Date: 20130107
Docket:
DES-7-08
Citation:
2013 FC 10
BETWEEN:
|
|
IN THE MATTER OF A CERTIFICATE
SIGNED PURSUANT TO SUBSECTION 77(1) OF THE IMMIGRATION AND REFUGEE
PROTECTION ACT (IRPA)
|
|
|
|
|
|
AND IN THE MATTER OF A REFERRAL
OF A CERTIFICATE TO THE FEDERAL COURT PURSUANT TO SUBSECTION 77(1) OF THE IRPA
|
|
|
|
|
|
|
AND IN THE MATTER OF MOHAMED
ZEKI MAHJOUB
|
|
REASONS FOR ORDER
[1]
By
“Motion for release, repealing of conditions and variation of conditions” dated
October 5, 2012, Mr. Mahjoub seeks the following relief:
1.
An order to remove all the conditions of the Applicant (save usual terms such
to keep the peace, report change of address and on the basis of the existing
sureties and performance bonds only previously approved by this Court) pursuant
to section 82(5) of the Immigration and Refugee Protection Act (IRPA),
section 24(1) of the Canadian Charter of Rights and Freedoms (Charter),
2.
An order for release of the Applicant and quashing of the certificate by
declaratory relief under section 52 of the Constitution Act, 1982 and
section 18 of the Federal Courts Act on the grounds that the legislative
schemes of Division 9 of the IRPA linked with sections 2, 12 and 21 of the Canadian
Security and Intelligence Service Act (CSIS Act) and policies are
unconstitutional and invalid.
[Reproduced
verbatim from Mr. Mahjoub’s Notice of Motion.]
[2]
In
his Notice of Motion, Mr. Mahjoub advances the following grounds for his
motion:
1. The last detention review and/or review of
conditions of release in this case was determined on February 1, 2012.
2. In its Order dated February 1, 2012 the
Court maintained release conditions, albeit lifting some and relaxing others
considerably based on its conclusion that “the threat posed by Mr. Mahjoub to
the national security of Canada is now significantly diminished” (2012 FC 125,
par. 90).
3. More than six months have elapsed since the
conclusion of Mr. Mahjoub’s most recent detention review.
4. Under subsections 82(4) and (5) b) of the
IRPA and sections1, 7, 8 and 12 of the Charter, the burden of
justification of any conditions falls to the Ministers with the Oakes
test (R. v. Oakes, [1986] 1 S.C.R. 103).
5. It is the Applicant’s position that to date
there is insufficient, if not no evidence, to support the restrictions imposed
on his constitutional rights protected under sections 2, 7, 8 and 9 of the
Charter.
6. On June 19, 2012, further to the Federal
Court of Canada’s ruling in Harkat c. Canada 2012 FCA 122 (“Harkat”),
this Court ordered the exclusion from evidence of all summaries of
conversations for which the original recordings were destroyed and to which the
Applicant was not privy.
7. The Applicant submits a new expert report
from Professor Leman-Langlois dealing with the methodology used in the public
SIR and the lacunae in same. The evidence establishes that the public summary
fails to incorporate fundamentally important considerations and doesn’t support
the conclusion of danger;
8. Several new evidence before this Court,
including from Egyptian lawyer Magdy Salem and exhibits filed for the merit and
from CSIS witness #3, established that the SIR is not based on significant and
valid evidence or was prepared without diligence and proper consideration of
relevant facts.
9. Given the excessive delays in the present
proceedings caused by the DOJ’s negligence including by the seizure, comingling
and reviewing of his confidential material, the Applicant’s release from all
conditions is moreover justified.
10. Excessive and unjustified delays in the
proceedings have been created by the Ministers who have consistently failed to
provide the Applicant with full and complete disclosure in a timely manner
including the recordings of his own intercepted conversations.
11. The Applicant also submits that the existing
conditions are inappropriate and have resulted in and caused an aggravation of
irreparable psychological harm to the Applicant and constitutes a unusual
treatment under section 12 of the Charter and a violation of section 7
of the Charter.
12. If any conditions are to be imposed upon the
Applicant, it is submitted that such condition(s) must fall on the least
intrusive end of the spectrum of infringement of the Applicant’s rights, such
as “usual conditions” of recognizance, i.e. keeping the peace and being of good
behaviour be applied. The changes of conditions are also required to avoid
unnecessary contacts between the Applicant’s and CBSA officials in the context
of the alleged violations in the case and the circumstances
13. Finally, the Applicant submits that his
detention, the release conditions and security certificate are unconstitutional
and unlawful.
14. The Applicant submits that the legislative
schemes of Division 9 of the IRPA linked with sections 2, 12 and 21 of the Canadian
Security Intelligence Service Act (CSIS Act) and policies are
unconstitutional and invalid and seeks a declaratory relief in the form
of an order declaring unconstitutional and invalid pursuant to section 52 of
the Constitution, section 24(1) of the Charter and section 18 of
the Federal Courts Act:
- Section 33 and Division 9 (sections 77 to
87.2) of the Immigration and Refugee Protection Act, (S.C. 2001, c. 27)
(‘IRPA’);
- Sections 4, 6 and 7 (3) of the Act
to amend the Immigration and Refugee Protection Act (certificate and special
advocate) and to make a consequential amendment to another Act;
Alone
or in conjunction with S2-12-21 of the CSIS Act and CSIS policies or guidelines
adopted under S6 of the CSIS Act;
15. The Applicant submits that the effects of the
legislation, namely section 33 and division 9 of IRPA, in conjunction with
sections 2, 12 and 21 of the CSIS Act and CSIS policies (named herein
“legislation”) applied to the Applicant are unconstitutional and render the
certificate, the process and his detention unlawful and arbitrary.
