Date: 20140718
Docket: DES-7-08
Citation:
2014 FC 720
Ottawa, Ontario, July 18, 2014
PRESENT: The Honourable Mr. Justice S. Noël
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BETWEEN:
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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 conditions of release of Mohamed Zeki
MAHJOUB [“Mr. Mahjoub” or the “Applicant”]
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ORDER AND REASONS
I.
Introduction
[1]
Mr. Mahjoub seeks from this Court that it
releases him from and repeals all of his conditions of release from detention,
save the usual conditions, pursuant to subsection 82(4) and paragraph 82(5)(b)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [the “IRPA”].
A.
Facts – A brief history of the proceedings and
previous reviews of the conditions of release from detention
[2]
The Applicant was named in a security
certificate in June 2000 and put under detention on June 26 of that same year.
[3]
The Applicant was released from detention, after
nearly seven years, under strict conditions, and he was made the object of a
second security certificate in 2008.
[4]
Several reviews of the Applicant’s conditions of
release from detention were made over the years. The most recent hearing for
the review of these conditions of release was held before the late Justice
Blanchard on October 16, 2013, following which orders were rendered on December
17, 2013 (Mahjoub (Re), 2013 FC 1257 [the “December 17, 2013 review of
conditions order”]) and January 24, 2014 (Mahjoub (Re), in docket
DES-7-08, dated January 24, 2014 [the “January 24, 2014 review of
conditions order”]).
[5]
Justice Blanchard’s December 17, 2013 review of
conditions order renewed and maintained his previous review of conditions order,
dated January 7, 2013, which had repealed a number of conditions imposed on the
Applicant and softened other conditions considerably.
[6]
In the meantime, the Applicant contested the
reasonableness of the security certificate issued against him. However, Justice
Blanchard declared this security certificate reasonable on October 25, 2013 –
the reasons of this decision were released later, on December 6, 2013 (Mahjoub
(Re), 2013 FC 1092 [the “Reasonableness Decision”]).
[7]
Since the last review of the conditions of
release from detention, and more specifically on March 24, 2014, the Ministers
sought to have the Applicant’s conditions modified in order to, among other
things, gain access to all of the Applicant’s passwords. Following an oral
hearing on May 15, 2014, I ordered that the Applicant was to provide the
Ministers with all of his passwords upon request and that the other elements
sought by the Ministers were to be addressed at the following review of the conditions
of release from detention, i.e. this review.
II.
Applicant’s submissions
[8]
The Applicant seeks to have all of his conditions
of release from detention repealed, save for the following usual conditions:
- Mr. Mahjoub
shall keep the peace and be of good conduct;
- Mr. Mahjoub
shall report change of address;
- Mr. Mahjoub
shall comply and agree to comply with each of the conditions set out in
this order;
- Mr. Mahjoub’s
passport and all travel documents, if any, shall remain surrendered to the
Canada Border Services Agency [the CBSA]. Without the prior approval of
the CBSA, Mr. Mahjoub is prohibited from applying for, obtaining or
possessing any passport or travel document. For clarity, this shall not
prevent Mr. Mahjoub from traveling within Canada, as long as proper notice
is given to the CBSA pursuant to paragraph 8 of these Conditions;
- If Mr. Mahjoub
is ordered to be 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;
- Mr. Mahjoub shall
not possess any weapon, imitation weapon, noxious substance or explosive,
or any component thereof;
- 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;
- The conditions
of this Order may be amended at any time by the Court upon the request of
any party or upon the Court’s own motion with notice to the parties.
A.
The evidence in support of the motion
[9]
In addition to adducing new evidence, the
Applicant relies on the evidence already on file, including certificates and
expert reports produced by Professor Stéphane Leman-Langlois, as well as several
other expert psychiatric reports by Dr. Donald Payne and an expert report by Vaughan
Barrett.
[10]
As for the new evidence in support of his
claims, the Applicant claims that they can be split into five categories, as
follows:
1)
The psychological impacts of the conditions
of release from detention on the Applicant (major depression, anxiety and PTSD
symptoms): A certificate and an expert psychiatric
report prepared by Dr. Payne and dated June 2, 2014.
2)
The recurring problems faced by the Applicant
with the CBSA with the implementation of the conditions of release from
detention: Various exchanges between the Applicant
and the Department of Justice and the CBSA.
3)
The Applicant’s activities in taking language
courses and his inability to move forward in that regard because of the
conditions of release from detention: Evidence of
the Applicant studying English as a second language.
4)
The Applicant’s need for regular medical
attention and the negative impact the conditions of release from detention have
had in this regard: Medical letters attesting the
Applicant’s latent serious medical conditions.
5) The new evidence with respect to the unfairness and/or unreliability
or insufficiency of the allegations and the process against the Applicant: Articles on the worsening of the situation in Egypt.
B.
The arguments in support of the motion
[11]
At the outset of his submissions, the Applicant
reminds this Court that the Ministers bear the burden of proving the necessity
of the imposed conditions and that they are also held to numerous
constitutional requirements in this regard. The Applicant also argues that for
a lack of evidence, his current conditions of release from detention must be
changed greatly in order for them to be proportionate, reasonable and respectful
of his Charter-protected rights and freedoms, particularly, sections 2,
7 and 8. Furthermore, according to the evidence, these current conditions are
harmful to the Applicant and must therefore be changed in order to respect
sections 7 and 12 of the Charter.
[12]
The Applicant puts forward four main arguments
in support of his claims.
