Mahjoub (Re)

Mahjoub (Re)
Court (s) Database
Federal Court Decisions
Date
2015-10-30
Neutral citation
2015 FC 1232
File numbers
DES-7-08
Decision Content
Date: 20151030
Docket: DES-7-08
Citation: 2015 FC 1232
BETWEEN:
IN THE MATTER OF a certificate
signed pursuant to subsection 77(1)
of the Immigration and Refugee
Protection Act ("IRPA");
AND IN THE MATTER of the review of the release
from detention and conditions of release
pursuant to subsection 82(4)
and paragraph 82(5)b) of the IRPA concerning
Mr. Mohamed Zeki Mahjoub [Mr. Mahjoub]
REASONS FOR ORDER
NOËL S.J.
I. Introduction [1] Mr. Mahjoub asks this Court to release him and to repeal all of his conditions of release of detention, save for a few usual conditions. For example:
1. Mr. Mahjoub shall keep the peace and be of good conduct.
2. Mr. Mahjoub shall report any change of address.
3. Mr. Mahjoub’s passport and travelling documents will remain surrendered to the Canadian Border Services Agency [“CBSA”]. He shall not apply to obtain any travel document or passport and he shall comply with these conditions.
[2] The Motion for Release, Repealing of Conditions and Variation of the Conditions is made pursuant to subsection 82(4) and paragraph 82(5)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [“IRPA”].
[3] The Order establishing the previously determined conditions of release of detention is included in Annex “A”.
[4] The Respondents [“the Ministers”] consider that all the conditions as they exist should be maintained in order to neutralize the danger associated to Mr. Mahjoub, with two (2) exceptions. The first condition they accept to modify is minor: specifying the exact location of Mr. Mahjoub’s duty to report to the CBSA on a weekly basis (condition n° 4). The second condition they accept to modify concerns the use of a mobile phone (condition n° 11). The Ministers indicate that a mobile phone must have a SIM card to function normally, but are concerned such a SIM card includes the capability to access internet. Therefore, it is proposed that the use of a mobile phone with a SIM card be offered to Mr. Mahjoub, but in order to insure supervision, proper safeguards and controls be established.
A. A Brief History of the Procedures and of the Reviews of Detention and Conditions of Release. [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 reasonable[1] 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. Mahjoub’s departure from Sudan to Canada also coincides with the exodus of those elements from Sudan to the West and other countries in the Muslim world. I accept that during this period terrorist organizations were intent on finding a base abroad and their membership scattered to places including Europe and North America. I find that the timing of Mr. Mahjoub’s travels supports the Ministers’ allegation that Mr. Mahjoub was a member of the AJ.
iv. Mr. Mahjoub’s terrorist contacts
[624] A number of Mr. Mahjoub’s contacts are important players in the terrorist milieu. Mr. Mahjoub’s contacts with Mr. Al Duri, Mr. Khadr and Mr. Marzouk have been close and enduring. A number of these individuals were still demonstrably active in the militant AJ and associated Al Qaeda milieu when Mr. Mahjoub was in contact with them. The frequent use of aliases, lies and omissions to conceal these relationships from the authorities is indicative of the terrorist nature of these contacts. I find that these contacts support the Minister’s allegations of Mr. Mahjoub’s membership in the AJ and the VOC. In addition, Mr. Mahjoub XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX contacted a telephone number associated with the VOC.
v. Mr. Mahjoub’s security consciousness
[625] There is evidence that Mr. Mahjoub exhibited security consciousness related to terrorism on occasion while in Canada. For instance, anti-surveillance tactics when making phone calls or being followed by the Service, his use of aliases, and his lack of cooperation with Canadian authorities is consistent with an individual concerned with concealing his activities and contacts. I find that this behaviour supports the Ministers’ allegations of Mr. Mahjoub’s membership in the AJ and the VOC.
vi. The direct evidence affirming or denying that Mr. Mahjoub is a terrorist and member of the VOC Shura Council
[626] As indicated above, the direct evidence relating to the Ministers’ allegations that Mr. Mahjoub is a member of the VOC and its Shura Council or a member of the AJ, consist of:
XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX
c. XXXXXXXXXXXXXXXXX [certain classified evidence] and
d. an intercepted conversation.
