Mahjoub v. Canada (Minister of Citizenship and Immigration), 2003 FC 928

Date: 20030730

Docket: DES-1-00

Citation: 2003 FC 928

IN THE MATTER OF a Certificate

issued pursuant to section 40.1 of the Immigration Act

AND IN THE MATTER OF an application

pursuant to paragraph 40.1(4)(c) of the said Act, continued

as an application made pursuant to subsection 84(2) of the

Immigration and Refugee Protection Act

AND IN THE MATTER OF Mohamed Zeki Mahjoub

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

and THE SOLICITOR GENERAL OF CANADA

Applicant

- and -

MOHAMED ZEKI MAHJOUB

Respondent

                                                    REASONS FOR ORDER

DAWSON J.

[1]                 This is an application for an order, pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") that Mr. Mahjoub should be released from detention.

BACKGROUND FACTS

[2]                 Mr. Mahjoub entered Canada on December 30, 1995 and immediately made a claim for Convention refugee status. On October 24, 1996, the Convention Refugee Determination Division of the Immigration and Refugee Board declared Mr. Mahjoub to be a Convention refugee.

[3]                 On June 27, 2000, pursuant to paragraph 40.1(3)(a) of the Immigration Act, then in force (R.S.C. 1985 c. I-2, "former Act"), the Solicitor General and the Minister of Citizenship and Immigration ("Minister", together they are referred to as the "Ministers") caused a copy of a certificate ("certificate" or "security certificate") signed by them to be referred to the Court for determination as to whether the certificate should be quashed. In this certificate, the Ministers expressed their opinion based on a security intelligence report that Mr. Mahjoub is a person described in subparagraph 19(1)(e)(ii), clauses 19(1)(e)(iv)(B) and (C), subparagraph 19(1)(f)(ii) and clauses 19(1)(f)(iii)(B) of the former Act.

[4]                 On the basis of the certificate Mr. Mahjoub was detained on June 26, 2000 and he has remained in detention since that date.

[5]                 On June 30, 2000, Mr. Justice Nadon, the judge designated to review the certificate, examined, in camera, the security intelligence report considered by the Ministers and heard counsel on behalf of the Ministers with respect to the matters raised in the security intelligence report. Following that, Mr. Justice Nadon ordered that a statement, summarizing such information as would enable Mr. Mahjoub to be reasonably informed of the circumstances giving rise to the issuance of the certificate, should be provided to Mr. Mahjoub. Such statement was prepared having regard to whether the disclosure of information would be injurious to national security or to the safety of persons.

[6]                 The position of the Canadian Security Intelligence Service ("CSIS"), as stated in the summary, is that it believes that Mr. Mahjoub is a high-ranking member of an Egyptian Islamic terrorist organization, the Vanguards of Conquest, a radical wing of the Egyptian Islamic Jihad or Al Jihad. According to CSIS, Al Jihad is one of the groups which split from Egypt's Muslim Brotherhood in the 1970's to form a more extremist and militant organization. Al Jihad, according to CSIS, advocates the use of violence as a means of establishing an Islamic state in Egypt.

[7]                 The summary provided to Mr. Mahjoub set out, to the extent consistent with national security and the safety of persons, CSIS' grounds for believing that Mr. Mahjoub will, while in Canada, engage in or instigate the subversion by force of the Government of Egypt, and that he is a member of an organization that there are reasonable grounds to believe was and is engaged in terrorism, and which will engage in subversion by force against the Government of Egypt. The summary also set out the Service's grounds to believe that Mr. Mahjoub had engaged in terrorism.

[8]                 An open hearing was held before Mr. Justice Nadon from February 26, 2001 to March 8, 2001 for the purpose of providing to Mr. Mahjoub a reasonable opportunity to be heard with respect to the certificate. Submissions were made by counsel to Mr. Justice Nadon on May 8, 2001. On October 5, 2001, Mr. Justice Nadon determined that, on the basis of the evidence and information available to him, the certificate filed by the Ministers is reasonable.

[9]                 On March 25, 2002, the Adjudication Division of the Immigration and Refugee Board found Mr. Mahjoub to be inadmissible, based on the security certificate. A deportation order was therefore issued.

[10]            On June 28, 2002, the Act came into effect. Paragraph 115(2)(b) of the Act now governs the exception to the principle that Convention refugees, who are protected persons under the Act, shall not be removed from Canada to a country where they are at risk of persecution, torture or cruel and unusual treatment or punishment.

[11]            On October 18, 2002, the motion seeking Mr. Mahjoub's release from detention was filed.

[12]            In December of 2002, an in camera hearing took place at which time I reviewed updated information provided to the Court in response to Mr. Mahjoub's motion for release on behalf of the Ministers. This was done in the absence of Mr. Mahjoub and his counsel. I also heard information as to why the disclosure of this information would be injurious to national security. Upon being satisfied that the information was relevant, but that its disclosure would be injurious to national security, I provided a summary of the information to Mr. Mahjoub. This summary, in my view, enabled Mr. Mahjoub to be reasonably informed about the updated information, but did not disclose any information that, in my view, would be injurious to national security or to the safety of any person.

[13]            The hearing of Mr. Mahjoub's motion for release was set to be heard on January 28 and 29, 2003, but was adjourned at Mr. Mahjoub's request due to the unavailability of a witness to be called on Mr. Mahjoub's behalf. Thereafter, the hearing was scheduled for March 29, 2003 but was adjourned due to the Court's unavailability. The matter was ultimately rescheduled and heard on May 10, 2003.