(1)
Lack of evidence of the danger posed by the
Applicant
[13]
The most recent review of conditions of release order
(dated December 17, 2013) presented a series of errors which, when taken into
consideration, explain the necessity of repealing all the conditions imposed on
the Applicant. In this order, Justice Blanchard failed to provide any
explanation as to why he still considered that the Applicant posed a threat to
the security of Canada. At that time, despite bearing the onus of proving said
threat, the Ministers had presented no evidence on the current threat level of
the Applicant, whereas the evidence on file, including Professor Leman-Langlois’
reports, effectively suggests that the Applicant could not be a threat. There is
actually no evidence of the Applicant presenting any current threat whatsoever.
Justice Blanchard also dismissed Professor Leman-Langlois’ report as well as
the then-submitted medical reports by Dr. Payne for no reason and despite
their relevance to the Applicant’s claim. The December 17, 2013 review of
conditions order also failed to take into consideration the length of time
covered by the reasons and, what is more, it concluded that the Applicant could
not be trusted to respect his conditions of release because of a single
incident – it had been found that the Applicant had changed his telephone and
fax services without informing the CBSA in a timely fashion –, thereby ignoring
the fact that the Applicant has been observant of all his conditions of release
from detention for numerous years.
[14]
What is more important, however, is that the
Reasonableness Decision actually dismisses the majority of the allegations made
over the years against the Applicant. Moreover, as Justice Blanchard rendered
his review of conditions of release order on December 13, 2013, the Applicant
was not provided with the opportunity to address the Reasonableness Decision’s
findings (dated December 6, 2013) and their impact on the review of conditions
of release. Also, in light of the findings of this Reasonableness Decision, all
of the Applicant’s conditions of release from detention, save the usual
conditions, should be repealed as these conditions are inter alia
rationally disconnected to controlling the alleged danger the Applicant
represents.
(2)
The Applicant’s health, and the impact the conditions
have had and will continue to have on his well-being
[15]
For this argument, the Applicant relies on Dr.
Payne’s report dated June 2, 2014, which states that the various conditions to
which the Applicant is held – as well as the numerous incidents that have happened
in implementing these conditions – have a great and cumulative effect on the
Applicant’s physical and psychological health.
[16]
According to Dr. Payne, the Applicant’s current
conditions regarding the interception of his mail, the use of computers and
telephones and the access to internet, his travel restrictions, and his
obligation to report weekly to the CBSA and to notify the CBSA prior to moving
have put him in situations which intensify his depression, wear him down
psychologically and lead to a social stigma and isolation. The Applicant has
also experienced frustration, loneliness, acute stress and PTSD symptoms, all
of which lead to a limitation in his quality of life.
[17]
In addition, Dr. Payne’s report enounces several
factors which aggravate the Applicant’s situation. Indeed, the Applicant having
been falsely accused of denying the CBSA access to his home, he has been left
in a state of constant vigilance and preoccupation. Also, the physical
surveillance of which he is the object has given the Applicant a feeling of
impotence and a lack of autonomy. Furthermore, the Applicant feels mentally,
emotionally and psychologically tortured by the Department of Justice, and he
has experienced threats and harassment because he has been publicly identified
as a security threat.
[18]
These psychological hardships also have
important consequences on the Applicant’s various physical conditions.
(3)
The passage of time, the absence of any reprehensible
act from the Applicant, the delays and the anticipated length of appeal
[19]
All the above-mentioned social, psychological,
educational and functional difficulties resulting from the current conditions
of release from detention have had a cumulative impact which is
disproportionate, and they must be repealed because the Applicant has consistently
complied with the laws of Canada and his conditions of release. In addition,
the Applicant has appealed the Reasonableness Decision, but this process is far
from being complete. It is not reasonable to let these entire conditions stand
during such a long period.
[20]
The Applicant also addresses the Ministers’
motion to amend section 10 of the conditions which was the object of a hearing
on May 14, 2014. As mentioned above, the issues raised by the motion on which
the Court has yet to decide are to be addressed in this review of conditions.
The following is a summary of the Applicant’s arguments in support of his
contention that the amendments sought by the Ministers should not be given:
a)
The amendments perpetuate and aggravate 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, [2013] SCJ No 60 [Vu];
b)
The existing conditions including the new ones
are too broad and are not rationally connected to a danger;
c)
When the 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.
[21]
The Applicant affirms that he has never used Dropbox
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 conditions.
[22]
Public counsel for the Applicant 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. As for the use of a Dropbox website as claimed by
the CBSA, Mr. Cole says that no logs referred to indicate that Mr. Mahjoub had
accessed such website.
[23]
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, 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 conditions ordered on January 24, 2014.
(4)
The necessity of protecting the Applicant’s
constitutional rights
[24]
The Applicant’s conditions of release from
detention must be lifted because there is no evidence linking the Applicant to
criminal or dangerous activity, and these conditions constitute prima facie
violations of the Applicant’s constitutional rights. In particular, the Supreme
Court of Canada, in Vu, above, recently ruled that the search of a
person’s house or home computer is a highly intrusive invasion. Consequently,
the conditions should be repealed as they clearly constitute Charter
violations.
III.
The Ministers’ submissions
[25]
The Ministers argue that the current conditions
of release from detention continue to be necessary to neutralize the threat to Canada posed by the Applicant.
[26]
At the outset of their submissions, the
Ministers contend that the Applicant’s affidavit should be afforded no weight
as it contains legal arguments as well as opinion statements which are either unsupported
by evidence or contradicted by the record. In addition, the Court has
previously found that the Applicant had not been truthful in many regards, and
this lack of credibility also suggests that the Applicant’s affidavit should be
set aside.
