Canada (Citizenship and Immigration) v. Mahjoub

Canada (Citizenship and Immigration) v. Mahjoub
Court (s) Database
Federal Court Decisions
Date
2009-03-09
Neutral citation
2009 FC 248
File numbers
DES-7-08
Decision Content
Date: 20090309
Docket: DES-7-08
Citation: 2009 FC 248
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
Applicants
and
MOHAMED ZEKI MAHJOUB
Respondent
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] Mohamed Zeki Mahjoub is the subject of a security certificate. He was released from detention on stringent conditions akin to house arrest. He now seeks the elimination of some conditions and the relaxation of others. I am satisfied that his release should be confirmed and that modifications to some of the conditions can and should be made. The threat Mr. Mahjoub poses to national security or the safety of any person can be neutralized by the imposition of the conditions as modified.
Background
[2] A detailed compilation of Mr. Mahjoub’s circumstances is well-documented and may be found in various decisions of this Court: Canada (Minister of Citizenship and Immigration) v. Mahjoub, [2001] F.C. 644 (T.D.); Canada (Minister of Citizenship and Immigration) v. Mahjoub, [2004] 1 F.C.R. 493 (F.C.); Canada (Minister of Citizenship and Immigration) v. Mahjoub (2005), 270 F.T.R. 101 (F.C.); Mahjoub v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 247 (F.C.); Mahjoub v. Canada (Minister of Citizenship and Immigration) (2007), 309 F.T.R. 72 (F.C.); Mahjoub v. Canada (Minister of Citizenship and Immigration) (2007), 318 F.T.R. (F.C.); Canada (Minister of Citizenship and Immigration and Minister of Public Safety) v. Mahjoub, 2009 FC 34.
[3] Synoptically, Mr. Mahjoub was detained on June 26, 2000, pursuant to a security certificate under the Immigration Act, R.S.C. 1985, c. I-2 (the former legislation). Mr. Justice Nadon, then of the Federal Court Trial Division, determined that the certificate was reasonable. When the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) came into force, in accordance with its transitional provisions, the IRPA (specifically Division 9) applied to Mr. Mahjoub and he remained in detention. On April 11, 2007, Mr. Justice Mosley ordered his release on stringent terms and conditions. The conditions were varied, but not materially altered, in June, September and December of 2007. The existing conditions of release are attached to these reasons as Schedule “A”.
[4] On February 23, 2007, the Supreme Court of Canada released its decision in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 (Charkaoui 1). The Supreme Court held that the procedure in Division 9 of the IRPA infringed section 7 of the Canadian Charter of Rights and Freedoms (the Charter). The Court suspended its declaration of invalidity for one year to enable Parliament to amend the law. Bill C-3, An Act to amend the Immigration and Refugee Protection Act, 2nd Sess., 39th Parl., 2007-2008, came into force on February 22, 2008. The Minister of Citizenship and Immigration and the Minister of Public Safety (the Ministers) signed a new security certificate with respect to Mr. Mahjoub on that same day.
[5] The Division 9 regime was significantly altered by Bill C-3. Among other things, the new scheme provides for the appointment of a special advocate to protect the interests of the individual subject to the security certificate (the named person) during any part of the proceeding that is held in the absence of the public, the named person and the named person’s counsel. The special advocate may challenge: (a) the Ministers’ claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person; and (b) the relevance, reliability and sufficiency of information or other evidence provided by the Ministers (that is not disclosed to the named person and the named person’s counsel) and the weight to be given to it. The complete text of the relevant legislation is attached to these reasons as Schedule “B”.
[6] The transitional provisions of Bill C-3 stipulate that, if the Ministers sign a new certificate with respect to a named person who was released from detention under conditions, the person remains released under the same conditions (para. 7(3)(b)). The named person, within 60 days of the coming into force of Bill C-3, may apply to the Federal Court for a review of the reasons for continuing the conditions (subs. 7(4)). Alternatively, the named person may apply for a review of the reasons for continuing the conditions if a period of six months has expired since the coming into force of Bill C-3 (subs.7(6)). The text of the transitional provisions is attached to these reasons as Schedule “C”. Mr. Mahjoub requested a review of the conditions of his release.
