial responsibility.
· In contested security certificate cases, there will generally be longer detentions. These detainees are left with the provinces. No other arrangements are in place.
· No arrangement exists to detain immigration detainees in federal facilities and he does not know whether such an arrangement could be made.
· Citizenship and Immigration Canada ("CIC") would likely be notified by the province if there was a major life-threatening crisis involving one of the immigration detainees, but lesser issues might not trigger any kind of notification.
· Mr. Mahjoub is detained at the Toronto West Detention Centre ("TWDC"). Mr. Mahjoub's file indicates that federal authorities were never notified that he was suicidal, on a special diet, or that he had made complaints about the conditions under which he was held.
Mrs. Mona El Fouli (Mr. Mahjoub's wife who previously testified.)
· When she and the children visit Mr. Mahjoub, the only contact is behind glass and through the telephone.
· When Mr. Mahjoub was in segregation, it was difficult for Mrs. El Fouli and her children to have access to him. She would schedule appointments to see her husband and then would be refused without being given an explanation.
· Mr. Mahjoub was placed in the general population, or "regular range", until September 11, 2001, at which time he was put in segregation. Mrs. El Fouli did not experience any problems visiting her husband during regular visiting hours while he was on the regular range.
· Mr. Mahjoub's children feel very sad and disappointed when they are not allowed to visit him. The six-year old, Ibrahim, is having separation anxiety and other emotional problems.
· Ibrahim is being counselled by Mrs. El Fouli, but is not seeing a specialist or taking any medication for his emotional problems.
Frank Geswaldo (Security Manager, TWDC)
· Until recently, there was a serious overcrowding problem at the TWDC.
· For inmates in the general population there are volunteer programs, including the "Quaker program" and different religious programs. Also, if the institution is running smoothly, offenders are allowed outside to walk or jog for 20 to 30 minutes per day.
· Generally no provision is made for contact visits between members of an inmate's family and the inmate. Contact is prevented by a plexiglass barrier. Contact visits may be applied for, but are not commonly granted.
· Staff members can not deny visits. A manager can deny visits, provided an explanation is given.
· When determining where inmates should be placed at the TWDC, various factors are considered, including whether the person is a high-profile offender, whether an incompatible inmate is on the same range, and the safety and security risks involved.
· The percentage of individuals detained at the TWDC for immigration purposes is approximately 15-20%. Generally, these individuals are treated like the other inmates. An immigration unit is kept generally for individuals on immigration holds.
· Looking at Mr. Mahjoub's status, it is not appropriate for him to be held in the immigration unit.
· If there were to be concerns regarding an inmate's security that could not be met by the TWDC, there is the option of moving the individual to another institution.
· "Segregation" is where offenders are housed when they are required to be placed on administrative hold - e.g. for misconduct, individuals having difficulty in protected custody and general population units, and very high-profile offenders. Generally it is the unit of last resort, if the inmate can not cope anywhere else.
· Inmates in segregation are permitted to have books, writing paper, a pillow, blankets, sheets and a mattress. They eat their meals in their cells and are allowed out of their cells for one half hour per day for exercise in the yard.
Mary Dwyer (Healthcare Co-ordinator, TWDC)
· Other than some lower back pain, Mr. Mahjoub was in relatively good health upon admission to the TWDC. He saw dermatologists regarding some warts, but otherwise there were no major problems recorded in the files for 2001.
· In January 2002, after he had difficulty sleeping he was seen by a psychiatrist, who diagnosed Mr. Mahjoub as having an adjustment disorder. In February, Mr. Mahjoub went on a hunger strike for a short period and lost two pounds. He complained of dizziness and kidney problems. An ultrasound indicated that the only visible abnormality was a dense liver.
· In 2003, blood work was done with no negative results. An EKG of Mr. Mahjoub's heart came back as "normal".
· On May 13, 2003, Mr. Mahjoub fell off a top bunk and x-rays and further diagnostic testing was conducted. No appointment with a specialist was ordered until July, and the resulting MRI was not conducted until October.
· On January 6, 2004, Mr. Mahjoub was diagnosed with Hepatitis C. Mr. Mahjoub does not appear to be requiring any treatment for this. Some people can "live fine with it", some people experience complications, and in advanced cases, some people may die. Ms. Dwyer has not personally examined Mr. Mahjoub herself.
· There is no way of knowing the onset date of the Hepatitis C.
· It is not unusual for a member of the general public to have to wait 6 to 12 months to get an MRI.
June 1, 2004
Frank Geswaldo (continued)
· Remand facilities generally play two primary roles: keeping offenders available for court, and protecting society from them. They hold persons on remand (awaiting trial, sentencing or other proceedings); offenders sentenced to short terms (approximately 60 days or less); and offenders awaiting transfer to a correctional facility.
· Mr. Geswaldo is not aware of any offender sentenced to detention for two years or more who serves that sentence in any type of provincial facility.
· With respect to programming available for inmates at the TWDC, there is the exercise yard, the chapel program and the volunteer program. Respectively, they involve: trying to escort inmates to the yard on a daily basis; a Muslim cleric who visits inmates from time to time; and programs put on by groups such as AA, the Quakers and likely a few more that involve one-on-one counselling. The library is not currently functioning due to a lack of volunteers.
· There are no formal education or counselling programs.
· On average, an inmate stays at the TWDC for 90 to 120 days. It is rare for an individual to stay at the TWDC for four years. The longest stay in memory is 8 years (an individual named Yousef who was being extradited to the United States).
· There is an internal mechanism for inmates to file complaints about treatment at the hands of staff, detention conditions, or other grievances. An offender's complaint is looked after by the correctional staff member assigned to that unit. If the officer feels the problem is severe, it is reported to the Operational Manager, who then interviews the offender. The complaint may go up to the next level of Deputy Superintendent. The information provided by the inmate is shared with the Administration and then different people are delegated to respond to the complaint, depending on what it is about. If the inmate is not happy with the internal procedure, he or she can contact their lawyer, the Ombudsman's office, or outside agencies.
· Mr. Geswaldo is not aware of any process for CIC to become involved in dealing with complaints about conditions or treatment.
· Extended stays in segregation can have a detrimental psychological effect on the inmate. According to TWDC policy, an individual's stay in segregation must be reviewed every 29 days. A new policy may shorten this to every 5_days. The reason for review is to ensure that the administration knows who is in segregation, that offenders are not left in segregation, and that paperwork which may be requested by outside agencies is in order.
· There is no process for regular or consistent monitoring of inmates in segregation by a psychologist or psychiatrist, aside from request-driven contact.
· Mr. Mahjoub's status at the TWDC is listed as high-profile, because an outside agency escorts him when he goes outside of the facility, so his case is dealt with differently.
· Individuals are strip-searched every time they pass through the Admitting and Discharge Department. The guideline is that the inmate is to be afforded the maximum amount of privacy that is reasonable in the circumstances. Inmates may also be searched if they are believed to be carrying contraband in the segregation units. The decision to search is usually made by front-line staff, but the manager will get involved if there is a problem, for instance, if an inmate refuses to be searched.
· Mr. Geswaldo is not aware of any religious concerns arising from such searches; none have been drawn to his attention. He does recall one incident in which Mr. Mahjoub was upset about how a strip-search was conducted. Mr. Geswaldo reviewed the incident, understood Mr. Mahjoub's position and responded by telling the staff member that there was "no need to go overboard" with the search.
· There was no indication of problems with Mr. Mahjoub while he was detained in the TWDC general population, in the early months after his arrival at the institution. Mr. Geswaldo was not informed of the reasons to transfer Mr. Mahjoub to segregation after September 11, 2001, but understands that individuals "like him" were placed in segregation at that time. (Mr. Mahjoub then remained in segregation until July 15, 2002.)
· Mr. Mahjoub had expressed complaints about how visits with his family were handled. Mr. Geswaldo is not aware of any complaints by Mr. Mahjoub involving physical or sexual assault, verbal abuse or threats against him. Mr. Geswaldo was contacted by the Ombudsman regarding the investigation of a complaint by Mr. Mahjoub about his medical needs.
· In March of 2004, Mr. Mahjoub was involved in an altercation with other offenders; they were all placed on misconduct and escorted to segregation. It was Mr. Geswaldo's understanding that Mr. Mahjoub was defending himself during this altercation. Mr. Mahjoub has remained in segregation since March of 2004. He can choose to leave segregation to go back into general population, but he has expressed concerns about being harmed again if returned there. Mr. Geswaldo has not been able to persuade Mr. Mahjoub to leave segregation.
· Neither CIC nor any of its officials play any role in the day-to-day management of Mr. Mahjoub while he is in the facility.
· After September 11, 2001, there was an influx of immigration detainees and they were housed in segregation. There was no documentation provided by external agencies regarding requests for segregation and security handling, nor any documentation made available to determine whether it was appropriate to continue segregating these detainees or not. No explanation was provided as to why Mr. Mahjoub was selected as one of the individuals to be segregated.
· Conditions at the TWDC are better today with respect to overcrowding than they were when Mr. Geswaldo testified in Mr. Almrei's case in June of 2003.
· Mr. Mahjoub still wants to remain in segregation. Mr. Geswaldo does not believe that there is any reason why Mr. Mahjoub would have to remain in segregation. He believes the earlier incident was an isolated incident.
· Mr. Mahjoub has never mentioned anything about being assaulted by correctional officers. There are protocols for when such an assault takes place, which require written reports to be filed and forwarded to supervisors, including Mr. Geswaldo. Also, the police would be called in to investigate. Nobody has come to investigate any alleged assaults pertaining to Mr. Mahjoub.
· Nobody from CIC has ever told anybody at the TWDC that Mr. Mahjoub should be kept in segregation.
· Every remand inmate, whether criminal or immigration, is automatically deemed to be a maximum security inmate, regardless of their individual circumstances.
Dr. Aly Hindy (The Imam of the Salahaddin Mosque who previously testified)
· Muslims have particular dietary concerns regarding meat. If they are not given Halal meat, they will not eat it.
· Muslims are supposed to pray five times per day; the individual must be in a state of cleanliness, the clothes must be clean, and the area you pray in must be clean. You can not pray in the washroom; that is where the devil is.
· Muslim men are not allowed to reveal their bodies between their navels and their knees; strip-searches would be very humiliating.
June 2, 2004
Mr. Mahjoub (previously testified)
· Before being put in segregation, Mr. Mahjoub was able to pray, with cooperation from other inmates. In mid-2003, Halal food became available in the jail. He has been able to observe the fast for Ramadan while at the TWDC.
· Mr. Mahjoub encountered some difficulties during the most recent month of Ramadan, but he wanted to thank the jail authorities because they did their best to accommodate the needs of Muslim inmates. Mr. Mahjoub suggested that Muslim staff handle these services, because they would better understand what to do.
· Mr. Mahjoub has been strip-searched throughout his time at the TWDC. He considers these searches to be an attack on his manhood. He has been strip-searched in front of female officers.
· Mr. Mahjoub has seen a psychiatrist in the jail three times upon his request.
· Mr. Mahjoub has a copy of the Koran and a prayer mat in his segregation cell.
· The toilet in his cell is in the direction Mr. Mahjoub must pray.
September 7, 2004
Mr. Mahjoub
· On March 7, 2001, Mr. Mahjoub was verbally abused during a strip-search. The guard used vulgar, racist language and told Mr. Mahjoub that he and all Muslims should be killed. Mr. Mahjoub complained to the superintendent and the provincial Ombudsman, and was referred to other agencies.
· On September 15, 2001, Mr. Mahjoub was moved to segregation, to a very cold cell with no window, inadequate light, a malfunctioning toilet and inadequate facilities to wash.
· During another incident, before morning, a guard was banging on Mr. Mahjoub's cell door, yelling profanities and threatening Mr. Mahjoub and his family. Mr. Mahjoub made a complaint, but got no response.
· After a brief time on the regular range, Mr. Mahjoub was returned to segregation on January 15, 2002. Mr. Mahjoub says the cells in segregation are used for different purposes - some for regular discipline, others for something more akin to torture. The latter cells, including the one Mr. Mahjoub was placed in, have no heat and no blanket. When an inmate makes trouble, he is usually moved to one of these cells.
· On January 25, 2002, an incident occurred during a strip-search about which Mr. Mahjoub did not want to testify in public. The incident involved an attempted sexual assault. Mr. Mahjoub made a complaint but, as far as he knows, it has not been acted upon. However, he no longer saw the guard involved at the TWDC.
· Mr. Mahjoub remained in segregation until July 15, 2002, during which time he continued to experience harassment from guards and officers.
· December 14, 2003, Mr. Mahjoub became ill. He was too weak to stand so he was dragged by two guards to a segregation cell and left there for 45 minutes before the nurses returned to take his blood pressure. The doctor visited Mr. Mahjoub in the morning, told him his condition was fine, and did a blood test. Mr. Mahjoub tested positive for Hepatitis C.