[27]
What is more, this Court should afford little
weight to most of the evidence presented by the Applicant. Dr. Payne’s medical
report dated June 2, 2013 contains a number of inaccuracies and relies on facts
not found in the record. For example, the medical report claims that the CBSA
is responsible for the Applicant no longer being able to communicate with his
family, however this is not the case; in fact, an exception was added to the
Applicant’s conditions to allow the Applicant to have visual electronic
communications with his family members in Egypt. Other inaccuracies in the
medical report relate to the Applicant’s conditions of release from detention
as they concern his change of residence and the use of a cell phone. What is
more, the medical report also positively portrays the Applicant’s past
employment whereas the Court has seriously taken issue with the Applicant’s
past employment situation. In sum, as Dr. Payne’s medical report’s findings do
not appear to be based on actual facts, they should be afforded little weight.
[28]
The same treatment should be afforded to the
Applicant’s evidence produced by Professor Leman-Langlois as the Court already
addressed this evidence during the previous review of conditions of release and
afforded it little weight back then due to numerous shortcomings.
[29]
The Ministers then address the actual conditions
of release from detention and state that they are necessary to neutralize the
danger which the Applicant represents for Canada. The Ministers submit that the
passage of time and the Applicant’s history of compliance do not warrant a
removal of the conditions but simply prove that these conditions are working
effectively. Also, during the last review of the conditions of release, the
Court has held that the Applicant still poses a threat, a significantly reduced
threat but a threat nonetheless, and the Applicant has provided no evidence of
a change in the situation in this regard, especially in the light of the
Reasonableness Decision.
[30]
In fact, the Applicant’s actions and lack of
cooperation with the authorities favour the maintaining of the current
conditions of release, as the Applicant cannot be trusted to respect his
conditions of release. Several incidents involving the CBSA support this claim.
On one occasion, the Applicant traveled outside the GTA without providing the
CBSA with an accurate itinerary. The Applicant has also shown a lack of
cooperation with regard to the communication of his Startec telephone toll
records and when the CBSA tried to examine his computer.
[31]
Contrary to the Applicant’s claim, the time
required to process the appeal of the Reasonableness Decision is not a factor
that should weigh against the Ministers because the Applicant is still entitled
to regular reviews of his conditions of release and the Ministers have not
shown any lack of diligence during the proceedings.
[32]
The Ministers contend that the Applicant’s current
conditions of release from detention remain necessary to ensure that he does
not communicate with prohibited persons or acquire or re-establish contacts
that might threaten Canada’s security.
[33]
The condition regarding the verification of the
Applicant’s in-person communications and activities is necessary because the
Applicant no longer wears a tracking bracelet and he has already failed to
provide his accurate itinerary to the CBSA with respect to one of his travels.
It is also necessary to maintain the condition of obtaining telephone toll
records, as the interception of calls has ceased and this is the only manner
for the authorities to verify this type of communications with the least
interruption for the Applicant.
[34]
The condition restricting the use of the
internet should also be maintained. In this regard, the Ministers claim that
communications by the Applicant over the internet by e-mail should not
be allowed because the Applicant failed to submit any substantiated argument on
the issue or to prove that he has made efforts to overcome his alleged
difficulties. Alternatively, communications over the internet by e-mail should
be permitted under certain conditions: the Applicant must agree 1) to grant the
CBSA access to his e-mail account; 2) to provide his username and password to
the CBSA; 3) not to alter or delete any sent, received or drafted e-mails from
his account; 4) not to engage in any communication over which he may claim
solicitor-client or litigation privilege; and 5) to access his e-mail though
non-web based email tools, such as Outlook. As for the use of social
networking websites, the Applicant has simply provided no explanations as
to why he should have access to them. With regard to the use of Skype, the
Applicant claims that he needs to obtain an e-mail address in order to access
the service, but he should have raised this issue before this review of
conditions hearing. It remains open for the Applicant to contact the Ministers
to determine whether it is possible to come to an agreement.
[35]
Furthermore, it remains necessary to examine the
Applicant’s computer, especially considering the Applicant’s actions and lack
of cooperation in this regard during the last examinations. Also, the
interception of the Applicant’s mail remains necessary in order to verify his
communications, as do the conditions of keeping the peace and being of good
behaviour and the conditions associated with performance bonds.
[36]
In his submissions, the Applicant submits arguments
on constitutional issues. However these issues have already been addressed and
rejected by the Court – they should not be addressed again.
[37]
With respect to the motion that was heard by
this Court on May 14, 2014 and by which they tried to amend section 10 of the
conditions, the Ministers rely on their memorandum filed on March 24, 2014. The
following paragraphs are a summary of these claims.
[38]
The Ministers are asking that paragraph 10(f) of
his conditions of release be amended as follows:
10(f) 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:
10(i) 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.
10(k) 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, “Dropbox”, “Google Drive”, “Microsoft SkyDrive”,
and “iCloud”.
[39]
An amendment to paragraph 10(f) and the addition
of paragraphs 10(i) and 10(k) to the conditions of release are being sought
because on August 21, 2013, officers from the CBSA visited Mr. Mahjoub in order
to collect his computer for examination pursuant to paragraph 10(f) of the
conditions of release dated January 24, 2013 and a virtual machine of the
computer was then created to enable 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 Dropbox file cannot be accessed through a
forensic examination (purpose of proposed paragraph 10(k)). 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 proposed
paragraph 10(i)). Finally the proposed amendment to paragraph 10(f) of the
conditions of release 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.
[40]
The Ministers then submitted that amending paragraph
10(f) and adding the new proposed conditions is necessary because of Mr.
Mahjoub’s lack of cooperation with the CBSA, but also to ensure that he does
not circumvent section 10 of his conditions of release by accessing
without authorization websites, software or hardware which are difficult to
monitor and by communicating with persons.