[7] This hearing began in September, 2008 and (with the exception of an in camera hearing on February 9th of this year to address the contents of Standard Operating Procedure (SOP) IC-7 – “Security Certificate Case Monitoring” (Exhibit R-46)), finished in mid-December 2008. Final submissions were made on February 10th and 11th of this year. As is evident from the next section of these reasons, the proceeding was not free of complications.
Conduct of the Proceeding
[8] As indicated, on February 22, 2008, the Ministers signed a new security certificate with respect to Mr. Mahjoub. His case and four other security certificate cases were placed in case management. Several case management conferences dealing with matters common to all cases were conducted by the Chief Justice and Mr. Justice Simon Noël. After my designation and assignment by the Chief Justice to Mr. Mahjoub’s case, in accordance with paragraph 83(1)(b), I appointed Messrs. Gordon Cameron and Anil Kapoor to act as special advocates in the proceeding. At that time, although Mr. Mahjoub’s chosen counsel participated, they were not prepared to go on record until such time as their motion with respect to funding had been determined by the Court. On June 13, 2008, with the concurrence of Mr. Mahjoub, his proposed counsel, his special advocates and the Ministers’ counsel, an order issued delineating a schedule within which the reasonableness of the certificate and the review of the conditions of release would be conducted. A copy of that order is attached to these reasons as Schedule “D”. In early July, 2008, the funding issue was resolved and Mr. Mahjoub’s counsel became the solicitors of record.
[9] On June 26, 2008, the Supreme Court of Canada issued its reasons in Charkaoui v. Canada (Citizenship and Immigration) (2008), 376 N.R. 154; 2008 SCC 38 (Charkaoui 2). Following the release of Charkaoui 2, Mr. Mahjoub’s counsel and the special advocates contended that the Minister’s disclosure did not comply with the ruling of the Supreme Court. On October 3, 2008, I ordered that all information and intelligence related to Mr. Mahjoub in the possession of the Canadian Security and Intelligence Service (CSIS) be filed with the court and provided to the special advocates.
[10] The special advocates (in the in camera hearings) and Mr. Mahjoub’s counsel (in the public hearings) asserted they were not in a position to test the evidence in relation to the threat that Mr. Mahjoub is alleged to pose to national security or to the safety of any person. Specifically, they submitted it would be prejudicial to Mr. Mahjoub to conduct cross-examination on that issue in the absence of full “Charkaoui 2 disclosure.”
[11] During the in camera hearings, one CSIS witness testified regarding: (a) the threat that Mr. Mahjoub is alleged to pose; and (b) the conditions of his release. Cross-examination was restricted to an issue related to open-source documents that had not been disclosed. Other CSIS witnesses testified in camera regarding operations and disclosure. They were cross-examined only in relation to disclosure issues. In short, there was no cross-examination with respect to the nature of the alleged threat, the reasonableness of the certificate, or the terms and conditions of release.
[12] Similarly, in the public hearings, counsel declined to cross-examine the CSIS witness, Mr. Michel Guay, who testified with respect to the alleged threat and the conditions of release. Counsel maintained, in the absence of full disclosure, Mr. Mahjoub was in no position to test the evidence upon which Justice Mosley relied in finding that Mr. Mahjoub posed a danger to national security. Counsel reserved the right to cross-examine, following receipt of the “Charkaoui 2 disclosure”.
[13] At this point, Mr. Mahjoub asks that the conditions of his release be reviewed within the boundaries of the following framework:
(a) Mr. Mahjoub does not concede that he poses a threat to national security or the safety of any person, but is not able to challenge that finding at this time;
(b) Mr. Mahjoub does not object to the court relying upon Justice Mosley’s factual conclusions. Put another way, Mr. Mahjoub accepts, solely for the purpose of the review of conditions, the factual determinations of Justice Mosley regarding the threat that Mr. Mahjoub poses to national security;
(c) Mr. Mahjoub acknowledges and accepts that conditions of release are required. That is, he does not seek to terminate the conditions of release. Rather, he wants some conditions eliminated and others modified;
(d) Mr. Mahjoub asserts that the passage of time and his near-perfect compliance with the existing conditions of release justify the granting of his requests;
(e) Mr. Mahjoub submits that the proposed modified conditions of release will neutralize the threat Justice Mosley concluded he poses to national security or the safety of any person.