I found that the [classified] reports XXXXXXXXXXXXXX were not sufficiently persuasive to support the Minister’s allegation of membership; however, I found that XXXXXXXXXXXXXXXX [one piece of evidence indicating that Mr. Mahjoub was an AJ leader] and Mr. Mahjoub’s self-identification as a “member” in the context of the Returnees of Albania Trial lends support to the allegation of membership.
c) Conclusion on membership
[627] Upon considering the evidence holistically, and on the basis of substantiated and reasonable inferences, I find that the Ministers have established reasonable grounds to believe that Mr. Mahjoub is a member of the AJ and its splinter or sub-group, the VOC.
[628] In so determining, I rely on my findings set out above which include:
a. That the AJ and VOC existed as terrorist organizations at the relevant times;
b. Mr. Mahjoub had contact in Canada and abroad with AJ and VOC terrorists;
c. Mr. Mahjoub used aliases to conceal his terrorist contacts;
d. Mr. Mahjoub was dishonest with Canadian authorities to conceal his terrorist contacts;
e. Mr. Mahjoub worked in a top executive position in a Bin Laden enterprise alongside terrorists in Sudan at a time when key terrorist leaders were in Sudan;
f. Mr. Mahjoub was dishonest in concealing from Canadian authorities the nature of his position at Damazine Farm;
g. Mr. Mahjoub travelled to and from Sudan at the same time as AJ and Al Qaeda elements; and
h. XXXXXXXX [Some of the direct evidence] that Mr. Mahjoub was a member of the AJ and Mr. Mahjoub’s intercepted conversation support the Minister’s allegation.
[629] In my determination, I have also relied upon the following inferences relating to Mr. Mahjoub’s travels and activities. These include:
a. Mr. Mahjoub’s contacts were of a terrorist nature;
b. Mr. Mahjoub had a close and long-lasting relationship with a number of his terrorist contacts;
c. Mr. Mahjoub was trusted by Mr. Bin Laden on the basis of his ties to the Islamic extremist community;
d. Mr. Mahjoub was aware of and complicit in Al Qaeda weapons training occurring at Damazine Farm; and
e. Mr. Mahjoub’s travels to and from Sudan at the same time as AJ elements were not coincidental.
[630] I am satisfied that even without the direct evidence XXXXXXX and from the intercepted conversation, my decision would not change.
[631] On the basis of the above findings, I am satisfied that Mr. Mahjoub had an institutional link with the AJ and knowingly participated in that organization. While there is a dearth of compelling and credible evidence explicitly linking Mr. Mahjoub with the VOC, I am satisfied that the evidence establishes an institutional link and knowing participation in the faction of the AJ led by Dr. Al Zawahiri, which eventually aligned itself with Al Qaeda and continued to be militant after many members of the AJ had declared a ceasefire. I have found that this faction was likely known as the VOC, at least at some point in its history. Mr. Mahjoub was linked with this faction of the AJ and Al Qaeda through his employment at Althemar, his travels, and his terrorist contacts in Canada. This link was active and enduring for many years. He knowingly participated in this network through his involvement in the Damazine weapons training, whether passive or active, and in maintaining contact with individuals who were active terrorists who were connected to either Mr. Bin Laden or Dr. Al Zawahiri. Although actual format membership has not been established, which would require proof that Mr. Mahjoub swore allegiance to the group, such proof is not necessary in the context of a security certificate proceeding. I am satisfied that Mr. Mahjoub’s links and participation fit within the unrestricted and broad interpretation of “member” for the purposes of paragraph 34(1)(f) of the IRPA.
[632] On the basis of the above evidence as reflected in my finding, applying the principles of law discussed in the legal framework section of these reasons, I find that the Ministers have established reasonable grounds to believe that Mr. Mahjoub was a member of the AJ and its splinter or sub-group the VOC. Consequently, the Ministers have satisfied the requirements of paragraph 34(1)(f) of the IRPA.
[633] Since the requirements provided for in section 34 of the IRPA are disjunctive, my above finding is determinative of the reasonableness of the certificate. I therefore find, on the basis of the above conclusion, that the security certificate issued against Mr. Mahjoub pursuant to subsection 77(1) of the IRPA is reasonable.
[…]
[668] During the 1996-1997 period, when terrorists associated with the groups at issue seemed to be accumulating in Canada, and during the 1998-2000 period after the AJ became a member of the Islamic Front with Al Qaeda and the fatwa against Americans and their allies was issued, Mr. Mahjoub maintained contact from Canada with established or suspected terrorists either in Canada or abroad: Mr. Khadr, Mr. Al Duri, Mr. Jaballah, and in particular Mr. Marzouk XXXXXXXXXX. Importantly, the contacts abroad, Mr. Khadr and Mr. Al Duri, were Canadian citizens. I have found that there are reasonable grounds to believe that all of these individuals with the exception of XXXXXXXXX Mr. Jaballah, including Mr. Mahjoub himself, were present in Canada or had free access to Canada and were involved with terrorist groups committed to killing US allies including Canadians. These facts establish that AJ members in Canada were a threat to Canadians.