[41]
The Ministers also suggest that these are not
new conditions that would add to the already specified restrictions; they merely
clarify and specify the already existing parameters of Mr. Mahjoub’s internet
and computer usage, which were already set out in my colleague Justice
Blanchard’s January 24, 2014 review of conditions order.
[42]
Lastly, the Ministers seek to add a condition
relating to the Applicant’s residence:
No other person may occupy Mr. Mahjoub’s
residence without notice to the Court.
[43]
This provision is rendered necessary because the
Applicant has received mail addressed to another individual, and he has failed
to provide any explanation on the issue. The Ministers wish the Applicant be
required to give notice prior to someone else occupying his residence.
IV.
Analysis
[44]
In order to make the proper determination in the
present review of the conditions of release, it is the intention of this Court
to proceed with its analysis by relying on the criteria established in Harkat
v Canada (Minister of Citizenship and Immigration), 2013 FC 795 at para 26,
[2013] FCJ No 860, and in Charkaoui v Canada (Minister of Citizenship and
Immigration), 2007 SCC 9 at paras 110-121, [2007] SCJ No 9, which are as
follows:
- Past decisions relating to the danger and the history of the
procedures pertaining to reviews of detention, release from detention with
conditions and the decisions made;
- The Court’s assessment of the danger to the security of Canada associated with the Applicant in light of all the evidence presented;
- The decision, if any, on the reasonableness of the certificate;
- The elements of trust and credibility related to the behaviour
of the Applicant after having been released with conditions and his
compliance with them;
- The uncertain future as to the finality of the procedures;
- The passage of time (in itself, not a deciding factor – see Harkat
v Canada (Minister of Citizenship and Immigration), 2007 FC 416, at
para 9, [2007] FCJ No 540);
- The impact of the conditions of release on the Applicant and
his family and the proportionality between the danger posed by the
Applicant and the conditions of release.
A.
Past decisions relating to the danger and the
history of the procedures pertaining to reviews of detention, release from
detention with conditions and the decisions made
[45]
As the certificate procedures were evolving, there
have been numerous reviews of Mr. Mahjoub’s detention prior to his release and,
since his release under conditions, numerous reviews of these conditions. Mr.
Mahjoub remained in detention from June 26, 2000 until April 11, 2007, when he
was released with strict conditions. On March 17, 2009, as his wife and stepson
decided to cancel their supervising sureties (an important condition of
release), Mr. Mahjoub was once again put under detention until his release
under conditions on March 11, 2010. Since then, there have been periodic
reviews of his conditions of release.
[46]
The consistent pattern has always been that Mr.
Mahjoub was associated to a danger to the security of Canada and that, when he
was released under conditions, this danger, although it diminished with time, when
considering other factors, still required important conditions of release in
order to be neutralized.
B.
The Court’s assessment of the danger to the
security of Canada associated with the Applicant in light of all the evidence
presented
[47]
In Mahjoub (Re), 2011 FC 506 at para 59, [2011]
FCJ No 936, the danger associated to the Applicant was described as follows:
[…] The threat
posed relates essentially to Mr. Mahjoub’s alleged past activities and contacts
with persons and organizations involved in international terrorism; and the
concern that he espouses extremism and is likely to radicalize others and is
prepared to resort to violence and direct others to violence if asked to do so
by terrorist leaders. […]
[48]
After holding hearings for the review of the
Applicant’s conditions of release from detention in October 2013 where both
parties had the full opportunity to present their case, the Court found that
although the level of danger was significantly diminished, there was still a
threat associated to Mr. Mahjoub which required to be neutralized by conditions.
Thus, the Court in the December 17, 2013 review of conditions order concluded
as follows, at para 6:
I remain satisfied that Mr. Mahjoub
poses a threat to the security of Canada as described in my Reasons for Order
dated January 7, 2013. I would consider the significantly diminished threat
described at that time to be unchanged.
[49]
This finding shows that the assessment of the
threat associated to the Applicant by the Court was made in January 2013 and confirmed
again in December 2013, and that although this threat diminished significantly,
it remained important enough to require conditions to be neutralized. A little over
six months has passed since the last review of conditions and, as such, the
question to be asked is what has changed since that time that could justify maintaining
the conditions of release or, as the Applicant seeks, cancelling the most
important conditions.
[50]
The Ministers are relying on a non-updated threat
assessment dated November 2, 2011. In addition, it is argued that the security certificate
was found to be valid, that Mr. Mahjoub’s behaviour and lack of candour with
the supervising agency of the conditions of release, i.e. the CBSA, and the
lack of evidence of a change in his ideology all render the then-determined
danger unchanged, and that the conditions of release should, too, remain
unchanged. They submit that the above-mentioned elements are sufficient to meet
their burden.
[51]
The Applicant considers that the threat
assessment is outdated, that there is no danger of which to speak, that he has complied
with his conditions of release, and that the medical and other evidence shows
that the existing conditions of release are not in proportion with the danger supposedly
associated to him.
[52]
As it will be seen, this Court considers that the
Court’s January 2013 finding regarding the danger level associated with
the Applicant, confirmed by the December 17, 2013 review of conditions order,
at para 6, remains valid. In addition, the Reasonableness Decision was based on
solid findings of fact and concluded that the certificate was reasonable.
Furthermore, Mr. Mahjoub’s behaviour in relation to his conditions of release,
the supervision of them by the CBSA, and his general attitude were not such as
to indicate to this Court that the danger level found to be associated to him in
January 2013 should be changed.
[53]
As a side note, I wish to respond to the
Applicant’s argument that the Court, when it issued its December 17, 2013 review
of conditions order, committed a breach to the duty of fairness by not
informing the Applicant of its findings of fact in the Reasonableness Decision.
