Date:
20090430
Docket:
DES-7-08
Citation:
2009 FC 439
Ottawa, Ontario, April 30, 2008
PRESENT: The Honourable Mr. Justice
Blanchard
BETWEEN:
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION and
THE
MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Applicants
and
MOHAMED
ZEKI MAHJOUB
Respondent
REASONS FOR ORDER AND ORDER
[1]
The order attached to these reasons will provide
for the terms and conditions of Mr. Mahjoub’s return to detention
following the withdrawal of his supervisors namely, Mona El Fouli and
Haney El Fouli.
[2]
I was designated by the Chief Justice to deal
with the reasonableness of Mr. Mahjoub’s certificate and related proceedings on
January 20, 2009.
1. Background
[3]
Mohamed Zeki Mahjoub is the subject security
certificate who was released from detention on stringent terms and conditions
pursuant to the December 24, 2007 order of Mr. Justice Mosley.
[4]
By reasons for order dated March 9, 2009, Madam
Justice Layden-Stevenson confirmed Mr. Mahjoub’s release and modified certain
conditions of release. In her reasons, the learned judge indicated that because
the proceeding was on-going, the parties may wish: (a) an order containing a
consolidation of the conditions of release incorporating the changes (arising
from her reasons) into Schedule “A” (the consolidated conditions of release in
existence prior to the review; or (b) an order detailing the conclusions of the
hearing. In either case, counsel were to jointly prepare a draft order for
submission to Justice Layden-Stevenson. No draft order has been submitted for
Justice Layden-Stevenson’s consideration.
[5]
Mr. Mahjoub advised the Court on March 17, 2009
that his supervisors were withdrawing their undertakings and that he would surrender
to Canada Border Services Agency (CBSA) on March 18, 2009. The Court convened
an emergency hearing on March 18, 2009 at which time it heard evidence from
Mona and Haney El Fouli and Mr. Mahjoub. The Court was satisfied that no
additional supervisors were available and accepted the all-party understanding
that Mr. Mahjoub will be returned to custody as a result of the
withdrawal of the supervisors.
[6]
The Court then terminated the responsibilities
of the supervisors relating to Mr. Mahjoub’s release and ordered CBSA to cease
all intercepts relating to their mail and phone lines. The Court further
invited the parties to provide their input on the contents of the draft order.
The parties disagree on the contents of a draft order and provided written
submissions on their respective positions. On April 27, 2009, I heard arguments
by counsel for the parties in Toronto.
[7]
I set out below the respective positions of Mr.
Mahjoub and the Applicants on the contents of the draft order.
2. Position of
the parties
[8]
Mr. Mahjoub submits that Justice Noël’s decision
issued from the bench on March 18, 2009 was in the nature of an oral order and
was effective immediately upon pronouncement. Mr. Mahjoub further submits
that the effect of that order was to render all of the terms and conditions
governing Mr. Mahjoub’s release nullities, either expressly or by necessary
implication, and thus to vacate the original release order of Justice Mosley as
subsequently varied on motion and on review. The terms of the detention order
as proposed by counsel for Mr. Mahjoub simply confirm and memorialize
Justice Noël’s oral pronouncement.
[9]
In the alternative, should the Court find that
Justice Noël’s oral pronouncement did not have the effect of vacating the order
granting Mr. Mahjoub’s release subject to conditions, Mr. Mahjoub submits
that that order cannot survive his return to custody, and must be set aside.
Mr. Mahjoub further submits that the order terminating Justice Mosley’s release
order as varied should be antedated to the date of his return to custody.
[10]
The Applicants take the position that the
previous order rendered by Justices Mosley and Layden-Stevenson must continue
to stand. The Applicants further contend that Mr. Mahjoub cannot use his return
to detention as a collateral attack on the decisions of Justice Mosley and
Justice Layden-Stevenson and that vacating these decisions would amount to an
abuse of process and would raise the issue of res judicata.
[11]
Further, in any event, the parties agree that
the Court may have regard and rely on the reasons and findings of fact made by
Justices Mosley and Layden-Stevenson in a subsequent detention review.