16. The “legislation” violates the constitution
of the Charter with regards to:
a) The right of being heard by an independent and
impartial tribunal (s. 7 of the Charter);
b) the right to have a public hearing (s. 2
b), 7 and 11 of the Charter);
c) the right of being represented by counsel and
by counsel of his choice (s. 7 and 10(b) of the Charter) including in closed
session;
d) the right to be protected properly against the
use of information/evidence derived from torture;
e) the right to have a fair hearing:
i. the right to receive disclosure (s. 7 of the
Charter)
ii. the right to knowing the nature, content and
all other relevant details of the alleged evidence to challenge the evidence if
any (s. 7 of the Charter)
iii. the right to presenting a full answer and
defence (s. 7 of the Charter)
iv. the right to a fair standard of proof that is
proportionate to the consequences of the procedure and the right to due process
(s.7 of the Charter)
v. the right of the presumption of the
inadmissibility of hearsay evidence (s. 7 of the Charter)
f) the right to remain silent (s. 7 and 13 of the
Charter);
g) the right of being protected against
unreasonable and unlawful seizures (s. 8 of the Charter);
h) the right of being protected against arbitrary
detention and cruel and unusual treatment or punishment (s. 9 and 12 of the
Charter);
[Reproduced
verbatim from Mr. Mahjoub’s Notice of Motion. References omitted; emphasis in
original.]
PRELIMINARY
MATTERS
[3]
At
the outset, I will dispose of two issues relating to remedies sought by Mr.
Mahjoub. First, Mr. Mahjoub again relies on section 18 of the Federal Courts
Act, R.S.C., 1985, c. F-7. Mr. Mahjoub raised the issue of section 18
of the Federal Courts Act in the previous review of his conditions of
release. In my reasons for order dated February 1, 2012, (Mahjoub (Re),
2012 FC 125 at paragraph 4) I found that section 18 had no application to a
detention review under Division 9 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA). My opinion on the issue has
not changed. Accordingly, I find that section 18 of the Federal Courts Act finds
no application in this review.
[4]
Second,
the constitutional relief sought in this review is essentially the same as the
relief sought in the outstanding constitutional motions. These motions have
been heard, and I have taken them under reserve. Consequently, the
constitutional relief sought will not be dealt with in these reasons.
BACKGROUND
[5]
The
Court rendered its Reasons for Order on the last review of Mr. Mahjoub’s
conditions for release on February 1, 2012. The procedural history of the
proceedings to February 1, 2012, has been set out in those reasons and in
previous detention reviews (see in particular Canada (Citizenship and
Immigration) v. Mahjoub, 2009 FC 248 and Mahjoub (Re), 2009 FC 1220)
and will not be repeated here.
[6]
Since
the last review of Mr. Mahjoub’s conditions of release, the following events
have occurred.
[7]
On
May 31, 2012, the Court rendered a decision on Mr. Mahjoub’s motion for a
permanent stay of proceedings filed on September 16, 2011 (Mahjoub (Re),
2012 FC 669). At issue in that motion was the co-mingling of the Ministers’ and
Mr. Mahjoub’s documents due to the Ministers inadvertently but negligently taking
possession of materials in Mr. Mahjoub’s breakout room next to the courtroom at
the Federal Court premises in Toronto. I found “that the affront to fair play
and decency caused by the Ministers’ taking and co-mingling of Mr. Mahjoub’s
privileged documents is not disproportionate to the societal interest of having
the underlying proceeding continue and be ultimately decided on the merits” (at
paragraph 147). The remedy granted was to permanently remove eleven members of
the Ministers’ litigation team from the Mahjoub file (at paragraph 155).
[8]
On
June 19, 2012, the Court issued an Order pursuant to the Federal Court of
Appeal decision in Harkat (Re), 2012 FCA 122, that the Ministers
could not rely on any of the Canadian Security Intelligence Service’s (CSIS)
summaries of intercepted conversations or interviews for which the original
recording or transcript was destroyed, and to which Mr. Mahjoub was not a
party. The Ministers identified such material in evidence and withdrew it from
the record.
[9]
Pursuant
to the June 28, 2012 scheduling Order, the reasonableness hearing resumed in
the summer of 2012, and the Court heard the evidence of the remaining
witnesses. Mr. Mahjoub’s case concluded on September 14, 2012, with the
evidence of Mr. Magdy Salem. The Ministers’ closed case concluded on October
12, 2012, with the evidence of CSIS Witness #1.
[10]
Mr.
Mahjoub has, since the June 28, 2012 scheduling Order, filed additional motions
in this proceeding. Notably, on October 1, 2012, Mr. Mahjoub filed an
additional motion for a permanent stay of proceedings on the basis of abuse of
process. Mr. Mahjoub also filed a perfected motion record for his
constitutional challenge to the IRPA and the Canadian Security and
Intelligence Service Act, R.S.C., 1985, c. C-23 on November 8, 2012.
[11]
Initially,
September 6 and 7, 2012, were set aside for this review of conditions of
release. A number of intervening events caused the review to be postponed
including the rescheduling of certain witnesses, notice by Public Counsel of
Mr. Mahjoub’s intention to bring a Rowbotham application for this review
and late disclosure.
[12]
By
Order dated October 18, 2012, the review was set for December 11 and 13, 2012,
at the conclusion of final public arguments on the outstanding constitutional
motions and reasonableness. On consent of the parties, the review was heard on
December 11, 2012, and completed on the same day.
