Mahjoub v. Canada (Citizenship and Immigration)

Mahjoub v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2007-02-15
Neutral citation
2007 FC 171
File numbers
DES-1-00
Decision Content
Date: 20070215
Docket: DES-1-00
Citation: 2007 FC 171
Ottawa, Ontario, the 15th day of February, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MOHAMED ZEKI MAHJOUB
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE MINISTER OF PUBLIC SAFETY
and EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER
INTRODUCTION
[1] The applicant Mohamed Zeki Mahjoub, an Egyptian national, seeks conditional release from detention pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (the Act) pending a final determination of whether he may be returned to Egypt or deported to another country. Mr. Mahjoub came to Canada in 1995 and was declared a Convention refugee the following year. In 1999, in his absence, he was convicted and sentenced in Egypt to fifteen years imprisonment for offences relating to the activities of a proscribed organization. In June, 2000 he was detained by Canadian officials on a security certificate. That certificate was found to be reasonable by a Judge of this Court. Mr. Mahjoub is challenging the security certificate process on constitutional grounds before the Supreme Court of Canada. In 2002 and 2005, Mr. Mahjoub brought applications for release that were unsuccessful.
[2] For the reasons set out below, I am satisfied that Mr. Mahjoub has now met the requirements for the exercise of the Court’s discretion under subsection 84(2) of the Act, namely that he will not be removed from Canada within a reasonable time and that he will not pose a danger to national security or to the safety of any person if released under the terms and conditions that I consider appropriate. I wish to stress that this will amount to a form of house arrest and that Mr. Mahjoub will be returned to custodial detention if he violates the terms and conditions.
BACKGROUND
[3] Mr. Mahjoub entered Canada on December 30, 1995 from Sudan and immediately made a claim for refugee protection. On October 24, 1996, the Convention Refugee Determination Division of the Immigration and Refugee Board declared Mr. Mahjoub to be a Convention refugee. He met and married Ms. Mona El Fouli, a Canadian citizen. Together they have two sons, Yusuf age 7 and Ibrahim age 9. Ms. El Fouli also has a son, Haney age 23.
[4] On June 26, 2000 Mr. Mahjoub was detained on the basis of a security certificate signed by the Solicitor General (now Minister of Public Safety & Emergency Preparedness) and the Minister of Citizenship and Immigration (the Ministers). He has remained in detention since that date.
[5] The certificate states that Mr. Mahjoub, a foreign national, is inadmissible to Canada on grounds of security because there are reasonable ground to believe that he is a person described in subparagraphs 19(1)(e)(ii), 19(1)(e)(iv)(B) and (iv)(C), 19(1)(f)(ii) and (iii)(B) of the Immigration Act, then in force (R.S.C. 1985 c. I-2, “former Act”). Namely, that he is a person who:
a) will, while in Canada, engage in or instigate the subversion by force of any government;
b) is a member of an organization that there are reasonable grounds to believe will engage in or instigate the subversion by force of any government, or will engage in terrorism;
c) has engaged in terrorism;
d) is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism.
[6] On June 27, 2000, under the terms of the former Act, the certificate was referred to this Court for a determination as to whether the certificate should be quashed. The Security Intelligence Report (SIR) prepared by the Canadian Security Intelligence Service (CSIS) in support of the certificate was considered by Mr. Justice Marc Nadon.
[7] On June 30, 2000, Justice Nadon ordered that a statement be released to the respondent, summarizing the information required to reasonably inform him of the circumstances giving rise to the issuance of the certificate. The resulting statement summarizes the information provided to the Ministers by CSIS and reviewed by Justice Nadon. The summary sets out 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. The summary also set out CSIS’ grounds to believe that Mr. Mahjoub had engaged in terrorism.
[8] The summary states that CSIS believes that Mr. Mahjoub is a high-ranking member of an Egyptian Islamic terrorist organization, the Vanguards of Conquest (VOC), a radical wing of the Egyptian Islamic Jihad or Al Jihad. According to the summary, 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 which advocates the use of violence as a means of establishing an Islamic state in Egypt. Mr. Mahjoub is believed to be a senior member of the governing council of the VOC. His conviction and sentencing in Egypt relates to his membership in these organizations.