· Mr. Mahjoub was returned to segregation in March of 2004. He was involved in an incident with other inmates regarding a TV remote control. The next morning, two of the inmates were moved and the other inmates believed Mr. Mahjoub had "ratted" them out to guards during the night. A fight ensued and an officer took Mr. Mahjoub to segregation.
· Mr. Mahjoub remains in segregation. He does not want to leave segregation because being labelled as a "rat" is a serious threat to him in general population.
· During a provincial strike, Mr. Mahjoub was unable to have visits with his family for 33 days, even though other individuals (including Mr. Jaballah) were able to visit with their families.
· Since his last appearance in Court, Mr. Mahjoub has continued to have difficulty with family visits. He has complained three times with very little success. He has had difficulties obtaining food in accordance with the Muslim diet; he has been denied food, and denied yard visits.
· Currently, Mr. Mahjoub's cell is a comfortable temperature. He has a towel, shoes, toothbrush, toothpaste and sheets.
· Between July and August of 2004, Mr. Mahjoub was on a hunger strike. During this time, he was given juice, water and Ensure drinks. A health nurse followed up on a daily basis and a doctor did so two or three times a week. He also saw psychiatrists during the hunger strike.
· During his time in detention, Mr. Mahjoub has seen a psychiatrist, an orthopaedic surgeon, a podiatrist, a physiotherapist, two doctors in general practice, nurses, and a specialist for Hepatitis C. Each time he had a medical problem, he sought help from the health unit.
· Mr. Mahjoub denies ever being abusive to health care staff, even though such behaviour is listed in his medical file.
· Mr. Mahjoub is permitted to pray in prison, and has access to a Muslim cleric.
September 8, 2004
Deirdre Gilker (Operations Manager, CIC, responsible for removals)
· CIC is prepared to remove Mr. Mahjoub from Canada. Ms. Gilker is in possession of a valid travel document to remove him to Egypt, and claims that his removal is imminent.
February 11, 2005
Diana Ralph (Social Worker)
· Ms. Ralph is a psychiatric social worker and family social worker. As such, she is involved in assessing emotional states and making recommendations about social conditions. She is familiar with the diagnostic criteria for mental disorders (DSM-IV).
· She has no training in psychological testing.
· She is also involved in the Almrei case. Specifically, she offered bail surety. She visits and speaks to Mr. Almrei quite regularly and offered her basement as a place where Mr. Almrei could stay if released on conditions.
· Ms. Ralph does not believe that her personal opinions about the security certificate process have influenced her assessment of Mr. Mahjoub. She has demonstrated against the security certificate process in front of the Canadian Security Intelligence Service ("CSIS") in Toronto, and has been arrested for trespassing. She is part of a group called the "Campaign to Stop Secret Trials in Canada".
· She is not a registered psychologist and can not do the psychological testing needed to tell whether someone is actually suffering from a mental condition. She suggested that an independent psychologist be engaged to perform an assessment.
· She prepared a report concerning Mr. Mahjoub, after speaking to Mrs._ El Fouli, and Ms. Dwyer, the nurse, who both expressed concerns about him.
· In her report she concluded that Mr. Mahjoub did not appear to show the symptoms of clinical depression. Mr. Mahjoub seemed to her to be alert, cheerful, happy to see people and dynamic. He spoke of himself as strong, powerful and in possession of his dignity. However, in a second meeting, held approximately an hour after the first meeting, Mr. Mahjoub returned upset because his cell had been searched. He claimed that "they are trying to kill me", mentioned that "they tried to give me a glass of juice in an open container", and spoke about how the guards lie and "they have a green light to kill me".
· Ms. Ralph tried to convince Mr. Mahjoub to leave segregation, but he saw conspiracies and malicious intent in everything proposed.
· Ms. Ralph's report also concluded that Mr. Mahjoub is showing symptoms of paranoia. People who are paranoid feel like they are being targeted, and interpret innocent comments as dangerous or malicious. Mr. Mahjoub had been "compulsively working on a kind of obsessive diatribe about every slight that has happened to him and won't turn it over to Security to let them deal with it. He keeps saying 'I'm writing it down'".
· Ms. Dwyer expressed concerns to Ms. Ralph that Mr. Mahjoub was "losing it", and decompensating.
· Ms. Ralph concluded that Mr. Mahjoub's problems might be attributable to post-traumatic stress disorder from the torture he claims to have suffered in Egypt.
· Ms. Ralph discussed with staff some steps that could be taken to reduce the risk of triggering Mr. Mahjoub's symptoms. These included allowing him more contact with other people, especially those he could touch, those who speak his language, and his family. Ms. Ralph also recommended more protection of Mr. Mahjoub during his interactions with guards.
· Mr. Mahjoub was asked if he wanted to move to the protective custody range instead. He refused, on the basis that perverts and child molesters go there and he does not want to be labelled as one.
· Ms. Ralph says her assessment of Mr. Mahjoub was informal, since she could not evaluate him properly under the circumstances.
· She has been advocating with representatives of the detention centre for changes of conditions in respect of Mr. Mahjoub and Mr. Almrei, and has become an advocate for the cause of these two men.
· Her report includes several unattributed statements, some of which appear to have been given the status of facts, such as the incident involving attempted sexual assault. Ms. Ralph said she believed this was a fact because she had seen it reported in the newspaper. She also believed Mrs. El Fouli's account of Mr. Mahjoub being tortured in Egypt, although she had no other evidence of it.
Louis Dumas (Director of Security Review, CBSA)
· The CBSA has accepted the Court's decision of January 31, 2005, and has amended procedures regarding the submission of information to the person at CIC charged with the responsibility of exercising the Minister's discretion under subsection 115(2) of the Act.
· CBSA has received up-to-date information from CSIS relevant to the risk Mr. Mahjoub is said to pose and a commitment that all required materials will be put before the decision-maker in Mr. Mahjoub's case. A memorandum is being prepared, to be submitted to Mr. Mahjoub's counsel by the end of February, and then counsel will have 15 days to respond. A request for an extension of time would be allowed to the end of March. Once all submissions are given to the decision-maker, CIC will require approximately three months to make a decision.
· The best case scenario would be the issuance of a new 115(2)(b) decision by the end of June. However, many aspects of this process are beyond Mr. Dumas' control, including CIC's decision itself.
· At the moment, no arrangements have been made for Mr. Mahjoub's removal following the second delegate's decision. If a decision were made and there were no legal impediments to his removal, then CBSA would be in a position to remove Mr. Mahjoub. Mr. Dumas thinks the removal would occur as quickly as legally possible, but he is not a removal expert. He can not predict how long it would take to get a valid travel document for Mr. Mahjoub.
March 14, 2005
JP (CSIS - Deputy Chief of Counter Terrorism and Counter Proliferation)
· Assistance from foreign government/agencies is important because the definition of "Canadian interests" goes beyond the physical borders of this country.
· The reliability of information obtained from a foreign agency is critically assessed in an ongoing feedback process. This includes such considerations as: How does it fit existing information? Can it be corroborated? Does it logically complement information that is evolving? Is it highly unusual or improbable?
· The human rights records of countries from which this information is received are taken into account and assessed on an annual basis. A country's politics and potential political agenda will also be considered when information is received from that country's agency.
· The advice CSIS gave the Government of Canada was that Mr. Mahjoub poses a danger to the security of Canada, given his record of activities with an Egyptian terrorist organization.
· JP did not assist with drafting the public summary, nor with preparing any of the documents in it.
· JP admitted that changes can occur over time with groups or individuals assessed by CSIS. For example, new groups may arise, or an existing group may be disbanded; a group's membership or allegiance to other groups can change; the preferred methodologies of a given group can change; political circumstances giving rise to security threats can change; and operation of intelligence services can disrupt activities that posed a threat to Canadian security.
· The June 2000 summary contained the CSIS findings on Mr. Mahjoub at that time. They will be subject to review in light of any new information that is relevant, as they were in the December 2002 summary.
· Jane's Information Service is a service CSIS makes use of from time to time and it is generally considered to be quite reliable.
· On January 17, 2005 a Jane's World Insurgency and Terrorism publication dealt with Al-Qaeda. JP has not read this report so can not comment on its reliability. While the strength of Jane's is defence analysis and its inventory of armed forces, its information on terrorism is also quite good. However, it does not have the full range of sources to consult in order to prepare these assessments, and it does not have the benefit of being at the forefront of the investigations into these groups, so its information in this area is "taken with a grain of salt".
· The Jane's report stated that Al-Qaeda's pre-September 2001 structure did not survive the U.S-led assault on Afghanistan in late 2001 and that Osama Bin Laden and other senior officers had designed fallback systems, including embedded activists and sleepers. JP said he had no reason to disagree with this summary in the report.
· JP was referred to a news article stating that Al-Qaeda is placing a premium on operatives who do not appear to be Arab. JP says this is consistent with his understanding of Al-Qaeda's methodology today. While there is a benefit in blending into a targeted country and resembling the native population or appearing unassuming, the race of members of hidden lines of command is not important.
· Al-Qaeda can not do the things it used to do before September 11, 2001, but it is now a more dangerous group, able to use its authority and reputation to get things done. Al-Qaeda' s ability to provide continuing support, material and financial aid is limited, but it still provides ideological inspiration.
· JP is aware of concerns regarding the conduct of military trials in Egypt.
· There is an expectation on the part of CSIS that information supplied by foreign states will meet a certain standard, and statements obtained under torture would not meet that standard. A weighing exercise would take place if information from a verdict that might be the result of an unfair trial is used.
· JP has no knowledge regarding the information given by "culprit No. 58" against Mr. Mahjoub in the military trial in Egypt, including whether this information was obtained under torture. CSIS does not have control over whether a foreign service lives up to its obligations to provide information that is legitimately obtained.
· JP confirmed that the Jane's report on Al Jihad is consistent with information in the public record.
· JP agreed that coming under the scrutiny of an intelligence agency like CSIS might impede a terrorist's ability to carry out their activities. Other things that could hamper a terrorist would include public exposure of membership, arrest, and detention, as well as interruption of contacts, ongoing surveillance, restrictions on communication and physical movement, and restrictions on association.
· JP is aware of the status of the following individuals: Mr. Jaballah, who remains detained at the TWDC; Mr. Ahmad Said Khadr, who was killed in 2003; Mr. Marzouk, who is serving a 15-year sentence in Egypt; and Mr. Agiza, who is currently serving a sentence in Egypt.
· JP acknowledges that there is no evidence on the public record of ongoing contacts between Mr. Mahjoub and Osama Bin Laden.
· Release of Mr. Mahjoub on conditions would impede his ability to participate in terrorist activities, but it would still provide him with the opportunity to flee and go underground which is unacceptable to the government.
March 15, 2005
Matthew Behrens (proposed surety)
· Mr. Behrens is prepared to act as surety for both Mr. Mahjoub and Mr. Almrei.
· He came to know Mr. Mahjoub through work with the "Campaign to Stop Secret Trials in Canada". He remains in close contact with Mr. Mahjoub and his family.
· Mr. Behrens understands the responsibilities of a surety, and does not believe there will be any problem if Mr. Mahjoub and Mr. Almrei are released.
· He understands his obligation to notify CIC if Mr. Mahjoub had plans not to report for removal. Mr. Behrens agreed to be a regular visitor at Mr. Mahjoub's house if he is released, to check every evening to make sure he is home by curfew, and to maintain regular phone contact with him during the day.
· Mr. Behrens has a number of minor criminal convictions stemming from his participation in peaceful demonstrations. His last conviction was in 1990. For each conviction, he was let out on bail and complied with his conditions.
· All of his knowledge of Mr. Mahjoub is based on what Mr. Mahjoub has told him since he has been in detention, what Mrs. El Fouli has told him, and the information he has seen in court transcripts and other public sources.
Mohammed Abdel Haleem (proposed surety)
· Mr. Haleem is prepared to act as surety.
· Mr. Haleem has met Mr. Mahjoub in a mosque a couple of times and talked to him. He does not have the impression that Mr. Mahjoub is dangerous.
· Mr. Haleem has experienced problems re-entering Canada on a couple of occasions, even though he is a Canadian citizen. These problems arose after agreeing to be a surety for Mr. Mahjoub. Nonetheless, he is still willing to make this commitment.
· Mr. Haleem believes Mr. Mahjoub would abide by any conditions imposed upon him, because he is a good person and a good Muslim, and being a good Muslim means not breaching your word. If he breaches his conditions, he would be cut-off by everybody and looked down upon by family and his children.
· Mr. Haleem understands his obligation to immediately report any breach of conditions by Mr. Mahjoub.
· Mr. Haleem was not aware of Justice Nadon's finding that Mr. Mahjoub had lied to the Court.