This Court finds no legal basis to such an argument. The Reasonableness Decision
was issued publicly on December 6, 2013, a little more than six weeks after the
hearing for the review of conditions (held on October 16, 2013) where both
parties were invited to fully present their case. The decision on this matter
was under reserve up until the time of issuance, specifically December 17, 2013,
a little less than two weeks after the Reasonableness Decision was made public.
To pretend that Mr. Mahjoub did not have an opportunity to address the impact
of the Reasonableness Decision’s findings on the review of conditions is
unfounded. He had the opportunity to present his case in October 2013: he became
knowledgeable of the Reasonableness Decision’s findings in early December 2013
and despite having had more than ten (10) days to do so, at no time did he make
a request to the Court to address this matter. In any event, it was known to
all that at the time of the hearing on the review of conditions of release that
the Reasonableness Decision was under reserve since the last ex parte in
camera hearing of January 27, 2013.
C.
The decision, if any, on the reasonableness of
the certificate
[54]
When considering the Applicant’s record as well
as his written and oral submissions, the resulting impression is that Mr.
Mahjoub is minimizing the key findings made in the Reasonableness Decision. It
is true that some allegations made by the Ministers were not found to be factually
founded, but the findings actually made are important not only in substance but
also for their legal impact on the tests required to conclude that the certificate
is reasonable. Here are some of them:
[627] Upon considering the evidence
holistically, and on the basis of substantiated and reasonable inferences, I
find that the Ministers have established reasonable grounds to believe that Mr.
Mahjoub is a member of the AJ and its splinter or subtest group, the VOC.
[628] In so determining I rely on my
findings set out above which include:
that the AJ
and VOC existed as terrorist organizations at the relevant times;
Mr. Mahjoub
had contact in Canada and abroad with AJ and VOC terrorists;
Mr. Mahjoub
used aliases to conceal his terrorist contacts;
Mr. Mahjoub
was dishonest with Canadian authorities to conceal his terrorist contacts;
Mr. Mahjoub
worked in a top executive position in a Ben Laden enterprise alongside terrorists
in Sudan at a time when key terrorist leaders were in Sundan;
Mr. Mahjoub
was dishonest in concealing from Canadian authorities the nature of his
position at Damazine Farm;
Mr. Mahjoub
traveled to and from Sudan at the same time as AJ and Al Qaeda elements, and
[Some of the
direct evidence] that Mr. Mahjoub was a member of the AJ and Mr. Mahjoub’s
intercepted conversations support the Ministers’ allegation.
[629] In my determination, I have
also relied upon the following inferences relating to Mr. Mahjoub’s travels and
activities. These include:
Mr. Mahjoub’s
contacts were of a terrorist nature;
Mr. Mahjoub
had a close and long-lasting relationship with a number of his terrorist
contacts;
Mr. Mahjoub
was trusted by Mr. Bin Laden on the basis of his ties to the Islamic extremist
community;
Mr. Mahjoub
was aware of and complicit in Al Qaeda weapons training occurring at Damazine
Farm, and
Mr. Mahjoub’s
travels to and from Sudan at the same time as AJ elements were not
coincidental.
[669] I find that these facts
establish reasonable grounds to believe that prior to his arrest, as a member
of the AJ and its splinter or subtest group the VOC, Mr. Mahjoub was a danger
to the security of Canada.
[Reasonableness Decision, above]
[55]
Such findings were determinative for the
conclusion that the certificate issued by the Ministers was reasonable, and they
cannot be qualified as being not that important or relatively not important
when considering all the allegations made. They are substantive findings which
go to the essence of what terrorism is all about and how it can be articulated
worldwide but also in Canada. The determination regarding the danger must also
be read as being important since it concludes that prior to his arrest, Mr.
Mahjoub was found to be a danger to the security of Canada. This finding related
to the danger is to be read with the most recent assessment made as of December
2013 where this danger was found to be significantly less important but still
existing and requiring conditions of release to be neutralized. At the time of
his arrest in 2000, it was decided that the danger was such that it required
the detention of Mr. Mahjoub for a little less than seven years and again later
in 2009 for close to one year.
[56]
During the period spent released from detention,
the conditions evolved: they were strict and restrictive at first and, as the
circumstances called for it, they became less strict and restrictive, and as of
December 2013, they became significantly less so. Having noted that, the danger
associated to Mr. Mahjoub remains and the conditions of release must be enacted
to neutralize it as it will be seen in the following paragraphs.
D.
The elements of trust and credibility related to
the behaviour of the Applicant after having being released with conditions and
his compliance with them
[57]
The behaviour of an individual with respect to
the conditions of his release is an important factor to consider when
considering amending them or some of them. In Harkat (Re), 2009
FC 241 at para 92, [2009] FCJ No 316, the Court had this to say on this factor:
[92] Credibility and trust are essential considerations in any judicial
review of the appropriateness of conditions. When considering whether
conditions will neutralize danger, the Court must consider the efficacy of the
conditions. The credibility of and the trust the Court has in a person who is
the subject of the conditions will likely govern what type of conditions are
necessary.
[58]
Mr. Mahjoub’s record regarding his most recent
conditions of release has not been exemplary, as noted by the Court in its
December 17, 2013 review of conditions order, when it concluded that Mr.
Mahjoub had breached his condition of release by not giving proper notice of
the acquisition and use of the telephone and fax services. It was found that: “[…] Mr. Mahjoub cannot be relied upon to respect his
conditions of release.”(December 17, 2013 review of conditions order at
para 18).