[9] On October 5, 2001, Justice Nadon determined that the security certificate was reasonable: Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2001 FCT 1095, [2001] 4 F.C. 644 [Mahjoub]. Justice Nadon was satisfied on the evidence before him that there were reasonable grounds to believe that the AJ and the VOC have engaged in terrorism, and that there are reasonable grounds to believe that Mr. Mahjoub was and is a member of one or both of these organizations: Mahjoub, above at para. 48. On March 25, 2002, the Adjudication Division of the Immigration and Refugee Board found Mr. Mahjoub to be inadmissible to Canada, based on the security certificate, and a removal order was issued.
[10] It remains open to Mr. Mahjoub, of his own volition, to leave Canada to return to Egypt or to go to any other country that is willing to accept him. However, as a Convention refugee, pursuant to paragraph 115(2)(b) of the Act, Mr. Mahjoub cannot be removed to a country where he faces a risk of persecution or faces a risk of torture or cruel and unusual treatment or punishment unless the Minister of Citizenship and Immigration is of the opinion that Mr. Mahjoub should not be allowed to remain in Canada because of the nature and severity of acts committed or because he constitutes a danger to the security of Canada. Therefore, unless it is determined that Mr. Mahjoub does not face such a risk, or that upon balancing these considerations, Canada's security requires his removal, Mr. Mahjoub cannot be removed to Egypt, or to any other country in which he would face such a risk.
[11] The Act came into effect on June 28, 2002. On October 18, 2002, a motion seeking
Mr. Mahjoub's release from detention was filed under subsection 84(2) of the Act (ss. 84(2) application). The resulting decision of Madam Justice Eleanor Dawson, dated July 30, 2003, was the first to be rendered pursuant to this provision: Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2003 FC 928, [2004] 1 F.C.R. 493 [Mahjoub No. 1].
[12] In Mahjoub No. 1, Justice Dawson found that Mr. Mahjoub had not satisfied the Court that he would not be removed from Canada within a reasonable time. The Court went on to address the second statutory criteria in subsection 84(2) of the Act, though it was not strictly necessary. The Court concluded that there was an abundance of evidence which grounded an objective reasonable belief that Mr. Mahjoub’s release would pose a danger to national security: Mahjoub No. 1, above at para. 73. The Court further noted that the evidence adduced on Mr. Mahjoub’s behalf was not strong, and that the proposed conditions and sureties were insufficient to neutralize the reasonable belief that his release would pose a danger.
[13] By a decision dated July 22, 2004, a delegate of the Minister of Citizenship and Immigration (Minister’s delegate) decided that Mr. Mahjoub should be removed to Egypt, pursuant to paragraph 115(2)(b) of the Act, notwithstanding that Mr. Mahjoub “could be at substantial risk of ill-treatment and human rights abuses such that it would preclude his removal based on section 115(1) of the Act”. This finding was challenged by Mr. Mahjoub, and in a decision dated January 31, 2005, Justice Dawson allowed his application for judicial review and remitted the matter for redetermination by another delegate of the Minister: Mahjoub v. Canada (Minister of Citizenship and Immigration), 2005 FC 156, [2005] 3 F.C.R. 334.
[14] In 2005, the Court heard Mr. Mahjoub’s second ss. 84(2) application: Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2005 FC 1596, 2 F.T.R. 101 [Mahjoub No. 2]. In Mahjoub No. 2, Justice Dawson found that: 1) Mr. Mahjoub had satisfied the Court that he would not be removed from Canada within a reasonable period of time; 2) Mr. Mahjoub had not satisfied the Court that his release would not pose a danger to national security or to the safety of any person; and 3) that the imposition of conditions and the existence of sureties were not sufficient to neutralize the danger that the Court believed Mr. Mahjoub’s release would pose. As a result, the application was dismissed.