THE PSYCHOLOGIST'S REPORT
[10] Dr. Michael Bagby is a registered psychologist who currently is the Director of Clinical Research at the Center for Addiction and Mental Health. Dr. Bagby prepared a report on Mr. Mahjoub. His expertise and objectivity were accepted by counsel for the Ministers. The report was based on three interviews with Mr. Mahjoub, interviews with "collaterals", psychometric test results, Mr. Mahjoub's statutory declaration of March 11, 2004 and Ms. Ralph's report.
[11] In Dr. Bagby's opinion:
· Mr. Mahjoub's M-FAST interview responses indicated that he is reluctant to admit to experiencing problems and is inclined to conceal such information.
· Mr. Mahjoub meets the DSM-IV criteria for a Major Depressive Disorder, Single Episode, Moderate, Chronic.
· He reported symptoms in early June of 2004 that met the DSM-IV criteria for Brief Psychotic Disorder, with marked stressors.
· Mr. Mahjoub also meets DSM-IV criteria for Post-traumatic Stress Disorder, Mild.
· Although he did not meet the full DSM-IV criteria for any single Personality Disorder, his responses and overall interview presentation were consistent with a diagnosis of Personality Disorder Not Otherwise Specified, with Obsessive Compulsive traits.
· Mr. Mahjoub is experiencing a moderate level of emotional distress characterized by dysphoria, agitation and anhedonia. He often feels resentful and angry, and has difficulty with affect regulation. Inappropriate expression of anger is increasing. Suicide risk potential should be monitored, despite Mr. Mahjoub's statements to the contrary.
· Mr. Mahjoub appears to be experiencing confused thinking, distorted perceptions, difficulties in concentration and impaired judgment.
· He is quite fearful and vulnerable and his confidence in his coping abilities has been eroded by events of the last five years. Lacking hope for the future and without immediate access to a viable support network, Mr. Mahjoub appears at risk of becoming even more emotionally remote.
· The psychological effect of Mr. Mahjoub's prolonged incarceration in administrative segregation is substantial. In the face of sustained psychological and physical challenges since his arrest, Mr. Mahjoub is exhibiting a significant level of emotional distress. His coping mechanisms are not likely to withstand the stresses of continued incarceration and prolonged sensory and psycho-social deprivation.
· Mr. Mahjoub has already experienced one brief psychotic episode, and his mental status appears to be again in a process of decline. He faces a serious risk of further decompensation, barring a change in his legal fortunes.
HAS MR. MAHJOUB MET THE ONUS OF PROOF UPON HIM TO SATISFY THE COURT THAT HE WILL NOT BE REMOVED FROM CANADA WITHIN A REASONABLE PERIOD OF TIME?
(i) Relevant principles
[12] The following relevant principles were articulated by the Court of Appeal in Almrei, supra:
1. A subsection 84(2) application requires the judge to determine whether the foreign national will be removed from Canada "within a reasonable time". The concept of "removal within a reasonable time" requires a measurement of the time elapsed from the time the security certificate was found to be reasonable, and an assessment of whether that time is such that it leads to the conclusion that removal will not occur within a reasonable time.
2. The judge must consider the delay and the causes of the delay. Judicial remedies must be pursued diligently and in a timely fashion. This also applies to the Ministers' responses and to the judicial hearing of the application for release. Subsection 84(2) of the Act "authorizes a judge to discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time". Put another way, where an applicant tries to prevent his removal and delay ensues as a result, he can not complain that his removal has not occurred within a reasonable time, unless the delay is unreasonable or inordinate and not attributable to him.
3. A forward-looking and future-oriented test is used. Evidence must be provided that indicates the applicant will not be removed within a reasonable time. If credible and compelling evidence of an imminent removal is produced, the conditions of detention and the time already served lose much of their significance.
4. The length of the past detention is relevant only to the extent that the history of events may cast doubt on the reliability of the assertion and evidence submitted that the moment of removal is close at hand.
5. The conditions of detention are relevant to a limited extent. That is, the conditions may be such, especially when coupled with a lengthy detention, that the phrase "within a reasonable time" takes on another significance, one of urgency. The removal must then be effected even more expeditiously in order to be in compliance with the requirements of subsection 84(2).
[13] I will now apply these principles to the evidence before the Court.
(ii) Length of detention
[14] Mr. Mahjoub has been in detention since June 26, 2000. More than four years have elapsed since the security certificate was found to be reasonable on October 5, 2001.
(iii) Delay and causes of delay
[15] This matter has been protracted. There has, however, been more than one cause for this.
[16] One source of delay is attributable to Mr. Mahjoub, and flows from the fact that over one year elapsed before he moved to be released from detention.
[17] Another source of delay attributable to Mr. Mahjoub is the unexplained delay in moving to have the constitutional issues decided. From the time the Court issued its reasons on July 30, 2003 until the time Mr. Mahjoub's present counsel were retained in or about January of 2004, no steps were initiated by Mr. Mahjoub to schedule the resumption of his hearing. In the absence of any request by counsel, the Court issued directions on September 15, 2003 and October 28, 2003, inquiring as to the availability of counsel for the hearing of the continuation of the motion for release, and then set a date following a case management teleconference.
[18] Other sources of delay attributable to Mr. Mahjoub are the delay caused by the withdrawal of his former lawyer, the need for current counsel to move to adjourn the scheduled January 2004 hearing "given the state of the application", and the need of the same counsel to move in March of 2004 for leave to re-state and raise new constitutional issues and leave to adduce additional evidence. The request for new evidence was required because no evidence had previously been adduced about the conditions of Mr. Mahjoub's detention as that was relevant to the constitutionality of his detention, and arguably relevant to whether his removal would take place within a reasonable time. There is no suggestion that evidence about the conditions of his detention could not have been adduced in May of 2003.
[19] New counsel for Mr. Mahjoub very ably prepared the case and closed the evidentiary portion of the evidence in the period of time from January of 2004 to early September of 2004, at which time written arguments were to be filed with respect to constitutional arguments. Given that this case could be, and was, readied for hearing in an eight-month period, it can very much be argued that during the period from approximately February 6, 2002 (being in the order of 120 days after the certificate had been found to be reasonable) to January of 2004 Mr. Mahjoub was not pursuing his judicial remedies diligently, effectively and on a timely basis. Certainly in that period: (i) there was no activity from February 6, 2002 to October 18, 2002; (ii) a further two-month delay resulted from Mr. Mahjoub's request in January of 2003 that his hearing be adjourned; (iii) delay occurred from July 30, 2003 to early November of 2003 when no effort was made to schedule the conclusion of the hearing; and (iv) the January 2004 hearing was adjourned at Mr. Mahjoub's request.
[20] Equally, there has been delay which is not attributable to Mr. Mahjoub. A significant source of such delay is the time taken by CIC and the delegate of the Minister to determine whether Mr. Mahjoub, a Convention refugee, can be removed from Canada in light of his submissions that if he is returned to Egypt, his country of nationality and the country in respect of which he has been found to have a well-founded fear of persecution, he would face a risk of torture or death. The chronology of the steps taken in this regard is as follows:
1. On October 22, 2001, CIC informed Mr. Mahjoub of its intention to seek the Minister's opinion, under what was then paragraph 53(1)(b) of the former Immigration Act, that Mr. Mahjoub constituted a danger to the security of Canada so that he might be removed to Egypt.
2. Because of the release on January 11, 2002 of the Supreme Court of Canada's decision in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, consultations took place within CIC and other departments for the purpose of examining whether implementation of additional safeguards to protect Mr. Mahjoub were necessary in this case. It was decided that assurances should be sought from Egyptian authorities to the effect that Mr. Mahjoub would not be treated contrary to the conventions associated with torture. Written assurances were received from the Egyptian authorities in February and March of 2003.
3. These assurances were served on Mr. Mahjoub on March 28, 2003 along with the other documents that were to be used by the Minister in order to make a decision under paragraph 115(2)(b) of the Act as to whether Mr. Mahjoub should not be allowed to remain in Canada because of the danger he constitutes to the security of Canada. Mr. Mahjoub's responding submissions were due on May 23, 2003, although I understand that one or more extensions of that deadline were sought by Mr. Mahjoub and received.
4. On July 22, 2004, a delegate of the Minister decided that Mr. Mahjoub should be removed to Egypt notwithstanding that he could be at substantial risk of ill-treatment and human rights abuses such that would preclude his removal based on subsection 115(1) of the Act.
[21] In the absence of such a decision Mr. Mahjoub could not be removed from Canada. He must remain in detention unless released by the Court or unless the Minister, at Mr. Mahjoub's request, sought his release from detention in order to permit Mr. Mahjoub to leave Canada.
[22] Little or no explanation was given for the time taken to render the decision of the Minister's delegate, although, as I recognized in my reasons of July 30, 2003 at paragraphs 55 and 56 "[...] where a risk of torture is asserted by a person who has been found to be a Convention refugee, more time, rather than less, will reasonably be required to ensure that the principles of fundamental justice are not breached. This is not to say that Suresh applies to make every delay in effecting removal reasonable".
[23] One additional source of delay should be mentioned. The Court's ability to provide timely hearing dates was impacted by the fact that those responsible for bringing Mr. Mahjoub to Court consistently advised the Registry of the Court that six weeks notice was required for them to be able to make the necessary arrangements. Flowing from this, Mr. Mahjoub frequently agreed to participate in the hearings by way of video conference, so as to facilitate more timely hearing dates.
[24] Finally, I observe that ample periods were provided to counsel for the purpose of preparing their written submissions. Those deadlines were set on the basis of the consent of the parties and reflected counsel's assessment of the seriousness of the issues raised.
(iv) Forward-looking
[25] In Almrei, supra, the Federal Court of Appeal stressed that the test of whether a person will be removed in a reasonable time is forward-looking. If credible and compelling evidence of an imminent removal is produced, both the conditions of detention and the time already served lose much of their significance.
[26] The evidence capable of supporting a conclusion of imminent removal is that of Ms. Gilker and Mr. Dumas, summarized above. However, it is to be remembered that the history of events can cast doubt on the reliability of evidence that the moment of removal is close at hand. I find the following factors to be the most significant ones relevant to consideration of this issue. On September 8, 2004 the Court, for reasons given orally and reported at [2004] F.C.J. No. 1606, stayed Mr. Mahjoub's removal from Canada pending the judicial review of the Minister's decision that Mr. Mahjoub could be removed to Egypt from Canada. At that time counsel for the Minister conceded that a serious issue was raised as to whether the Minister's delegate erred in concluding that exceptional circumstances existed which justified Mr. Mahjoub's returned to torture. The Minister's delegate's decision was ultimately set aside by the Court, in reasons reported at [2005] 3 F.C.R. 334. There, the Court wrote at paragraph 64:
I acknowledge an issue of importance has been raised which I do not decide: whether circumstances would ever justify deportation to face torture. The Supreme Court of Canada has left the issue open by not excluding the possibility that, in exceptional circumstances, such deportation may be justified, either as a consequence of the balancing process required by section 7 of the Charter or under section 1 of the Charter. There are, however, powerful indicia that deportation to face torture is conduct fundamentally unacceptable; conduct that shocks the Canadian conscience and therefore violates fundamental justice in a manner that can not be justified under section 1 of the Charter. Those indicia were canvassed by the Supreme Court in Suresh and include: Canadian domestic law prohibits torture; section 12 of the Charter prohibits cruel and unusual treatment or punishment (reflecting that, within Canada, torture is seen to be so repugnant that it can never be an appropriate punishment); extraditing a person to face torture has been found to be inconsistent with fundamental justice; and, a strong argument exists that international law prohibits deportation to torture, even where national security interests are at stake. [underlining added]
This issue remains unresolved.
[27] Returning to the Court's decision to stay Mr. Mahjoub's removal to Egypt, the Court found that Mr. Mahjoub would suffer irreparable harm if removed to Egypt because, if removed, his pending judicial review would be rendered nugatory. This conclusion was based on evidence that included: (i) the Minister's delegate's conclusion that there was a credible basis for calling into question the extent to which the assurances received from Egyptian authorities with respect to proper treatment would be honoured; (ii) the Minister's delegate's conclusions that Mr. Mahjoub would be detained upon his return to Egypt and, on a balance of probabilities, Mr. Mahjoub could suffer ill-treatment and human rights abuses soon after being detained; and (iii) the Minister's concession that if removed to Egypt it was unlikely that Mr. Mahjoub would be permitted to leave Egypt to return to Canada if his application for judicial review was successful.
[28] No new decision has, to my knowledge, yet been made by the Minister as to whether Mr. Mahjoub may be removed from Canada. It may be that the Minister will conclude he can not, and Mr. Mahjoub will remain in Canada. If the Minister concludes otherwise, I am confident that Mr. Mahjoub will challenge that decision, and his removal could well be stayed by the Court because the facts which supported the first stay of removal will, in all probability, remain unchanged. That is, the legal issue of return to torture remains undecided and there is no evidence to suggest that Egypt's position with respect to Mr. Mahjoub and any potential return to Canada would change.