APPLICABLE LEGAL PRINCIPLES

[14]            This is, to my knowledge, the first decision rendered pursuant to subsection 84(2) of the Act. Subsection 84(2) provides that:

[15]            Subsection 84(2) is substantially similar to subsections 40.1(8) and (9) of the former Act which are set out in Annex A to these reasons.

[16]            Subsection 84(2) of the Act carries forward the right of a foreign national who is not removed from Canada within 120 days after a security certificate has been found to be reasonable to apply to be released from detention. The test to be applied remains a two-fold test. The judge designated to hear the application is to be satisfied that the foreign national "will not be removed from Canada within a reasonable time" and that the person's "release will not pose a danger to national security or to the safety of any person". The wording with respect to the first part of the test is identical to that found in the former Act in subsection 40.1(9), and the wording with respect to the second part of the test differs only in that the term "will not pose a danger to national security" is used instead of the phrase "would not be injurious to national security", and reference is made to the safety of "any person" instead of the safety of "persons".

[17]            On Mr. Mahjoub's behalf it is argued that these differences are significant because the wording now used is the same as that considered by the Supreme Court of Canada in 2002 SCC 1">Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1. Particular reliance is placed upon the reasons of the Supreme Court at paragraphs 89 and 90 where the Court when considering the phrase "danger to the security of Canada" (a phrase similar, but not identical, to that now found in the relevant provision of the Act) wrote that a " person constitutes a 'danger to the security of Canada' if he or she poses a serious threat to the security of Canada, whether direct or indirect". The Court cautioned that "[t]he threat must be 'serious', in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible".

[18]            From those comments, it is said on Mr. Mahjoub's behalf that once a certificate is found to be reasonable, a person may not be refouled unless the test established in 2002 SCC 1">Suresh is met. Similarly, it is argued, one may not indefinitely detain a person under subsection 84(2) unless the same test is met. This is said to be a higher test than that prescribed under section 40.1 of the former Act, where a certificate is upheld on the basis of "reasonable grounds to believe".

[19]            Despite the articulate submission of Mr. Mahjoub's counsel, I have not been persuaded that the wording now found in subsection 84(2) of the Act is, by virtue of the decision of the Supreme Court of Canada in 2002 SCC 1">Suresh, to be construed in a significantly different fashion than the similar provisions in the former Act. I reach that conclusion because of the great similarity in the language used in the two provisions, and because in 2002 SCC 1">Suresh the Supreme Court was not considering the detention review provisions then found in subsections 40.1(8) and (9) of the former Act. Rather, the passages relied upon from 2002 SCC 1">Suresh were written in the context of considering whether the conditions contained in the former Act with respect to the refoulement of a Convention refugee named in a security certificate were constitutional, and particularly whether the phrase "danger to the security of Canada" as found in paragraph 53(1)(b) of the former Act was unconstitutionally vague. (Subsection 53(1) of the former Act is set out in Annex A).

[20]            The comments of the Supreme Court as to the nature of the evidence required to establish a "danger to the security of Canada" do assist in interpreting the phrase "danger to national security". However, for reasons set forth in more detail below in the context of considering the evidence as to the danger posed by Mr. Mahjoub's release, I am not persuaded that 2002 SCC 1">Suresh is inconsistent with the prior jurisprudence.

[21]            I am satisfied that it remains the applicant who bears the onus of showing that he or she meets the statutory criteria for release found in subsection 84(2). I reach that conclusion for the same reasons as Mr. Justice Denault in Ahani v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 49; aff'd (2000) 261 N.R. 40; [2000] F.C.J. No. 1114 (F.C.A). Those reasons are, first, that it is the person who is detained who is entitled to bring the application for release, and generally it is the moving party who bears the onus. Second, the criteria require the judge to be satisfied that the person "will not be removed" within a reasonable time and the release "will not pose a danger". Had the intention been to place the onus upon the Ministers, the obligation would have been framed in the positive, and not in the negative, form. As well, to conclude otherwise would require the Ministers, in the words of the Court of Appeal in Ahani at paragraph 11 (QL), to repeat in large part all of the proceedings that have gone before in this case.

[22]            Having concluded that the jurisprudence under the former Act remains relevant, and has not been rendered inapplicable because of the decision of the Supreme Court in 2002 SCC 1">Suresh, the legal principles to be applied are:

i)           The standard of proof is the ordinary civil standard.

ii)          The Ministers have already discharged the onus upon them to establish the grounds for the initial detention.

iii)          The certificate is conclusive proof that the person is inadmissible to Canada on grounds of security or any other ground listed in subsection 77(1) of the Act, or its predecessor section, and referenced in the certificate.

iv)         Release under subsection 84(2) cannot be an automatic, because persons to whom subsection 84(2) applies have been found to be inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality.

v)          A person cannot be detained indefinitely, at least without good reason. Therefore, review is available after 120 days and release is allowed, but only if the statutory criteria are met.

See: Ahani, supra and section 81 of the Act.

THE CONSTITUTIONAL ISSUES

[23]            In the motion filed seeking his release, Mr. Mahjoub asserts, in the alternative to his request for release under subsection 84(2), that he should be released because his detention is illegal. Reliance is placed upon the Canadian Bill of Rights, S.C. 1960, c. 44, s. 2, the preamble to the Constitution Act, 1867 and the implied bill of rights contained therein, subsections 24(1) and 52 of the Constitution Act, 1982 and the common law. Reliance is also placed upon section 7 and subsection 11(e) of the Charter. By agreement between the parties this issue will only be addressed if Mr. Mahjoub's request for release pursuant to subsection 84(2) of the Act is unsuccessful. Therefore, these reasons are directed only to the request made under subsection 84(2).