THE LEGAL
FRAMEWORK
[13]
Paragraph
82(5)(b) of the IRPA provides that:
|
(5)
On review, the judge
…
(b)
in any other case, shall order or confirm the person’s release from detention
and set any conditions that the judge considers appropriate.
|
(5)
Lors du contrôle, le juge :
…
b) dans les autres cas,
ordonne ou confirme sa mise en liberté et assortit celle-ci des conditions
qu’il estime indiquées.
|
[14]
As
I have stated at paragraph 14 of my February 1, 2012 Reasons for Order, on a
review of the conditions of release, the Ministers bear the burden of
establishing on the “reasonable grounds to believe” standard that there is a
need to maintain stringent conditions of release (see also Charkaoui v.
Canada, 2007 SCC 9 at paragraph 39 (Charkaoui I)). The standard
requires that the judge determine whether “there is an objective basis … which
is based on compelling and credible evidence” that Mr. Mahjoub poses a threat
to the security of Canada (Mugesera v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 40 at paragraph 114, [2005] 2 S.C.R. 100). The
approach that I have taken in past reviews of Mr. Mahjoub’s conditions of
release employs this standard and allows for a meaningful review of the terms
and conditions of release as mandated in Charkaoui I at paragraph 107.
Mirroring the factors enumerated in Charkaoui I, I articulated this
approach at paragraph 24 of my May 2, 2011 Reasons for Order:
In
conducting the review, I will have regard to all factors including the reasons
for the initial detention; the conditions of release imposed at the last
detention review; the length of time the stringent conditions have been in
place; the anticipated future duration of conditions and the existence of
alternatives to the conditions, if any; and any changes in the threat posed by
Mr. Mahjoub since the last review. These factors will be considered in the
context and circumstances surrounding Mr. Mahjoub’s case.
[15]
Mr.
Mahjoub argues that the Supreme Court of Canada’s decision in Doré v.
Barreau du Québec, 2012
SCC 12,
imports
considerations from R v. Oakes, [1986] 1 S.C.R. 103, into security
certificate detention review analysis. In oral argument, he further clarified
that he is “not saying Doré has changed the law or overruled Charkaoui.
The point was merely when the Court is making an order, not just when the
law is unconstitutional…proportionality must be assessed…”
[16]
In
my view, Doré does not result in a change in the law relating to the
conduct of detention reviews under IRPA. In conducting a review of
conditions of release, I am required to determine whether there are reasonable
grounds to believe that Mr. Mahjoub poses a threat to the security of Canada, and if so which conditions of release are a proportionate response to the nature of
that threat, having regard to all of the circumstances (Charkaoui I at
paragraph 116). In my view, Doré adds little to this analysis. Charkaoui
I already mandates that the conditions of release take into account Charter
values including proportionality.
MR. MAHJOUB’S
POSITION
[17]
Mr.
Mahjoub takes the position that no conditions of release are necessary to
neutralize the threat he poses to the security of Canada because the Ministers
have not established, on a reasonable grounds to believe standard, that Mr.
Mahjoub poses any threat to the security of Canada. He notes that the Ministers
have advanced no argument that Mr. Mahjoub is unlikely to appear for a
proceeding for removal.
[18]
In
the alternative, Mr. Mahjoub argues that “normal bail conditions” to ensure the
proper functioning of the bail system are the only necessary conditions of his
release, namely: keeping of the peace and being of good behaviour, continuing
to surrender his travel documents, and maintaining the current sureties
and performance bonds. Mr. Mahjoub relies on the expert evidence of Professor
Leman-Langlois, Mr. Barrett, and Dr. Payne, which will be discussed below.
THE MINISTERS’
POSITION
[19]
The
Ministers continue to allege that Mr. Mahjoub poses the same danger to Canada’s national security today as he did when the security certificate was issued. In
their written submissions, they argue that the motion record and additional
evidence filed by Mr. Mahjoub in support of his review of conditions:
does
not provide an evidentiary or legal justification for the abolishment of the
existing conditions of his release. He has not provided a realistic alternative
or any specific suggestions for reducing his conditions. The removal of all
conditions would pose a danger to national security. He is currently subject to
carefully crafted terms and conditions of release which balance his freedom and
liberty against the need to mitigate the threat that he poses to national
security. There has been no significant change in circumstances since the
Court’s February 2012 Order which relaxed the monitoring regime.
[20]
In
addition, the Ministers request that Dr. Aly Hindy, an imam who is the head of
the Salaheddin Islamic Centre in Scarborough, be added as a prohibited contact
for Mr. Mahjoub. He is a prohibited contact of Mahmoud Jaballah, and two
Federal Court judges have determined Mr. Hindy to be unsuitable as a
surety for individuals facing allegations of terrorism on the basis that
“published statements are open to the inference that he is supportive to or at
least defensive of the threats of Islamic terrorism.”
[21]
I
note that the Ministers do not directly allege that Mr. Mahjoub has violated
the terms and conditions of his release in contacting Dr. Aly Hindy on July 10,
2012, but that they request that he be deemed a prohibited contact because he
is a person “whom Mr. Mahjoub knows, or ought to know, supports terrorism or
violent Jihad or who attended any training camp or guest house operated by any
entity that supports terrorism or violent Jihad.”
