Docket: DES-7-08
Citation: 2014 FC 479
Ottawa, Ontario, May 16, 2014
PRESENT: The Honourable Mr. Justice Simon Noël
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IN THE MATTER OF a certificate signed pursuant to
subsection 77(1) of the Immigration and Refugee Protection Act [“IRPA”];
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AND IN THE MATTER OF the
referral of a certificate to the Federal Court of Canada pursuant to
subsection 77(1) of the IRPA;
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AND IN THE MATTER OF the terms and conditions of release
of Mohamed Zeki MAHJOUB [“Mr. Mahjoub”]
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REASONS FOR ORDER AND ORDER
[1]
The Ministers are seeking an amendment to a condition and additional
conditions to the terms and conditions of release of Mr. Mahjoub pursuant to
Rule 369 of the Federal Courts Rules, SOR/98-106. Public counsel for Mr.
Mahjoub requested an oral hearing, which was offered, but then submitted that
they could not attend unless funding for the fees could be obtained. This Court
gave public counsel until May 9, 2014 to solve the funding issue of their fees
and, if they did not, the Ministers’ motion would then be dealt with in
writing. Public counsel has recently informed that the funding issue has been
resolved and that they were ready to proceed with a review of all the terms and
conditions of release in early summer, and they suggested that the Ministers’
motion be suspended until then. Again the undersigned offered an oral hearing
to deal with the Ministers’ motion, which was agreed. Oral submissions were
made. These are the Reasons for Order and Order disposing of the Ministers’
motion to amend a condition and to add others to the terms and conditions of
release dated January 24, 2014.
[2]
The undersigned has been assigned as designated judge by the Chief
Justice to deal with matters arising from this file.
I. The Ministers’ motion to amend and add
conditions
[3]
The Ministers are asking that condition 10F) of the terms of conditions
of release be amended as follows:
10F) “Mr. Mahjoub shall permit any employee of
the CBSA or any person designated by it, to examine his modem and his computer,
including the hard drive and the peripheral memory; and seize the computer, modem,
and any peripheral memory devices for such examination, without notice. Mr.
Mahjoub shall provide any and all peripheral memory to the CBSA immediately
upon request.
(The underlining indicates the new
additions.)
and that the following
conditions of release be added:
10I) Mr. Mahjoub shall not take any action that
would circumvent the CBSA’s examination of his computer. Such action, includes,
but is not limited to use of encryption hardware or software, use of volatile
memory, or access to any random access memory [“RAM”] drive software.
10J) Mr. Mahjoub shall provide any and all
passwords to the CBSA immediately upon request.
10K) Mr. Mahjoub shall not access or use any
form of program or online service which allows him or others to create, store
or share files on the Internet. Such services include, but are not limited to,
“Drop box”, “Google drive”, Microsoft Sky drive”, and “Icloud”.
[4]
An amendment to condition 10F) and the addition of conditions 10I), 10J)
and 10K) are being sought because on August 21, 2013, CBSA officers visited Mr.
Mahjoub in order to collect his computer for examination pursuant to condition
10F) of the terms and conditions of release dated January 24, 2013, and when he
was asked to provide his password to access his computer, Mr. Mahjoub
refused (purpose of condition 10J). But in addition, the computer was removed
for examination and a virtual machine of the computer was created that enables
the viewing of the computer content as if it were operating. As a result of
this operation, it is the CBSA’s opinion that Mr. Mahjoub “[...] has likely
access to the drop box file hosting service.” A drop box file cannot be
accessed through a forensic examination (purpose of condition 10K)).
Furthermore, the CBSA considers that another method to circumvent a forensic
examination is the use of random access memory (RAM), another memory with the hard
disk drive (H.D.D.), which dissolves the information when the computer is
turned off. Therefore, the CBSA is seeking a condition to forbid such use
(purpose of condition 10I). Finally the amendment to condition 10F) is to broaden
the scope of access to the computer information and to specifically obligate
Mr. Mahjoub to provide upon request all of the information such as peripheral
memory and modem.