THE EVIDENCE

(i) The procedure followed for the protection of evidence, the disclosure which would be injurious to national security or the safety of persons.

[24]            Subsection 84(2) does not contain any provision with respect to the procedure to be followed with respect to the application for release from detention. Subsection 40.1(10) of the former Act (set out in Annex A) provided that on the hearing of any such application, the judge designated to hear the application would examine in camera, and in the absence of the person making the application and any counsel representing that person, any evidence or information presented to the Minister in relation to national security or the safety of persons, and then provide the person making the application with a statement summarizing the evidence or information available to the designated judge. The summary was to be prepared having regard to whether the evidence or information should not be disclosed on the grounds that disclosure would be injurious to national security, or to the safety of persons.

[25]            Notwithstanding the absence of a similar provision in the Act, I am of the view that this remains the appropriate procedure to be followed. I reach this conclusion on the basis that the application for release is not made in a vacuum, but rather is made within the existing proceeding. Therefore, in this case the motion was filed in the proceeding commenced for the purpose of determining the reasonableness of the certificate (DES-1-00). In consequence, the Court has before it the information upon which the certificate was based and the reasons of the Court for determining the security certificate to be reasonable. Therefore, any decision about the danger posed to national security or the safety of any person by the release of the subject from detention is not made in a vacuum or in circumstances where the Ministers would be required to re-adduce the information and evidence previously put before the Court when determining the reasonableness of the certificate.

[26]            It follows, in my view, that because the application for release is part of the continuing proceedings pursuant to which the applicant is detained, subsections 78(e) and (h) of the Act remain applicable. Those subsections provide that:

[27]            A foreign national, such as Mr. Mahjoub, who is named in a security certificate shall be detained upon the issuance of the certificate without the issuance of an arrest warrant. Such detention continues until a determination as to the reasonableness of the certificate is made (subject to the right of the Minister to order the person's release from detention in order to permit their departure from Canada pursuant to subsection 84(1) of the Act). If the certificate is upheld, the detention continues until the person is removed from Canada or released pursuant to subsection 84(2) of the Act. In my view, the "proceedings" commenced by the issuance of the certificate continue at least so long as the subject of the certificate remains in detention or is released on bail pending removal. Throughout the duration of the proceedings, the Minister or the Solicitor General may make a request pursuant to subsection 78(e). The effect of this is to permit applications to be made by the Ministers to update the record before the Court when necessary.

[28]            This interpretation is reinforced, in my view, by the fact that subsection 84(2) of the Act itself is located in Division 9 of Part I of the Act which deals with "Protection of Information". Subsection 84(2) of the Act requires a judge to weigh factors involving the existence of a danger to national security or to the safety of any person. Parliament must have intended the protection of information the disclosure of which would be injurious to national security or to the safety of any person.

[29]            In the present case, as noted above, after the application for release was filed, counsel for the Ministers requested that the Court hear certain information in camera in the absence of Mr. Mahjoub and his counsel. This was done, and a summary of that information was in turn provided to Mr. Mahjoub, omitting only such information as, in my opinion, would be injurious to national security or to the safety of any person if released.

[30]            On Mr. Mahjoub's part it was argued in oral argument (but not in the written submissions filed on his behalf, or in any motion brought in respect of the summary provided to Mr. Mahjoub) that in so proceeding, I erred because subsection 78(e) of the Act is inapplicable. According to counsel for the applicant, subsection 78(e) applies only to the hearing with respect to the determination of the reasonableness of the certificate, and not to an application for release of an individual in respect of whom a security certificate has been determined to be reasonable, but remains in detention 120 days after the determination of reasonableness. It is said, in the words of counsel for Mr. Mahjoub that "I have to know, in terms of 2002 SCC 1">Suresh, what 'serious danger' my client poses if release is going to be denied".

[31]            I agree that Mr. Mahjoub must be reasonably informed as to the basis upon which his release from detention is opposed. However, such right must be viewed against the state's interest to protect information which, if disclosed, would be injurious to national security or the safety of any person. This latter interest, and the resultant need for confidentiality, was recognized by the Supreme Court of Canada in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at page 745. The need to protect information which, if released, would significantly injure national security was described to be a "pressing and substantial concern" by the Supreme Court of Canada in 2002 SCC 75">Ruby v. Canada (Solicitor General), 2002 SCC 75 at paragraph 43. Nothing said by the Supreme Court in 2002 SCC 1">Suresh detracts from those principles. Concerns with respect to national security or the safety of any person become no less pressing in an application under subsection 84(2) than they are under section 78 of the Act. I am not persuaded that the Court's duty to ensure that national security is protected is lessened on an application for release from detention.

THE EVIDENCE ADDUCED IN THE OPEN PROCEEDING

[32]            In addition to evidence put before the Court in the in camera proceeding, evidence was adduced in open Court on May 10, 2003. Mr. Mahjoub testified and was cross-examined by counsel for the Ministers. In response to questions from his counsel, Mr. Mahjoub testified that he had never been charged or convicted of a criminal offense anywhere in the world and faced no discipline issues while in detention in Canada. If released, he would go to live with his wife and children outside of Toronto and would return to work. He is a citizen of Egypt and believes that he cannot go to any country in the world other than Egypt, especially after the events of September 11, 2001.