[29] In short, I find on a balance of probabilities that Mr. Mahjoub is unlikely to be removed from Canada until the Supreme Court authoritatively decides whether circumstances will ever justify a removal to torture. If the Court finds that removal to torture is constitutionally acceptable in exceptional circumstances, then the specific circumstances of this case will have to be considered in order to determine whether those exceptional circumstances exist. A constitutional challenge on this issue will not only take a significant amount of time, but it leaves open the possibility that, in Mr. Mahjoub's case, it could be determined that it is not constitutional to remove him to torture.
[30] I therefore find as a fact that even if the Minister again decides that Mr. Mahjoub can be removed from Canada, any consequent removal will not be imminent due to legal challenges Mr. Mahjoub will mount.
(v) Can time spent pursuing the legal remedies be considered in determining what is a "reasonable time"?
[31] This issue was addressed by the Federal Court of Appeal in Almrei, supra. The Court observed, at paragraph 58, that it was satisfied that the jurisdiction conferred by subsection 84(2) of the Act authorizes a judge to discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the effect of preventing the Crown from complying with its obligation to remove persons within a reasonable time. I now turn to consider whether I should exercise that discretion.
[32] It is in the context of that question that I consider the conditions of Mr. Mahjoub's detention to be relevant.
(vi) Conditions of detention
[33] The Court of Appeal observed in Almrei, at paragraph 82, that "the conditions of detention [...] may be such, especially when coupled with a lengthy detention, that the phrase 'within a reasonable time' takes another significance, one of urgency. The removal must then be effected even more expeditiously in order to be in compliance with the requirements of subsection 84(2)."
[34] The most significant evidence, in my view, with respect Mr. Mahjoub's conditions of detention is the evidence that:
- the federal government does not have a secure detention facility for persons held under the Act. No explanation was given as to why immigration detainees can not be held, for example, in a secure federal penitentiary designed for long-term incarceration and where, for example, education and counselling programs are available for inmates.
- in the absence of available federal facilities, the only facilities available for immigration detainees who pose a risk are provincial facilities. The care and welfare of detainees then rests with the provinces, as does the authority to determine in which facility an inmate will be held.
- Mr. Mahjoub has been detained for almost the entire time of this detention at the TWDC.
- the TWDC is a remand facility. As such it is an entry-level facility and it lacks the programs available for inmates in longer-term correctional facilities.
- every remand inmate is deemed to be a maximum-security inmate.
- Mr. Mahjoub has not been allowed contact, or touch, visits with either his wife or his young children (although it is not clear if they have been requested, or if requested would be allowed).
- Mr. Mahjoub's family have been frustrated on numerous occasions in their efforts to visit with him.
- for much of the time that Mr. Mahjoub has been detained at the TWDC there was a serious overcrowding problem.
- inmates are strip-searched every time they enter or re-enter the facility, every time they enter segregation, and whenever front-line staff consider it necessary. Throughout the period of his detention Mr. Mahjoub has been strip-searched on many occasions.
- Mr. Mahjoub remains in segregation by choice, notwithstanding the view of the jail authorities that it is not necessary for him to remain in segregation.
- Mr. Mahjoub is experiencing a moderate or significant level of emotional distress. Increasingly, his coping mechanisms appear inadequate to the stresses of continued incarceration.
[35] I conclude that the conditions of Mr. Mahjoub's detention, coupled with the length of that detention, are such that the phrase "within a reasonable time" has taken on a sense of urgency. One consequence of that urgency is that I am persuaded that I should not exercise the discretion described by the Federal Court of Appeal in Almrei, supra, at paragraph 58 to discount the delay that has resulted, and perhaps will result, from proceedings taken, and to be taken, by Mr. Mahjoub to prevent his removal from Canada.
[36] In so concluding, I am mindful of the Federal Court of Appeal's admonition, at paragraph 105 of the Almrei decision, that the condition of detention is not an operative factor in determining whether the criteria for a subsection 84(2) application are met, where compliance with the law by the Crown and removal within a reasonable time are made impossible by the proceedings brought by an applicant. However, as I write these reasons, the Minister has not decided whether Mr. Mahjoub should be removed to Egypt and it remains to be decided if removal to torture is constitutionally valid, and if so, what circumstances are sufficiently exceptional as to permit removal to torture. In those circumstances, I do not conclude that Mr. Mahjoub's removal is possible but frustrated by proceedings brought by Mr. Mahjoub.
[37] Before leaving this point I wish to say that the conditions of Mr. Mahjoub's detention are of pressing and significant concern. He has been detained for over five years and the prospects of his removal being a "done deal" are, in my view, remote. This has been, or ought to have been, apparent for some time, yet no explanation has been provided as to why Mr. Mahjoub was detained in a short-term remand facility, essentially bereft of programs suitable for long-term detainees and with little or no federal involvement or supervision.
[38] Mr. Dietrich testified that he was not aware of anyone named in a security certificate found to be reasonable who was removed in less than two years. As the government faces the reality of providing substantial procedural protections and safeguards to those who face an acknowledged risk of torture if removed, it is apparent that those detainees may face significant time in detention. While I acknowledge that a proceeding under subsection 84(2) of the Act is not an appropriate forum for seeking better conditions of detention, no justification has been suggested for keeping Mr. Mahjoub for five years in a provincial remand facility and it is difficult to contemplate a rationale for this treatment.
[39] Since writing this, the Ministers have communicated their intention to move long-term immigration detainees to a federal institution in Ontario where conditions will be more like those provided to federal inmates. However, such move is said to be at least 4 to 6 months away and raises its own uncertainties. For example, the evidence before the Court is to the effect that Mr. Mahjoub's family would have significant difficulty visiting him if he is moved out of the TWDC. It is not clear how this is to be dealt with. I am satisfied that in view of the 4 to 6 month delay and the lack of specifics as to how changes are to be implemented, my decision should be made on the basis of the actual and ongoing conditions of detention.
(vii) Conclusion with respect to reasonable time
[40] In summary, I have considered the length of Mr. Mahjoub's detention and the fact that the protracted period of detention arises from both delay on the part of Mr. Mahjoub in pursuing his remedies and from factors beyond his control, such as the length of time taken by the Minister to decide if Mr. Mahjoub should be removed. After four years since the certificate was found to be reasonable, and the quashing of one decision to remove Mr. Mahjoub, a second decision remains outstanding. In my view, it is not necessary to apportion any responsibility for those delays because of the future-orientated nature of the reasonable time test.
[41] I have been satisfied that Mr. Mahjoub will not be removed from Canada within a reasonable time. I exercise my discretion not to discount the delay on account of the fact that past and future proceedings taken by Mr. Mahjoub have increased the delay. Considerations such as the length and conditions of his detention, as well as the fact that the current state of the law adds to the delay, have led to this decision.
[42] It follows that Mr. Mahjoub has satisfied me that he will not be removed from Canada within a reasonable period of time.
HAS MR. MAHJOUB MET THE ONUS UPON HIM TO SATISFY THE COURT THAT HIS RELEASE WILL NOT POSE A DANGER TO NATIONAL SECURITY OR TO THE SAFETY OF ANY PERSON?
(i) Applicable Legal Principles
[43] In Suresh v. Canada (Minister of Citizenship in Immigration), [2002] 1 S.C.R. 3 the Supreme Court of Canada considered what constitutes a "danger to the security of Canada". The Court concluded, at paragraph 85, that the phrase must be given a "fair, large and liberal interpretation in accordance with international norms". What constitutes such a danger is "highly fact-based and political in a general sense".
[44] The Court observed that support of terrorism abroad may harm Canada's national security. The basis for that conclusion was explained by the Court, at paragraph 88 of its reasons, as follows:
88 First, the global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activity. Second, terrorism itself is a worldwide phenomenon. The terrorist cause may focus on a distant locale, but the violent acts that support it may be close at hand. Third, preventive or precautionary state action may be justified; not only an immediate threat but also possible future risks must be considered. Fourth, Canada's national security may be promoted by reciprocal cooperation between Canada and other states in combatting international terrorism. These considerations lead us to conclude that to insist on direct proof of a specific threat to Canada as the test for "danger to the security of Canada" is to set the bar too high. There must be a real and serious possibility of adverse effect to Canada. But the threat need not be direct; rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security.
[45] The Court also discussed the nature of the evidence required to establish a danger to Canada's security, at paragraphs 89 and 90, in the following terms:
89 While the phrase "danger to the security of Canada" must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to return (refouler) a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution. This supports the conclusion that while "danger to the security of Canada" must be given a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat.
90 These considerations lead us to conclude that a person constitutes a "danger to the security of Canada" if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be "serious", in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.
[46] Thus, as I previously concluded in my reasons delivered July 30, 2003 at paragraph 65, evidence that grounds an objectively reasonable suspicion of substantial threatened harm will establish a danger to national security.
[47] The burden of proof rests on Mr. Mahjoub and it is to be met on a balance of probabilities. In Almrei, supra, the Federal Court of Appeal clarified, at paragraph 42, that this is an evidentiary burden. Thus, Mr. Mahjoub must adduce some evidence that his release will not pose a danger to national security or to the safety of any person. That evidence must be answered, otherwise Mr. Mahjoub is entitled to release if he also satisfies the Court that he will not be removed within a reasonable time.
[48] To this must be added one comment about the effect of Mr. Justice Nadon's prior determination that the security certificate is reasonable. In Suresh, supra, the Court cautioned that "danger to the security of Canada" means something more than a person is named in a security certificate as being inadmissible on grounds of security. The Court of Appeal developed this in Almrei, at paragraph 48, where it stated that a determination of the reasonableness of a security certificate is not determinative of the merit of the detention of the person named in the certificate, and is not a decision that is conclusive of the issue of whether the person is a danger to the security of Canada.
(ii) Application of the Legal Principles to the Evidence
[49] In order to reach a conclusion about whether the evidence gives rise to an objectively reasonable suspicion that Mr. Mahjoub's release would result in a substantial threat of harm, I will consider the following:
· The evidence adduced by Mr. Mahjoub with respect to the danger, if any, his release would pose to national security and the safety of persons (hereafter "the danger").
· The manner in which the evidence presented ex parte and in camera was assessed.
· The Ministers' responding evidence.
· Analysis of the danger, if any, Mr. Mahjoub's release would pose.
· If there is an objectively reasonable suspicion that Mr. Mahjoub's release would result in a substantial threat of harm, the extent such harm can be neutralized or contained by the imposition of terms and conditions upon his release.
(iii) Mr. Mahjoub's Evidence with respect to the Danger, if any, posed by his Release
[50] Mr. Mahjoub submits that, notwithstanding the Court's prior conclusion in July of 2003 that his release would pose a danger to national security, there have been significant changes such that his release would no longer pose a danger to national security. Alternatively, he argues that any concerns may be managed by release on terms and conditions. Mr. Mahjoub points to the following factors:
1. The Al-Qaeda structure has been seriously compromised, if not destroyed. Similarly, the VOC/AJ is no longer able to rely on satellite phones and e-mail chat rooms and so is now believed to use couriers to communicate. This would make it difficult for Mr. Mahjoub to re-establish contact with any extremist network.
2. Of Mr. Mahjoub's contacts listed in the summary provided to him, Messrs. Agiza, Marzouk, and Al Duri are in jail, Mr. Khadr is dead, Mr. Jaballah is detained in Canada, and the location of Osama Bin Laden is unknown.
3. New contacts will be unlikely to contact Mr. Mahjoub.
4. There is a current emphasis in the Islamic extremist milieu on the recruitment of those who, unlike Mr. Mahjoub, do not appear to be Arab.
5. When assessing the evidence, any information received from Egypt is not reliable because of the fact that Egypt engages in the systematic torture of detainees and grossly unfair trials.
6. JP acknowledged that factors such as ongoing surveillance and monitoring, and restrictions on movements and associations can impede an individual's effectiveness in participating in or assisting terrorist activities.
[51] The evidence in support of these submissions consisted of the evidence adduced in public through Mr. Mahjoub's counsel's examination of JP, Mr. Mahjoub's evidence, the evidence of his proposed sureties, and a number of documents available in the public domain.
[52] I accept that:
1. Al-Qaeda's pre-September 2001 structure did not survive the U.S.-led assault on Afghanistan and, in many respects, it can no longer be considered to be a coherent organization with a chain of command and material assets. Notwithstanding, as conceded on Mr. Mahjoub's behalf, Al-Qaeda remains a threat and has emerged as a philosophy, rather than as a homogeneous entity. Al-Qaeda uses its reputation to draw others into terrorist activity.
2. Al-Qaeda is placing emphasis on recruiting persons who do not appear to be Arab. This is logical in that such people have easier access to countries such as United States. However, as JP also noted, appearance is irrelevant to those who are a part of hidden lines of command.