[14] Within this context, I ordered bifurcation of the issues of “reasonableness of the certificate” and “review of the conditions of release.” These reasons deal only with the review of the conditions of release under subsection 82(4). The reasonableness of the certificate will be determined by another judge of the Federal Court designated by the Chief Justice. I should add that the “Charkaoui 2 disclosure” was provided on December 15, 2008 and was completed on January 15, 2009. The special advocates are currently examining and analyzing the disclosure material.
[15] Concurrent with this hearing, a parallel proceeding with respect to Mr. Mahjoub was conducted before Madam Justice Mactavish. That matter arose as a result of a motion by Messrs. Mahjoub and Jaballah wherein they sought clarification of their existing conditions of release. The named persons contended that the actions of Canada Border Services Agency (CBSA), the body responsible for monitoring Mr. Mahjoub’s compliance with the conditions of his release, went beyond what was authorized by Justice Mosley’s order and violated his rights under sections 7 and 8 of the Charter. Justice Mactavish’s decision in relation to the Charter challenges was released on January 15, 2009.
[16] Justice Mactavish was not able to determine whether the analysis of Mr. Mahjoub’s mail by the CBSA Counterterrorism Unit serves an intelligence-gathering purpose (in addition to monitoring compliance with conditions) because she did not have a complete evidentiary record upon which to make such a determination. Similarly, she considered that she was not well-positioned to determine whether the conduct of CBSA’s physical surveillance of Mr. Mahjoub is so intrusive that it is disproportionate to the threat he poses. Mr. Mahjoub requests that I address these issues and that I impose conditions to restrict CBSA from engaging in certain activities.
The Factual Underpinnings
[17] Mr. Mahjoub, for purposes of this review, acknowledges and does not challenge the determinations arrived at by Mr. Justice Mosley. Therefore, regard must be had to those findings because they provide the starting point for the analysis regarding the conditions of release. To avoid any uncertainty, paragraphs 119 – 121 of Justice Mosley’s decision wherein he determined Mr. Mahjoub should be released on stringent conditions are reproduced here.
119 As noted by Justice Dawson in Mahjoub No. 2, no challenge was made to the assertion that both the VOC and the AJ are terrorist organizations. Both were in fact among the first organizations banned in Canada under the Anti-Terrorism Act, S.C. 2001, c. 41. As to Mr. Mahjoub's involvement with the AJ and the VOC, Justice Dawson found:
64 ... that the information before the Court gives rise, at the least, to an objectively reasonable suspicion that at the time of his detention and before that:
1. Mr. Mahjoub was a high-ranking member of the VOC, which is a faction of the AJ.
2. Mr. Mahjoub was a member of the Shura council of the VOC, and as such would normally participate in the decision-making process of that terrorist organization.
3. Mr. Mahjoub had engaged in terrorism. Sometime around 1996/1997 he became identified by the alias "Shaker".
4. Mr. Mahjoub had significant contacts with persons associated with international Islamic terrorism including Osama Bin Laden, Ahmad Said Khadr, Essam Hafez Marzouk, Ahmed Agiza, and Mubarak Al Duri. He also had contact with Mahmoud Jaballah. In view of the status of Mr. Jaballah's proceedings in this Court, I make no finding or comment with respect to Mr. Jaballah's alleged involvement in terrorist activities.
120 Additionally, Justice Dawson highlighted public evidence that showed that Mr. Mahjoub had access to individuals who were very highly placed and influential in the Islamic extremist movement. The Court also relied on information provided by the Ministers in private. The Court concluded that this evidence was sufficient to establish that at that time Mr. Mahjoub posed a danger to national security: Mahjoub No. 2, above at para. 74.
121 Based on my own review of the public and private evidence, I accept and adopt the above noted findings of my colleague in relation to Mr. Mahjoub's background.
[18] Further, at paragraph 139, Justice Mosley concluded “it cannot be said on a balance of probabilities that Mr. Mahjoub has demonstrated that he no longer poses a danger to national security or the safety of any person.”