[669] I find that these facts establish reasonable grounds to believe that prior to his arrest, as a member of the AJ and its splinter or sub-group the VOC, Mr. Mahjoub was a danger to the security of Canada.”
Note: The redactions are the ones appearing on the public reasons.
[17] As the above reference to the Reasons for Judgment and Judgment indicate, the AJ (Al Jihad) and VOC (Vanguards of Conquest) are described by Justice Blanchard as important terrorist groups which were active in Egypt and had direct links and relationships with Osama Bin Laden and Al Qaeda (see also paragraph 177 and following of the Reasonableness Decision).
[18] On December 17, 2013, as a result of an application filed by Mr. Mahjoub to remove all conditions of release of detention except for a few, 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” and concluded that the conditions of release should not change except for small adaptations towards the use of calling cards. He also took note that Mr. Mahjoub 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 as Mr. Mahjoub had not used it. He also found that when Mr. Mahjoub opted to cut off the GPS bracelet himself instead of letting CBSA remove it without destroying it, Mr. Mahjoub did not breach any conditions but 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)]).
[19] In May 2014, I stipulated that Mr. Mahjoub 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)]). To this Court, it was evident that Mr. Mahjoub’s attitude was indicative of a lack of collaboration and cooperation. His attitude does not help the CBSA fulfil its supervisory mandate as required by this Court’s Order.
[20] A little more than six (6) months after Justice Blanchard’s last set of reasons on the review of conditions of detention, Mr. Mahjoub filed another application to review the conditions of release. He essentially requested the same outcome, namely that all conditions be repealed except for a few usual ones. This Court then made the following findings (see Mahjoub (Re), 2014 FC 720 [2014 Noël J. (July)]):
D. The elements of trust and credibility related to the behaviour of the Applicant after having being released with conditions and his compliance with them
57 The behaviour of an individual with respect to the conditions of his release is an important factor to consider when considering amending them or some of them. In Harkat (Re), 2009 FC 241 at para 92, [2009] FCJ No 316, the Court had this to say on this factor:
[92] Credibility and trust are essential considerations in any judicial review of the appropriateness of conditions. When considering whether conditions will neutralize danger, the Court must consider the efficacy of the conditions. The credibility of and the trust the Court has in a person who is the subject of the conditions will likely govern what type of conditions are necessary.
58 Mr. Mahjoub's record regarding his most recent conditions of release has not been exemplary, as noted by the Court in its December 17, 2013 review of conditions order, when it concluded that Mr. Mahjoub had breached his condition of release by not giving proper notice of the acquisition and use of the telephone and fax services. It was found that: "[...] Mr. Mahjoub cannot be relied upon to respect his conditions of release." (December 17, 2013 review of conditions order at para 18).
59 In that same decision, again as recently as December 2013, the Court also found that in relation to the cutting of the GPS bracelet and not permitting the CBSA to remove the bracelet without being damaged, Mr. Mahjoub's actions were: "[...] indicative of an unwillingness to cooperate with the CBSA." (see para. 17)
60 Mr. Mahjoub's recent attitude, action and behaviour are also indicative of an unwillingness to collaborate and cooperate with the supervision duty of the CBSA that the Court has imposed. Here are a few examples of this:
A. January 2014 -- Mr. Mahjoub, although obligated to do so by section 7 of his conditions of release, did not give correct information to the CBSA concerning his travel from Toronto to Ottawa. Through counsel, the Applicant gave the wrong departure time which prevented the CBSA from assuming its supervisory role. The reasons given to explain this failure, to the effect that it was the error of counsel and that the CBSA should have informed Mr. Mahjoub of the discrepancy, are not accepted. Mr. Mahjoub was required by section 7 of his conditions of release to give accurate information when traveling, and it is not for the CBSA to compensate for a lack of accuracy. Still, because of that blatant failure by Mr. Mahjoub to provide accurate factual information, the CBSA was rendered unable to assume its supervisory role as the Court so required. This is another indication showing a lack of collaboration and cooperation on his part.
