Mahjoub (Re)

Mahjoub (Re)
Court (s) Database
Federal Court Decisions
Date
2016-07-20
Neutral citation
2016 FC 808
File numbers
DES-7-08
Decision Content
Date: 20160720
Docket: DES-7-08
Citation: 2016 FC 808
Ottawa, Ontario, July 20, 2016
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
IN THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration and Refugee Protection Act (IRPA);
AND IN THE MATTER OF the referral of a certificate to the Federal Court pursuant to section 77(1) of the IRPA;
AND IN THE MATTER OF
Mohamed Zeki MAHJOUB
ORDER AND REASONS
I. Nature of the Matter [1] This is a motion by Mr. Mohamed Zeki Mahjoub [the Applicant] for an Order removing all but the usual conditions of release currently imposed on him pursuant to subsection 82(4) and paragraph 82(5)(b) of the Immigration and Refugee Protection Act SC 2001, c 27 (IRPA). In his Notice of Motion and a Notice of Constitutional Question, the Applicant also asked for leave to argue at some later and unspecified date, that ss. 79, 82(5)(a), (b) and 82.3 in conjunction with sections 33 and 77 to 85.6 of the IRPA violate sections 2(b), 7, 8, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms (Charter). However, the Applicant proposed that his constitutional arguments should only be argued and decided if the Court did not accept his submissions to remove all but the usual conditions of his release from detention.
A. Summary of disposition [2] I am relaxing a number of the conditions of the Applicant’s release from detention though not to the extent the Applicant requested. The principle changes are that the Applicant may now have access to social media such as Facebook and Twitter, Skype and other websites and without Court approved sureties being present; he may have a laptop computer instead of a desktop at his residence; he may now have a cell phone with Internet capability; and he is now entitled to have 24 hours’ notice before CBSA may search his computer or cell phone. In addition, he may change residence inside the GTA on 3 days’ notice, not the current 10, and he may travel outside the GTA on 5 days’ notice, instead of 7. The specifics of the Applicant’s conditions of release from detention are set out in Schedule “A” attached to this Order and Reasons. I should add that these changes were offered by the Ministers before the hearing.
[3] As noted, I am not relaxing conditions of the Applicant’s release from detention to the extent he requested. In light of the danger I find him to be having regard to the IRPA, it would not be responsible or prudent to remove all but the usual conditions at this time. The conditions that remain are in the Court’s view, necessary under paragraph 85(2)(b) of IRPA to neutralize the danger I find the Applicant still presents. In my view, these conditions are proportionate and reasonable in the circumstances, and take into account his evolving circumstances including the fact that CSIS no longer considers him to be a threat to national security and has so advised domestic and international agencies and requested them to take appropriate action.
[4] I consider it very important that he not delete Internet tracking information from either his cell phone or computer; while not part of my Order, the Ministers are at liberty to apply to vary these conditions of release, and perhaps others as required, if there is evidence of non-compliance by the Applicant in this regard. For the same reasons, namely ensuring compliance, I have not acceded to his request to visit internet cafes.
[5] I found no merit in his request to be allowed to visit gun stores, i.e., retail establishments whose primary function is to sell firearms or weapons or which can be characterized as a 'shooting range' or 'shooting club' gun shop. I say this because of the danger element, noting his testimony at the hearing that he does not want to purchase firearms but also having regard to his army training in Egypt including training in the use of automatic weapons. This request was wholly inappropriate.
[6] My reasons follow.
B. Procedural Matters [7] After a motion management meeting, and at the Applicant’s request, I allowed the Applicant’s informal motion and by direction dated May 31, 2016, ordered that a witness from the Canadian Security and Intelligence Service (CSIS) attend the hearing to give evidence. I also granted the Respondents’ informal request to cross-examine the Applicant on his affidavit filed in support of his motion. Subsequently and at the Respondents’ request. I ordered that the name of the CSIS witness be confidential, and did so by Order dated June 3, 2016. Thereafter, the Applicant advised he no longer wished to examine the CSIS witness; accordingly I revoked that part of the motion management direction by Order dated June 7, 2007.