EVIDENCE AND
WITNESSES
[22]
The
Court heard no viva voce evidence at the review of conditions hearing on
December 11, 2012. On consent, Mr. Mahjoub filed the expert reports of
Professor Stéphane Leman-Langlois (October 3, 2012) and Mr. Vaughan Barrett
(October 2, 2012), along with the transcript of the cross-examinations of
Professor Leman-Langlois from the previous review of conditions and of
Mr. Vaughan Barrett from the Jaballah matter. Mr. Barrett
never appeared before this Court. Mr. Mahjoub also filed the expert
report of Dr. Donald Payne adduced at the previous review of conditions.
The expertise of Professor Stéphane Leman-Langlois and Dr. Donald Payne is
outlined in the February 1, 2012 Reasons for Order at paragraphs 27-31.
[23]
Mr.
Vaughan Barrett holds a bachelor of laws degree from the University of Victoria. He managed a law practice non-continuously from 1988 to 2003, experience that
included serving as Director of the Victoria Prison Project and Assistant
Director of the Student Clinical Program at the University of Victoria Faculty of Law. From 2003 to 2008, he worked abroad as a Prisons Complaints
Commissioner in Edinburgh, Scotland. In 2008, he obtained his current position
as Managing Director of Prison Consultants International.
[24]
The
Ministers have agreed to the admissibility of the report but argue it is of
little assistance to the Court. The Ministers contend that Mr. Barrett’s
opinion ought to be confined to views based on his professional work experience
from 1998 to 2003.
[25]
Mr.
Barrett’s report addresses how uncommon it is in Canada to have release
conditions such as those currently imposed on Mr. Mahjoub, the reasons for the
rarity of the conditions, and whether or not negative effects on Mr. Mahjoub
would flow from maintaining conditions for an extended period. Mr. Barrett
opines as follows:
1. “[i]t
is my opinion that it is extremely uncommon for releasing authorities in Canada
to impose release conditions such as those imposed on Mr. Mahjoub for any
period of time” (at page 3 of the report);
2. that
such conditions are not imposed by releasing authorities because: they are
mindful of the negative impact on the released person, they do not find it
reasonable and necessary to impose such conditions to protect the public, and
electronic monitoring can be unreliable, ineffective or “trigger human rights
issues” if imposed for long periods (at page 6 of the report); and
3. that
“it is reasonable to expect that there could be a negative effect when release
conditions are maintained for lengthy periods of time and that the more
stringent the conditions are the more harmful they could become” (at page 9 of
the report).
[26]
A
review of Mr. Barrett’s report reveals that he has no expertise relating to
detention proceedings in the security certificate context. His applicable
professional experience consists of being an “assistant” at a number of parole
hearings prior to 2003. Mr. Barrett’s opinions found in his report are not
based on any interviews with Mr. Mahjoub or knowledge of Mr. Mahjoub’s
circumstances.
[27]
In
the Jaballah matter, Justice Hansen who had the opportunity of hearing Mr.
Barrett, qualified him to give expert opinion evidence “in relation to release
controls and conditions used in the criminal justice system in Canada in
relation to long-term offenders, [… including] dangerous offenders, long-term
offenders [those serving penitentiary sentences], those individuals who are
going to be obviously be under more stringent controls and perhaps more
stringent conditions of control and release.” The learned Justice circumscribed
Mr. Barrett’s expertise by the time within which he acquired that expertise,
namely prior to 2003 since there was no evidence that he continued to acquire
by experience any additional expertise after that time. Justice Hansen went on
to limit Mr. Barrett’s expertise to release controls and conditions relating to
parole and excluding probation and judicial interim release. I agree with
Justice Hansen’s assessment of Mr. Barrett’s expertise and adopt it for our
purposes on this review. I also find that his expert opinion has little
relevance to this review since it has not been established that his dated
expertise has any application to current circumstances. Further, his opinion is
not founded on an analysis of Mr. Mahjoub’s circumstances relating to issues
raised in this proceeding. I do not find the evidence of Mr. Barrett to be
necessary to the Court. Consequently, it will be given little weight.
[28]
In
Reasons for Order following the last detention review, I found Professor
Leman-Langlois to be a credible witness. I also found that his opinion on the
alleged threat posed by Mr. Mahjoub to be based only on part of the record
relied upon by the Ministers and as a consequence afforded little weight to his
conclusion. In his updated expert report, filed for this review, Professor
Leman-Langlois takes into account the public summary of the Security
Intelligence Report (SIR). He also had access to the summaries of the
classified materials. However, in his report, Professor Leman-Langlois does not
purport to evaluate the “actual, objective threat posed by Mr. Mahjoub”,
rather, the expert report focuses on the methodology of the SIR. Consequently
the opinion proffered relating to the threat posed by Mr. Mahjoub is of little
assistance to the Court and will be given little weight. I remain of the view,
however, that Professor Leman-Langlois’ opinion relating to methodology used in
preparation of the SIR is useful.
[29]
The
Ministers rely on the record for the reasonableness proceeding, as well as
their evidence adduced in previous detention reviews and reviews of conditions.
In particular, they rely on comments made by Mr. Michel Guay and Dr. Daniel
Byman describing the alleged threat to the security of Canada posed by Mr. Mahjoub.
[30]
I
have also had the benefit of the parties’ oral and written submissions. No
closed evidence was adduced or submissions made for this review of conditions.