[33]            In cross-examination Mr. Mahjoub admitted that prior to being detained he had been separated from his wife and children, however he said that his relationship with his wife was "very good" even through the separation. Mr. Mahjoub confirmed that he is wanted by the Government of Egypt. He agreed that he provided false testimony under oath to Mr. Justice Nadon in the proceedings with respect to the reasonableness of the certificate, although Mr. Mahjoub's counsel objected that "[h]e came clean before the end of the proceedings after being counselled by legal counsel. It is not the same as saying that he lied and then walked away from the proceeding. Before the end of the proceeding Mr. Mahjoub came clean". Mr. Mahjoub also confirmed that he does not want to return to Egypt, but said that he will "show up" at the airport if released and if the Canadian government then orders his removal from Canada.

[34]            Prior to the hearing, Mr. Mahjoub filed with the Court affidavits sworn by his wife and four individuals who were prepared to act as sureties. At the time of the hearing one of the proposed sureties was no longer willing to so act. I therefore had no regard to that person's affidavit. Two of the proposed sureties and Mr. Mahjoub's wife were produced to confirm the contents of their affidavits and to be cross-examined.

[35]            Mr. Mahjoub's wife is a Canadian citizen who testified to the history of her marriage and Mr. Mahjoub's relationship with her children. Her eldest child is a child of her first marriage. Mr. Mahjoub is the father of her two younger children who are three and five years of age, and acts as the father of Mr. Mahjoub's wife's older son. Mr. Mahjoub's wife is prepared to act as surety in the amount of $10,000.00. She confirmed that she was prepared to be responsible to supervise her husband if released, and understood that she would be responsible to call the police or other authorities if he breached any condition of his release. She also confirmed that she understood that in that circumstance she would lose the sum of $10,000.00.

[36]            In cross-examination, Mr. Mahjoub's wife confirmed that she and her husband had separated one month before he was initially detained, and that the separation occurred because of difficulties in the marriage. Mr. Mahjoub's wife agreed that Mr. Mahjoub was sentenced, in absentia, to 15 years in prison in Egypt. However, she says this sentence was the result of a trial where secret evidence was adduced. She also says that neither she nor Mr. Mahjoub was aware of the proceeding until they read about it in the newspaper. Mr. Mahjoub's wife expressed the opinion that Mr. Mahjoub will be tortured, and it "will be the end of him" if he is returned to Egypt.

[37]            Dr. Ali Hindy is a Canadian citizen who is a self-employed engineering consultant. Additionally, since 1997 he has been the Imam of the Salahaddin Mosque. Mr. Mahjoub's wife taught at the Mosque between 1997 to 1999 and he has known Mr. Mahjoub's wife since 1985. Mr. Mahjoub impresses him as a quiet, honest and decent person who would neither pose a flight risk nor a danger to the public. Dr. Ali Hindy is willing to act, in his personal capacity, as a surety in the amount of between $15,000.00 and $20,000.00. He would undertake to maintain constant contact with Mr. Mahjoub and his family. In Dr. Ali Hindy's view, because Mr. Mahjoub is a practising Muslim, sureties signed by Dr. Ali Hindy and other members of the community will weigh very heavily upon him and will bind Mr. Mahjoub's actions. Dr. Ali Hindy confirmed that he understands the obligations of surety and would act in accordance with those obligations.

[38]            On cross-examination, Dr. Ali Hindy confirmed that he works long hours, particularly on the weekends, and is a busy person. He would, however, give priority to Mr. Mahjoub. He agreed that he knows Mr. Mahjoub as one of the people in the community, and knows Mr. Mahjoub's wife much better. He confirmed that he does not know Mr. Mahjoub "that much". With respect to his opinion as to whether or not Mr. Mahjoub would pose a flight risk or be a danger to the public, Dr. Ali Hindy said that when he speaks to a person of the same religious background he can tell if this person is honest or if he has some problems, and the way this person is thinking.

[39]            The second proposed surety, Mr. Wancho, testified confirming the contents of his affidavit. His evidence was similar to that of Dr. Ali Hindy. On cross-examination he confirmed that he was self-employed so that his hours were flexible. He said he would maintain constant contact with Mr. Mahjoub by telephone, or if personal contact is required, he would "arrange something". He based his conclusion that Mr. Mahjoub would not pose a flight risk or be a danger to the public on the basis that he had met Mr. Mahjoub numerous times, and "have never come across any signs of violence in his personality or in his character or in his behaviour".

[40]            The fourth proposed surety, Mr. Haleem, remained prepared to act as surety, but was not able to attend at the hearing because he had been called out of the country on business. Counsel for the Ministers made no objection to his affidavit being received, taking the position that the affidavit spoke for itself and that any concerns about the absence of the deponent would simply go to the weight of the affidavit.

[41]            The evidence adduced on Mr. Mahjoub's behalf also included three further affidavits filed as supplementary materials. Counsel for Mr. Mahjoub advised that the issues raised by the evidence in those affidavits were not relevant to the statutory criteria found in subsection 84(2) of the Act. Counsel for Mr. Mahjoub advised this evidence will become relevant at a later date if the Court is required to address the constitutional issues.

[42]            On the Ministers behalf affidavits were filed sworn by Ms. O'Brien, the Director, Security Review, Intelligence Branch of CIC ("Director") and Ms. McManus, an enforcement officer with the Greater Toronto Enforcement Center of CIC ("Officer"). The Director swore a second affidavit updating her first affidavit.