[8] The hearing of the motion took place over two days. The first day was devoted to the cross-examination of the Applicant (he not wishing direct examination rather, relying on his affidavit for that), and re-direct examination of the Applicant by Applicant’s counsel. The second day dealt with argument concerning conditions of release.
[9] These Reasons do not report classified information. Where previous decisions of the Court are cited with redactions, those redactions are in the previous decisions. I have reviewed the classified information underlying the public disclosure that I ordered June 6, 2016, and that ordered released by Justice Noël in January, 2016, and in addition the Reasonableness Decision of Justice Blanchard 2013 FC 1092 (Reasonableness Decision). At the hearing I agreed that to the extent I relied on classified information I would engage the Special Advocates, one of which was present at the public hearing. I also heard submissions from both the Special Advocates and the Ministers in camera at a special sitting of the Court on July 13, 2016, including submissions related to the confidential documents summarized by the Court on January 14, 2016 and June 6, 2016, and the unredacted Reasonableness Decision of Justice Blanchard.
C. Argument of Constitutional Issues [10] The Applicant did not wish to argue constitutional issues at the June hearing, as would normally have been the case; I granted the Applicant’s request to split his arguments between conditions of release, and his constitutional issues. I heard only condition of release arguments on June 9 and 10, 2016.
[11] However, I rejected the Applicant’s request that he be allowed to d argue the constitutional points only if he did not succeed in removing all but the usual conditions. At the opening of the hearing on June 9, 2016, I directed that the parties consult with one another and provide the Court with timelines for the filing of material to enable a relatively early resolution of the Applicant’s constitutional questions.
[12] At the hearing I also canvassed the timelines for hearing the constitutional arguments, and suggested filings in a timely way and a hearing in July. Applicant’s counsel said they lack funding for aspects of such a challenge, and further advised they would not be available in August. It was left they would revert to the Court with written submissions. That was on June 10, 2016. On June 30, 2016, Applicant’s counsel advised they still had not obtained funding and proposed a schedule of filing, assuming funding, that would see the matter argued in September, 2016. But once again the Applicant proposed to split his arguments, such that only the issues concerning the threshold and burden of proof (points 15, 16 i) to iv) of the Notice of Constitutional Question) would be argued in September. The remainder of his arguments including those on the certification process would be argued subsequent to my ruling on his first tranche of constitutional arguments - but only “if necessary”.
[13] I should note the Applicant has had since October 30, 2015, the date of the last review of his conditions of release, to prepare for the present motion, yet is to this date still unprepared to do so.
[14] By email July 5, 2016, the Ministers oppose what they describe as proceeding in a “piecemeal” fashion, and instead propose proceeding on written filings with a hearing if needed sometime later in September. They propose that all matters be decided at once.
[15] I am not prepared to proceed in the piecemeal fragmented multi-step manner suggested by the Applicant. While the Applicant filed a motion to secure funding on July 20, 2016, the motion had not yet been argued, nor of course has a decision been made. In fact, the Applicant has no real timetable at all, because even the fragmented timetable suggested depends on raising necessary funds which he has not done. His counsel writes of a hearing in September, but it could very well be later, perhaps even after the date at which the Applicant might, if he chooses, initiate a new request to review his conditions of release (which appears he can do in November, 2016).
[16] The motion to review conditions of release from detention is dated May 12, 2016, while the Notice of Constitutional Questions is dated May 25, 2016. I am not prepared to issue directions for filing submissions in the abstract; I will deal with that issue if as and when the Applicant comes to this Court with a proper and concrete plan for necessary filings that will see all his constitutional issues dealt with in one set of filings and in one set of reasons, with or without one set of hearings. Before doing so I reiterate that his counsel consult with counsel for the Ministers to narrow their differences if it is possible before coming back to this Court for directions.
[17] I am certainly not prepared to delay a decision on his conditions of release into the mid to late Fall of 2016; in my view, these motions should proceed reasonably expeditiously and within the framework of the Court’s usual Rules except where exceptions are warranted.
[18] Therefore I am issuing my decision on the conditions of release from detention today.