ANALYSIS
Principles
of Fundamental Justice
[31]
In
my February 1, 2012 Reasons for Order following the last detention review, I
reviewed the codified process for detention and release of named persons in
security certificate proceedings including the state of the law on the
principles of fundamental justice applicable to reviews of conditions of
release pursuant to subsections 82(4) and 82(5) of the IRPA. At
paragraphs 39 and 40, of my reasons I wrote:
[39] Parliament
subsequently provided, in Division 9 of the IRPA, a codified process for detention
and release of named persons in security certificate proceedings, including
provisions for review of detention and of terms and conditions of release. The
process places the burden on the Ministers. In this proceeding the Ministers
are required to establish on the “reasonable grounds to believe” standard the
need to maintain the current conditions of release. Mr. Mahjoub argues
that the presumption of innocence and right to reasonable bail and some, or
all, of the specific legal safeguards associated therewith necessarily find
application in the circumstances. […]
[40] The
presumption of innocence, as a substantive principle of fundamental justice,
“protects the fundamental liberty and human dignity of any and every person
accused by the State of criminal conduct” (Pearson [R v Pearson,
[1992] 3 S.C.R. 665] at page 683 citing R v Oakes, [1986] 1 S.C.R. 103).
Section 11 expressly applies to “any person charged with an offence.” Under the
security certificate regime, the named person is not charged with an offence,
the presumption of innocence does not arise, and the criminal system of justice
is not engaged. The process codified by Parliament for detention reviews and
reviews of conditions of release provides its own legal safeguards. I am
satisfied the process provides for a meaningful review of detention and of
conditions of release as mandated by the Supreme Court [in Charkaoui I at
para 107]. I find it to be in accord with the principles of fundamental
justice. As in past reviews, the Court will consider whether the conditions are
rationally connected and proportional to the threat posed by Mr. Mahjoub and
then balance these against any deprivation to his liberty interest.
The
above stated principles are applicable to this review.
[32]
Applying
these principles, I shall examine the factors that Charkaoui I requires
me to consider, including the Ministers’ justification for the conditions of
release, the length of Mr. Mahjoub’s release on conditions including the
circumstances that have changed since the previous review of conditions,
unexplained delays or lack of diligence, the anticipated future duration of the
conditions of release, and the availability, effectiveness and appropriateness
of alternatives.
Charkaoui I Factors
[33]
The
following factors, among others, will be considered in determining which, if
any, conditions of release are appropriate for Mr. Mahjoub (Charkaoui I at
paragraphs 111-116):
(a) Reasons
for detention,
(b) Length
of detention,
(c) Reasons
for the delay in deportation,
(d) Anticipated
future length of detention, and
(f) Availability
of alternatives to detention.
(a)
Reasons for the Conditions of Release
[34]
The
Ministers contend that the current conditions of release ought to be maintained
on the basis that Mr. Mahjoub’s alleged threat to Canada’s national security is
largely unchanged. The alleged threat is outlined in the public summary of the
SIR at paragraph 20, reproduced at paragraph 42 of my February 1, 2012 Reasons
for Order. The current danger alleged is that Mr. Mahjoub may re-engage in
activities that constitute a threat to the security of Canada. More particularly, they allege with the support of Mr. Guay’s and Dr. Byman’s
testimony in October 2010 that Mr. Mahjoub is likely to radicalize
individuals or groups of individuals, or “re-engage” in terrorism as a
supporter or a recruiter due to his “stature and longevity in the movement, his
contacts and any weapons training he might have acquired”, in addition to the
publicity of his case before this Court. The Ministers have not filed an
updated threat assessment for this review.
[35]
All
of the evidence is now before me, and the parties’ public arguments have
concluded. However, I have not yet heard submissions in the closed
proceeding by the Special Advocates and the Ministers. Further, I have not yet
dealt with the Special Advocates’ motion to exclude unsourced evidence. As
such, it would not be appropriate, at this stage, to make a definitive finding
on the disputed evidence relating to the alleged threat. I am satisfied, for
the purposes of this review, that there is a basis upon which to
maintain a finding that Mr. Mahjoub poses a threat to the security of Canada as
described at paragraph 89 of the Reasons for Order dated February 1, 2012,
following the last detention review. However, given the changes in
circumstances since the last review to be discussed below, I am also satisfied
that the threat posed by Mr. Mahjoub to the national security of Canada is now significantly diminished.
(b) Length of
Time Subject to Conditions,
[36]
The
longer a named person is in detention, the less likely the individual will
remain a threat to national security and the greater the evidentiary onus on
the Ministers to establish the threat (Charkaoui I, paragraphs 112-113).
As with past reviews, I find that Mr. Mahjoub’s lengthy detention and release
on stringent conditions has disrupted his ability to engage in threat-related
activities and, in the circumstances, this factor weighs in Mr. Mahjoub’s
favour.
(c) Changes
since Previous Review of Conditions
[37]
Since
the last review, there has been a significant change in the evidentiary
foundation in support of the Ministers’ allegations against Mr. Mahjoub. By
Order dated June 19, 2012, the Ministers were directed to comply with the
Federal Court of Appeal decision in Harkat (2012 FCA 122) and
withdraw any summaries of intercepts or interviews, which are unsupported by
original notes or transcripts and to which Mr. Mahjoub was not privy. The
removal of this evidence, relied upon by the Ministers in support of certain
allegations in the SIR, has weakened the Ministers’ case against Mr. Mahjoub
and the allegations that he poses a threat to national security.
[38]
While
Dr. Payne’s evidence does not evaluate Mr. Mahjoub’s psychological state under
the current conditions, I am satisfied on the basis of his report that
conditions to which Mr. Mahjoub is currently subject could have a negative
impact on his psychological health. Mr. Mahjoub’s daily activities are subject
to constant monitoring under the current restrictive conditions.
[39]
Nearly
eleven months have elapsed since the previous review of Mr. Mahjoub’s
conditions of release. Since that time, the Ministers have made no new
allegations and advanced no new evidence relating to the threat posed to Mr.