[19] I reiterate that these findings stand unchallenged although Mr. Mahjoub’s counsel indicate, because the underlying process has been determined to be constitutionally-deficient, the findings are inherently “frail”. I should also note the special advocates made no submissions in relation to the conditions of release.
[20] The Supreme Court of Canada has stated unequivocally (at paragraph 107 of Charkaoui 1), that the imposition of onerous conditions of release for an extended period under immigration law must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. The present conditions have been in place since April 2007. Accordingly, Mr. Mahjoub must be provided a meaningful opportunity to challenge his conditions of release. Various witnesses testified regarding the implementation and the actual functioning of the conditions.
Mr. Mahjoub’s Proposed Changes to the Conditions of Release
[21] It is important to note Mr. Mahjoub’s position regarding the relationship between his conditions of release and the purpose of the legislation. He claims, as do the Ministers, the requirement that his release from detention be subject to conditions is not unhinged from the purpose of the legislation. He states that although he, at some point in the future, may feel the link is severed, he does not suggest the current situation is indeterminate or indefinite.
[22] As indicated earlier, Mr. Mahjoub does not suggest the conditions of his release should be eliminated. Moreover, in some respects, he does not request any change or modification. Before examining the various factors that must be considered in a review of conditions, it is useful to precisely articulate the changes Mr. Mahjoub proposes.
[23] No changes are requested regarding the first five conditions. Mr. Mahjoub does not dispute or seek to alter the condition that he must wear a GPS monitoring device as required by condition number 2. Apparently, CBSA has a new GPS unit to replace the existing unit. Mr. Mahjoub and his counsel have identified some specific questions (primarily health-related) regarding the proposed unit. The Ministers are in the process of obtaining the requested information. Counsel agree there is no need for me to address this issue.
[24] Condition 6 requires Mr. Mahjoub not be left alone in his residence. At all times, he must be supervised by Mona El-Fouli, Haney El-Fouli, El Sayed Ahmed, Murray Lumley or another supervisor approved by the court. Mr. Mahjoub seeks to alter that condition so that he can remain at home alone (including in his backyard) without the necessity of a supervisor being present. He proposes no visitors be permitted to enter the premises during the time he is alone, unless a supervisor is present.
[25] Condition 7 currently permits Mr. Mahjoub to leave his residence between the hours of 8:00 a.m. and 9:00 p.m., provided he remains within the boundary of any outside space associated with the residence (the backyard). He wants the curfew eliminated.
[26] Condition 8 comprises a number of elements. The first element relates to outings. In general terms, the existing restrictions mandate that, with prior CBSA approval, Mr. Mahjoub may leave his residence three times per week, but each absence is not to exceed four hours. Request for approval is to be made at least 72 hours in advance and must specify the location(s) Mr. Mahjoub wishes to attend as well as the estimated times when he will leave from and return to his residence. For approved absences, Mr. Mahjoub is to report as more specifically directed by a CBSA representative, prior to leaving and immediately upon his return. The CBSA may also consider special requests for Mr. Mahjoub to go on a family outing exceeding four hours if the request is made at least one week in advance. CBSA is vested with discretion to extend the time beyond 9:00 p.m.
[27] Mr. Mahjoub seeks to eliminate all restrictions on activities outside the home. He also requests that CBSA be authorized to permit travel outside the fixed perimeter, upon request being made one week in advance of the proposed travel.
[28] The second element of condition 8 permits Mr. Mahjoub to leave his residence every school day between the hours of 8:00 and 9:30 a.m. and 3:00 and 4:30 p.m., in the company of Mona or Haney El-Fouli, to deliver and pick up Ibrahim and Yusuf (the children) to and from school. There are a number of directions that apply to this condition. Mr. Mahjoub claims the condition is no longer necessary. His position is evidently premised on the basis that his proposal regarding the first element of condition 8 is successful.
[29] The third element of condition 8 relates to medical appointments, psychological appointments and the like. The specific requirements to be met in this regard are detailed in paragraph iii of the condition. Mr. Mahjoub takes the position that this element is no longer necessary, presumably for the same reason previously stated in relation to the second element.