(1) Brief History of Proceedings [19] The Applicant is the subject of a security certificate signed pursuant to subsection 77(1) of the IRPA on February 22, 2008, by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration. The security certificate states:
We hereby certify that we were of the opinion, based on a Security Intelligence Report received and considered by us, that Mohamed Zeki Mahjoub, a foreign national, is inadmissible on grounds of security for the reasons described in sections 34(1)(b), 34 (1)(c), 34(1)(d) and 34(1)(f) of the Immigration and Refugee Protection Act.
[20] For reference, the relevant provisions of section 34 of IRPA provided at that time:
Security
Sécurité
34 (1) A permanent resident or a foreign national is inadmissible on security grounds for
34 (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
a) être l’auteur de tout acte d’espionnage dirigé contre le Canada ou contraire aux intérêts du Canada;
[…]
[…]
(b) engaging in or instigating the subversion by force of any government;
b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force;
(c) engaging in terrorism;
c) se livrer au terrorisme;
(d) being a danger to the security of Canada;
d) constituer un danger pour la sécurité du Canada
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada;
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c).
[21] The Applicant has a long history with this Court. In addition, the relevant legislation has evolved over time. Important aspects of his original detention, subsequent release on conditions, the many subsequent reviews of his conditions of release, together with the evolving statutory framework are well summarized by Justice Noël at paras 5 to 20 in Mahjoub (Re), 2015 FC 1232 (Conditions of Release decision, October 30, 2015). This decision is the most recent review of the Applicant’s many reviews of his conditions of release.
[22] The Applicant is an Egyptian national, born in April 1960. He came to Toronto, Canada, in the last days of December 1995, having arrived here on a false Saudi Arabian passport. He claimed refugee status, which the Immigration and Refugee Board granted in1996. He became a subject of interest to the Canadian Security Intelligence Service [“CSIS”] sometime in 1996. As a result of this investigation, he became the named person in a certificate issued by the Ministers in June 2000 and was arrested on June 26, 2000. He was in detention from 2000 to 2007; he was released in February 2007, under stringent conditions.
[23] Justice Nadon of the Federal Court of Canada (as he was then) determined that certificate to be reasonable on October 5, 2001. In the Reasons for Order, Justice Nadon noted that the Applicant admitted he had perjured himself by not admitting that he knew a certain individual. Justice Nadon concluded that he did not believe the Applicant’s explanation for lying and added that the Applicant had lied before his Court on a number of occasions (see Canada (Minister of Citizenship and Immigration) v Mahjoub, 2001 FCT 1095, at paragraphs 57, 58, 68 and 70 (Nadon Decision).
[24] After the original security certificate regime was held to infringe Charter rights in 2007 (see Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [Charkaoui I]), a new statutory system was implemented which the Supreme Court of Canada subsequently upheld [Canada (Minister of Citizenship and Immigration) v Harkat, [2014] 2 SCR 33].
[25] The Applicant began filing for conditions of release reviews under this new system in 2008.
[26] The new legislation also provides for security certificates that may be challenged in this Court on the basis of reasonableness. Such a certificate was issued against the Applicant. After very lengthy proceedings spanning several years, the late Justice Blanchard held the Applicant’s security certificate was reasonable in October, 2013 (see Mahjoub (Re), 2013 FC 1092 (Reasonableness Decision). The Applicant has appealed that decision to the Federal Court of Appeal, which appeal has not yet been heard.
[27] Justice Blanchard found that there were reasonable grounds to believe that the Applicant was a member of the Al Jihad and its splinter or sub-group, the Vanguards of Conquest, and that the Applicant posed a danger to the security of Canada given his contacts with many known or suspected terrorists in Canada and abroad. Justice Blanchard found that Al Jihad and the Vanguards of Conquest are important terrorist groups that were active in Egypt and had direct links and relationships with Osama Bin Laden and Al Qaeda.
[28] Thereafter, on December 17, 2013, after hearing an application by the Applicant to be released from all his conditions of release of detention except for a few, the late Justice Blanchard concluded:
I am satisfied that Mr. Mahjoub poses a threat to the security of Canada as described in my Reasons for Order dated January 7, 2013.