Mahjoub. As stated above, no up-dated threat or risk assessments have been
filed for this review. The last threat assessment did not disclose any new
information concerning Mr. Mahjoub’s involvement in threat-related
activities. That threat assessment speaks of the risk then posed by Mr. Mahjoub
in terms of a “possibility” that he would re-engage in threat related
activities. The evidence on which the Ministers rely dates from 2010 and 2011.
[40]
Further,
during the eleven months since the last review, the Ministers have alleged no
breach of conditions of release and no such breach has been brought to the
Court’s attention. It is also noteworthy that during the entire period of his
release in this case, Mr. Mahjoub has committed no significant breaches of his
conditions of release. In the circumstances, I find that Mr. Mahjoub’s ongoing
record of compliance with his conditions of release weighs heavily in his
favour in this review.
(d) Unexplained
Delay or Lack of Diligence
[41]
The issue of delay will be dealt with fully when I address
the abuse of process motion. For the purposes of this review, delay caused by
the Ministers’ lack of diligence is at issue because of my findings in the
Court’s May 31, 2012 Order. The Order disposed of Mr. Mahjoub’s motion for
a permanent stay of proceedings for the Ministers’ co-mingling of his
litigation documents. While I did not grant the permanent stay of proceedings
requested, I found that the Ministers demonstrated a lack of diligence which
resulted in a significant delay of over nine months in the proceeding. In the
circumstances of this review of conditions, these findings weigh heavily
in favour of Mr. Mahjoub.
(e)
Anticipated Future Duration of Conditions of Release
[42]
Although
final public arguments have concluded and closed arguments will conclude in
January 2013, I expect that Mr. Mahjoub will potentially be subject to
conditions of release for several more months until this Court comes to a final
decision on his case.
(f) Availability,
Effectiveness and Appropriateness of Alternatives to Current Conditions
[43]
The
parties have taken polarized positions that have not assisted the Court in
assessing the availability, effectiveness, and appropriateness of alternatives
to Mr. Mahjoub’s current conditions of release. The Ministers have not provided
me with an analysis of each condition or group of conditions to explain why
they continue to be necessary or proportionate to the threat posed. They have
not highlighted any conditions that they consider particularly essential;
beyond indirectly highlighting the condition that Mr. Mahjoub be
prohibited from communicating with individuals he knows or ought to know
support terrorism or violent Jihad through the request to prohibit
communication with Dr. Aly Hindy.
[44]
Mr.
Mahjoub argues, in the alternative, that “normal conditions” of recognizance
would be an effective alternative to the current conditions.
[45]
It
is my view that “normal conditions” of recognizance with additional conditions
as provided for below (the proposed conditions) are an available, effective and
appropriate alternative to Mr. Mahjoub’s current conditions of release. Such
conditions, in lieu of the current conditions of release, will be proportional
and sufficient to address the threat posed by Mr. Mahjoub.
[46]
The
bail conditions of keeping the peace and being of good behaviour would address
the allegations that Mr. Mahjoub will radicalize individuals or groups by
inciting violence, “re-engage” in any terrorist activity, and that he will
support or recruit individuals to the terrorist cause. Maintaining the
performance bonds would ensure that Mr. Mahjoub’s sureties also maintain an
interest in supervising Mr. Mahjoub’s activities and reporting any breach of
conditions.
[47]
Further,
preserving the condition that Mr. Mahjoub is prohibited from directly or
indirectly communicating with any individual whom he knows or ought to know,
who supports terrorism or violent Jihad or who attended any training camp or
guest house operated by any entity that supports terrorism or violent Jihad, would
prevent Mr. Mahjoub from acquiring or re-acquiring terrorist contacts. To
ensure that Mr. Mahjoub does not re-acquire terrorist contacts, Mr. Mahjoub’s
communications shall be restricted to one personal mobile telephone and/or
landline telephone except for emergencies, and one personal desktop computer
with an Internet connection. The Canada Border Services Agency (CBSA) may
continue to monitor the toll records for Mr. Mahjoub’s telephone services,
and the CBSA shall be authorized to perform checks without notice on Mr.
Mahjoub’s Internet-connected computer should he wish to have one. In addition,
the CBSA shall be authorized to monitor any address or return address on the
exterior of letter mail or packages received or sent by mail or courier to or
from Mr. Mahjoub. Further inspection of the mail or packages will only be
justified if there are reasonable grounds to suspect that it is sent or
received in violation of any applicable condition of release.
[48]
Mr.
Mahjoub poses no flight risk. This is not disputed. Given Mr. Mahjoub’s record
of compliance with his conditions of release coupled with the other factors
discussed above, which weigh in his favour, I have come to the view that the
condition relating to GPS monitoring when outside his residence is no longer
proportionate to the threat posed. Such surveillance will consequently no
longer be authorized. Any surveillance of Mr. Mahjoub will be subject to the
CSIS Operations Policies and Procedures.
[49]
Upon
considering the five mandatory factors set out in Charkaoui I and all of
the circumstances of his case, I find that the current conditions of release
are no longer appropriate or proportionate to the threat posed by Mr. Mahjoub.
The Ministers have brought forth no new evidence or updated threat assessment
to support their allegations that Mr. Mahjoub is a threat to national
security. Nor have the Ministers alleged any breach of a condition of releases
since the last review. Given the passage of time, the extended period under
which Mr. Mahjoub has been subjected to stringent conditions of release, I
conclude that the threat posed by Mr. Mahjoub to the national security of Canada has diminished.