3. There have been organizational shifts in the AJ. It is fragmented and its ability to act as a whole has been compromised by the U.S.-led war on terrorism. That said, Mr. Mahjoub put in evidence the profile of the AJ prepared by Jane's Information Group in its publication "Jane's World Insurgency and Terrorism" ("Jane's"). Jane's assessed the level of threat posed by the AJ in the following terms:
Although the group's base and communications have been greatly disrupted, the [AJ's] leader remains a potent symbol of resistance to thousands of sympathisers across the world. The group's ability to act as a whole has been compromised by the US led War on Terrorism, but it is believed to have dispatched numerous cells, many of which are believed to remain at large, that are fully self sufficient and capable of future terrorist activities. Potential targets include US symbolic targets, Western interests, Israel, and states supporting the US in the War on Terrorism.
4. With respect to the persons Mr. Mahjoub is reported to have been in contact with before his detention:
- Mr. Khadr is dead
- Messrs. Marzouk and Agiza are jailed in Egypt
- Mr. Jaballah is in detention in Canada
- Osama Bin Laden's location is unknown
No credible public information was tendered with respect to the location of Mr. Al Duri.
5. In the United Kingdom, "terror detainees" have been released pursuant to the terms of control orders.
6. An individual's effectiveness in assisting a terrorist network or in participating in terrorist activities, including support activities, would be adversely affected by factors such as: scrutiny by an intelligence agency; public exposure of terrorist membership; arrest; detention, which could interrupt or disrupt contacts; ongoing surveillance and monitoring; restrictions on communications; restrictions on movement; restrictions on associations.
[53] Having summarized the evidence adduced on Mr. Mahjoub's behalf, missing from his evidence is any testimony from Mr. Mahjoub in which he: eschews religious extremism and the use of violence; states he would not support, encourage or take part in acts that would pose a danger; confirms that he would abide by any conditions imposed by the Court. On the last point, I acknowledge that his counsel made representations to the Court to that effect.
(iv) The Manner in which the Evidence Adduced on the Ministers' Behalf ex Parte and in Camera was assessed
[54] In Harkat (Re), 2005 FC 393 at paragraphs 93 and following, I set out principles relevant to the assessment of information provided to the Court ex parte and in camera. For ease of reference, I repeat paragraphs 93 to 99:
93 In my assessment of the confidential information, I have adopted and applied the principles articulated by my colleague Mr. Justice Blanchard in Almrei v. Canada (The Minister of Citizenship and Immigration), [2004] 4 F.C.R. 327; aff'd 2005 FCA 54; [2005] F.C.J. No. 213. Although Justice Blanchard was writing in the context of a detention review conducted pursuant to subsection 84(2) of the Act, the nature of the exercise a designated judge must perform when confidential information is received by the judge in the absence of a party and their counsel remains the same whether the judge is determining the reasonableness of a security certificate or reviewing detention under subsection 84(2) of the Act. At paragraphs 59 and 60, Mr. Justice Blanchard wrote:
59. [...] Since the evidence must be received in the absence of the applicant or counsel it is incumbent on the designated judge to rigorously and critically scrutinize this evidence in reaching any determination regarding its relevance to the issues, its reliability and proper weight.
60. In testing evidence which cannot be disclosed for security reasons, the designated judge must adopt a principled approach to the exercise. To that end the presence or absence of corroboration, consistency of the evidence, and whether it is hearsay, are among factors to consider. To test the reliability of the evidence the judge may probe into the credibility and reliability of the source of the information. This may be done by the designated judge putting questions directly to affiants and possibly to other persons. In addition the judge may question counsel representing the Service on their submissions.
To similar effect are the comments of my colleague Mr. Justice S. Noël in Charkaoui (Re), [2004] 3 F.C.R. 32 (F.C.) at paragraphs 100 to 102.
94 While not in any way commenting upon the source or sources of confidential information before the Court in this case, I believe that, generally, if any confidential information is provided by a human source, some relevant inquiries and areas for examination by the Court of one or more witnesses under oath may include matters such as the following: the origin and the length of the relationship between the Service and the human source; whether the source was paid for information; what is known about the source's motive for providing information; whether the source has provided information about other persons, and, if so, particulars of that; the extent to which information provided by the source has been, or is, corroborated by other evidence or information; the citizenship/immigration status of the source and whether that status has changed throughout the course of the source's relationship with the Service (to the extent that such status touches upon the source's security within Canada and their vulnerability to duress); whether the source has been subject to any form of pressure to provide information, and if so, why and by whom; whether the source was or is under investigation by the Service or any other intelligence agency or police force; whether the source has a criminal record or any outstanding criminal charges in Canada or elsewhere; the nature of any relationship between the source and the subject of the investigation; whether there is any known or inferred motive for the source to provide false information or otherwise mislead the investigation in any way. This list is not exhaustive and the matters outlined here may not be relevant or applicable in every case.
95 Similarly, if any confidential information is provided from another intelligence agency, some relevant inquiries and areas for examination may include: the manner in which the Service assesses the reliability of information provided by that agency and its conclusion as to the reliability; to what extent has, or is, information from such agency corroborated; is there any suggestion the agency may have a motive for colouring the information provided; what is the human rights record of the agency and the agency's home country; how does the foreign agency itself assess the reliability of the information it has provided; is the agency a mere conduit for information originating from a less reliable agency. Again, this list is not intended to be exhaustive.
96 If any confidential information is provided that is obtained through technical sources such as electronic surveillance, relevant inquiries may include: the accuracy of any document that records intercepted information; the accuracy of any translation (if applicable); the objectivity or bias of any summary made of intercepted information; and how the parties to any conversation are identified.
97 Regardless of the source of the evidence, questions should be posed as to the existence of any exculpatory evidence.
98 In summary, the designated judge must inquire into the source of all information contained within the confidential information upon which the Ministers rely to establish the reasonable grounds for their belief that the person concerned is inadmissible to Canada upon security grounds. Once the source of the information is identified, the designated judge should consider what the written record discloses and what any relevant witness can testify to about the reliability of the information and extent to which the information, or other information from that source, is corroborated. Throughout, the judge must remain vigilant and mindful of his or her obligation to probe the reliability of all evidence. The potential for error caused by such things as mis-identification, mistake, deception, incompetence or malevolence must be considered. As stated earlier, it is important that questions be directed to whether there is exculpatory information in the possession of the Service.
99 It is only through this demanding exercise that the Court can properly assess the evidence tendered on behalf of the Ministers and the person named in the certificate. A rigorous, objective determination is required in order to protect the interests of the person named in the certificate as well as the legitimate interests of the state.
[55] In the present case, this was the exercise I carried out with respect to the information provided by the Ministers in the original security intelligence report and in subsequent disclosures to the Court. The scheduling of all in camera hearings was communicated to all counsel and is set out in the chronology which is Appendix A to these reasons. By public direction counsel for the Ministers were required to produce a knowledgeable witness to give evidence and answer questions from the Court about:
(i) Whether any further information contained in the confidential record might be summarized and provided to Mr. Mahjoub;
(ii) The source of each item of evidence in the confidential record relied upon in order to support the conclusion that Mr. Mahjoub's release from detention would pose a danger; and
(iii) The presence or absence of independent, corroborating evidence.
[56] Additionally, counsel for Mr. Mahjoub was invited to submit to the Court suggested questions to be put to the Ministers' witnesses. Instead, counsel submitted suggested areas for examination. Those areas were pursued by the Court to the extent that they were relevant to confidential information actually before the Court.
[57] Subsequently, I extensively reviewed the entire confidential record in order to analyse and form my conclusions about the reliability of the information before the Court. This was extremely time-consuming and involved, in largest part, reviewing information provided by each source, considering what was known about the accuracy of each source, and determining the extent to which information provided by each source was corroborated by other sources.
(v) The Ministers' Responding Evidence
[58] The document entitled "Summary of Information Pertaining to the Application for the [sic] Release by Mohamed Zeki Mahjoub Pursuant to Section 84 of the Immigration and Refugee Protection Act" as amended May 12, 2005, sets out the opinion of CSIS (also the "Service") that the release of Mr. Mahjoub would be injurious to national security and the safety of persons, and summarizes the information made available to the designated judge. The Service is of this opinion based on its view that the release of Mr. Mahjoub "would place him in a position to recommence his contacts with members of the Islamic extremist network, allowing them to be involved in the planning and execution of terrorist acts". This view is based, in part, upon:
1. Mr. Mahjoub's past support for Islamic extremism.
2. Mr. Mahjoub's non-eschewal of the Islamic extremist cause.
3. Mr. Mahjoub's propensity to the use of violence.
4. Mr. Mahjoub's non-eschewal of the use of violence.
5. Mr. Mahjoub's potential to re-associate with the Islamic extremist cause while in detention.
6. Mr. Mahjoub's use of a covert security technique.
7. Mr. Mahjoub's potential to re-associate with Islamic extremists.
8. Mr. Mahjoub's prior untruthful statements to the Court.
9. Further disclosure of information previously kept confidential.
[59] The information which was before the Court, but which had not previously been disclosed to Mr. Mahjoub concerns his prior activities and is as follows:
· The Service was aware, as of 1996/1997, that Mr. Mahjoub was identified as "Shaker", whom the service believed was an important member of the Islamic extremist movement.
· Service investigation had revealed, in 1997, that Mr. Mahjoub had resided with the Khadr family.
· The Service was aware, starting in 1996, that Mr. Mahjoub was associated with Essam Hafez Marzouk.
· Service investigation had revealed that Mr. Mahjoub was associated with Mubarak Al Duri after December of 1995.
· Service investigation had revealed that Mubarak Al Duri had also resided in Richmond, British Columbia and may have been associated with Essam Hafez Marzouk.
Mr. Mahjoub did not seek to lead evidence to respond to this disclosure.
(vi) Analysis of the Danger, if any, Mr. Mahjoub's Release Would Pose
[60] My analysis of this issue is conducted within the following framework:
(a) Mr. Mahjoub's past support for Islamic extremism;
(b) Mr. Mahjoub's non-eschewal of the Islamic extremist cause;
(c) Mr. Mahjoub's potential to re-associate with Islamic extremists;
(d) Mr. Mahjoub's prior untruthful statement to the Court; and
(e) Conclusions to be drawn from the above with respect to danger.
(a) Mr. Mahjoub's past support for Islamic extremism
[61] At the outset, I note that in this proceeding no challenge has been made to the assertion that both the VOC and the AJ are terrorist organizations. Both were among the first organizations banned in Canada under the Anti-Terrorism Act, S.C. 2001, c. 41.
[62] As to the nature of their activities, Jane's describes AJ to be an umbrella organization which includes the VOC, noting that in 1999 it, along with Al-Qaeda and others, formed the Islamic Front for Fighting Crusaders and Jews. Jane's observes that it was reported in June of 2001 that the AJ merged with Al-Qaeda into a single group known as Qaeda al-Jihad. Jane's also reports that the AJ was the "backbone" of Al-Qaeda.
[63] Credible, publicly available information that Mr. Mahjoub has not challenged reports that:
- While initially the AJ was formed from organizations seeking the overthrow of the secular government in Egypt and the establishment of a radical Islamist organization, as it became increasingly involved in the Al-Qaeda network its objectives expanded in line with an international radical Islamist agenda. It now seeks the establishment of a Caliphate from "Andalucia to Xinjiang".
- President Anwar Sadat was assassinated by four members of the AJ on October 6, 1991.
- In November of 1995, the AJ executed a suicide car bomb operation against the Egyptian embassy in Islamabad, Pakistan.
- In October of 1997, the AJ called for Egyptian Armed Forces to overthrow the Mubarak regime.
- In a statement issued in November of 1997, the AJ warned that the Luxor bombing attack "will not be the last because the mujahedin will continue their work so long as the government continues to torture and kill the sons of the Islamic movement. Foreigners are not targeted simply because they are foreigners, but we have previously warned them about the financial support to the regime which tourism revenue represents".
- 48 hours before the August 1998 bombings of the United States' embassies in Nairobi and Dar as Salem, AJ issued a statement reacting to the United States intelligence services' involvement in the arrest of 3 AJ members in Albania and the subsequent delivery of them to Egyptian authorities. The statement included the following quotation "we wish to briefly tell the Americans that we received their message, and a reply message is now being prepared. We hope they will read it carefully because we will, God willing, write it in the language they understand".
- United States and European intelligence agencies are reported to have "turned up reliable intelligence" linking the U.S.-African embassy bombings to AJ.
- In 2000, investigations into the attack on the USS Cole named AJ operatives as assisting in the planning and direction of the attack.
- The VOC was created as a faction of the AJ.
- In 1993, the VOC attempted to assassinate the Egyptian Interior Minister and the Egyptian Prime Minister.
- In 1995, the VOC claimed responsibility for the June assassination attempt on Egyptian President Mubarak in Ethiopia.
- In February of 1998, the VOC issued a statement calling for the expansion of membership in the World Islamic Front for Jihad against Jews and Americans.
- The AJ was funded directly by Osama Bin Laden who in 1998 was reported to have long been closely linked to the AJ.