B. Mr. Mahjoub has failed to provide the Startec toll records as requested by the CBSA pursuant to paragraph 11(b) of the conditions of release for the period of use between January 31, 2014 and February 21, 2014, and he has yet to do so. This matter was submitted to the Court sometime in late spring 2014. Paragraph 11(b) of the conditions of release is clear: Mr. Mahjoub has the obligation to supply the Startec toll records for this three-week period. Again, this is another example of Mr. Mahjoub's lack of collaboration and cooperation. As for the Startec toll records for the year 2013, pursuant to paragraph 11(a) of the January 31, 2013 conditions of release, even though being asked to consent, Mr. Mahjoub still has not given consent. The reason he gives is that the CBSA should not gain retroactive access to these toll records. Furthermore, the Applicant has not given notice that he was using Startec as required by that condition of release. He argues that the CBSA knew of this account and should have asked them earlier. This argument does not relieve Mr. Mahjoub of his obligation to consent to the release of these toll records as required by the Court pursuant to paragraph 11(a) of his conditions of release. Again, this is not an attitude that shows collaboration and cooperation as the conditions of release so require. By acting in such a way again, Mr. Mahjoub decides that the CBSA will not assume its supervisory role as requested by the Court.
C. Pursuant to paragraph 10(f) of the 2014 conditions of release, Mr. Mahjoub must give full access to his computer to the CBSA without notice, which includes the hard drive and the peripheral memory, and the CBSA may seize the computer for such purpose. On April 24, 2014, when requested by the CBSA, Mr. Mahjoub did not give the immediate access. He had the CBSA representative wait at the door and, as he went back to his computer, he appeared to be seen for a period of two minutes to be doing something to his computer. The condition compels Mr. Mahjoub to give access and control to the CBSA without notice. He did not. He also objected to the taking of photographs by the CBSA, when the purpose of the picture is to wire the computer in the same way when it is brought back and to document any damage on the computer. This is standard procedure for the CBSA and an understandable policy to be followed. In addition, Mr. Mahjoub refused to provide any USB devices for inspection as required by paragraph 10(f) of his conditions of release which stipulates not only the examination of the computer but also all peripheral memory devices. This is very close to a breach of the condition if not a breach. Finally on this matter, Mr. Mahjoub objected to giving his password to access his computer. This Court wrote Reasons for Order and Order obligating Mr. Mahjoub to do so (see Mahjoub (Re), 2014 FC 479 and more specifically paragraph 21). To this Court, it was evident that the password had to be given for the purpose of examining the computer. What was evident to this Court, however, was not to Mr. Mahjoub. This type of attitude can only show a lack of collaboration and cooperation, and not only is this is not helpful to Mr. Mahjoub's interest, but it also complicates and possibly makes it impossible for the CBSA to assume its supervisory role as the Court requires in the Conditions of Release of both 2013 and 2014.
61 Mr. Mahjoub explains that his attitude is intended to ensure that his conditions of release are limited to what they are and that his privacy is respected. These are, to some degree, valid grounds, but they must not be used to the point of taking the essence of the conditions of release away from their purposes and preventing the supervision of the use of communication devices, computers and other modes of transmission of data, information and images. Without proper supervision by the CBSA, conditions of release become useless.
[21] I have made a brief history of past Reasons for Order and Judgment and included extracts of those which I find pertinent for the present review. The Supreme Court of Canada calls for robust reviews. Part of meeting this obligation is met when the designated judge reviewing the application has a complete understanding of past reasons and their underlying motives. Robust review demands not only to consider factors favourable to the named person. All other factors associated to the named person, as found in previous decisions, must also be considered. Notably, findings of danger, findings of non-compliance or near non-compliance, and findings of an overall uncooperative attitude are factors that militate against easing conditions of release. For the purpose of reviews, the designated judge, equipped with such factual knowledge of the past and of the present, must assess the different legal issues and ultimately render a decision.
[22] For the purpose of the present review, I am cognizant of both public and confidential information, as the summary above has shown, among other factors. After reviewing the motion records, the documents filed including the danger assessment, the risk assessment, the decision on the reasonableness of the security certificate, and assessing the danger in the same way Justice Blanchard has in the January 2013 Reasons for Order (see Mahjoub (Re), 2013 FC 10 [2013 Blanchard J. (January)]), and evaluating the proportionality of each condition in relation to that danger as assessed, this Court concludes that the present application to repeal most of the conditions must be dismissed save for a few amendments.