[43]            The Director testified at the hearing. In response to questions from counsel for the Ministers, she confirmed the contents of her two affidavits. She provided a history of Mr. Mahjoub's status in Canada and the efforts to remove Mr. Mahjoub from Canada, including the assurances sought and obtained from Egypt. The Director also testified with respect to the impact of the 2002 SCC 1">Suresh decision and the coming into force of the Act on the Mr. Mahjoub's case.

[44]        In her affidavits, the Director gave evidence of the following steps that have been taken regarding the removal of Mr. Mahjoub from Canada since the security certificate was found to be reasonable by Justice Nadon on October 5, 2001.

a)     On October 22, 2001, the CIC informed Mr. Mahjoub of the intention to seek the Minister's opinion under paragraph 53(1)(b) of the former Act that Mr. Mahjoub constituted a danger to the security of Canada. Such an opinion would have permitted Mr. Mahjoub, a Convention refugee, to be removed to Egypt notwithstanding that his life or freedom would be threatened there.

b)     On March 25, 2002, the Adjudication Division of the Immigration and Refugee Board found Mr. Mahjoub to be inadmissible based on the security certificate. A deportation order was issued.

c)     On June 28, 2002, the Act came into force. Paragraph 115(2)(b) of the Act now sets out the exception to non-refoulement with respect to Convention refugees or protected persons who may face risk in a country to which they may be removed.

d)     Because of the Supreme Court decision in 2002 SCC 1">Suresh, consultation within CIC and other departments took place to examine whether implementation of additional safeguards were necessary in this case. It was decided that assurances should be sought from the Egyptian authorities to the effect that Mr. Mahjoub would not be treated contrary to the conventions associated with torture. Written assurances were received from the Egyptian authorities in February and March of 2003.

e)     These assurances were served on Mr. Mahjoub on March 28, 2003, along with other documents that will be used by the Minister to make a decision under paragraph 115(2)(b) of the Act as to whether Mr. Mahjoub should or should not be allowed to remain in Canada on the basis of the nature and severity of acts committed, or because of the danger he constitutes to the security of Canada. Mr. Mahjoub's responding submissions were due on May 23, 2003. Upon receipt of those submissions, the Minister will be in a position to formulate his opinion as to whether Mr. Mahjoub should be allowed to remain in Canada.

[45]            In cross-examination, the Director confirmed that leave had been granted by this Court in respect of an application for judicial review of the removal order issued by an adjudicator. She did not believe that CIC would remove Mr. Mahjoub before that application for judicial review was decided and before a decision had been made upon the impact of the transitional provisions upon efforts to remove Mr. Mahjoub. She confirmed that another proceeding is pending in this Court with respect to a negative decision regarding Mr. Mahjoub's humanitarian and compassionate application. She is of the belief, based on the Security Intelligence Report that supports the security certificate and Mr. Justice Nadon's summary and decision, that Mr. Mahjoub is a person with respect to whom there are reasonable grounds to believe, while in Canada, will engage in or instigate subversion by force of the government of Egypt. The Director identified the written documents received from the Egyptian authorities with respect to be assurances given to the Canadian government concerning Mr. Mahjoub and they were marked as exhibits. The Director confirmed that once submissions were received on Mr. Mahjoub's behalf in respect to his potential removal to Egypt that she did not know how long it would take the decision-maker to make a decision with respect to whether Mr. Mahjoub should be removed from Canada. However, the Director was of the opinion that the department will not take "undue time" to render the decision. After that decision is made, it is her belief that Mr. Mahjoub would have the opportunity to bring an application for judicial review of that decision.

[46]            The Officer was not cross-examined, based upon counsel for the Ministers' stipulating that the Officer would not be able to say when Mr. Mahjoub will be removed from Canada.

[47]            Having reviewed the essence of the evidence adduced in open court, I turn to apply the evidence to the statutory criteria for release.

ANALYSIS

(i) Will removal take place within a reasonable time?

[48]            On Mr. Mahjoub's behalf it is argued that what is a reasonable time has to be assessed within the context of the statute, and that the 120-day period referenced in subsection 84(2) reflects Parliament's intent that if a person is not removed within 120 days of the decision on the certificate, there is a statutory presumption that the person has been waiting too long in detention. In the present case, Mr. Mahjoub has been detained for slightly over three years, and it has been 21 months since the certificate was upheld. The length of this detention is contrasted by Mr. Mahjoub with the anti-terrorism provisions of the Criminal Code. Mr. Mahjoub also points to the fact that the witnesses called in support of the position of the Ministers could not say when Mr. Mahjoub will be removed.

[49]            In response, the Ministers argue that the evidence of the representatives of CIC establishes that the process to have Mr. Mahjoub removed has been engaged. All that is required, it is said, is for the Minister to formulate his opinion under section 115 of the Act. Some delay was attributed to the decision of the Supreme Court of Canada in 2002 SCC 1">Suresh, which caused CIC to examine whether additional safeguards to Mr. Mahjoub's safety were required, and which caused assurances to be sought from the Egyptian authorities.

[50]            In considering these submissions, I accept that the reference to a period of 120 days in subsection 84(2) reflects Parliament's intent that once a certificate has been determined to be reasonable, the person named in the certificate should be removed expeditiously. However, by requiring as one of the criteria for release that the Court consider whether removal will or will not take place within a reasonable time, Parliament has contemplated that in some circumstances removal will not have occurred within 120 days, but the period of detention may still be a reasonable period. Otherwise, release after 120 days would be automatic, absent considerations of national security or the safety of persons. The right to apply for release after 120 days undoubtedly acts as an impetus to officials to assure an expeditious removal, and at the same time assures that any post 120-day delay can be the subject of judicial scrutiny.