- Dr. Ayma Al-Zawaheri, at one time a leader of the AJ, went on to become a close associate and spokesperson for Osama Bin Laden. Dr. Al-Zawaheri is reported to have influenced Bin Laden to change his ideology to that of Jihad.
[64] As to Mr. Mahjoub's involvement with the AJ and the VOC, I find that the information before the Court gives rise, at the least, to an objectively reasonable suspicion that at the time of his detention and before that:
1. Mr. Mahjoub was a high-ranking member of the VOC, which is a faction of the AJ.
2. Mr. Mahjoub was a member of the Shura council of the VOC, and as such would normally participate in the decision-making process of that terrorist organization.
3. Mr. Mahjoub had engaged in terrorism. Sometime around 1996/1997 he became identified by the alias "Shaker".
4. Mr. Mahjoub had significant contacts with persons associated with international Islamic terrorism including Osama Bin Laden, Ahmad Said Khadr, Essam Hafez Marzouk, Ahmed Agiza, and Mubarak Al Duri. He also had contact with Mahmoud Jaballah. In view of the status of Mr. Jaballah's proceedings in this Court, I make no finding or comment with respect to Mr. Jaballah's alleged involvement in terrorist activities.
[65] In regard to Mr. Mahjoub's contact with others, while the involvement of Osama Bin Laden and Ahmad Said Khadr (the Canadian also known as "Al Canadi") with Islamic terrorism is well-known, the involvement of the others is less known and may be briefly summarized as follows.
[66] Essam Hafez Marzouk was convicted in Egypt of being a member of the AJ. He is currently serving a 15-year jail sentence in Egypt for his involvement in terrorism, including supervising an Al-Qaeda training camp and being a member of a cell that planned the U.S. embassy bombings in Africa.
[67] Ahmed Agiza is believed to be a leader of the VOC who was accused of involvement in the bombing of the Egyptian embassy in Islamabad, Pakistan.
[68] Mubarak Al Duri is reported to be Osama Bin Laden's principal procurement agent for weapons of mass destruction. While living in Tucson, Arizona he became acquainted with Wadi al Hage who is in U.S. custody for the bombing of the U.S. embassies in Africa. Mr. Al Duri also resided in British Columbia and may have been associated with Mr. Marzouk.
[69] Mr. Jaballah is alleged to be a member of the AJ.
[70] As for the evidence I rely upon to reach the above finding with respect to Mr. Mahjoub's involvement with the AJ and the VOC, first, Mr. Mahjoub testified at the inquiry into the reasonableness of the security certificate that while residing in Sudan, he worked for Osama Bin Laden and had met with him on a number of occasions. While Mr. Mahjoub testified that he did not know what Al-Qaeda was and that his sole involvement was as the deputy general manager of the al-Damazin Farms project in Sudan, like Mr. Justice Nadon I find that innocent explanation to be implausible. I find it to be implausible that a person with no prior work experience: would be hired and placed in charge of 4,000 employees and a project that occupied approximately one million acres of land; would be paid $1,500 U.S. per month when the average annual per capita income in Sudan was under $150 U.S.; and would then quit the job over a salary dispute, reject an offer to return at the higher salary he sought from Bin Laden, and instead choose to earn between $350 U.S. and $400 U.S. per month buying and selling goods in a market.
[71] Second, Mr. Mahjoub admitted to the Service that he had stayed with Mr. Khadr's in-laws and that Mr. Mahjoub's wife is a friend of Mr. Khadr's widow. Mr. Mahjoub also lived with the Khadr family in 1997.
[72] This evidence shows that Mr. Mahjoub had access to individuals who were very highly placed and influential in the Islamic extremist movement.
[73] Additionally, I rely substantially on the confidential information which is attached as Schedule A to a second order issued on the same day as these reasons and order ("accompanying order"). The information I rely upon goes far beyond guilt by association with Messrs. Bin Laden and Khadr. I place no reliance upon Mr. Mahjoub's conviction in absentia in Egypt.
[74] The evidence adduced by the Ministers is sufficient, I find, to establish that at the time Mr. Mahjoub was detained he posed a danger to national security.
(b) Mr. Mahjoub's non-eschewal of the Islamic extremist cause
[75] As noted above, in this proceeding Mr. Mahjoub has not eschewed religious extremism or the use of violence.
[76] The Service advises that it holds no information that would lead it to believe that Mr. Mahjoub has renounced either the Islamic cause in general, or the causes associated with the AJ, the VOC or Osama Bin Laden's network.
[77] I accept that the Service holds no such information. As Chief Justice Richard of the Federal Court of Appeal wrote in Charkaoui (Re), 2004 FCA 421 at paragraph 153, counsel for the Ministers is under the duty of utmost good faith in the representations made to the Court; no relevant information may be withheld. The principle of full and frank disclosure in ex parte proceedings is a fundamental principle of justice. In my questioning of counsel for the Ministers and their witnesses, I have found no basis to believe that any exculpatory evidence concerning Mr. Mahjoub is possessed by the Service.
(c) Mr. Mahjoub's potential to re-associate with Islamic extremists
[78] The Service relies upon generalized assessments prepared by Dr. Marc Sageman and another individual in order to argue that individuals who have opted for radical Islam must be considered to be threats to the Canadian public safety for the indefinite future because it is highly unlikely that they will cast off their views on Jihad and the justification for the use of violence. Those who have chosen extremism are said to range from those who simply lend support to those who agree to carry out operations. The latter individuals are said to be "deeply committed over many years and this commitment is long-lasting".
[79] The Service also points to factors that Dr. Sageman concluded described aspects of a committed Islamic extremist including:
- the existence of reinforcement of group dynamics which is required in order to sustain the motivation to conduct terrorism; and
- the existence of reinforcement from family and friends.
[80] The Service believes that while in detention Mr. Mahjoub has had the continued support of family and friends who are associated with Islamic extremism. Thus, Mr. Mahjoub is said to benefit from the group dynamics and family reinforcement necessary to sustain the motivation to conduct terrorism.
[81] I accept that the opinions the Service relies upon may well be true on a broad basis in a number of cases. However, such evidence falls short of being accurate in every case.
[82] Also relevant to the issue of the potential for Mr. Mahjoub to re-associate with Islamic extremists are Mr. Mahjoub's arguments that, for the reasons set out above, it would be difficult for him to re-establish contact with any extremist network or to be contacted by any new contact. However, those arguments must be viewed in light of the following considerations:
(i) while a number of Mr. Mahjoub's former contacts are dead or incarcerated, as explained below, I am not satisfied that it is reasonable to conclude that the Service is, or was, aware of all of Mr. Mahjoub's potential contacts.
(ii) while the VOC, AJ and Al-Qaeda have undergone structural changes, as Jane's notes the AJ is believed to have "dispatched numerous cells, many of which are believed to remain at-large, that are fully self-sufficient and capable of future terrorist activities". Also there is evidence that Al-Qaeda remains a very dangerous group that provides ideological inspiration and which, before the U.S.-led invasion of Afghanistan, had dispatched trained mujahedin to function as sleepers.
(iii) while publicity and scrutiny by an intelligence agency may impede terrorist activities, it is to be remembered that Ahmed Said Khadr was the subject of intense media attention after his release from custody in Pakistan, yet he was able to return to activities in support of Jihad.
(iv) further to this point, publicly available evidence discloses that new technology has affected the ability of intelligence agencies to monitor targets of their investigations. A briefing note prepared for the Director of the Service for a February 2005 appearance before a Parliamentary Committee on public safety and national security notes that while communications intercepts are an essential tool for CSIS, the emergence of new technologies results in CSIS finding it "increasingly difficult to maintain its intercept capability". This document was received by the Court at its request after the publication of certain news reports and was disclosed to counsel for Mr. Mahjoub. This subject was canvassed by the Court in more detail in an ex parte in camera session. See the proceedings of May 3, 2005 at page 12 and following and at page 24 and following.
(v) on a related point, there is some evidence to suggest that Mr. Mahjoub in the past believed that he was under investigation by Canadian officials and so employed measures to counter that investigation. However, the evidence on this point is, in my view, somewhat equivocal. The information is confidential and is attached as Schedule B to the accompanying order.
(d) Mr. Mahjoub's prior untruthful statements to the Court
[83] In his reasons finding the security certificate to be reasonable, Mr. Justice Nadon found that Mr. Mahjoub:
- admitted that he perjured himself when he testified before Justice Nadon denying that he knew a person named Marzouk;
- was not truthful in his testimony about who Mr. Al Duri was, and what his true connection to Osama Bin Laden and Mr. Mahjoub was;
- was not truthful with respect to his explanation as to why he denied to CSIS his use of the name "Mahmoud Shaker";
- lied when he testified that he had never discussed politics while he was in Sudan;
- was untruthful regarding his true activities while in Sudan; and
- lied to CSIS when he denied knowing Mr. Khadr.
Mr. Mahjoub admitted to Mr. Justice Nadon that he was known by the alias Mahmoud Shaker and that he lied to CSIS about this, denying his use of the alias.
[84] I similarly conclude that Mr. Mahjoub gave untruthful testimony to the Court during the detention review proceedings. By way of example, on June 3 and June 4, 2004, Mr. Mahjoub gave evidence in a voir dire held in support of his motion allowing him to give evidence in camera, in the absence of the public and media. On June 3, 2004, he gave evidence about how many people he had made certain complaints to, and he was afforded the opportunity over lunch to review his notes on this point. On June 4, 2004, Mr. Mahjoub was recalled in order to give further evidence he had remembered overnight of additional complaints he had made. Afterwards, on cross-examination, when it was put to him that he had adequate time to review his notes on June 3 for the purpose of providing a complete list of complaints, he blamed the cross-examination conducted by counsel for the Toronto Star for having "blocked his memory". However, Mr. Mahjoub's cross-examination on this point by counsel for the Ministers had been concluded before he was cross-examined by counsel for the Toronto Star. I find that Mr. Mahjoub was deliberately untruthful when he seized upon the cross-examination conducted by counsel for the Toronto Star in order to attempt to explain why he did not answer more completely the previous day.
[85] However, it is in the confidential record that significant instances of untruthful testimony are revealed. This information is attached as Schedule C to the accompanying order.
(e) Conclusions to be drawn from the above with respect to danger
[86] At this point, I return to the legal principles which govern this application.
[87] In order to meet his evidentiary onus Mr. Mahjoub points to changes in the status of the AJ, the VOC and Al-Qaeda and of his own contacts, and to JP's evidence as to factors which can impede an individual's effectiveness in participating or assisting terrorist activities. Missing from his evidence is his personal testimony eschewing Islamic extremism and the use of violence, and his assurance he would not support, encourage or take part in acts that would pose a danger. I view this to be a significant omission. On this point, I endorse wholly the comments of my colleague Mr. Justice Simon Noël in Charkaoui (Re), [2005] 3 F.C.R. 389. He wrote at paragraph 53:
53 Moreover, how can a designated judge assess the existence of danger and the possibility of a conditional release if the person concerned does not tell him, inter alia, that he intends to comply with the conditions? How can a designated judge assess the trust which he must have in the person concerned in order to consider the possibility of a conditional release? In national security, the mere suggestion of conditions for release (including a colossal sum for bail) will not suffice. The designated judge must have all the information necessary at his disposal for him to be able to fully perform his function, taking into account the exceptional responsibility entrusted to him by Parliament.
[88] Weighed against Mr. Mahjoub's evidence is the evidence adduced by the Ministers that led me to find that there is, at least, an objectively reasonable suspicion that: (i) Mr. Mahjoub was a high-ranking member and decision-maker in the VOC, a terrorist organization; (ii) he has engaged in terrorism; and (iii) he had significant contacts with persons closely associated with Islamic terrorism including Messrs. Bin Laden, Khadr, Marzouk, Agiza and Al Duri. As such, Mr. Mahjoub posed a substantial threat of harm so as to present a real and substantial danger to Canada's national security and the safety of persons when he was apprehended and detained.
[89] The evidence adduced on behalf of the Ministers with respect to Mr. Mahjoub's potential to re-associate with Islamic extremists is not conclusive in the sense that while many or most individuals who opt for radical Islam do not renounce their views, this may not be true in every case. However, it is for Mr. Mahjoub to satisfy the Court on a balance of probabilities that his release will not pose a danger, and it is when considering the nature of the evidence that he has adduced that his untruthfulness to the Court takes on particular importance. His untruthfulness, particularly with respect to both his activities in Sudan and his prior relationship with Messrs. Marzouk, Al Duri, Bin Laden, and Khadr raise a real doubt as to whether all of his prior contacts and potential contacts have been revealed and compromised. His untruthfulness also raises doubt as to the reliance the Court can place upon assurances given on Mr. Mahjoub's behalf.
[90] The VOC, the AJ and Al-Qaeda remain dangerous terrorist groups. JP testified, and I accept, that it is generally the case that individuals with pedigrees and reputations are, if they desire, able to reacquaint themselves within a certain milieu with varying levels of ease.