[23] The present Application for Review of Conditions of Release reproduces in large part the legal arguments submitted last year, although some arguments have been expanded. The present application questions: the Reasons for Order on the reasonableness of the security certificate, the last December 2013 decision of Justice Blanchard on the review of the conditions of release, and the decision issued by the undersigned last year which is summarized above. In the following paragraphs, I summarize the legal arguments made by both parties.
B. Summary of the Submissions of Both Parties. (1) The current conditions do not respect the Applicant’s rights and freedoms protected by the Charter. [24] In the present matter, Mr. Mahjoub submits that there is no evidence to justify the current restrictions on his liberty. The restrictions are disproportionate and unreasonable. They do not respect his rights and freedoms protected by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11 (“Charter”), particularly sections 2, 7 and 8. According to the evidence, the current conditions are harmful to the Applicant and must therefore be changed in order to respect sections 7 and 12 of the Charter. The danger associated to Mr. Mahjoub has been wrongly assessed by all judges involved in the past reviews and the conditions imposed are not proportional to the risk, do not minimally impair the fundamental freedoms, violate the protection and security of the person, and are cruel and unusual.
[25] Mr. Mahjoub also argues that his appeal of Justice Blanchard’s Reasonableness Decision is a relevant factor that supports having the conditions varied or lifted. He submits that the grounds of appeal, such as a violation of the right to a fair trial protected by section 7 of the Charter, support his position to repeal or modify the current conditions at this present review.
[26] The Ministers did not specifically submit written arguments in response. Orally, they first argued that the Supreme Court of Canada has validated the constitutional scheme of the security certificate (see Canada (Minister of Citizenship and Immigration) v Harkat, [2014] 2 SCR 33, [Harkat SCC 2014]). Second, they submitted that the unfairness trial argument is a matter to be dealt with by the Court of Appeal and that it is not an argument to be made at this stage in order to vary or lift the conditions.
(2) Lack of evidence of the danger posed by the Applicant. [27] Mr. Mahjoub argues that his conditions are disconnected from the alleged danger he poses. Indeed, he submits that in previous detention reviews, the Ministers did not present updated evidence that he still poses a threat to the security of Canada and that the danger and risk assessments are outdated (November 2011 and July 2013 respectively). For the present review of conditions, the Ministers declined to conduct a risk assessment and a threat assessment. In the July 2013 risk assessment, his risk was said to be moderate to low. Moreover, Mr. Mahjoub argues that the Reasonableness Decision dismisses the majority of the allegations made over the years against the Applicant. He also suggests that the December 2013 decision of Justice Blanchard (Mahjoub, supra, December 2013) was unfairly rendered since it was issued after the Reasonableness Decision and no opportunity was offered to him to respond. Mr. Mahjoub also asserts that the July 2014 decision of the undersigned was erroneous as the judge did not review the secret evidence and simply relied on Justice Blanchard’s own assessment, which was also erroneous.
[28] The Ministers submit that the current conditions of release from detention remain necessary to neutralize the danger which Mr. Mahjoub poses to national security. The passage of time and Mr. Mahjoub’s history of compliance do not warrant removal of the conditions. Rather, they prove that the conditions are working effectively and mitigate the danger posed by the Applicant. The fifteen (15) months since the last review have not reduced the danger associated with the Applicant. With regards to the reasonableness of the security certificate, while Mr. Mahjoub minimizes its findings, the Ministers submit that the decision was based on solid findings. The findings are serious: they clearly link Mr. Mahjoub to terrorist organizations and key operators within those organizations. The findings of untruthfulness concerning Mr. Mahjoub are also salient. Credibility and trust are important factors to consider when assessing danger and conditions to be imposed.
[29] The Ministers argue that the Applicant’s lack of credibility and lack of cooperation with the CBSA, as highlighted in the December 17, 2013, and July 18, 2014 Orders of the Court, favour maintaining the current conditions of release. Removal of the conditions currently imposed on Mr. Mahjoub will impair the CBSA’s ability to monitor him.
[30] Furthermore, the uncertainty as to the finality of the proceedings should be treated as a neutral factor. The Court has determined that the certificate is reasonable. The Applicant’s appeal is underway and he will continue to be entitled to regular reviews of his conditions. Thus, the time required in resolving the issues on appeal should not weight against the Ministers.
[31] The Court should also continue to provide the CBSA with a supervisory role to ensure that the Applicant’s communications are monitored. Specifically, the conditions of weekly reporting; of prohibiting communications with certain individuals; of supervising the Applicant’s in-person communications and his communications over various media, including telephone, internet and mail, are necessary and proportional to the danger posed by Mr. Mahjoub.