[29] Justice Blanchard also held that the Applicant’s conditions of release should not change except for small adaptations regarding the use of calling cards, and that the Applicant was in technical breach of his conditions of release by not informing CBSA that he had acquired a mobile phone, but it was not a significant breach because the Applicant had not used it. He also found that when the Applicant opted to cut off the GPS bracelet himself instead of letting CBSA remove it without destroying it, the Applicant did not breach any conditions but that his unilateral conduct indicated an “unwillingness” to cooperate with the CBSA (see Mahjoub (Re), 2013 FC 1257, at paragraphs 5, 6, 16, 17 and 18 [2013 Blanchard J. (December)]).
[30] In May 2014, Justice Noël ordered that the Applicant must give his computer password to the CBSA as the conditions of release granted CBSA access to it (see Mahjoub (Re), 2014 FC 479 [2014 Noël J. (May)]). Justice Noël said the Applicant’s attitude was indicative of a lack of collaboration and cooperation, and that his attitude did not help the CBSA fulfil its supervisory mandate as required by the Court’s Order.
[31] In mid-2014 the Applicant filed another application to review the conditions of release. He essentially requested the same outcome as he had before Justice Blanchard, and as he does now, namely that all conditions be repealed except for a few usual ones to be of good behaviour and keep the peace. Justice Noël dismissed the Applicant’s request in 2014 FC 720, concluding in part:
[78] The danger to the security of Canada associated to Mr. Mahjoub now is certainly not comparable to the danger assessed in the past. But, is it such that it does not exist anymore? I am of the opinion that it has diminished through the years. But, since the January 2013 review of the conditions where it was found to have diminished “significantly”, I do not find any major indicators that it has further diminished importantly. To come to this conclusion, as demonstrated above, I have reviewed the confidential and public evidence which shows the concerns that remained then still exist today. The danger to the security of Canada associated to Mr. Mahjoub has not evaporated; it remains latent, perceptible and factual. Mr. Mahjoub’s conditions of release as they were conceptualized and amended by Justice Blanchard are working and did neutralize the danger then assessed. Lifting all conditions does not guarantee the danger Mr. Mahjoub poses will be appropriately neutralized. I am thus not ready to grant Mr. Mahjoub the relief he seeks except for what is said below.
[32] In 2015, the Applicant requested a further review of his conditions of release, which resulted in the Conditions of Release decision October 30, 2015, made by Justice Noël already referred to. The Court again rejected the Applicant’s request that all but the usual conditions be removed. However, some conditions were relaxed, including:
a) The weekly reporting was reduced to bi-monthly;
b) The use of a mobile phone was permitted, with conditions; and
c) Mail interception was removed.
[33] As the result of these and other proceedings, the conditions of release currently in place are as set out in Schedule “A” attached to these Reasons: “SCHEDULE OF CONDITIONS RESPECTING THE RELEASE OF MR. MAHJOUB”.
[34] The Ministers oppose this request, but consent to the following changes to the conditions of release:
- the Ministers are amenable to reducing the notice period for outings outside of the GTA from 7 to 5 business days;
- the Ministers propose that the Applicant be permitted to access social media, Skype and websites with conditions to allow supervision:
• The Applicant may create only one account per social media website or application including, but not limited to Facebook and Twitter. The Applicant may create one account on Skype. He may create one account on any other application or website that provides video chat and voice call services, subject to CBSA approval.
• The Applicant shall consent to CBSA, or any person designated by it, having access, without notice to all of such accounts.
• The Applicant must ensure that no one else, except for him and CBSA or agents of CBSA have access to these accounts.
• The Applicant shall provide CBSA with the login information and all passwords immediately upon setting up any account on any website or application, including but not limited to Facebook, Twitter, and Skype, and must immediately update CBSA of any changes to user names or passwords.
• Skype may only be accessed using a desktop application.
• Skype settings must be such that all chat and call history are set to be saved “forever”.
• The Applicant must notify CBSA of the names and Skype addresses of individuals with whom he wishes to communicate, one month in advance of engaging in such communication.
• The Applicant shall not alter or delete records of communication or activity on social media website or application, websites or applications that provide video chat and voice call services, or any other website or other application, including, but not limited to, Facebook, Twitter, and Skype.