[30] Similarly, the fourth element of this condition specifically addresses emergencies and the protocol to be followed should an emergency arise. Mr. Mahjoub maintains the restriction is no longer required. Again, his position is dependant upon success with respect to condition 6 and the first element of condition 8.
[31] Condition 9 addresses the issue of visitors to the Mahjoub residence. Specific exceptions are carved out of the general requirement for visitors to be pre-approved by CBSA. Mr. Mahjoub proposes to delete all restrictions regarding visitors other than the one requiring the presence of a supervisor when anyone is visiting.
[32] Mr. Mahjoub’s movements are confined to pre-approved perimeters. Condition 10 prohibits him from attending at an airport, train station, bus depot or car rental agency and from entering upon any boat or vessel. Additionally, with the exception of his lawyers and pre-approved persons, he is barred from meeting any person by prior arrangement and from going to any location other than one that has been approved under condition 8 during approved hours. Mr. Mahjoub asks that this condition be amended to permit him, with prior CBSA approval, to travel outside the fixed perimeters. Further, he wishes to delete the restrictions on contacts with others outside the home and to delete the restriction on locations (excluding those proposed for outings outside the fixed perimeter requiring CBSA approval).
[33] Condition 12 is lengthy. Distilled, it relates to restrictions regarding access to the Internet, cell phones, electronic and radio communication devices. It seeks to establish parameters, the objective of which (to the extent possible) is to guarantee Mr. Mahjoub is without access to any of these devices. It is sufficient for present purposes to simply recite the changes proposed by Mr. Mahjoub. Mr. Mahjoub wishes to delete the requirement to provide “computer use” records, to eliminate the necessity for Haney El-Fouli to provide monthly records of cell phone usage and for Mona El-Fouli to consent to the interception of her cell phone. He further seeks permission for either Skype or another VOIP (voice over Internet protocol) software or system to be permitted in the locked computer room in order that Mona El-Fouli may visually communicate with her family, especially her sick father, in Egypt.
[34] Condition 13 requires Mr. Mahjoub, all adult residents and any new occupants of the Mahjoub home to consent in writing to the interception of incoming and outgoing written communications by mail, courier, or other means. Mr. Mahjoub proposes to eliminate the interception of mail for everyone but himself. He seeks to exempt, from the intercept, correspondence from government agencies and known, credible financial institutions or companies. He suggests the intercept include only correspondence for which there are reasonable and probable grounds to believe the information contained in the communication may be of assistance in monitoring compliance with the terms of release or the threat he poses.
[35] Further, absent reasonable and probable grounds to believe the information is of assistance in monitoring compliance with the terms of release or the threat he poses, he wants the copying of intercepted mail to be prohibited and any copies, made to date, destroyed if they do not satisfy this test. I note, during oral argument, counsel requested sequestration rather than destruction of such copies. Last, he asks for the imposition of a 24-hour time limitation between the time of interception and delivery of the mail.
[36] Travel restrictions are located in condition 16. Mr. Mahjoub is content with those restrictions except he wishes to use city transit, including the subway. On my reading of the condition, he is permitted to travel by public city bus transit within the fixed perimeter. However, he is prohibited from using the subway.
[37] Finally, Mr. Mahjoub seeks an amendment to the present conditions of release such that he be permitted to video and audio record CBSA officers if he, or one of his family members, has reasonable grounds to believe the officer is acting in excess of lawful authority.
[38] This marks the end of Mr. Mahjoub’s sought-after changes or amendments. I shall return to his requests later.
[39] The Ministers also seek amendments to certain conditions. It is said these requests are “intended to streamline procedures, improve operations, increase safety and address unanticipated problems.”
[40] First, there is a request to amend condition 13 (mail interception) by striking the word “written” from the phrase “written communication”. The Ministers claim, prior to implementation of the conditions, CBSA did not foresee the possibility of delivery of forms of communication other than written. However, the intent of the conditions was that all forms of communication would be monitored.