[15] On January 3, 2006 another delegate of the Minister decided that Mr. Mahjoub should be removed to Egypt, pursuant to paragraph 115(2)(b) of the Act. In this decision, the Minister’s
delegate concluded that Mr. Mahjoub poses a substantial danger to the security of Canada and should not be allowed to remain in Canada. The Minister’s delegate also determined that Mr. Mahjoub does not face a substantial risk of being subjected to the death penalty, cruel or unusual treatment or torture upon return to Egypt.
[16] The second delegate’s opinion that Mr. Mahjoub did not face a substantial risk of torture if returned to Egypt was found to be patently unreasonable by Madame Justice Danielle Tremblay-Lamer in a decision rendered on December 14, 2006. Accordingly, the decision was set aside and remitted for redetermination by another Minister's delegate.
[17] As noted above, the present case is the third ss. 84(2) application that has been heard on behalf of Mr. Mahjoub. As of the date of this judgment, Mr. Mahjoub has been in detention for over six and a half years. The procedural history and his detention have clearly been protracted. My colleague Justice Dawson, in Mahjoub No. 2, provided a detailed summary and outline of the history of the proceedings up until the date of that application, see: para. 3 and Appendix A. A chronology of events and proceedings, adapted from that provided by Justice Dawson, is also attached to Justice Tremblay-Lamer’s decision. For ease of reference, a further update is attached as Appendix A to these reasons. I do not feel the need to repeat the details of the procedural history here.
LEGISLATIVE FRAMEWORK
[18] Section 81, subsection 84(2), and paragraph 115(2)(b) of the Immigration and Refugee Protection Act, S.C. 2001 c.27 (the Act) provide as follows:
81. If a certificate is determined to be reasonable under subsection 80(1),
(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;
(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and
(c) the person named in it may not apply for protection under subsection 112(1).
81. Le certificat jugé raisonnable fait foi de l’interdiction de territoire et constitue une mesure de renvoi en vigueur et sans appel, sans qu’il soit nécessaire de procéder au contrôle ou à l’enquête; la personne visée ne peut dès lors demander la protection au titre du paragraphe 112(1).
84. (2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
84. (2) Sur demande de l’étranger dont la mesure de renvoi n’a pas été exécutée dans les cent vingt jours suivant la décision sur le certificat, le juge peut, aux conditions qu’il estime indiquées, le mettre en liberté sur preuve que la mesure ne sera pas exécutée dans un délai raisonnable et que la mise en liberté ne constituera pas un danger pour la sécurité nationale ou la sécurité d’autrui.
115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
2) Subsection (1) does not apply in the case of a person
…
(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.
115. (1) Ne peut être renvoyée dans un pays où elle risque la persécution du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusités, la personne protégée ou la personne dont il est statué que la qualité de réfugié lui a été reconnue par un autre pays vers lequel elle peut être renvoyée.
(2) Le paragraphe (1) ne s’applique pas à l’interdit de territoire :
…
b) pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée si, selon le ministre, il ne devrait pas être présent au Canada en raison soit de la nature et de la gravité de ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada.
THE ISSUES TO BE DETERMINED
[19] As indicated above, an application for release under ss.84(2) may only be brought by a foreign national who has not been removed from Canada within 120 days after the security certificate was found to be reasonable. In this case, it is obvious that the threshold has been met.
[20] It was acknowledged by the applicant that while a notice of constitutional questions was served and filed on his behalf and while the applicant maintains his objection to the certificate procedure on Charter grounds, the decision of the Federal Court of Appeal in Almrei v Canada (Minister of Citizenship and Immigration), 2005 FCA 54, [2005] 3 F.C. 142 [Almrei] is binding authority on this Court pending the outcome of the proceedings before the Supreme Court of Canada. Accordingly, I heard no argument on those issues and do not propose to address them in these reasons.