- The Ministers further propose:
o The Applicant may possess one desktop or one laptop computer.
o The Applicant may use a wi-fi network at his residence. The wi-fi network must be password-protected to ensure no one else can access it.
o The Applicant’s computer must remain, and only be used in his residence. Internet may only be accessed on his home network via a cable or wi-fi connection.
o CBSA will provide the Applicant with 24-hours’ written notice prior to attending his residence to collect his computer for examination. The Applicant’s confirmation of receipt of prior notice is not necessary.
- With respect to examination of the Applicant's mobile telephone the Ministers propose the following (which replicate the existing conditions regarding the desktop PC that he is now permitted):
o CBSA shall give the Applicant 24-hours' written notice prior to examining his mobile phone. The Applicant's confirmation of the written notice is not required.
o At any other time, with justification, CBSA may seek the order of a Designated Judge for access to the Applicant's computer without notice, for the purpose of ensuring that he is complying with the conditions of this Order.
o Mr. Mahjoub shall not delete or clear any app data, app usage information, data usage information, wi-fi network logs, or any caches stored on his mobile phone at any time without prior approval from CBSA.
- The Ministers also agree to a reduction of the notice period for a change of residence from 10 days to 3 business days.
D. Applicant’s Arguments [35] The Applicant relies on Mr. Mahjoub's affidavit and the facts therein to argue that a complete removal of conditions of release, save for the usual “keep the peace” conditions, ought to be granted.
[36] He says he has been a peaceful and law-abiding person for many years. The conditions imposed on him are intrusive, and prevent him from living a meaningful life. The conditions have caused the Applicant stress and anxiety in which regard he points to the report of Dr. Payne which addresses psychological reports released over the years.
[37] The Applicant argues there is no evidence of an existing threat, where no evidence was filed by the Minister of any threat posed by the Applicant since the last review. The Applicant also flags the summary of the CSIS classified report released by Justice Noël on January 18, 2016 referred to above, which states:
Despite Mohamed Mahjoub's former leadership role and connections to high profile members within Al Jihad, CSIS has assessed that the threat posed by Mr. Mahjoub's activities has diminished since the 2011 Threat Assessment because the Service does not suspect anymore that his recent activities pose a threat to the security of Canada pursuant to the CSIS Act.
[38] The Applicant also relies on the fact that on June 6, 2016, pursuant to paragraph 83(1)(e) of the IRPA, I ordered the following disclosure:
On January 27, 2016, CSIS notified each of the foreign agencies with which CSIS had shared information concerning Mr. Mahjoub that CSIS investigation had led the Service to assess that Mr. Mahjoub’s activities no longer pose a threat to security of Canada pursuant to the CSIS Act. CSIS requested the agencies to act accordingly based on this assessment.
On March 7, 2016, CSIS notified domestic agencies, including CBSA that CSIS investigation had led the Service to assess that Mr. Mahjoub’s activities no longer pose a threat to the security of Canada pursuant to the CSIS Act. CSIS requested the agencies to act accordingly based on this assessment.
[39] Moreover, the Applicant argues the January 2016 summary is based on an unfounded statement of fact already dismissed by this Court; this indicates Mr. Mahjoub's threat levels decreased even more than the summary threat assessment lets on. While the summary states Mr. Mahjoub occupied a leadership role within Al Jihad, the Reasonableness Decision of Justice Blanchard (Mahjoub (Re), 2013 FC 1092) concluded there were no reasonable grounds to believe that he did. Therefore, the Applicant says the classified report may have been based on false premises which skewed the findings of the report.
[40] The Applicant argues that the harm resulting from the danger must be substantial where conditions of release imposed ought to neutralize this danger. The conditions and the potential harm ought to be proportional; if there is no identifiable harm, any condition of release is not justified.
[41] The Applicant further argues there were errors of law on the evidence and on the relevant threshold in the review of the conditions. This argument relies on the error of law stating that the wrong standard was applied by the Court, that is, the burden to meet is “balance of probabilities” and not “reasonable grounds to believe”. Where each prior ruling was also based on the wrong standard of proof, i.e. “reasonable grounds”, does not make the standard of proof the correct one.