[51]            What in any particular case will be reasonable will depend upon the facts and circumstances of that case.

[52]            In the present case, I consider that the two most significant circumstances are the extent to which any uncertainty about when Mr. Mahjoub may be removed results from:

(i)          pending and contemplated Court proceedings which he has initiated or will initiate; and

(ii)         concerns as to whether Mr. Mahjoub faces a risk of torture or death if he is removed to Egypt.

[53]            With respect to the first circumstance, it is Mr. Mahjoub's undoubted legal right under the Act and the Charter to challenge the lawfulness of decisions made about his immigration status. The evidence establishes that there are two applications for judicial review before this Court. Future challenges are likely, for example in the event that the Minister determines Mr. Mahjoub may be returned to Egypt. It was largely for these reasons that the Director could not state with any certainty when Mr. Mahjoub would be removed. However, while it is Mr. Mahjoub's right to exhaust all avenues of legal recourse, the time required for those challenges cannot, in my view, be relied upon by Mr. Mahjoub for the purpose of arguing that he will not be removed from Canada within a reasonable time. A similar conclusion was reached by Mr. Justice Rothstein, while a judge of the Federal Court Trial Division, in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 970 at paragraph 7. In the words of Mr. Justice Rothstein, with which I entirely agree:

An individual is free to take those steps available to him at law to remain in Canada. If he does so, however, he may not claim that on the basis of his own actions, that he will not be removed from Canada within a reasonable time for purposes of paragraph 40.1(9)(a).

[54]            Turning to the circumstance surrounding concerns as to whether Mr. Mahjoub faces a risk of torture or death in Egypt, in 2002 SCC 1">Suresh the Supreme Court of Canada affirmed that, absent extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by section 7 of the Charter. Thus, generally, as a matter of law the Minister should decline to deport Convention refugees where there is a substantial risk of torture. In consequence, in the words of the Supreme Court in 2002 SCC 1">Suresh at paragraph 76, "states must find some other way of ensuring national security".

[55]            It flows directly from this, in my view, that where a risk of torture is asserted by a person who has been found to be a Convention refugee, more time, rather than less, will reasonably be required to ensure that the principles of fundamental justice are not breached.

[56]            This is not to say that 2002 SCC 1">Suresh applies to make every delay in effecting removal reasonable. Rather, the Court must in each case assiduously consider whether every reasonable effort has been made to secure prompt removal, in a manner consistent with the protection afforded by the Charter.

[57]            Here, an order of removal was obtained on March 26, 2002. This order remains in force, albeit subject to legal challenge. As a result of the decision of the Supreme Court in 2002 SCC 1">Suresh, issued on January 11, 2002, additional steps were taken by CIC. Assurances were sought and obtained from the government of Egypt. Those written assurances were provided to Mr. Mahjoub and he was afforded the opportunity to make submissions in response to those assurances and to the material to be put before the Minister for the purpose of obtaining the Minister's opinion as to whether Mr. Mahjoub should be allowed to remain in Canada. Cogent evidence was not adduced in this proceeding to suggest that CIC has dragged its feet or has otherwise been guilty of improper or unreasonable delay.

[58]            As no decision about removal has yet been made by the Minister, and as any such decision may well be challenged in this Court, and as no evidence was adduced about circumstances surrounding the giving of the assurances of the Egyptian government, I am not prepared to comment upon the weight to be given to the written assurances tendered in evidence before me. I am satisfied, however, that for the purpose of the issue before me, they evidence the efforts of CIC to comply with the requirement implicit in subsection 84(2) of the Act that Mr. Mahjoub be removed from Canada as soon as reasonably practicable, in a manner consistent with observing rights protected by the Charter.

[59]            The length of time that Mr. Mahjoub has remained in detention since the certificate was determined to be reasonable is a matter of great concern. However, having regard to the steps taken to insure protection of Mr. Mahjoub's rights, and having regard to the fact that the uncertainty about when he may be removed is in large part the result of pending and contemplated Court challenges initiated on Mr. Mahjoub's behalf, Mr. Mahjoub has not met the burden of satisfying me, on a balance of probabilities, that he will not be removed from Canada within a reasonable time.

(ii) Will Mr. Mahjoub's release pose a danger to national security or to the safety of any person?

[60]            In view of my conclusion that Mr. Mahjoub has not satisfied me that he will not be removed from Canada within a reasonable time, it is not strictly necessary for me to consider the second statutory criteria because the requirements of subsection 84(2) of the Act are conjunctive. However, in view of the long period of time that he has remained in detention and the inability of the Ministers' officials to state with certainty when Mr. Mahjoub will be removed, I think that it is desirable to deal with the second element of the statutory criteria for release.

[61]            The thrust of the evidence before the Court is that Mr. Mahjoub's release would pose a danger to national security, as opposed to a danger to the safety of any person. The Supreme Court considered what constitutes a "danger to the security of Canada" in 2002 SCC 1">Suresh. The Court concluded that the phrase must be given a "fair, large and liberal interpretation in accordance with international norms". What constitutes a danger to the security of Canada is "highly fact-based and political in a general sense".