[21] Counsel for the respondents advised in oral argument that the Ministers did not object to the application being brought. As noted by the Federal Court of Appeal in Almrei, above at para. 52, “…an application under subsection 84(2), like other applications, can be renewed if new facts are discovered or the situation has evolved to a point where detention is no longer necessary or justified” [emphasis mine]. In Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FC 628, 278 F.T.R. 118 at paras. 24, 27 [Harkat], Justice Dawson found that it was appropriate to hear Mr. Harkat’s second ss.84(2) application because of a change in circumstances; an unexplained delay in the appointment of the Minister's delegate. This was found to constitute “…a distinct departure from the circumstances which the Court could reasonably have anticipated when denying the first application for release.” Justice Dawson’s decision respecting the release of
Mr. Harkat on conditions was upheld by the Federal Court of Appeal: Harkat v. Canada (Minister of Citizenship and Immigration), 2006 FCA 259, 270 (D.L.R.) (4th) 35.
[22] In the present case counsel agreed, and I concur that it is appropriate in the circumstances to reassess Mr. Mahjoub’s case pursuant to subsection 84(2) of the Act. The second decision rendered by the Minister’s delegate pursuant to subsection 115(2)(b) of the Act was under judicial review as of the date of the hearing and has now been quashed and remitted for reconsideration. Mr. Mahjoub has been relocated to a new facility where the conditions of his detention are different from what they were when his previous applications for release were considered. A significant amount of time has also passed since Mr. Mahjoub’s last ss. 84(2) application. Taking into account the totality of the circumstances, the threshold test has been met in the present case.
[23] The issues remaining to be decided by the Court are whether I am satisfied that:
1. Mr. Mahjoub will not be removed within a reasonable period of time; and
2. His release will not pose a danger to national security or to the safety of any person.
[24] While not conceding the point, applicant's counsel indicated that for the purpose of the present proceedings, it would be accepted that the burden to prove these matters to the Court’s satisfaction on a balance of probabilities rested on Mr. Mahjoub.
SUMMARY OF CONCLUSIONS
[25] In these reasons, I:
1. find that Mr. Mahjoub has met the onus upon him to establish that he will not be removed from Canada within a reasonable time;
2. find that Mr. Mahjoub has met the onus upon him to establish that his release will not pose a danger to national security or to the safety of any person; and
3. outline a series of terms and conditions that I consider appropriate to neutralize or contain any threat or danger posed by his release.
Thus, I will order that Mr. Mahjoub may be released from detention upon complying with the terms and conditions set out in Appendix B to these reasons, which will form part of the formal Order. The parties will be given seven days to make any submissions on the terms and conditions before the Order is issued.
THE EVIDENCE
[26] By agreement of counsel, the evidence tendered in the prior proceedings relating to
Mr. Mahjoub’s detention, including the proceedings respecting the reasonableness of the certificate, was considered on this application. All of the documentary evidence from these earlier proceedings, whether tendered in public or in private was re-filed in evidence. Additionally, the transcripts of the public and private proceedings were, by consent, filed in evidence before me. This evidence was duly considered, in addition to the new evidence tendered.
[27] The evidence adduced in open court in the course of Mahjoub No. 1 was summarized by Justice Dawson at paragraphs 32 to 47 of that decision. In Mahjoub No. 2, at paragraphs 9 to 11, Justice Dawson summarized the oral evidence new to that proceeding, in addition to a psychologist’s report that had been submitted on behalf of the applicant. I do not feel the need to repeat either summary of evidence here.
[28] The new evidence tendered on this third application for release consisted of:
(i) Documents filed in public on behalf of both Mr. Mahjoub and the Ministers;
(ii) Oral evidence adduced in public on behalf of Mr. Mahjoub and the Ministers;
(iii) Information provided in private by the Ministers.
(i) The Documentary Evidence
[29] Fourteen affidavits were filed in support of the applicant’s release, in addition to his own.
These affidavits were made by his wife and step-son, by acquaintances and community supporters willing to act as sureties for Mr. Mahjoub. They outline the connection these individuals have to
Mr. Mahjoub and/or his family, and the affiants’ understanding of what their responsibilities would be as sureties if approved by the Court.
[30] The affidavit of Patricia Taylor is illustrative of the evidence from community supporters. Ms. Taylor is a retired Anglican minister. She is prepared to offer a $1000 conditional bond in support of his release because she believes that releasing him to his home and family would be just and fair. Ms. Taylor does not know the applicant but has met his wife and the three children. She has volunteered as a chaplain at correctional institutes. Ms. Taylor acknowledges that she cannot supervise Mr. Mahjoub because she lives in Midland and does not speak Arabic. She has confidence in the applicant’s wife and the others who are prepared to stand as sureties and are prepared to supervise him.