[59]
In that same decision, again as recently as
December 2013, the Court also found that in relation to the cutting of the GPS
bracelet and not permitting the CBSA to remove the bracelet without being
damaged, Mr. Mahjoub’s actions were: “[…] indicative
of an unwillingness to cooperate with the CBSA.” (see para. 17)
[60]
Mr. Mahjoub’s recent attitude, action and
behaviour are also indicative of an unwillingness to collaborate and cooperate
with the supervision duty of the CBSA that the Court has imposed. Here are a
few examples of this:
- January 2014 – Mr. Mahjoub, although obligated to do so by section
7 of his conditions of release, did not give correct information to the
CBSA concerning his travel from Toronto to Ottawa. Through counsel, the
Applicant gave the wrong departure time which prevented the CBSA from assuming
its supervisory role. The reasons given to explain this failure, to the
effect that it was the error of counsel and that the CBSA should have
informed Mr. Mahjoub of the discrepancy, are not accepted. Mr. Mahjoub was
required by section 7 of his conditions of release to give accurate
information when traveling, and it is not for the CBSA to compensate for a
lack of accuracy. Still, because of that blatant failure by Mr. Mahjoub to
provide accurate factual information, the CBSA was rendered unable to
assume its supervisory role as the Court so required. This is another
indication showing a lack of collaboration and cooperation on his part.
- Mr. Mahjoub has failed to provide the Startec toll records as
requested by the CBSA pursuant to paragraph 11(b) of the conditions
of release for the period of use between January 31, 2014 and February 21,
2014, and he has yet to do so. This matter was submitted to the Court
sometime in late spring 2014. Paragraph 11(b) of the conditions of
release is clear: Mr. Mahjoub has the obligation to supply the Startec toll
records for this three-week period. Again, this is another example of Mr.
Mahjoub’s lack of collaboration and cooperation. As for the Startec toll records
for the year 2013, pursuant to paragraph 11(a) of the January 31, 2013 conditions
of release, even though being asked to consent, Mr. Mahjoub still has not
given consent. The reason he gives is that the CBSA should not gain
retroactive access to these toll records. Furthermore, the Applicant has
not given notice that he was using Startec as required by that condition of
release. He argues that the CBSA knew of this account and should have
asked them earlier. This argument does not relieve Mr. Mahjoub of his
obligation to consent to the release of these toll records as required by
the Court pursuant to paragraph 11(a) of his conditions of release. Again,
this is not an attitude that shows collaboration and cooperation as the conditions
of release so require. By acting in such a way again, Mr. Mahjoub decides
that the CBSA will not assume its supervisory role as requested by the
Court.
- Pursuant to paragraph 10(f) of the 2014 conditions of release,
Mr. Mahjoub must give full access to his computer to the CBSA without
notice, which includes the hard drive and the peripheral memory, and the
CBSA may seize the computer for such purpose. On April 24, 2014, when requested
by the CBSA, Mr. Mahjoub did not give the immediate access. He had the
CBSA representative wait at the door and, as he went back to his computer,
he appeared to be seen for a period of two minutes to be doing something
to his computer. The condition compels Mr. Mahjoub to give access and
control to the CBSA without notice. He did not. He also objected to the
taking of photographs by the CBSA, when the purpose of the picture is to
wire the computer in the same way when it is brought back and to document
any damage on the computer. This is standard procedure for the CBSA and an
understandable policy to be followed. In addition, Mr. Mahjoub refused to
provide any USB devices for inspection as required by paragraph 10(f)
of his conditions of release which stipulates not only the examination of
the computer but also all peripheral memory devices. This is very close to
a breach of the condition if not a breach. Finally on this matter, Mr.
Mahjoub objected to giving his password to access his computer. This Court
wrote Reasons for Order and Order obligating Mr. Mahjoub to do so (see Mahjoub
(Re), 2014 FC 479 and more specifically paragraph 21). To this Court,
it was evident that the password had to be given for the purpose of examining
the computer. What was evident to this Court, however, was not to Mr.
Mahjoub. This type of attitude can only show a lack of collaboration and
cooperation, and not only is this is not helpful to Mr. Mahjoub’s interest,
but it also complicates and possibly makes it impossible for the CBSA to
assume its supervisory role as the Court requires in the Conditions of
Release of both 2013 and 2014.
[61]
Mr. Mahjoub explains that his attitude is intended
to ensure that his conditions of release are limited to what they are and that
his privacy is respected. These are, to some degree, valid grounds, but they must
not be used to the point of taking the essence of the conditions of release
away from their purposes and preventing the supervision of the use of communication
devices, computers and other modes of transmission of data, information and
images. Without proper supervision by the CBSA, conditions of release become
useless.
[62]
Through his behaviour, Mr. Mahjoub may give to a
neutral observer of this situation an impression that he has something to hide.
This is not only hurtful to the condition of release but it also impacts
negatively on Mr. Mahjoub, should his intention be to eventually have the least
conditions of release possible imposed on him. The trust and credibility
components related to the behaviour of the Applicant when dealing with conditions
of release are factors to be considered. It is in the interest of Mr. Mahjoub
that he collaborates and cooperates in making sure that the conditions of release
are complied with and that the supervisory role of the CBSA confirms the
compliance.
E.
The uncertain future of the finality of the
procedures
[63]
As long as there are robust, periodic reviews of
detention or of conditions of release, long periods of detention or of release
with conditions that impact on the life and rights of an individual do not
constitute violations of the Charter (see Charkaoui v Canada
(Citizenship and Immigration), 2007 SCC 9 at para 123, [2007] SCJ No 9).
[64]
The Court has rendered the Reasonableness Decision
as well as other decisions concerning the Applicant, including on the abuse of
process and a permanent stay of the proceedings. The procedures have now been
moved in good part to the appeal level, and the Federal Court of Appeal will be
dealing eventually with any issues arising from the Notice of Appeal or from
the appeal itself. The Applicant is benefiting from the appeal procedure and
time has to be reserved for such process.