[62]            The Supreme Court observed that support of terrorism abroad raises a possibility of adverse repercussions on Canada's security for a number of reasons. The Supreme Court explained the basis for this conclusion in the following words, found at paragraph 88 of its reasons:

First, the global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activity. Second, terrorism itself is a world-wide phenomenon. The terrorist cause may focus on a distant locale, but the violent acts that support it may be close at hand. Third, preventive or precautionary state action may be justified; not only an immediate threat but also possible future risks must be considered. Fourth, Canada's national security may be promoted by reciprocal cooperation between Canada and other states in combating international terrorism. These considerations lead us to conclude that to insist on direct proof of a specific threat to Canada as the test for "danger to the security of Canada" is to set the bar too high. There must be a real and serious possibility of adverse effect to Canada. But the threat need not be direct; rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security. [underlining added]

[63]            The Supreme Court continued, at paragraphs 89 and 90, as follows:

While the phrase "danger to the security of Canada" must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to refoule a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution. This supports the conclusion that while "danger to the security of Canada" must be given a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat.

These considerations lead us to conclude that a person constitutes a "danger to the security of Canada" if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be "serious", in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible. [underlining added]

[64]            While the Supreme Court of Canada was considering the refoulement of Convention refugees, I consider the comments to be apposite to consideration of what constitutes a danger to national security within the contemplation of subsection 84(2) of the Act.

[65]            Thus, for the purpose of subsection 84(2), evidence which grounds an objectively reasonable suspicion of substantial threatened harm would establish a danger to national security. Because the onus is on the applicant for release to satisfy the Court, on a balance of probabilities, that his or her release will not pose a danger to national security or the safety of any person, the onus upon the applicant may be difficult to meet given that an objectively reasonable suspicion of substantial threatened harm may establish the danger.

[66]            This is, in my view, wholly consistent with the conclusion of the Federal Court of Appeal in Ahani, supra where the Court considered the similar provisions for release contained in the former Act. There, the Court wrote at paragraphs 13, 14 and 15:

The other exception is the one at issue here. It seems to me that release under subsection 40.1(9) cannot be an automatic or easy thing to achieve. It is meant to be available "only in the very limited circumstances" outlined in the legislation. (See McGillis J. in Ahani, supra, at p. 274). After all, persons to whom subsections 41.1(8) and (9) apply have been found to be inadmissible for reasons relating to the security or interests of Canada or whose presence endangers the lives or safety of persons in Canada (paragraph 38.1(a)) and have been placed in custody for those reasons. Release, in these particular circumstances, is not to be routinely obtained.

Such custody cannot, of course, be of indefinite duration, at least not without good reason. Hence, provision for review is permitted after 120 days and release is allowed but only if "the person will not be removed within a reasonable time' and if the "person's release would not be injurious to national security or to the safety of persons". Normally, one would expect that an individual would have to show some significant change in circumstances or new evidence not previously available to obtain his release.

To hold otherwise would be to accord the appellant a hearing de novo, something the legislation does not envision. The case of R. v. Pearson ([1992] S.C.J. No. 99), relied on by counsel for the appellant, is an entirely different situation in that an accused person was being held in custody prior to a criminal trial in derogation of the presumption of innocence. Here a certificate is conclusive proof that the appellant is inadmissible for egregious reasons and, hence, cannot be considered to be entitled to any presumption of innocence. (See also Ahani v. Canada (1996), 201 N.R. 233 (F.C.A.) per Marceau J.A.).

[67]            In the present case, Mr. Justice Nadon was satisfied on the evidence before him that there are substantial grounds upon which to believe that Mr. Mahjoub is a member of one or both of the Vanguards of Conquest and the Egyptian Islamic Jihad or Al Jihad. Mr. Justice Nadon was similarly satisfied that there are reasonable grounds upon which to believe that those organizations have engaged in terrorism. This latter conclusion was not apparently challenged before Mr. Justice Nadon and was not in any way challenged before me.

[68]            With respect to membership in the Vanguards of Conquest and/or Al Jihad, Mr. Justice Nadon found that:

1.          Mr. Mahjoub perjured himself when he denied knowing Mr. Marzouk.

2.          Mr. Mahjoub was not truthful with respect to his connection with Mr. Al Duri.

3.          Mr. Mahjoub was not truthful with respect to the use of his alias "Mahmoud Shaker" to CSIS agents.

4.          Mr. Mahjoub was not truthful regarding his true activities while he worked in the Sudan for Osama bin Laden.

5.          Mr. Mahjoub was initially untruthful when he was interviewed by CSIS and he denied knowing Mr. Ahmad Said Khadr.

[69]            The summary prepared by Mr. Justice Nadon which summarized the information which led to the issuance of the security certificate, and the summary issued as a result of Mr. Mahjoub's motion for release set out, among other things, the following:

1.          Mr. Marzouk is an Al Jihad operative who is currently serving a 15-year jail sentence in Egypt for his involvement in Sunni Islamic terrorism including his training role in connection with the U.S. Embassy bombing in Nairobi, Kenya.

2.          Al Jihad has a history of close links both to Osama bin Laden and Al Qaida.

3.          Mr. Khadr was arrested by Pakistani officials on suspicion of involvement in the 1995 car bombing of the Egyptian Embassy in Pakistan and he has been placed on the United Nations and Canadian lists of individuals tied to Osama bin Laden and whose assets should be frozen. Mr. Khadr is also on the U.S.A.'s most-wanted list of Al Qaida members still at large. After Mr. Mahjoub arrived in Canada he lived at Mr. Khadr's address for approximally three weeks.

[70]            On his motion for release, Mr. Mahjoub presented no evidence to show any change in circumstances and no new evidence relevant to the existence of any danger.