[31] The affidavits of Murray Lumley, Maggie Panter, Elizabeth Block, Laurel Smith, John Valleau and Dwyer Sullivan are of a similar nature. These deponents object in principle to the security certificate process and wish to demonstrate their opposition to the policy in a meaningful way. They have had limited or no contact with the applicant but have come to know and trust in
Ms. El Fouli and her children through their advocacy activities. El Sayed Ahmed, Omar Ahmed Ali, Rizwan Wancho and Aly Hindy were acquainted with the applicant through contacts at the Salaheddin Mosque or through friendship with his wife.
[32] Mr. Bill Siksay, M.P. stated in an e-mail filed without objection that he had met the applicant and his wife and was willing to offer a conditional surety of $250.00 as he is “very concerned that someone can be detained this long in Canada without a charge or open trial”. In an
e-mail message attached to an affidavit, Mr. Omar Alghabra, M.P. agreed to “add my name as a symbolic objection to indefinite detention and to stress the need for an open and transparent due process that I believe everyone is entitled to”. Similarly, in a document filed at the hearing without objection, Ms. Meili Faille M.P. and Vice-Chair of the Standing Committee of the House of Commons on Citizenship and Immigration, declared her opposition to the process and offered to pledge $100 towards Mr. Mahjoub’s release.
[33] The Ministers filed the affidavits of: Lisa Lewis, Legal Assistant in the Immigration Law Section; Louis Dumas, Director of the National Security Division of the Canada Border Services Agency; and Philip Whitehorne, Manager of the Kingston Immigration Holding Centre.
[34] Ms. Lewis’ affidavit served merely to introduce correspondence between counsel confirming that the Ministers intend to remove Mr. Mahjoub but that this would not be done until the judicial review of the second Minister’s delegate’s decision, dated January 3, 2006, was determined. Mr. Dumas, who also gave oral testimony, deposed as to the requirements to execute Mr. Mahjoub’s removal if the Minister’s delegate’s decision were to be upheld. In his view, that could be done “within three weeks, maybe less”. I will have more to say about that opinion below.
[35] Philip Whitehorne is an employee of the Canada Border Services Agency (CBSA) and manager of the Kingston Immigration Holding Center (KIHC). His affidavit responds to
Mr. Mahjoub’s assertions regarding the lack of adequate medical care at the KIHC and in particular Mr. Mahjoub’s belief, as stated in his affidavit, that “there is no doctor available at KIHC to adequately monitor + treat [his] very serious medical conditions”. Mr. Whitehorne did not testify at the hearing.
[36] Mr. Whitehorne deposed that daily health care services for the detainees at the KIHC are provided by the Health Services Branch of Correctional Services Canada. He further asserts, on the basis of information provided to him by Belinda Roscoe, Chief of Health Services of Millhaven Institution (MI), that among other things: all healthcare which can be provided at KIHC is provided “on site”; detainees are able to have access to medically essential physician coverage; at a minimum detainees are visited daily by a nurse; there is 24 hour access to medical services; and a hepatitis C specialist is available to detainees. The affidavit further states that “[w]ith the exception of an emergency situation, all health services, unless deemed operationally unreasonable, are provided in the administration building’s treatment room. Daily contact with MI health care is administered in the living units along with the delivery of medications”.
[37] The release of personal information contained in Mr. Mahjoub's KIHC medical file required his consent. A release form was executed by the applicant prior to the public hearing and the medical file, dating from his admission to KIHC on April 24, 2006 to December 8, 2006, was tendered in evidence as an exhibit. The file contains an assessment of Mr. Mahjoub’s health status conducted upon his admission to KIHC, and the following records compiled by physicians, nursing staff and custodial officers:
Daily Doctor’s orders and progress notes; Medication administration records; Referrals for consultations with specialists; Laboratory requisitions and reports; Detainee request forms related to medical treatment; Officer statements and observation reports; Hunger strike records; and Miscellaneous correspondence.