[50]
Given
the change in circumstances discussed above, in particular the removal of
evidence relied upon by the Ministers from the record, the delay in the
proceeding caused by the Ministers’ lack of diligence and Mr. Mahjoub’s
record of compliance with his conditions of release, I conclude that the
current conditions of release are no longer proportionate to the threat posed
by Mr. Mahjoub. I am satisfied that the proposed conditions will be an
effective alternative to the current conditions and sufficient and appropriate
to neutralize the threat posed pursuant to section 82(5) of the IRPA.
Dr. Aly Hindy
[51]
The
Ministers allege that Dr. Aly Hindy should be deemed to be an individual whom
Mr. Mahjoub knows, or ought to know, supports terrorism or violent Jihad,
and that Mr. Mahjoub should be prohibited from directly or indirectly
communicating with him. They rely on certain publicly reported statements that
Dr. Hindy has made, the fact that he has been made a prohibited contact in Jaballah,
and the statements of Justice Mosley, confirmed by Justice Layden-Stevenson in
this proceeding, to the effect that Dr. Hindy would not be an appropriate
surety because “his published statements are open to the inference that he is
sympathetic to or at least defensive of the threats of Islamic terrorism
towards Canada.”
[52]
First,
I observe that the voicemail contact between Mr. Mahjoub and Dr. Hindy on July
10, 2012, appears to have been for a lawful purpose. Mr. Mahjoub seems to have
been attempting to find more supervising sureties through Dr. Hindy.
[53]
Second,
I note that the statements reportedly made by Dr. Hindy and upon which the
Ministers rely are inconclusive. He reportedly called the 9/11 attacks “a joint
CIA operation,” said of Ahmed Khadr “I’m not convinced he’s guilty”, described
Hassan Farhat as “an Iraqi fighting an opponent from another country in his
home country,” insinuated that violence committed by Salafists was set up by
U.S. authorities to make Salafists look bad, reportedly thought that the
charges against the Toronto 18 were “to keep George Bush happy”, and commented
in a meeting with former Public Safety Minister Anne McLellan that the
government must stop “terrorizing” Canadian Muslims, or “I can’t guarantee what
is going to happen. Our young people, we can’t control,” a comment he
characterized as “a kind of threat.”
[54]
Although
these are radical views based on questionable facts, they are not direct
evidence of Dr. Hindy’s support for terrorism or violent Jihad, particularly
given his reported statements against violence such as “[r]eligion does not say
to fight and kill” and his reported efforts to encourage youth to wage
non-violent Jihads instead of fighting in Iraq. He has also said “I love this
country as much as anyone” and directed comments against terrorists who plan to
attack Canada: “If my son is doing something to destroy this country, I can say
he should be hanged, not just put in jail.” Even his refusal to sign the decree
against terrorism signed by imams around the world after the London bombings in
2005 does not necessarily lead to an inference that he is a supporter of
terrorism. I have not been presented with the decree itself, or
Dr. Hindy’s explanation of why he did not sign that decree, both of
which would be helpful in determining whether his refusal to sign can be
construed as supporting terrorism.
[55]
While
Hassan Farhat, who joined Al Qaeda, Ahmed Khadr’s family, members of the
Toronto 18 terrorist group, and an aspiring member of Al Shabab worshipped at
Dr. Hindy’s Salaheddin Islamic Centre, and the 2009 RCMP report on
radicalization refers to Dr. Hindy as a “focal point for Toronto area Islamic
radicals,” there is no evidence before me on the extent of Dr. Hindy’s
contact with or support for known terrorists or supporters of terrorism. I am
supported in this conclusion by Justice Trotter’s finding in United States
of America v. Khadr (2008), 234 C.C.C. (3d) 129 at paragraph 62, that
although individuals with “questionable associations” and “involved in
questionable activities” had passed through the Salaheddin Islamic Centre,
there was insufficient evidence to taint the Centre itself, and “no reasonable
person could draw the conclusion that the Salaheddin Islamic Centre is involved
in terrorism.”
[56]
Third,
Dr. Hindy was deemed a prohibited contact in the Jaballah matter on
consent of the parties. There is no such consent in this proceeding.
[57]
Finally,
Justice Mosley’s comments, echoed by Justice Layden-Stevenson, were made in the
context of determining whether Dr. Hindy would be a suitable surety for Mr.
Mahjoub. A surety is responsible for reporting Mr. Mahjoub’s prohibited conduct
to the Canadian authorities. Given that responsibility to cooperate with the
authorities, in my view, it was open to Justice Mosley to reject Dr. Hindy as a
surety. To prohibit communication between Dr. Hindy and Mr. Mahjoub entirely
infringing both individuals’ freedom of expression and freedom of association,
there must be a more rigorous connection between Dr. Hindy and support for
terrorism or violent Jihad. The Ministers have not established such a
connection.
[58]
Had
the Ministers adduced any direct evidence to show that Dr. Hindy was a
supporter of terrorism or violent Jihad, this would have been troubling to the
Court and could have led to a different result.
[59]
On
all of the evidence before me, particularly given the rights at stake for both
Mr. Mahjoub and Dr. Hindy and the fact that Dr. Hindy has not been given an
opportunity to explain his statements in evidence, I am unable to conclude that
he is an individual that Mr. Mahjoub knew or ought to have known was a
supporter of terrorism or violent Jihad. As a result, the Ministers’ request to
place Dr. Aly Hindy on the list of prohibited contacts is denied.