3. Analysis
[12]
Mr. Mahjoub’s return to detention was
necessitated by the withdrawal of his primary supervisor and supervising
surety. Upon the withdrawal of the supervisors, Mr. Mahjoub would no longer be
in compliance with the terms and conditions of his release.
[13]
Mr. Justice Noël’s March 18, 2009 order had the
effect of acknowledging the circumstances which necessitated Mr. Mahjoub’s
return to detention and releasing the supervisors of their responsibilities. It
further provided the CBSA cease all intercepts in respect to these supervisors.
The order did not expressly or otherwise vacate the release order of
Mr. Justice Mosley or the decision of Madam Justice Layden-Stevenson.
[14]
The terms and conditions which relate to Mr.
Mahjoub’s release are essentially spent and are no longer of any force and
effect for reasons that are obvious and need not be stated. While both the
order of Mr. Justice Mosley and the decision of Madam Justice Layden-Stevenson
deal essentially with terms and conditions of release, this is not a basis upon
which to declare either vacated. Certain terms may find application
notwithstanding Mr. Mahjoub’s return to detention such as the risk assessment
directed by Madam Justice Layden-Stevenson.
[15]
As indicated in a communiqué by Mr. Justice Noël
dated March 20, 2009, the Court has commenced a review of reasons for the
continued detention of Mr. Mahjoub. On consent of the parties, I now adjourn
the review sine die on the understanding that the parties may on 48
hours notice request that the review be brought back before the Court.
[16]
It should be understood that the detention
review commenced by Order of Mr. Justice Noël on March 18, 2009, is not a
review contemplated by subsection 82.(1) of the Immigration and Refugee
Protection Act, 2001, c. 27 (the Act) since that subsection provides for
the initial review detention within 48 hours after the detention begins
following the issuance of the warrant for arrest and detention pursuant to
section 81 of the Act.
ORDER
THIS
COURT ORDERS that:
1. Mr.
Mahjoub’s return to detention is confirmed.
2. All consents entered into by Mohamed Zeki
Mahjoub, Mona El Fouli and Haney El Fouli to permit the Canada Border Services Agency
or persons acting on its behalf to do or direct to be done anything to
implement or monitor compliance with the Order of Mr. Justice Mosley issued
April 11, 2007 as revised are hereby vacated.
3. For greater certainty, the Canada Border Services
Agency or persons acting on its behalf must cease effective March 18, 2009, all
interception of the mail addressed to Mona and Haney El Fouli and Mohamed
Ibrahim and Yusuf Mahjoub and of the landline providing telephone service to
their residence.
4. If it has not already done so, the Canada Border
Services Agency or persons acting on its behalf must remove all equipment and
devices installed in the Mahjoub family residence pursuant to the Order of Mr.
Justice Mosley issued April 11, 2007 as revised.
5. The monies paid into Court pursuant to Rule
149 by the following sureties and in the following amounts are ordered
returned:
(a) Mona El Fouli $10,000
(b) Omar Ahmed Ali $15,000
(c) Rizwan Wancho $
2,500
(d) John
Valleau $ 5,000
6. The performance bonds executed by the persons
and in the amounts set out below are vacated:
(a) El Sayad Ahmed $5,000
(b) Murray Lumley $5,000
(c) Maggie Panter $10,000
(d) Elizabeth Block $1,000
(e) Laurel Smith $10,000
(f) Dwyer Sullivan $20,000
(g) Elizabeth O’Connor $1,000
(h) Patricia Taylor $1,000
(i) John Valleau $5,000
7. A review of Mr. Mahjoub continued detention
has commenced as of March 20, 2009.
8. Mr. Mahjoub’s detention review is adjourned sine
die on the understanding that the parties may on 48 hours notice request
that the review be brought back before the Court in which case, the parties
agree that the Court may have regard to and rely upon the reasons and findings
of fact made by Justices Mosley and Layden-Stevenson.
“Edmond P.
Blanchard”
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