[41] Secondly, if Mr. Mahjoub does not leave his residence within 30 minutes of the scheduled time for an approved outing, the Ministers say that condition 8(i) should be amended to specify the outing will be cancelled, unless Mr. Mahjoub notifies CBSA of a later departure time. The Ministers take issue with the fact that Mr. Mahjoub “often does not attend the outings he has requested and that were approved by the CBSA.” The failure to notify results in a resource management issue for CBSA because, when an approved outing is scheduled, CBSA officers are dispatched to the residence to await his departure and to follow him to monitor compliance.
[42] Mr. Mahjoub responds he is often not feeling well enough to go on the outings. However, should he rest and later feel better, he might then wish to go. Mr. Mahjoub says he is not able to predict how he will feel in an hour. Further, the conditions do not require he notify CBSA, therefore it has no cause for complaint.
[43] Thirdly, the Ministers ask that requests for religious outings be made on 90 minutes notice. The stated reason is there have been instances where Mr. Mahjoub has called CBSA to advise he was going to mosque just as he was leaving the house. This provides little or no time for CBSA officers to be deployed. Additionally, it does not allow time to program the GPS. CBSA’s ability to effectively monitor Mr. Mahjoub and ensure compliance with the conditions of release is thereby compromised. CBSA did not anticipate Mr. Mahjoub would proceed in this manner and therefore did not realize, when the conditions were drafted, it would be necessary to specify a timeline for notice.
[44] Fourth is a request to prohibit call-forwarding from the Mahjoub household landline to any cell phone. The Ministers say, at the time the conditions were drafted, although the interception of the landline was addressed, no consideration was given to the possibility that calls could be forwarded from the landline to a cell phone. The Ministers characterize this request as “simply a refinement of the existing condition that requires that all of Mahjoub’s telephone communications are intercepted.”
[45] Last, the Ministers seek to formalize Justice Mosley’s comments at paragraph 101 of his December 24, 2007 Reasons for Order. There, Justice Mosley observed that Mr. Mahjoub, or anyone in his home, “should not be video-taping or audio-taping the officers as they are carrying out their duties.” The Ministers wish to formalize this observation as a condition.
[46] I propose to deal with the Ministers’ requests when I address those of Mr. Mahjoub. I turn now to the factors to be considered when conducting a review of the conditions of release.
Factors Governing the Review of Conditions of Release
[47] In Charkaoui 1, the Supreme Court of Canada held that regular reviews of detention must take into account the five factors delineated by Justice Rothstein, then of the Federal Court, Trial Division, in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.). At paragraph 117 of Charkaoui 1, the Court decreed that there must be detention reviews on a regular basis, at which times the reviewing judge should be able to look at all factors relevant to the justice of continued detention, including the possibility of the IRPA’s detention provision being misused or abused.
[48] Significantly, the Supreme Court stipulated that analogous principles apply to extended periods of release subject to onerous or restrictive conditions. It stated that these conditions must be subject to ongoing, regular review under a review process that takes into account all the above factors, including the existence of alternatives to conditions. Given Mr. Mahjoub’s concession that his present circumstances are not unhinged from the purpose of the legislation, I do not think it can be said that the IRPA is being misused or abused. The obligatory factors for consideration are:
(1) the reasons for detention;
(2) the length of detention;
(3) the reasons for the delay in deportation;
(4) the anticipated future length of detention; and
(5) the availability of alternatives to detention.
These factors are to be contextualized to a review of the conditions of release for Mr. Mahjoub.
Reasons for Stringent Conditions
[49] It is common ground that Justice Mosley’s determination that Mr. Mahjoub poses a danger or threat to national security or the safety of any person is the reason for the imposition of Mr. Mahjoub’s stringent conditions of release. In addressing the issue of conditions, Justice Mosley affirmed that the conditions must be sufficient to neutralize or contain the threat. He specifically noted the need to examine: “the nature of the acts that it is believed Mr Mahjoub would engage in; the nature of the threat that would result from those acts; and an analysis of why it is believed that conditions would or would not neutralize or contain the threat” (para. 141).
[50] Justice Mosley turned his mind to the need for “terms and conditions to be specific and tailored to Mr. Mahjoub’s precise circumstances, keeping in mind that to be appropriate they ‘must be designed to prevent [his] involvement in any activity that commits, encourages, facilitates, assists or instigates an act of terrorism, or any similar activity’ and that they ‘must be proportionate to the risk posed by [him]’” (para. 142).