[42] At any rate, the Ministers would not meet their initial burden on either standard, because no evidence has been adduced by the Ministers that the Applicant poses any current threat or danger to the national security of Canada. I will refer to this as the “burden of proof” issue and will deal with it shortly.
[43] The Applicant submits the existing conditions of release are disproportionate and have had a negative impact on the Applicant's mental and physical health conditions, which was recognized in previous rulings. These conditions amount to undue and cruel suffering.
[44] The passage of time also weighs in favour of the removal of all conditions of release. The threat has diminished and the Applicant's recent activities do not constitute a threat to Canadian security.
[45] The Applicant has a pending appeal of the reasonableness decision at the FCA, for which a date of hearing had not yet been but might be scheduled soon. This, he says, weighs in favour of removing all conditions of release as an interim remedy under subsection 24(1) of the Charter for the violation of his right to a fair trial. This appeal is based on various elements characteristic of an unfair trial under the Criminal Code and its judicial interim release pending appeal provisions.
[46] The Applicant also argues he is a Convention Refugee and the inability of the Canadian authorities to remove him to Egypt due to undeniable human rights abuses in that country are relevant to the present motion; in effect the Applicant will be subject to conditions of release for as long as the Applicant remains in Canada. The Applicant has been detained or subject to conditions of release for 16 years already; such treatment amounts to unreasonable and arbitrary detention and release condition's length.
[47] In sum, the Applicant would agree to abide by the usual conditions of release without more, which would be proportional to what he alleges is his very low risk.
E. Ministers’ Position [48] The Respondents allege the Applicant is a danger under paragraph 85(2)(a) of the IRPA, that conditions of release are needed to neutralize that danger, and that the absence of wrongful conduct by the Applicant is a result of the success of the existing conditions of release which continue to be necessary to continue to neutralize that danger.
[49] The Ministers in their submissions concede the following conditions should be relaxed, subject to the limitations noted above.
[50] The Ministers also asks the following provision should be added to the Conditions of Release, and as I saw no serious disagreement with it particularly since it mirrors the conditions already in place regarding the Applicant's computer, I will impose such a condition as it is both reasonable and proportionate. Indeed, I consider this and the conditions related to the computer and retention of Internet tracking information to be very important conditions of release from detention. The proposed additional condition is:
Mr. Mahjoub shall not delete or clear any app data, app usage information, data usage information, wi-fi network logs, or any caches stored on his mobile phone at any time without prior approval from the CBSA.
[51] The Ministers argue the Applicant's history weighs in favour of maintaining the conditions of release. They point to Justice Blanchard's Reasonableness Decision. This decision, though on appeal, is final; the Court ought to rely on it.
[52] The Ministers further allege the Applicant's history of perjuring himself before the Court and of instances of non-compliance with the CBSA, with continued complaints about CBSA actions, indicates the Applicant cannot now be trusted by the Court to keep his promise to keep the peace.
[53] The Ministers argue the Applicant's arguments have already been dealt with by this Court, and continue to be without merit. First, this Court has previously found, correctly, that the applicable standard of proof is reasonable grounds to believe, as opposed to the Applicant's asserted “balance of probabilities”. Second, the Court is not sitting in appeal of its previous judgments where the Court is called upon to review the conditions of release. Third, the Applicant's future removal and conditions in Egypt are irrelevant because premature.
[54] The Ministers submit the history of the Applicant weighs against him, where the factors are as laid out in Charkaoui I at paras 110 et seq. and in Harkat v Canada (Minister of Citizenship and Immigration), 2013 FC 795. These were further used by Justice Noël in his Mahjoub (Re), 2014 FC 720 decision:
[44] In order to make the proper determination in the present review of the conditions of release, it is the intention of this Court to proceed with its analysis by relying on the criteria established in Harkat v Canada (Minister of Citizenship and Immigration), 2013 FC 795 at para 26, [2013] FCJ No 860, and in Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9 at paras 110-121, [2007] SCJ No 9, which are as follows:
A. Past decisions relating to the danger and the history of the procedures pertaining to reviews of detention, release from detention with conditions and the decisions made;
B. The Court’s assessment of the danger to the security of Canada associated with the Applicant in light of all the evidence presented;
C. The decision, if any, on the reasonableness of the certificate;
D. The elements of trust and credibility related to the behaviour of the Applicant after having been released with conditions and his compliance with them;
E. The uncertain future as to the finality of the procedures;
F. The passage of time (in itself, not a deciding factor – see Harkat v Canada (Minister of Citizenship and Immigration), 2007 FC 416, at para 9, [2007] FCJ No 540);
G. The impact of the conditions of release on the Applicant and his family and the proportionality between the danger posed by the Applicant and the conditions of release.