[5]
The Ministers submit that amending condition 10F) and adding the new
conditions are necessary because of Mr. Mahjoub’s lack of cooperation with the
CBSA, such as not giving his computer password when required, but also to
ensure that he does not circumvent condition 10 of the terms and conditions of
release by accessing without authorization websites, software or hardware which
are difficult to monitor and by communicating with persons.
[6]
It is also suggested that what is proposed are not new conditions that
would add to the already specified restrictions, but rather that they clarify
and specify the parameters of Mr. Mahjoub’s internet and computer usage which
is already set out in the Order of my colleague Justice Blanchard dated January
24, 2014.
[7]
In that Order, Justice Blanchard clarified that Mr. Mahjoub could browse
public available information on social media websites such as Facebook as long
as it is not used for the purpose of himself communicating with any person. The
Order made it clear that such use was not a breach of condition 10C). The
Ministers also sought at that time to add conditions that would clarify and
specify the parameters of Mr. Mahjoub’s use of the internet but my colleague
found that these were new conditions not covered by his Reasons for Order and Order
of December 17, 2013 and that they were not properly before the Court. Therefore
the new conditions were not considered.
[8]
The Ministers, with the present motion, are asking this Court: Should
the terms and conditions of release be amended now?
II. Mr. Mahjoub’s response
[9]
On behalf of Mr. Mahjoub, public counsel submits that the Ministers’
motion should be dismissed for the following reasons:
a) it
perpetuates and aggravates the “unprotofied” intrusion into Mr. Mahjoub’s
private life, his right to privacy and storage of personal information that is inimical
to the principles enunciated by the Supreme Court in R. v Vu, 2013 SCC
60;
b) the
existing conditions including the new ones are too broad and are not rationally
connected to a danger;
c) when
the terms and conditions were decided, the issues being raised as part of the
new conditions were known and not raised by the Ministers and were not imposed
by the Court.
[10]
In his affidavit filed in support of his submissions, Mr. Mahjoub
explains that he did not give his password because the terms and conditions do
not require such disclosure and that “[...] I (he) respect(s) these
conditions.” He also affirms that he has never used drop box or any other
storage service or any software or browser or tool to hide his activities on
the Internet, and that he had no knowledge that such technology existed. He is
cooperating with the CBSA pursuant to the terms and conditions. Mr. Mahjoub
considers that he is not a threat to anyone and request that the terms and
conditions dated January 24, 2014 be changed.
[11]
Public counsel has also submitted an affidavit of Jeremy Cole, a
technological consultant, which in essence says that a forensic examination
(which the CBSA can do on its own) can detect and inspect the content of
external memory but also examine the information contained in the computer even
when passwords or encryption device are used to circumvent the access. As for
the use of a drop box website as claimed by the CBSA, Mr. Cole says that no
logs referred to indicate that Mr. Mahjoub had accessed such website.
[12]
It is submitted that all of the Ministers’ requests are not necessary
since a CBSA forensic investigation can access all of the computer activities
even those that use other technology communications to prevent access and that
the knowledge of a password is not essential to permit access and, more
importantly, that Mr. Mahjoub has not used any of that new technology to
prevent a proper access to his computer and that he has respected the terms and
conditions of release of the January 24, 2014 term.
[13]
Public counsel submits that the motion of the Ministers to amend and add
conditions be dismissed. If not, that the motion of the Ministers be suspended
until Mr. Mahjoub’s motion to review all of the terms and conditions of release
is dealt with in late June or July. To this effect, the public counsel has
filed with the Court a notice of motion for release, repealing of conditions
and variation of conditions save usual terms such as to keep the peace, report
a change of address.
III. Analysis
[14]
In his most recent Reasons for Order and Order dated December 17, 2013,
Justice Blanchard found that Mr. Mahjoub poses a threat to the security of Canada but that the threat is diminished “significantly”. The result of this finding was
reflected in the terms and conditions of release dated January 24, 2014.