[51] As for the specific threat, Justice Mosley was satisfied that it was accurately stated in the public summary dated November 28, 2006. That document, prepared for the purpose of a detention review, states that Mr. Mahjoub “continues to be a well-connected member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Osama Bin Laden, including those which condone the use of serious violence.” The Ministers were opposed to Mr. Mahjoub’s release on the basis that it would “place him 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.”
[52] As stated previously, for the purpose of this review, the parties agree to be bound by Justice Mosley’s findings. Mr. Mahjoub qualifies his position by noting the findings arose from a constitutionally-deficient process.
Length of Detention and Release on Stringent Conditions
[53] The Ministers take the view that, on a review of conditions of release, this factor enables the court to consider the length of time Mr. Mahjoub has been under stringent conditions. While I do not disagree, it seems to me the entire context must be considered. The Supreme Court has determined both detention and onerous conditions of release engage section 7 liberty interests. Thus, in my view, Mr. Mahjoub’s detention for nearly seven years is not to be ignored.
[54] The Ministers further argue, since the length of detention alone is insufficient to warrant release, the length of time the person has been subject to stringent conditions of release is also insufficient, on its own, to warrant a lessening of those conditions. Mr. Mahjoub does not take issue with those general propositions. However, he points to the summary of the evidence of a CSIS witness who testified in camera with respect to the telephone interceptions. Specifically, Mr. Mahjoub refers to the testimony that “no potential breaches of the terms of release have been identified” and the statement that “CSIS as agent for CBSA had no concerns regarding the content of intercepted communications.” Similarly, no potential breach has been identified in the intercepted mail. Further, Mr. Mahjoub says there is a total lack of evidence that he attempted to gain access to or use any of the prohibited communications devices. Nor is there any evidence that he has sought to take advantage of any opportunity to contact anyone who supports terrorism or violent jihad (or that any such person has attempted to contact him).
[55] Both the Ministers and Mr. Mahjoub acknowledge the longer the detention (and by analogy the imposition of conditions of release), the greater the evidentiary burden on the Ministers to establish the nature of the threat posed.
[56] From Mr. Mahjoub’s perspective, the allegations advanced in 2008 are not materially different from those advanced at the time of his detention in June 2000. There is nothing new. Indeed, he refers to Justice Mosley’s findings that the investigation was essentially complete when Mr. Mahjoub was detained and there has been no effort by the security agencies to interview him again. Moreover, Mr. Mahjoub says neither CSIS nor CBSA has conducted a dynamic and individualized threat assessment in relation to him. He asserts the evidence demonstrates his consistent and scrupulous compliance with the conditions of release.
[57] The Ministers respond that Mr. Mahjoub’s submissions in this respect are mitigated by the fact Mr. Mahjoub has agreed to be bound by Justice Mosley’s findings as to the threat or danger he poses (for the purpose of this review).
[58] Prior to being released, Mr. Mahjoub was detained for nearly seven years. The Supreme Court of Canada has observed that lengthy detention results in a disruption of contact and communication with extremist individuals or groups. The conditions of release have been in effect for a period of 22 months. There is no evidence of serious breach. I will have more to say about “technical” breaches and the Ministers’ failure to conduct an individualized risk assessment later. On balance, and notwithstanding the agreement between the parties with respect to Justice Mosley’s findings, this factor militates in favour of Mr. Mahjoub.
Reasons for Delay in Deportation
[59] Until such time as the reasonableness of the security certificate has been determined, Mr. Mahjoub cannot be deported. The Ministers maintain both parties have proceeded in good faith and the court has proceeded in a timely fashion. Mr. Mahjoub states he “does not submit that the government has unduly delayed this proceeding.” His written submissions state it is unlikely he will ever be deported and the Ministers have not proffered evidence to suggest removal can be accomplished within an identifiable timeframe. Be that as it may, as noted earlier, Mr. Mahjoub does not suggest his release on restrictive conditions is unhinged from the purpose of the legislation (deportation). To the contrary, he states it is not (transcript, volume 20, p. 162, lines 3-12). In the circumstances, I consider this factor to be neutral.