[55] The Ministers analyse each factor to conclude that the facts support relaxing some conditions, but does not warrant lifting all the conditions of release imposed on the Applicant.
[56] In their cross-examination of Mr. Mahjoub at the hearing, the Ministers elicited confirmation that Mr. Mahjoub did in fact use the alias “Shaker” while in the Sudan. This, they argued, would have altered Justice Blanchard's findings on whether there were reasonable grounds to believe the Applicant had used this alias, thereby heightening the threat level finding by Justice Blanchard.
II. Facts [57] The facts have been summarized in several other proceedings before the Court, including in Justice Noël's decision rendered in October 2015, Mahjoub (Re), 2015 FC 1232:
[5] Mr. Mahjoub, an Egyptian national, was born in April 1960. He came to Toronto, Canada, in the last days of December 1995. He travelled on a false Saudi Arabian passport and claimed refugee status, which the Immigration and Refugee Board granted on October 24, 1996. He became a subject of interest to the Canadian Security Intelligence Service [“CSIS”] sometime in 1996. As a result of this investigation, he became the named person in a certificate issued by the Ministers in June 2000 and was arrested on June 26, 2000.
[6] Justice Nadon of the Federal Court of Canada (as he was then) determined that certificate to be reasonable1 on October 5, 2001. In the Reasons for Order, the judge noted that Mr. Mahjoub admitted he had perjured himself by not admitting that he knew a certain individual. Justice Nadon wrote that he did not believe Mr. Mahjoub’s explanation for lying and added that Mr. Mahjoub had lied on a number of counts (see Canada (Minister of Citizenship and Immigration) v Mahjoub, 2001 FCT 1095, at paragraphs 57, 58, 68 and 70 [2001 Nadon J. (October)]).
[7] Justice Eleanor Dawson, now of the Federal Court of Appeal, twice dismissed (in 2003 and 2005) Mr. Mahjoub’s applications to be released from detention. Justice Nadon’s above-mentioned findings of untruthfulness were relied upon by Justice Dawson in her first decision (see Canada (Minister of Citizenship and Immigration) v Mahjoub, 2003 FC 928, at paragraph 76 [2003 Dawson J. (July)]). In her second review of detention, Justice Dawson refused to grant the release of detention because she did not think the conditions of release of detention could neutralize the danger. She added that the trust factor related to Mr. Mahjoub was not there and that she was not convinced he would abide by the conditions discussed at the time (see Canada (Minister of Citizenship and Immigration) v Mahjoub, 2005 FC 1596, at paragraph 101 [2005 Dawson J. (November)]).
[8] On February 15, 2007, Mr. Mahjoub was released from detention with stringent conditions which included GPS monitoring, house arrest, supervision, surety, no access to communications devices, etc. (see Mahjoub v Canada (Minister of Citizenship and Immigration), 2007 FC 171 [2007 Mosley J. (February)]).
[9] On February 23, 2007, the Supreme Court of Canada declared the security certificate regime to be unconstitutional and suspended its declaration of invalidity for one (1) year to permit Parliament to amend the IRPA (see Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350 [“Charkaoui n° 1”]).
[10] A new security certificate regime, involving special advocates among other matters, came into force in February 2008. A new security certificate was signed against Mr. Mahjoub by the Ministers on February 22, 2008.
[11] Justice Layden-Stevenson, the designated judge in charge of this new certificate proceeding prior to her appointment to the Federal Court of Appeal, rendered two (2) decisions on the conditions of release of detention in late December 2008 and March 2009. In her first decision, she modified a condition of release from an earlier Order (April 11, 2007). In her second decision, she noted that Mr. Mahjoub’s insistence on strict adherence to the conditions of release in the literal sense hampered the CBSA’s effort to accommodate his family (see Canada (Minister of Citizenship and Immigration) v Mahjoub, 2009 FC 248, at paragraph 150 [2009 Layden-Stevenson J. (March)]).