[91] If released, concerns exist as to the ability of the authorities to intercept covert communications and there is at least some suspicion that Mr. Mahjoub has, in the past, employed measures to counter any investigation that may have been directed against him. There is, in my view, a reasonable basis to believe that Mr. Mahjoub was a leader, a decision-maker, a planner and a recruiter for the radical Islamic cause. Those activities may be carried out, at least in significant part, by covert communication.
[92] In weighing these considerations, I am mindful that issues of significant concern to Canadian society are posed whether Mr. Mahjoub continues in detention or is released. This is so because detention of uncertain duration is anathema to the principles which govern our judicial system. Equally, the Act requires the designated judge to be satisfied that national security or the safety of persons will not be put in danger if Mr. Mahjoub is released. After deep reflection I must find that, on the basis of the concerns set out above, Mr. Mahjoub has not persuaded me on a balance of probabilities that his release would not pose a danger to national security or to the safety of any person.
[93] While I find the prospect of Mr. Mahjoub's continued detention to be deeply troubling (particularly in the conditions in which he is now held), to release Mr. Mahjoub would require me to substitute a harboured hope that his release would not pose a danger for the standard legislated in the Act. That is not what Parliament intended, nor would it be a responsible decision because, in the context of national security, failure can carry tragic consequences.
(vii) Can Such Danger be Neutralized or Contained by the use of Sureties and the Imposition of Conditions?
[94] I have found that Mr. Mahjoub has failed to establish that his release would not pose a danger. However, the inquiry does not end there.
[95] Mr. Mahjoub submits that release on terms and conditions would be appropriate and that those terms and conditions would be sufficient to insure that Mr. Mahjoub's release would not pose a danger. With the release of Mr. Charkaoui, Mr. Mahjoub points to a judicial trend to release in Canada upon conditions and points to various conditions including house arrest, electronic tagging, curfews, a ban on internet and cell phone use, a requirement to obtain permission to meet anyone outside the home, living at a fixed address, restrictions on visitors, restrictions on bank accounts and monthly written reporting requirements as being appropriate conditions. Mr. Mahjoub also submits that his proposed sureties have sufficient influence over him so as to make it unlikely that any imposed conditions would be breached. Specifically he says that:
- He has a close relationship with his wife.
- Dr. Hindy and Dr. Haleem are both Muslim. Mr. Mahjoub would not breach the conditions of his release because of his religious beliefs and the negative impact this would have on his reputation and that of his family in the Muslim community.
- Mr. Behrens has developed a close relationship with Mr. Mahjoub and his evidence is that Mr. Mahjoub respects him and turns to him for advice.
[96] Mr. Behrens and Mrs. El Fouli are said to be best placed to insure the ongoing supervision of Mr. Mahjoub.
[97] In July of 2003, I determined that I was not satisfied that the presence of the sureties and the posting of a cash bond would address the danger I believed would be posed by Mr. Mahjoub's release. I observed that with the exception of Mr. Mahjoub's wife, none of the proposed sureties appear to have known Mr. Mahjoub well, or for a long period of time.
[98] I have since heard the testimony of Dr. Haleem (who had not previously testified as a proposed surety) and Mr. Behrens. While both witnesses are undoubtedly sincere and motivated by their convictions, I am not satisfied that either would by their addition as a surety significantly alter the situation that was before the Court in July of 2003.
[99] Dr. Haleem has known Mrs. El Fouli for three years and met Mr. Mahjoub in the mosque "a couple of times". He has a full-time job as a consulting engineer and a one-year-old and a 4-year-old child. He was unaware that Mr. Justice Nadon found that Mr. Mahjoub had lied to the Court. He therefore does not know Mr. Mahjoub well and has limited time available for his duties as a surety.
[100] Mr. Behrens is a member of the Campaign to Stop Secret Trials in Canada. The purpose of the campaign is to abolish the security certificate process. Members of Mr. Behrens family know Mrs. El Fouli and her children. Mr. Behrens receives phone calls from Messrs. Mahjoub, Almrei and Jaballah. He has "gotten to know [Mr. Mahjoub] over the last couple of years" and has also offered to post bond for Mr. Almrei. He does not speak Arabic. His involvement in the Campaign to Stop Secret Trials, in my view, raises doubt as to his objectivity as a surety.
[101] In the present case, the question becomes whether the presence of the sureties and the imposition of conditions would be sufficient not to impede but to neutralize the danger I have found would be posed by Mr. Mahjoub's release. I conclude that they would not because Mr. Mahjoub has not convinced me that he may be trusted to abide by those conditions. In this regard, I again point to the lack of testimony under oath from Mr. Mahjoub to that effect. Further, even in the absence of that testimony, the medical opinion of Dr. Bagby is that Mr. Mahjoub experiences confused thinking, distorted perceptions and impaired judgment. This does not give comfort that conditions would be complied with.
[102] As well, with the exception of Mrs. El Fouli, I am not satisfied that the sureties know Mr. Mahjoub sufficiently well and have the ability to control Mr. Mahjoub's actions. Mrs. El Fouli was separated from Mr. Mahjoub at the time of his detention.
[103] To the extent the sureties are inadequate to insure compliance with any terms and conditions, there is also the evidence with respect to frailties in the Service's ability to intercept communications. There are also additional relevant concerns that arise out of the confidential information. This information is attached as Schedule D to the accompanying order.
[104] On the whole, after hearing all of the evidence and observing Mr. Mahjoub give evidence, I am not confident that conditions and the proposed sureties would be sufficient to neutralize the danger that I believe Mr. Mahjoub's release would pose. This, however, is not to say that this conclusion is determinative of any future application for release from detention. It remains open to Mr. Mahjoub to apply again for release and to provide better sureties and evidence including his own testimony that could be capable of convincing the Court that the danger he poses could be neutralized.
ORDER
[105] THIS COURT ORDERS THAT:
For these reasons, the application is dismissed.
"Eleanor R. Dawson"
_______________________________________
Judge
APPENDIX A
Chronology of Events
1995
December 30 Mr. Mahjoub enters Canada and immediately makes a claim for Convention refugee status.
1996
October 24 Mr. Mahjoub is declared to be a Convention refugee by the Convention Refugee Determination Division of the Immigration and Refugee Board.
2000
June 26 Mr. Mahjoub is detained on the basis of a security certificate signed by the Solicitor General of Canada and the Minister of Citizenship and Immigration (the Ministers), pursuant to paragraph 40.1(3)(a) of the former Immigration Act, in which the Ministers expressed their opinion based on a security intelligence report that Mr. Mahjoub is a person described in subparagraph 19(1)(e)(ii), clauses 19(1)(e)(iv)(B) and (C), subparagraph 19(1)(f)(ii), and clause 19(1)(f)(iii)(B) of the former Act.
June 27 The Ministers cause a copy of the security certificate to be referred to the Court for determination as to whether the certificate is reasonable or should be quashed.
June 30 Mr. Justice Nadon examines, in camera, the security intelligence report considered by the Ministers and hears counsel on behalf of the Ministers with respect to the matters raised in the security intelligence report. Mr. Justice Nadon orders that a statement, summarizing such information as would enable Mr. Mahjoub to be reasonably informed of the circumstances giving rise to the issuance of the certificate, be provided to Mr. Mahjoub, having had regard to whether the disclosure of information would be injurious to national security or to the safety of persons.
September 11 A hearing is held before Mr. Justice Nadon regarding Mr. Mahjoub's motion for orders for disclosure and determination of constitutional issues. The Court is to advise counsel when it is available to hear this motion and the hearing on the merits.
November 20 The Court orders that Mr. Mahjoub's motion is to be heard on January 16 and 17, 2001.
December 1 Conference call occurs between the Court and the parties to discuss the scheduling of the hearing on the merits; the date of February 26, 2001 is tentatively scheduled.
December 16 Mr. Justice Nadon orders that the hearing on the merits is scheduled for February 26, 2001 for a duration of ten days.
2001
January 16 & 17 A hearing is held before Mr. Justice Nadon regarding Mr. Mahjoub's motion for disclosure of documents and questions concerning the Court's jurisdiction, and other relief. Decision is reserved.
January 23 Mr. Justice Nadon orders that the Court does not have jurisdiction to decide the constitutional and Charter issues raised by Mr. Mahjoub. As a result, that part of the motion is dismissed.
February 16 Mr. Justice Nadon orders that Mr. Mahjoub's motion for disclosure is denied.
February 26 -
March 8 A hearing on the merits is held before Mr. Justice Nadon for the purpose of providing to Mr. Mahjoub a reasonable opportunity to be heard with respect to the certificate.
May 8 Additional submissions are made by counsel to Mr. Justice Nadon. The matter is reserved.
October 5 Mr. Justice Nadon orders that, on the basis of the evidence and information available to him, the certificate filed by the Ministers is reasonable.
2002
March 25 Mr. Mahjoub is found to be inadmissible by the Adjudication Division of the Immigration and Refugee Board, based on the security certificate. A deportation order is issued.
June 28 The Immigration and Refugee Protection Act ("IRPA") comes into effect.
October 18 Mr. Mahjoub files a motion for release from detention and for other relief.
October 22 The Ministers request a conference call to determine the dates for hearing.
October 24 The Associate Chief Justice directs that a teleconference be scheduled for October 30 to discuss the setting of dates and procedures.
October 30 Teleconference with Mr. Justice Blais is held, and a two-day hearing is to be scheduled as soon as possible for the hearing of Mr. Mahjoub's motion for release.
October 31 Mr. Justice Blais orders that the hearing of the motion for release is to be heard on January 28 and 29, 2003.
November 5 Madam Justice Dawson directs that the Ministers provide dates during the weeks of November 25 and December 9 for an in camera hearing.
November 12 Associate Chief Justice directs that an in camera ex parte hearing is to take place on December 12.
December 12 & 16 An in camera hearing takes place at which time Madam Justice Dawson reviews updated information provided to the Court in response to Mr. Mahjoub's motion for release. Madam Justice Dawson also hears information as to why the disclosure of this information would be injurious to national security. Upon being satisfied that the information is relevant, but that its disclosure would be injurious to national security, Madam Justice Dawson orders that the information or evidence examined in camera shall not be disclosed to Mr. Mahjoub, but that the summary of the information shall be provided to Mr. Mahjoub. Madam Justice Dawson also confirms that the hearing of the motion for release is to take place on January 28 and 29, 2003.
2003
January 17 Madam Justice Dawson orally directs that a teleconference be scheduled for January 24.
January 24 Teleconference with Madam Justice Dawson is held to discuss matters that might assist in the hearing of the motion for release. The hearing of the motion for release is adjourned from January 28 and 29 at Mr. Mahjoub's request due to the unavailability of a witness.
February 19 Judicial Administrator orders that the hearing of the motion for release is to take place on March 29, 2003.
March 28 Teleconference with Madam Justice Dawson is held to discuss an adjournment of the March 29 hearing of the motion for release. The hearing is adjourned to a date to be set by the Judicial Administrator.
April 23 Judicial Administrator orders that the hearing of the motion for release is to take place on May 10, 2003.
May 10 The hearing of Mr. Mahjoub's motion for release is heard before Madam Justice Dawson. The parties agree to bifurcate the proceedings and to consider separately the issue of release and the issue of the challenges to the constitutionality of sections of the IRPA. Madam Justice Dawson reserves her decision on the release aspect of the motion. If Mr. Mahjoub is not successful on the issue of release, the hearing is to resume to consider the constitutional issues.
July 30 Madam Justice Dawson determines that Mr. Mahjoub has not met the onus upon him of satisfying the Court, on a balance of probabilities, that he will not be removed from Canada within a reasonable time and that his release from detention will not pose a danger to national security or to the safety of any person. Madam Justice Dawson directs counsel to correspond with the Registry of the Court with respect to scheduling the hearing of the second part of Mr. Mahjoub's motion, namely the constitutionality of his detention.
September 15 Madam Justice Dawson directs that the parties consult and provide the Court with dates on which they would be available for the hearing of the balance of the motion.
October 28 Madam Justice Dawson directs that counsel respond to the direction of September 15, 2003 and provide availability for the finalization of argument on the motion.
November 6 Madam Justice Dawson directs that counsel provide availability for a teleconference on November 10, 12 or 13, 2003.
November 12 Teleconference held with Madam Justice Dawson to discuss availability for the resumption of the hearing. The hearing is adjourned to a date to be set by the Judicial Administrator.
November 20 Order issues fixing hearing of constitutional aspect of motion for January 10 and 11, 2004.
2004
January 7 Mr. Mahjoub files a motion for an order adjourning the January 10 hearing on the motion for release. Madam Justice Dawson orally directs that the motion to adjourn be heard on January 9.
January 9 Madam Justice Dawson hears Mr. Mahjoub's motion to adjourn the January 10 hearing on the motion for release. Madam Justice Dawson grants the motion, and the hearing is adjourned to a date to be set by the Judicial Administrator.