[65]
There have been and continues to be ongoing
reviews of the conditions of release of Mr. Mahjoub. Reviews of the conditions
of release were held and decisions were rendered in January 2013, December 2013
and January 2014 and in the summer 2014 (the current decision). Over a period
of a little more than 18 months, Mr. Mahjoub has had three hearings dealing
with reviews of the conditions of release and three decisions.
[66]
Undertaking robust reviews of the conditions of
release from detention does not necessarily mean granting Mr. Mahjoub what he wants.
It requires a careful examination of the conditions of release and their necessity,
i.e. ensuring not only that they are required to neutralize the assessed danger
but that they impact minimally on the rights and freedom of the Applicant. In
order to go along with less invasive conditions, it must be shown (1) that the
danger has diminished and (2) that the conditions neutralize the lessened danger.
In this regard, the Applicant has a strong interest in collaborating and
cooperating so that the supervision of the conditions shows that they are
respected. With such evidence, then it can be argued that the conditions are
not necessary. This is what a robust review is all about.
F.
The passage of time
[67]
These procedures are lengthy, complex and
subject to numerous legal issues and challenges. The fact that they are long
and complex does not in itself support less strict conditions of release. The
passage of time has to be considered along with other factors. In the present
circumstances, the proceedings began in 2000 with the first certificate, and
thereafter with the second certificate issued and which was found reasonable in
October 2013. There will now be a time period for the appeal process and, most
likely, other periods for other reasons.
[68]
On a more specific point, as shown earlier, in
the previous section, there have been three reviews of the conditions of
release.
[69]
On this factor, the passage of time does not
justify abolishing or amending the conditions of release as suggested.
G.
The impact of the conditions of release on the
Applicant and his family, and the proportionality between the danger posed by
the Applicant and the conditions of release
[70]
I do not have any hesitation in saying that the conditions
of release do somewhat impact the psychological health of the Applicant. In
fact, the Court has recognized this in Mahjoub (Re), 2013 FC 10 at para
38, [2013] FCJ No 77.
[71]
To a certain extent, Dr. Payne’s opinion on this
matter reflects this Court’s point of view. Having said that, I have noted that
a similar yet adapted opinion was filed for the purposes of the late 2012 and early
2013 review of the conditions of release. In the December 17, 2013 review of
conditions order, at para 11, the Court considered that the conditions of
release as analyzed by Dr. Payne were essentially the ones as perceived by Mr.
Mahjoub. The Court also noted that certain facts used were not in the record
and that some circumstances were not described accurately. The Court concluded
that such weaknesses gave little weight to the impact of the changes in the conditions
of release.
[72]
I also afford little weight to Dr. Payne’s
opinion report for the same reasons. Mr. Mahjoub can communicate with his
family pursuant to the conditions of release. The fact that he cannot
communicate with his ex-wife and children is the result of two distinct orders
(the no-contact order and a peace bond) issued by the Ontario Court of Justice and
not a result of his ordered conditions of release from detention. This was not
mentioned in Dr. Payne’s opinion. Furthermore, it is erroneous to say in the
report that the conditions of release require Mr. Mahjoub to obtain the CBSA’s
approval for a change of residence. Section 24 of his conditions of release requires
a prior notice of a change of residence to the CBSA, not an approval. It is
also misleading to say in the doctor’s report that Mr. Mahjoub cannot use a
cell phone except on the conditions imposed by the CBSA. Firstly, it is not
factually accurate to write that the CBSA imposes conditions of release when it
is the Court that imposes them. Secondly, Mr. Mahjoub had without giving proper
notice used a cell phone for a period of three weeks in the early part of the
present year. The real reason why Mr. Mahjoub is not able to use a cell phone
is his own reluctance to provide consent to the release of toll records. Such
was not reflected in Dr. Payne’s report. Finally, it is telling that Dr. Payne’s
report mentions that at an earlier time Mr. Mahjoub had a respected job as the
deputy general manager of an agricultural business without giving any
indication of the Reasonableness Decision’s findings on this particular matter.
This decision concludes that there was terrorists’ training on the farm while
Mr. Mahjoub was a key manager and a trusted collaborator of Bin Laden, that he
was aware of such training because of his executive job, and that he was
complicit in the terrorist training. This reality was not mentioned. For all of
these inaccuracies, errors and one-sided views, I find that Dr. Payne’s report
is of limited use when he comments and assesses the impact of the recent conditions
of release on Mr. Mahjoub.
[73]
Again, the Applicant filed the same report of
Professor Leman-Langlois that was used in previous reviews of the conditions of
release. In Mahjoub (Re), 2013 FC 1257 at paras 9 and 10, the Court
concluded that the opinion on the threat posed by the Applicant was of little
assistance and thus given little weight. It also found that the part dealing
with the methodology of the SIR was useful. However, while this part was
somewhat useful for the Reasonableness Decision, it is of no use for the
purposes of this review of conditions of release. Therefore, I give it little
weight.
[74]
I also reviewed carefully Mr. Mahjoub’s
affidavit. I have found that it contains large portions on legal arguments and gives
opinions on numerous issues that are the subject matters of the determinations
and findings to be made by this Court. I have not read any undertaking on his
part to respect and abide with the conditions of release and to collaborate and
cooperate with the CBSA in ensuring its supervisory role as requested by the
Court. Such an undertaking may have been useful. Although I do understand that
Mr. Mahjoub is entitled to his own opinion, this Court must also consider all
of the evidence including the findings of the Court in the Reasonableness Decision
on the credibility of Mr. Mahjoub such as: “[…] omissions
and lies by Mr. Mahjoub are crafted and designed to consistently conceal any
facts that could connect Mr. Mahjoub to known terrorists, terrorist activities
or known terrorist related enterprises such as Althemar.” (See Reasonableness
Decision at paras 619-620.)