[15]
The Reasons for Order also were also forward looking:
21 [...] in terms of the future length of time that the conditions
of release will continue, until decisions are made concerning appeals, it is
difficult to estimate the time that will be required. Mr. Mahjoub will continue
to benefit from regular reviews of his terms and conditions of release. This
factor will be considered again at the next review at this time, it is
considered to neutral.”
[16]
The Ministers would like, at this time, to amend and add to the
conditions of release. Mr. Mahjoub would like the conditions of release to be
terminated.
[17]
The Ministers do not identify a breach to the conditions on the part of
Mr. Mahjoub. It relies on a CBSA visit of August 21, 2013, months before the
last review of conditions, to support their request to amend and add
conditions. The Ministers want to clarify and specify the parameters of Mr.
Mahjoub’s internet and computer usage. The closest the Ministers came to
identify an issue of concern is that Mr. Mahjoub “[...] has likely access to
the drop box [...]”.
[18]
On the opposite, Mr. Mahjoub denies having done so or having used any
device to communicate without leaving a trace of doing so. Public counsel has
also filed technological evidence that shows that a forensic examination can
detect any wrongful use and the information beneath.
[19]
In such a case, at this time, a Court does not have to decide on the
extent and scope of condition 10 by which Mr. Mahjoub will have to abide in
order to ensure that he does not communicate with outsiders through the use of
his computer. My reading of condition 10F) in particular indicates that the
purpose of the access to the content of the computer is to insure that all of
its use can be monitored by CBSA. At this stage, there is no need to go any
further and to clarify and specify the parameters of Mr. Mahjoub’s use of his
computer. There will be a time to review all of that including all the terms
and conditions of release.
[20]
Having said that, a matter has to be explained in detail to Mr. Mahjoub.
The condition 10F) of the terms and conditions of release is clear. It will now
be crystal clear. Mr. Mahjoub cannot directly or indirectly use his computer
for the purpose of communicating with any person as condition 10C) specifies.
Justice Blanchard had this to say about it:
“Conditions 10C) is aimed at preventing the use
of the Internet for the purpose of communicating by Mr. Mahjoub with any
person. To that end, Mr. Mahjoub was prohibited from setting up an account or
accessing any existing account. The condition was not intended to prevent
browsing publicly available information on such websites as long as Mr. Mahjoub
does not use such websites for the purpose of communicating with any person.”
(See Order of January 24, 2014, at page 4).
[21]
It goes without saying that the Ministers and the CBSA for the purposes
of monitoring condition 10C) must have full access to Mr. Mahjoub’s computer,
including his passwords. It would not be logical for conditions 10C) and 10F) to
mean that the computer can be seized for such examination but that the entry
code not be given. Public counsel argues that a password can always be
circumvented when the forensic examinations begins. If that is the case then,
Mr. Mahjoub shall in the future give his password when asked. The best example this
Court can use is the following: if access is given to a house for search
purposes (such as Condition 15 does), it goes without saying that either a key
is given or the doors of the house are made accessible. Surely, even if it is
not specified that the key or access to the house has to be given, it does not
mean that the doors have to be broken. Some sense has to be given to giving
access to a house like giving it to a computer. Therefore condition 10F) with
the following addition as underlined will read as follows:
F) “Mr. Mahjoub shall permit any employee of
CBSA or any person designated by it, to examine his computer, including the
hard drive in the peripheral memory; and seize the computer for such
examination without notice. Upon request Mr. Mahjoub shall give forthwith
all passwords necessary in order to give full access to the information to his
computer.
[22]
As for the motion of the Ministers to amend condition 10F) (subject to
the clarification contained in paragraph 19 of the present reasons) to give it
a larger scope, and to add condition 10I) to forbid the use of encryption
hardware, RAM drive software, etc., and condition 10K to forbid the use of drop
box, Google drive, etc., it shall be dealt with at the time of a full review of
the terms and conditions of release dated January 24, 2014 as amended by the
present Order.
[23]
For the sake of clarity, this does not mean that meanwhile if the Ministers
have evidence that indicate that Mr. Mahjoub has breached any of the terms and
conditions of release that a motion cannot be presented to that effect.
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