[12] About ten (10) days after the issuance of Justice Layden-Stevenson’s Reasons for Order, two (2) of Mr. Mahjoub’s sureties, his wife and stepson, renounced their role as sureties. As a result, Mr. Mahjoub consented to return to detention on March 18, 2009.
[13] He was then released from detention with conditions by Justice Blanchard, the new designated judge in charge of this second security certificate proceeding, on November 30, 2009 (Mahjoub (Re), 2009 FC 1220 [2009 Blanchard J. (November)]).
[14] In a new application to dismiss the majority of the conditions of release of detention, Justice Blanchard amended the conditions such as eliminating the requirement for GPS tracking (see Mahjoub (Re), 2011 FC 506 [2011 Blanchard J. (May)]).
[15] In two successive sets of Reasons for Order dated February 1, 2012, and January 7, 2013, Justice Blanchard again lifted some conditions and considerably modified others as he found the threat Mr. Mahjoub posed had diminished (see Mahjoub (Re), 2012 FC 125, at paragraphs 66, 90-93; and Mahjoub (Re), 2013 FC 10) [2012 Blanchard (February)] [2013 Blanchard J. (January)]). In this last decision, at paragraph 47, Justice Blanchard expressed concerns about ensuring Mr. Mahjoub does not communicate with terrorists and re-acquire terrorist contacts.
[16] On October 25, 2013, Justice Blanchard issued his Reasons for Judgment and Judgment on the reasonableness of the security certificate (see Mahjoub (Re), 2013 FC 1092 [“2013 Blanchard J. (October)” or “Reasonableness Decision”]). He found:
[618] The following is a summary of my earlier findings relating to the credibility of Mr. Mahjoub’s various accounts:
a. Mr. Mahjoub was not truthful when he denied knowing Mr. Marzouk, Mr. Khadr, Mr. Jaballah or their aliases. In particular, during his fourth interview in October 1998, he denied knowing Mr. Khadr despite having admitted to knowing him in an earlier interview. When confronted with the fact that he had resided with the Elsamnahs, Mr. Khadr’s in-laws, another fact he did not disclose to the Canadian authorities, he then admitted knowing Mr. Khadr.
b. Mr. Mahjoub was not truthful when he denied ever using an alias. I found Mr. Mahjoub’s explanation of how he came to use the alias “Ibrahim” when he admitted to using it, not credible for the reasons expressed at paragraph 539 above.
c. Mr. Mahjoub’s explanation that he did not provide the names of individuals who knew him by the alias Ibrahim to the Service for fear that the Egyptian authorities would target him and these individuals was not credible as explained at paragraph 540 above.
d. Mr. Mahjoub omitted to disclose to Canadian authorities the true nature of his occupation and his employer at the Damazine Farm while in Sudan, indicating only that he was employed as an agricultural engineer at the Farm. This omission further impugns his credibility.
e. Mr. Mahjoub’s explanation for leaving the Farm to buy and sell goods in the market was not credible, given the salary he was likely earning at the time in comparison to average wages in Sudan as explained at paragraphs 484-486 and 490 above.
[619] In my view, the above omissions and lies by Mr. Mahjoub are crafted and designed to consistently conceal any facts that could connect Mr. Mahjoub to known terrorists, terrorist activities or known terrorist related enterprises such as Althemar. The fact that Mr. Mahjoub would lie about the use of aliases is of particular concern. The use of aliases is well known in the terrorist milieu and serves to conceal the true identify of individuals involved.
[620] The above omissions and lies by Mr. Mahjoub in the circumstances lead me to conclude that his innocent account of events and activities in Sudan and in Canada is not credible. This finding lends support to the Ministers’ allegations.
[…]
iii. The timing of Mr. Mahjoub’s travels
[623] Mr. Mahjoub’s travels to Sudan in September 1991 coincide with the movement of AJ and Al Qaeda elements to Sudan. Mr