[75]
As for the proportionately between the assessed danger,
which I found to be similar to the one determined in the December 17, 2013
review of conditions order, at para 6, and the conditions of release issued in
the January 24, 2014 review of conditions order, I find them to be
required and proportional to the danger identified for the same reasons as the
Court so decided in the previous reviews of the Court, subject to the following
comments.
[76]
It is clear that the Court in the January 2013 review
of conditions order, at para 47 wanted to “[…]
prevent Mr. Mahjoub from acquiring or reacquiring terrorist contacts to ensure
that Mr. Mahjoub does not re-acquire terrorist contacts. Mr. Mahjoub’s
communications shall be restricted.” This objective remains valid and I
have not found any evidence that would trigger a different conclusion.
[77]
That being said, a brief review of the conditions
of release of January 2014, which shall remain in existence subject to added
supervisory clarification, are directed at ensuring that Mr. Mahjoub will not
communicate with terrorist contacts. Such is the case with the in-person
communications and activities (sections 6 to 9 of the conditions), obtaining
telephone tolls (section 11 of the conditions), restriction on internet use (section 10
of the conditions), use of Skype (see Order dated July 17, 2013), examination
of the computer (paragraph 10(f) of the conditions), interception of mail
(section 13 of the conditions), keeping peace and good behaviour (section 23
of the conditions), performance bonds (sections 2 and 3 of the conditions). All
of these conditions are still required as they are directly related and
proportional to the danger as it was assessed. It goes without saying that most
of these conditions require supervision by the CBSA, and that if this role cannot
be properly articulated the Court will not be able to consider lessening the conditions
of release.
[78]
The communication over the internet will only be
considered by the Court if the parties can agree on modes of satisfactory
supervision. The parties are invited to discuss the subject matter and if the
Court can be of some help, it shall gladly get involved as long as the parties
are serious about it and have shown significant progress. The CBSA is invited
to have an open mind about this.
[79]
For the sake of clarification and as a follow-up
to the Minister’s motion to amend condition 10 of the conditions of release which
was only granted in part subject to the present review of conditions, it is the
opinion of this Court that the supervision of the communications via the
computer must include Mr. Mahjoub’s modem/router. This will permit a better
supervision by the CBSA and show that Mr. Mahjoub complies with the conditions
of release. Finally on this, any use of the computer must be subject to
supervision. If a program does not permit supervision, it must not be used by
Mr. Mahjoub.
[80]
Furthermore, the Ministers requested that Mr.
Mahjoub gives a notice of the names of other persons that may occupy his
residence. At this time, this Court does not want to impose such an obligation,
but if in the future it becomes an issue complicating any of the conditions of release,
it may have to be reviewed.
[81]
In his submissions, at paragraphs 147-153, Mr. Mahjoub raised
simply and without any well-thought or developed arguments, a number of
arguments concerning his constitutional rights. Trying to verse criminal law
into immigration certificate law is inappropriate considering that Parliament
has codified the certificate procedure and that specific jurisprudence is
developing on this particular subject matter. This Court considers that the
certificate procedure is constitutional as it has been found to be so by the
Supreme Court recently in Canada (Citizenship and Immigration) v Harkat,
2014 SCC 37, [2014] SCJ No 37.
[82]
As a last word to the CBSA, it is your duty and
obligation to supervise the conditions of release as the Court so requires. Having
said that, I offer this suggestion: please assume your duty and obligations
without creating a spectacle and drawing the attention of the neighbourhood on
your activities and, by way of consequence, on Mr. Mahjoub. This Court
understands that it is not an easy job, but with your professional input and delicateness,
you should succeed in the interests of justice but also in the interest of Mr.
Mahjoub. It goes without saying that the cooperation of Mr. Mahjoub would be of
assistance in this regard.
[83]
Lastly, the Applicant submitted the following
questions for certification pursuant to section 79 of the IRPA:
•
May conditions be constitutionally or lawfully imposed on a
person when a declaratory order was also issued finding that the right to a
fair process was violated in the same process underlying the certificate or the
inadmissibility? Or does the imposition of conditions in such circumstances
violate section 7 of the Charter?
•
Can the Ministers establish a prima facie case or justify
the imposition of conditions by its reliance on previous inadmissibility or
release conditions orders when such orders were rendered after the violation of
the right to a fair process as recognized by declaratory judgment?
•
Does a declaratory order concluding that the right to a fair
process was violated in the same process underlying the certificate or
inadmissibility constitute a clear and compelling reason to depart from
previous decisions to impose conditions?
•
In presence of a declaratory judgment that the right to a fair process
was violated in the process underlying the certificate and/or inadmissibility
ruling, must the judge grant a remedy to abolish the conditions under the law
or under section 24 of the Charter?
[84]
The Ministers object to the certification of any of the Questions (see
letter dated July 18, 2014). I agree.
[85]
These questions are not certifiable for the following reasons:
-
Counsel for Mr. Mahjoub did not substantially
present arguments relating to the findings made by Justice Blanchard concerning
the violation to the right to a fair process in Mahjoub (Re) (DES-7-08 (October
25, 2013)); see also submissions of the Applicant on the necessity of protecting
constitutional rights at paras 147-156). It was briefly referred to in the oral
submissions but no more than that;
-
The wording of the questions are such that they
are asking this Court to sit on appeal of a decision of Justice Blanchard
(referred to above), which is not the role of a judge dealing with reviews of
conditions;
-
The reviews of conditions are not final since
they can be revised periodically at the request of the parties. As noted
earlier, there have been three reviews of conditions in the past 18 months.
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