CONCLUSION
[60]
In
a review of the conditions of release of a named person pursuant to subsection
82(5) of the IRPA, the onus is on the Ministers to demonstrate that the
named person poses a danger to the security of Canada and that particular
measures in place or proposed are necessary to address that danger. The
Ministers have not demonstrated the necessity of any particular measure.
Instead, they argue for the status quo while failing to establish that the
threat they are alleging continues undiminished.
[61]
For
the purposes of this review of conditions of release, I accept that Mr. Mahjoub
continues to pose a danger to the security of Canada. However, I find that the
threat posed by Mr. Mahjoub has significantly decreased in the nearly eleven
months that have passed since the previous review of conditions, during which
Mr. Mahjoub has diligently complied with the conditions imposed upon him.
Moreover, certain allegations in the Ministers’ case have been weakened by the
removal of evidence pursuant to the Harkat decision by the Federal Court
of Appeal. Further, I have found the Ministers responsible for a significant delay
because of their lack of diligence in the co-mingling of documents.
[62]
I
am satisfied that the stringent terms and conditions currently in place are no
longer necessary to neutralize the diminished threat posed by Mr. Mahjoub. A
new set of conditions is to be prepared in accordance with the following
guidelines.
a.
Mr.
Mahjoub is required to report to the CBSA weekly at the time and place already
agreed between them.
b.
Mr.
Mahjoub is required to keep the peace and be of good behaviour.
c.
Mr.
Mahjoub’s passport and all travel documents, if any, shall remain surrendered
to the CBSA. The current restrictions relating to “Passport and Travel
Documents” shall remain in effect.
d.
If
Mr. Mahjoub is ordered removed from Canada, he shall report as directed for
removal. He shall also report to the Court as it from time to time may require.
e.
Mr.
Mahjoub is required to report any change of address to the CBSA.
f.
Mr.
Mahjoub shall not possess any weapon, imitation weapon, noxious substance or
explosive, or any component thereof.
g.
Mr.
Mahjoub shall not communicate directly or indirectly with any individual whom
Mr. Mahjoub knows, or ought to know, supports terrorism or violent Jihad, or
who attended any training camp or guest house operated by any entity that
supports terrorism or violent Jihad, or with any person Mr. Mahjoub knows,
or ought to know, has a criminal record.
h.
Mr.
Mahjoub may possess one mobile telephone and/or one landline telephone. He is
not to use any other telephone except in emergencies. The CBSA or any person
designated by the Agency may monitor the toll records from the service
provider(s) of Mr. Mahjoub’s personal mobile and/or landline telephone service.
To that end Mr. Mahjoub shall provide to the CBSA the applicable phone
number(s) and service provider(s).
i.
Mr.
Mahjoub may use one desktop computer with an Internet connection at his
residence. Should he elect to use such a computer, he shall permit any employee
of the CBSA or any person designated by the Agency to examine his computer,
including the hard drive and the peripheral memory, without notice. Mr. Mahjoub
may not, directly or indirectly, use any other device that is capable of
connecting to the internet or sending wireless signals.
j.
The
CBSA shall be authorized to monitor any address or return address on the
exterior of letter mail or packages received or sent by mail or courier to or
from Mr. Mahjoub. Further inspection of the mail or packages can only be
authorized if there are reasonable grounds to suspect that it is sent or
received in violation of any applicable condition of release.
k.
The
current requirements relating to sureties and performance bonds are maintained.
l.
If
Mr. Mahjoub travels outside of the Greater Toronto Area, as defined in the
current conditions, he must provide the CBSA upon seven days notice with his
trip itinerary, including his mode of transportation.
m.
The
current condition prohibiting audio and video recording of CBSA personnel by
Mr. Mahjoub is maintained.
n.
The
current condition requiring the CBSA to safeguard photographs taken in carrying
out its duties in relation to Mr. Mahjoub is maintained.
o.
A
breach of this order shall constitute an offence within the meaning of section
127 of the Criminal Code and shall constitute an offence pursuant to
paragraph 124(1)(a) of the IRPA.
p.
Terms
and conditions that are incidental or necessary to give effect to conditions
that flow from the above guidelines may be proposed by the parties in writing.
q.
Should
questions arise relating to the applicability of any of the terms and
conditions that may not have been dealt with expressly in the above guidelines,
the parties may seek the Court’s direction.
[63]
All
other current conditions not expressly provided for in these reasons are to be
eliminated.
[64]
I
am satisfied that the conditions to be prepared in accordance with the above
guidelines will be a rationally connected and proportionate response to the
nature of the threat posed by Mr. Mahjoub (in accordance with Charkaoui
I at paragraph 116).
[65]
The
Ministers are directed to prepare within ten (10) days of the signing of these
reasons, a draft “Schedule of Conditions in respect to the release of Mr.
Mahjoub” in accord with the above reasons.
[66]
The
draft is to be served on Mr. Mahjoub and his Counsel who will have five days
from the time of receipt to make submissions in writing on the sole issue of
whether the draft conforms to the above reasons. Upon receipt and consideration
of the draft and Mahjoub’s submissions, if any, an Order will issue confirming
Mr. Mahjoub’s release on the amended terms and conditions.
[67]
The
conditions will take effect on the signing of the Order confirming the amended
terms and conditions. The Ministers will as soon as possible take steps to
remove the monitoring equipment from Mr. Mahjoub’s residence and whatever steps
are necessary to give effect to the new terms and conditions of release.
[68]
Mr.
Mahjoub shall provide access on reasonable notice to allow the CBSA to remove
any surveillance equipment.
“Edmond P. Blanchard”
Ottawa, Ontario
January
7 2013
Email this Content