January 28 Teleconference held with Madam Justice Dawson to discuss resumption of the proceedings. Counsel are to provide dates of availability for possible hearing of a motion yet to be filed by Mr. Mahjoub.
February 5 Madam Justice Dawson directs that Mr. Mahjoub's motion to reopen evidence in the release aspect of his motion is to be heard on March 8, 2004. Mr. Mahjoub's motion in this respect is to be filed by February 23, 2004.
February 23 Mr. Mahjoub files a motion for an order granting leave to raise additional issues and to adduce additional evidence regarding the release aspect of his motion.
March 2 Madam Justice Dawson directs that counsel provide a draft notice of constitutional question and dates of availability for the completion of the motion for release.
March 8 A hearing is held before Madam Justice Dawson at which she grants leave to Mr. Mahjoub to raise additional issues and to adduce additional evidence with respect to the nature and conditions of his detention.
March 18 Madam Justice Dawson directs that the hearing of the motion for release is to begin on May 31, 2004 and continue to June 4, 2004.
May 31 - June 4 The hearing of Mr. Mahjoub's motion for release is held before Madam Justice Dawson. Mr. Mahjoub's counsel advises that they will be requesting that a portion of Mr. Mahjoub's evidence be given in camera. Madam Justice Dawson grants leave to the Toronto Star to intervene in the application of Mr. Mahjoub to have certain proceedings held in camera. Madam Justice Dawson permits a voir dire for the purpose of hearing evidence on which the decision to receive evidence in camera could properly be made. The hearing of Mr. Mahjoub's motion for release is adjourned late in the afternoon of June 4.
June 24 Teleconference held with Madam Justice Dawson to discuss scheduling of the continuation of the hearing of the motion for release. On consent, the hearing is tentatively scheduled for September 7, 8, 9 and 10, 2004 (earlier dates in July and August being offered by the Court).
June 28 Madam Justice Dawson orders that the hearing of the motion for release is to begin on September 7 and continue to September 10, 2004.
July 22 In confidential reasons, Madam Justice Dawson orders that Mr. Mahjoub's request to give a portion of his evidence in camera is denied.
August 16 Public version of reasons for order and order regarding the motion of Mr. Mahjoub to give a portion of his evidence in camera is released.
September 7 & 8 The hearing of Mr. Mahjoub's motion for release is continued before Madam Justice Dawson. The hearing is adjourned pending written arguments and further oral representations. On September 8, in related proceedings, the Court stays Mr. Mahjoub's removal from Canada pending judicial review of the Minister's decision under section 115 of the Act.
September 23 The Court receives the joint submission of the parties with respect to proposed deadlines for filing written submissions.
October 5 Mr. Mahjoub's counsel requests an extension of time to file written submissions.
October 6 The time for filing submissions is extended to October 18, 2004.
October 8 Counsel for the Minister suggests that he could file written submissions on November 19.
October 12 Madam Justice Dawson directs that the time for filing submissions of the Minister is extended.
October 20 Mr. Mahjoub's counsel indicates that his submissions will be filed on October 21, 2004.
October 21 Madam Justice Dawson directs that the same extension of time be granted to the Ministers as was required by Mr. Mahjoub.
November 22 Counsel for the Ministers request an extra day in which to file their submissions.
December 3 Counsel for the Ministers request an extension of time to file a joint Book of Authorities.
December 13 Madam Justice Dawson directs that counsel consider whether they wish to make further submissions as a result of the Federal Court of Appeal decision in Charkaoui.
December 20 Madam Justice Dawson directs a schedule for the filing of further material.
2005
January 31 Madam Justice Dawson directs that counsel are invited to express views whether "new" evidence or further argument on Mr. Mahjoub's motion for release should be addressed and considered, in light of the decision of the Court setting aside the Minister's decision under section 115 of the Act, and the delay experienced since the original decision denying release in July of 2003. A teleconference is to be scheduled for February 3 or 4, 2005.
February 4 Teleconference held with Madam Justice Dawson to discuss if further submissions are required and to schedule a timetable. New evidence is to be adduced. Counsel are to advise the Court by February 8, 2005 of a timetable for filing of documents and further availability.
February 9 Madam Justice Dawson orders that a hearing is to be held on February 11, 2005 for the purpose of hearing additional evidence and any oral argument the parties are ready to address to the Court.
February 11 A hearing is held and evidence adduced. The matter is adjourned and a further teleconference is scheduled for February 15, 2005 to discuss further scheduling.
February 14 Madam Justice Dawson directs that counsel for the Ministers' availability is required for a one-day hearing. At such hearing they are to produce a knowledgeable witness to give evidence and answer questions for the Court. Counsel are advised the witness should be prepared to testify and respond to the Court's questions with respect to: whether any further information in the confidential record may be summarized and provided to Mr. Mahjoub; the source of each items of evidence in the confidential record relied upon to support the conclusion that Mr. Mahjoub's release from detention would pose a danger to national security or to the safety of any person; and the presence or absence of independent corroborating evidence.
February 15 Teleconference held with Madam Justice Dawson to discuss further scheduling.
February 17 Madam Justice Dawson orders that a further public hearing take place on March 14 and 15 in Toronto, an ex parte in camera hearing proceed on March 18 in Ottawa and the Court sit on March 22 to hear final argument.
March 14 & 15 The hearing of Mr. Mahjoub's motion for release is continued before Madam Justice Dawson, at which time further evidence is heard. The hearing is adjourned until March 22, 2005.
March 18 Madam Justice Dawson hears evidence, in camera ex parte, in the hearing of Mr. Mahjoub's motion for release. The matter is adjourned to a date to be set so that further information may be obtained with respect to the Court's questions. A teleconference is also held on this date to discuss the impact of the adjournment of the in camera proceeding on the hearing of the motion for release scheduled for March 22, 2005. It is determined that the hearing on March 22 will proceed as scheduled.
March 22 The hearing of Mr. Mahjoub's motion for release is continued before Madam Justice Dawson, at which time submissions are made to the Court. The hearing is adjourned sine die.
April 1 Madam Justice Dawson directs that the Court will sit on May 2, 2005, in camera and ex parte, for the purpose of receiving further information and testimony.
May 2 & 3 Madam Justice Dawson hears evidence, in camera ex parte, in the hearing of Mr. Mahjoub's motion for release. Further evidence is to be provided by the Minister.
May 4 Madam Justice Dawson advises counsel following the hearing on May 2 and 3 that the Court is in the process of finalizing a public summary of evidence. Madam Justice Dawson directs that the proceeding stands adjourned awaiting further information from the Ministers.
May 12 Madam Justice Dawson orders that the amended Summary of Information pertaining to release be served on Mr. Mahjoub. Madam Justice Dawson also directs that the Ministers provide by June 1, 2005 confidential submissions to the Court as to what further confidential evidence received on May 2 and 3, 2005 may be made public.
May 19 Teleconference held with Madam Justice Dawson discussing disclosure of information, and it is agreed that the process of further disclosure will continue.
June 9 Ex parte teleconference held with Madam Justice Dawson to discuss the draft summary of information arising out of the May 2 and 3, 2005 hearing. Counsel are to revise the summary in light of propositions put by the Court.
June 10 Teleconference held with Madam Justice Dawson to discuss the time for filing of final written submissions. Counsel are to file a draft consent schedule by June 17, 2005. Mr. Mahjoub's counsel advises that a psychologist has been found who is willing to assess Mr. Mahjoub and it is agreed that counsel will jointly propose a schedule for the completion of evidence and submissions.
June 17 Counsel for Mr. Mahjoub requests that the proposed schedule be deferred until they know when the psychologist will be ready.
June 21 Madam Justice Dawson orders the release for disclosure of the summary of the in camera ex parte hearings on March 18 and May 2 & 3, 2005.
June 22 A hearing is held before Madam Justice Dawson, in camera ex parte, to determine if further disclosure is possible and to discuss potential conditions of release.
June 29 Madam Justice Dawson orders that further disclosure be made, and indicates that this completes the disclosure the Court is able to make. Madam Justice Dawson also directs counsel to make every effort to move matters forward as quickly as possible, and acknowledges that delay has been encountered as a result of difficulty the psychologist has encountered in obtaining access to Mr. Mahjoub.
July 6 Psychological assessment of Mr. Mahjoub is received by the Court.
July 11 Madam Justice Dawson issues a direction requesting counsel to advise as to their availability for a case management teleconference for the purpose of confirming further scheduling details. Counsel indicated their availability for July 15, 2005.
July 15 Teleconference held with Madam Justice Dawson to discuss further scheduling. The hearing is scheduled for August 3, 2005 for final oral submissions on the motion for release.
August 3 The hearing of Mr. Mahjoub's motion for release is continued before Madam Justice Dawson. The matter is reserved. Counsel for Mr. Mahjoub is given seven days to submit a clarification of the psychologist's report, and the Ministers are to have seven days to respond.
August 10 The Court directs that counsel for the Ministers attend before the Court on August 19 ex parte and in camera for the purpose of making submissions as to why there should not be further disclosure of certain information previously provided to the Court ex parte and in camera.
August 22 After an ex parte and in camera session on August 19 the Court amends the public summary to provide further disclosure to Mr. Mahjoub. A direction provides a copy of a CSIS briefing note and certain open source information to counsel for Mr. Mahjoub and affords them the opportunity to advise if they wish to make further submissions.
APPENDIX B
Date: 20050131
Dockets: DES-1-00
Ottawa, Ontario, Monday, the 31st day of January 2005
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Applicant
- and -
MOHAMED ZEKI MAHJOUB
Respondent
DIRECTION
On July 30, 2003, the Court released its reasons as to whether Mr. Mahjoub had established that he met the statutory criteria for release contained in subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("Act"). There, the Court:
i) found that Mr. Mahjoub had not met the burden of satisfying the Court, on a balance of probabilities, that he would not be removed from Canada within a reasonable period of time;
ii) found that Mr. Mahjoub had not met the onus upon him of satisfying the Court, on a balance of probabilities, that his release from detention would not pose a danger to national security, or to the safety of any person; and
iii) directed that counsel correspond with the Registry of the Court in order to schedule the hearing of Mr. Mahjoub's challenge to the constitutionality of his detention.
When those reasons were released on July 30, 2003, the Court did not contemplate that as of January 31, 2005 it would still be awaiting final written argument with respect to the constitutionality of Mr. Mahjoub's detention. Such delay largely reflects that Mr. Mahjoub was obliged to retain new counsel when his original counsel withdrew, and that new counsel sought and obtained leave to raise additional issues and adduce evidence with respect to the nature and conditions of Mr. Mahjoub's detention, and the effect of that detention upon him. The delay also reflects counsel's request to provide additional submissions in writing based upon recent jurisprudence.
By reasons issued today in Court file number IMM-6880-04, the Court found that the Minister's decision that Mr. Mahjoub not be allowed to remain in Canada is to be set aside.
In the result, the following circumstances have arisen or changed since the Court's reasons of July 30, 2003:
i) the Court has received evidence with respect to the conditions of Mr. Mahjoub's detention and the effect of that detention upon him. That evidence was not previously before the Court, for reasons that are not readily apparent;
ii) the Minister's awaited decision under section 115 of the Act has been made, but that decision is to be set aside; and
iii) the Court does not yet have the final written submissions from counsel with respect to the constitutional issues.
Mr. Mahjoub remains in detention.
In the result, the Court invites the views of counsel concerning the conditions of Mr. Mahjoub's continued detention, as those conditions touch upon the statutory criteria for release. In particular counsel's views are sought on whether "new" evidence or further argument should now be considered before the outstanding order concerning Mr. Mahjoub's release/non-release is made.
The Court will convene a teleconference with counsel this week to hear the preliminary views of counsel. They should advise as to when they are available on Thursday, February 3 and Friday February 4, 2005.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-1-00
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and THE SOLICITOR GENERAL OF CANADA
-and-
MOHAMED ZEKI MAHJOUB
PLACE OF HEARING: TORONTO, Ontario and OTTAWA, Ontario
DATES OF HEARING: May 31 to June 4, 2004
September 7 and 8, 2004
February 11, 2005
March 14 and 15, 2005
March 22, 2005
August 3, 2005 (Ottawa)
REASONS FOR ORDER AND ORDER OF THE HONOURABLE
MADAM JUSTICE DAWSON
DATED: November 25, 2005
APPEARANCES:
Mr. Donald MacIntosh FOR THE APPLICANT (MCI)
Mr. Daniel Roussy FOR THE APPLICANT (CSIS)
Mr. John Norris FOR THE RESPONDENT
Ms. Barbara Jackman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT (MCI)
Deputy Attorney General of Canada and THE APPLICANT (CSIS)
Toronto, Ontario
Ruby & Edwardh FOR THE RESPONDENT
Toronto, Ontario
Ms. Barbara Jackman FOR THE RESPONDENT
Toronto, Ontario
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