[71]            In support of his argument that his release would not pose a danger to national security or to the safety of any person, Mr. Mahjoub argued that the Court must be satisfied, by evidence, that Mr. Mahjoub's presence would actually pose a danger to specific individuals in Canada or to the security of Canada. It was submitted that Mr. Mahjoub cannot be indefinitely incarcerated without meeting the same test as set out by the Supreme Court in 2002 SCC 1">Suresh. He also relied upon decisions such as France v. Ouzchar, [2001] O.J. No. 5713 (Ontario Superior Court of Justice), Trinidad and Tobago v. Raghoonanan, [2003] O.J. No. 391 (C.A.) and Schmidt v. The Queen, [1987] 1 S.C.R. 500 to argue that in the extradition context, persons are released from detention after the Court balances the danger to the public against the factors which favour release.

[72]            With respect to the extradition cases, I find them distinguishable from the present context. In Ouzchar, for example, there was no evidence to suggest that the defendant was a risk to the public (see the decision at paragraph 19). Further, extradition arises in a different statutory context from that now before the Court. It was not suggested in argument that the Charter right not to be denied reasonable bail without just cause, which applies in the extradition context per Ouzchar at paragraph 27, applies in the immigration context.

[73]            I have considered the totality of Mr. Mahjoub's counsel's submissions carefully. I am satisfied that there is abundant evidence before the Court in the public summaries and the confidential security intelligence reports which grounds an objectively reasonable belief that Mr. Mahjoub's release would pose a danger to national security. One example of such a danger would be that Mr. Mahjoub would be placed in a position to recommence his contacts with members of the Islamic extremist network, allowing them to be involved in the planning and execution of terrorist acts. This poses a potentially serious threat of substantial harm.

[74]            The evidence adduced on Mr. Mahjoub's behalf is not strong. It is insufficient to neutralize the evidence which gives rise to the objectively reasonable belief that Mr. Mahjoub's release would pose a danger.

[75]            I have also considered whether there are conditions of release capable of addressing that threat. Counsel for Mr. Mahjoub suggested that Mr. Mahjoub be released on terms similar to those imposed by the Court in Ouzchar. Those terms were:

1.              remain in the Province of Ontario and not leave the same without first obtaining the approval of this court do so;

2.              abstain from communicating directly or indirectly with any of the individuals or organizations mentioned in the judgment of the High Court of Paris dated April 6, 2001 or with anyone associated with any of these persons or organizations;

3.              make reasonable efforts to maintain your employment and to forthwith report any change in employment status to the Royal Canadian Mounted Police;

4.              reside at 46 Arkledun Avenue, Apartment 504, Hamilton, Ontario and not to be away from your place of residence except for the purposes of employment or, in the company of one of his sureties, for court appearances, for consultation with counsel, for medical appointments or for religious observances;

5.              keep the peace and be of good behaviour and attend all court proceedings as and when required;

6.              not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance;

7.              not apply for nor possess a firearms acquisition certificate;

8.              not to use cellular phones or any computer devices except for employment purposes;

9.              to forthwith surrender to the Royal Canadian Mounted Police all travel documents, including your passport;

10.            to report daily by telephone land line to the Royal Canadian Mounted Police headquarters in Hamilton, Ontario, and to report in person on a weekly basis to that same location if so required by the RCMP.

[76]            However, Mr. Mahjoub has been found by this Court to have been untruthful. Considering that, and the nature of the threat posed, I have not been satisfied by Mr. Mahjoub that the proposed, or similar, conditions would be effective to ensure that his release would not pose a danger to national security or to the safety of any person.

[77]            I have also weighed the evidence of the proposed sureties. With the exception of Mr. Mahjoub's wife, none of them appeared to have known Mr. Mahjoub well, or for a long period of time. Despite their best efforts and intentions, and despite Dr. Ali Hindy's evidence as to how the giving of sureties would bind Mr. Mahjoub's conscience, I have not been satisfied that the posting of cash sureties would address the danger that I believe would be posed by Mr. Mahjoub's release.

[78]            It follows, that Mr. Mahjoub has not met the onus upon him of satisfying the Court, on a balance of probabilities, that his release from detention will not pose a danger to national security or to the safety of any person.

[79]            For these reasons, I would dismiss the motion for statutory release.

[80]            In consequence, counsel are directed to correspond with the Registry of the Court with respect to schedule the hearing of the second part of Mr. Mahjoub's motion dealing with the constitutionality of his detention.

"Eleanor R. Dawson"

_______________________________________

Judge                                      

Ottawa, Ontario

July 30, 2003

ANNEX A

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                DES-1-00

STYLE OF CAUSE: IN THE MATTER OF a Certificate issued pursuant to

section 40.1 of the Immigration Act

AND IN THE MATTER OF an application pursuant to

paragraph 40.1(4)(c) of the said Act

AND IN THE MATTER OF Mohamed Zeki Mahjoub

BETWEEN:                              THE MINISTER OF CITIZENSHIP AND

IMMIGRATION and THE SOLICITOR GENERAL OF CANADA

-and-

MOHAMED ZEKI MAHJOUB

PLACE OF HEARING:         TORONTO, Ontario

DATE OF HEARING:           May 10, 2003

REASONS FOR ORDER OF THE HONOURABLE

MADAM JUSTICE DAWSON

DATED:                                    July 30, 2003

APPEARANCES:

Mr. Daniel Roussy

Mr. Donald MacIntosh FOR APPLICANT

Mr. Rocco Galati                        FOR RESPONDENT

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada                   FOR APPLICANT

Galati, Rodrigues, Azevedo & Associates

Toronto, Ontario                                                  FOR RESPONDENT