Anticipated Future Length of Release Subject to Stringent Conditions
[60] Mr. Mahjoub submits it will be a number of months before the hearing into the reasonableness of the certificate is underway. When the determination is made, it will likely be appealed, including to the Supreme Court of Canada. Further, it is nearly certain there will be motions to challenge the constitutionality of the process established under the revised IRPA as well as a request for a stay of proceedings for abuse of process. In all likelihood, determinations on those motions will also be subject to appeal. It could be many years before these proceedings are concluded. Mr. Mahjoub avers, even then, the issue of whether he can be subject to refoulement to Egypt remains ripe for adjudication. Consequently, although the period of time for stringent conditions of release cannot be ascertained with precision, it will undoubtedly be lengthy. Mr. Mahjoub contends lengthy subjection to stringent conditions is a factor that weighs in favour of a progressive relaxation of those conditions.
[61] For their part, the Ministers say detention for prolonged periods, in and of itself, does not violate the Charter provided there is a robust process of detention review. Contextualized to a review of conditions, it follows there must also be a robust process for reviewing the conditions. Clearly, say the Ministers, the present proceeding has been robust. Moreover, the conditions of release will be subject to further review in accordance with the legislation. This robust review process, from the Ministers’ perspective, favours the Ministers’ position.
[62] A party’s recourse to statutory remedies is to be regarded as a neutral factor: Charkaoui 1. The delay with respect to the determination of the reasonableness of the security certificate is partially due to the Ministers’ failure to move toward “Charkaoui 2 disclosure” in a timelier manner. However, delay is also precipitated by the fact that Messrs. Mahjoub and Jaballah have chosen to be represented by the same counsel. Although both are entitled to counsel of their choice, the hearings to determine the reasonableness of their security certificates, in these circumstances, cannot proceed concurrently in the Federal Court.
[63] The process of robust detention reviews (and by analogy reviews on conditions of release) is a significant constituent of this factor.
[64] Although Mr. Mahjoub’s projected time frame weighs in his favour, it is founded on a basis I believe to be flawed. It assumes that the conditions of release will remain static. If that were so, in my view, the purpose and the objective of the reviews would be rendered nugatory. The length of time Mr. Mahjoub is subject to restrictive conditions of release is mitigated by the availability of robust, regular and ongoing judicial reviews. Consequently, although the projected time frame is to be accorded considerable weight, it must be assessed in conjunction with the other factors and does not trump them. It is by no means determinative.
Availability of Alternatives
[65] Counsel agree, and I concur, the conditions of release must be a proportionate response to the threat. As the Ministers put it, the conditions of release must be subject to a carefully tailored proportionality analysis.
[66] Mr. Mahjoub analogizes the review process in the revised IRPA to that set out in the Criminal Code governing the review of a disposition with respect to a not-criminally-responsible accused. Relying upon Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, he submits that, here, a proportionate response is “the least onerous and least restrictive one that can be maintained while ensuring that public safety is protected.”
[67] Mr. Mahjoub claims he has demonstrated the strength and sincerity of his commitment to comply with the imposed conditions. The Ministers’ suggestion that breaches have occurred refers to those of a purely technical nature that do not give rise to national security concerns. There has been no evidence of conduct that could reasonably be construed as a threat to national security or the safety of any person. Rather, the evidence shows a high degree of compliance over an extended period of time.
[68] Further, Mr. Mahjoub professes he has adhered, nearly perfectly, to electronic monitoring and profoundly restrictive conditions. This, he says, demonstrates the threat found by Justice Mosley has been substantially attenuated thereby necessitating that the conditions of release “should be relaxed in equal degree.”
[69] Last, he argues, in fashioning a proportionate response, I must have regard to the best interests of his children. This is because the nature of his family unit is part of the “context and circumstances” of his individual case which must be taken into account on this review.
[70] The Ministers argue it is the cumulative effect of the conditions of release that must continue to neutralize the threat posed by Mr. Mahjoub’s release. Any requested amendment must be viewed in this context. Justice Mosley’s decision was informed by the same factors considered by the Supreme Court in its