[38] The admission assessment conducted at the Millhaven Institution on April 24, 2006 indicates that Mr. Mahjoub appeared to be healthy but suffered from several serious problems, notably Hepatitis C, an injury to his left knee, and high blood pressure. Mr. Mahjoub had previously reported suffering depression as a result of an incident at the Metro Toronto West Detention Centre (MTWDC) in 2002 for which he had been prescribed anti-depressants. He declined psychiatric intervention at KIHC.
[39] It was also noted in the assessment that Mr. Mahjoub experienced chest pains, edema in his legs and ankles and respiratory problems when engaged in hunger strikes. Mr. Mahjoub conducted periodic hunger strikes while detained at the MTWDC. The daily progress notes indicate that he began and ended several such strikes in the months following his arrival at KIHC. The notes detail the medical care offered Mr. Mahjoub and the records maintained with respect to his health status on a daily basis.
(ii) The Applicant’s Oral Evidence
[40] In the course of the public hearing the applicant tendered the oral evidence of community supporters who are willing to stand as sureties on his behalf with either cash deposits or conditional pledges. The testimony of Elizabeth O’Connor, Margaret Panter, Laurel Smith, Elizabeth Block, John Valleau and Murray Lumley was similar to that submitted in affidavit form. These witnesses have met Ms. El Fouli and her children through their participation in vigils in relation to the security certificates and believe her to be capable and dependable. While they repose confidence in
Ms. El Fouli, they are motivated primarily by their opposition to the security certificate process. Each noted that, prior to testifying, they had reviewed a package of materials provided by applicant's counsel that addressed the allegations against him including the fact that he had been found by Justices Nadon and Dawson to have lied to the Court. The witnesses had not discussed the allegations with Mr. Mahjoub. It does not appear that most were aware that Ms. El Fouli and
Mr. Mahjoub had been separated immediately prior to his detention until informed of this by counsel.
[41] Laurel Smith has known Ms. El Fouli and her children for over four years on a social basis. She came to know the family through her husband Matthew Behrens, a community activist who initiated a campaign against security certificates. She has had contact with Mr. Mahjoub by telephone when he was detained at the MTWDC. Ms. Smith acted successfully for another individual as a surety and is prepared to pledge $10,000 for Mr. Mahjoub.
[42] Murray Lumley has also had experience with assisting individuals in meeting the conditions of their release. He is prepared to pledge $5,000 in support of Mr. Mahjoub. John Valleau does not know the applicant but is prepared to post a cash bond of $5,000 and pledge $5,000 to secure his release from detention. His acquaintance with the applicant's family has led him to believe that there is little risk of non-compliance with the terms of a release order.
[43] Rizwan Wancho is prepared to deposit $2,500 cash in support of Mr. Mahjoub's release. He was briefly acquainted with Mr. Mahjoub through the Salaheddin Mosque prior to his detention and believes him to be an honest and trustworthy person. He offered to assist in supervising
Mr. Mahjoub should the applicant be released but acknowledged that he does not speak Arabic and could not monitor his conversations in that language. Mr. Wancho equated the applicant's lies to the Court as being “like stealing when you are hungry and you would die without it”. When asked to explain why he was prepared to stand as a surety for Mr. Mahjoub he volunteered the opinion that 9/11 was a staged event and in the “hysteria” which followed “one must be given full opportunity to be vindicated”.
[44] Dr. Aly Hindy is a professional engineer and is Iman of the Salaheddin Mosque. He describes himself as a friend of the applicant although he did not know Mr. Mahjoub before the applicant was detained. He was approached at that time by Ms. El Fouli for assistance. Dr. Hindy has known Ms. El Fouli since the 1980’s. She has taught at the mosque since its inception.
Dr. Hindy visited Mr. Mahjoub at the MTWDC and has spoken to him on the phone perhaps once a month. Dr. Hindy is prepared to post $10,000 in cash to secure Mr. Mahjoub’s release. He has acted as a surety in relation to two unrelated criminal matters, one of which is on-going. He has also offered to be a surety in the case of two other security certificate detainees.
[45] Omar Ahmed Ali offered to post $15,000 cash. He met the applicant a year or two prior to his detention, at the mosque. Since deciding to come forward in support of this release application he has remained in contact with Mr. Mahjoub by telephone. He expressed the opinion that Mr. Mahjoub had previously lied to the Court out of fear. Mr. Ali believes that Mr. Mahjoub would not breach any release conditions and is prepared to help supervise Mr. Mahjoub by phone or through personal visits.
[46] Al Sayed Ahmed and his wife are close friends of Ms. El Fouli and have known her for 25 years. His knowledge of the applicant stems largely from that relationship. Based on that he believes Mr. Mahjoub is a reliable candidate for release. Mr. Ahmed visited Mr. Mahjoub once at the MTWDC and has spoken with him on the phone. He is prepared to offer a conditional bond of $5,000. Mr. Ahmed speaks Arabic and is prepared to assist Ms. El Fouli and her son Haney in supervising Mr. Mahjoub should he be released on conditions. However, he would only be available to do this on the weekends or during the week after 5 p.m.
[47] The applicant's wife, Ms. Mona El Fouli, acknowledged in her testimony that she had been separated from her husband prior to his detention. She stated that the time she and Mr. Mahjoub had to get to know each other and get married was very brief. There had been many arguments over small things. They had agreed to separate to resolve matters and had reconciled after he was put into detention. Ms. El Fouli stated that she has had difficulty visiting her husband since he was moved to the KIHC. She is dependent on the good will of others to get there. Each day, however, they speak together on the phone for an hour. Ms. El Fouli is very concerned about the state of her husband's health and the amount of time the family has been separated.
[48] The amount of $10,000 which has been pledged as a cash deposit for Mr. Mahjoub’s release in Ms. El Fouli's name was raised by Mr. Behrens’ organization, Homes not Bombs.
Ms. El Fouli testified that she believed that this community support would hold her husband accountable. She stated that she was prepared to report her husband if he breached his conditions and to accept restrictions upon access to her home and upon the communication equipment in her home including computers and telephones.
[49] Haney El Fouli is 23; he is a student at Humber College, he works part-time and spends time at the gym to stay in shape. He is willing to help supervise his stepfather though he acknowledged that he was very busy and would be able to do so only a few hours or at day a week at most. He understands Arabic and has remained in touch with his stepfather while Mr. Mahjoub has been in detention. Haney is prepared to accept restrictions on access to the home and to the communications equipment within it.
[50] Mr. Mahjoub provided his evidence by video conference from a room in the administration building at KIHC. Prior to the hearing a motion was filed on his behalf seeking an order or direction that Mr. Mahjoub was to be escorted to and from the administration building by a detention supervisor rather than a custodial officer and further, that the custodial officer and supervisor not remain in the video conference room while Mr. Mahjoub was testifying. I issued an order to that effect on November 29, 2006.
[51] This motion stemmed from a controversy which arose on September 2, 2006 when a custodial officer alleged that Mr. Mahjoub had threatened him. Mr. Mahjoub denied the allegation and claimed to fear for his life. He believed that the custodial officers had banded together against him and that his word would not be accepted against theirs. Thereafter, he refused to move between the detention unit building in which he was housed within the Millhaven grounds and the Millhaven administration building, a distance of about 35 metres, unless he was escorted by a supervisor. The respondents took the position that this was not operationally necessary and would interfere with the performance of the supervisor's duties. Moreover, the Ontario Provincial Police had attempted to investigate the alleged incident on September 2nd but were unable to do so as Mr. Mahjoub declined to cooperate.
[52] In granting the motion to order that a supervisor escort Mr. Mahjoub to the video conferencing room within the administrative building, and that an officer not remain within the room while Mr. Mahjoub was testifying, I made no finding as to the merits of the dispute between Mr. Mahjoub and the custodial staff at the KIHC. In my view, the order was necessary to ensure that Mr. Mahjoub received a full and fair hearing in these proceedings.
[53] In his oral testimony, Mr. Mahjoub restated the declarations in paragraphs 10 and 11 of his affidavit, namely that he does not believe in using violence and would not condone others using violence and that he does not hold Islamic extremist views. When asked why he had not previously made such statements, Mr. Mahjoub said that nothing had changed between this application for release and the last with respect to his beliefs in this regard, he was simply not asked during that hearing. He says that he was totally opposed then to the use of violence and remains so now. He rejected the assertion by CSIS that he somehow enjoyed “star power” which could motivate impressionable young Muslims in Canada and declared that he would never attempt to do this.
[54] Mr. Mahjoub avowed that he would abide by the terms and conditions proposed by his counsel and stated that he understood that a failure to do so would result in him returning to custodial detention. He declared that he would abide by the terms and conditions in the interests of his children, out of respect for the Court's order, and because he does not want to return to detention. He explicitly accepted each proposed term and condition.
[55] Mr. Mahjoub was closely questioned in chief and on cross examination regarding his contacts with Ahmed Said Khadr, Essam Marzouk, Ahmed Agiza and Mubarak Al Duri, all alleged to be members of Al Qaeda, or associated organizations, and involved in terrorist activities.
Mr. Mahjoub did not know the present location of Mr. Agiza or Mr. Al Duri. He understood from the government documents filed with the Court that Mr. Marzouk and Mr. Agiza are now imprisoned in Egypt. He undertook not to have contact with any of these persons or with the other security certificate detainees if released on conditions.
[56] According to Mr. Mahjoub, he had met Mr. Khadr only when the latter had returned to Canada on a visit from Pakistan. It was his wife who was on friendly terms with the Khadr family. No explanation was provided for why it was he had stayed with Mr. Khadr’s in-laws upon arriving in Toronto and prior to meeting his wife. He is aware that Mr. Khadr was subsequently killed in a shootout with the Pakistani authorities.
[57] Mr. Mahjoub agreed that Mubarak Al Duri had been a co-worker of his when the two were employed in Sudan by Osama bin Laden. He stated that the last time he saw Mr. Al Duri was when he submitted his resignation, sometime around mid-1993. After coming to Canada he had one further incident of contact with Mr. Al Duri by letter.
[58] Mr. Mahjoub asserted his intention to continue to resist the efforts to remove him from Canada and return him to Egypt. He views this as a threat to his life and as a violation of international law and conventions. However, he stated, that if at the end of the process he was required to be removed he would report for removal. In the interim it was his duty, he acknowledged, to comply with any order of the Court.
[59] With respect to the incident of September 2, 2006 which resulted in a guard at KIHC alleging that Mr. Mahjoub had threatened him, the applicant stated that the allegation was unfounded. He was worried however that other guards would make such allegations and it was for that reason and for his own protection that he had refused to leave the living area without a supervisor for an escort. On September 8th he told a nurse that he feared for his life if he had to go to the administrative building without an escort. From the date of the original incident, to the date of the hearing in December, this request had been denied. As a result, he had not left the living area for any reason apart from testifying in court proceedings, including for medical care or treatment. In addition, he had not seen his family during this period.
[60] Mr. Mahjoub recounted, at some length, a history of petty disputes with the custodial and medical staff at KIHC prior to the September 2nd incident. It was clear from this evidence and the respondents’ evidence that in the months following his transfer to KIHC, Mr. Mahjoub engaged in a battle of wills with the administration in an effort to gain some control over his environment and the daily regime of the institution.
[61] Part of the evident frustration underlying this conflict stemmed from the lack of programs provided to the KIHC detainees. In Mr. Mahjoub’s first detention review, while he was still at the MTWDC, Justice Dawson had expressed concern that no long-term programs were available as it was a remand centre. Now that he was at the KIHC, near two large federal institutions, there were still no programs available to the detainees other than recreation at the gym.
[62] Mr. Mahjoub testified that he had requested education programs and access to the library and school at Millhaven but was refused as these were operated by the Correctional Service of Canada and not by the CBSA which ran KIHC. The detainees were provided a computer but no software programs other than for beginner language training which they considered useless.
Mr. Mahjoub was also denied access to correspondence courses offered by a US university for security reasons. Unlike federal inmates, the detainees were unable to wo