(3) The prejudicial impact of the conditions on the Applicant’s everyday life and health, and the impact the conditions have had and will continue to have on his well-being. [32] Mr. Mahjoub submits that his detention conditions compromise his rights to liberty and privacy. He relies on Dr. Payne’s report, dated May 14, 2015, to argue that the conditions have a considerable and cumulative effect on his physical and psychological health. Dr. Payne’s report explains that the conditions imposed on the Applicant have intensified his depression. Dr. Payne also points out that he considered the Court’s decision dated July 18, 2014, and the conditions imposed on Mr. Mahjoub in his report. Mr. Mahjoub contends the report indicates the conditions are adding to his depression and demoralization and are extremely limiting his quality of life. In his affidavit, Mr. Mahjoub lists a number of grievances which make his life miserable concerning the supervision of the CBSA in regards to: interception of mail, visits of the CBSA to his residence, supervision of e-mail, etc.
[33] Moreover, Mr. Mahjoub submits that false accusations of breaches of conditions by the CBSA have left him in a state of constant vigilance and preoccupation of respecting his conditions. This aggravates his state of stress and anxiety.
[34] The Ministers respond that Dr. Payne’s recent report, like his previous reports, should be afforded little weight as it suffers from misinformation, inaccuracies and appears to rely on facts not established in the record. Notably, Dr. Payne accepts the Applicant’s complaint about his interaction with the CBSA on April 24, 2014, while this allegation is contradicted by this Court’s findings of fact. Dr. Payne accepts Mr. Mahjoub’s perception of his current life versus his past life, where he claimed to have had a meaningful life, failing however to mention that he was managing the Damazine farm project on behalf of Osama Bin Laden. Dr. Payne also accepts at face value the Applicant’s statement that he has been greatly restricted by CBSA and CSIS based on accusations which were deemed unfounded by this Court, while also ignoring the fact that the security certificate was upheld. Dr. Payne’s report is therefore of little use and should be afforded little weight.
[35] As in previous cases, the Ministers submit that the Applicant’s affidavit should be afforded no weight as it contains legal arguments and incorrect statements which are either unsupported by evidence or contradicted by the record. Furthermore, the Court has previously found, on multiple occasions in the past, that the Applicant has been dishonest. This lack of credibility suggests that his affidavit should be set aside. Moreover, until the last hearing in August 2015, the Applicant had never provided any undertaking, as requested by the Court at the previous reviews of conditions, to respect and abide with the conditions of release and to collaborate and cooperate with the CBSA in ensuring its supervisory role. Mr. Mahjoub only consented to respect the conditions of release and signed the consent at the hearing dated August 26, 2015. No weight should thus be afforded to the Applicant’s affidavit. The Ministers also urge the Court to emphasize the importance of ensuring that the affidavits filed do not contain inappropriate content and comply with the Rules and jurisprudence.
[36] In response to Mr. Mahjoub’s statements and arguments regarding the conduct of the CBSA, the Ministers submit that the evidence supports their position that the CBSA is not responsible for delayed, undelivered or non-intercepted mail. As for the Applicant’s accusation against the CBSA officers who attended his residence on November 14 and April 2015 to collect his computer, the accusations are unreasonable and unfounded as the balance of credible evidence demonstrates that the CBSA officers conducted themselves in accordance with their obligations and with the Court’s Order. The evidence rather shows it is the Applicant who complicated the management of his conditions.
[37] The Ministers also argue that disclosure of forensic examination reports has not prejudiced the Applicant. Contrary to his allegations, CBSA did not erase portions of the Applicant’s internet history.
[38] Mr. Mahjoub’s behaviour and statements raise security concerns. Particularly, the Ministers point to the statement in his affidavit where he says that he is in communication with “several individuals” whom he is “not at liberty” to identify because to do so would subject them to government scrutiny. Mr. Mahjoub seems to deliberately shield his contacts from the CBSA and the Ministers while being uncooperative with the CBSA in carrying out his conditions. Since the Applicant is uncooperative in providing the details about the number and identity of the individuals with whom he communicates, the CBSA is not in a position to know whether condition n° 9 was breached.
(4) The passage of time, the absence of any reprehensible act from the Applicant, the delays and the anticipated length of appeal. [39] The Applicant suggests because the conditions imposed on him have been significantly modified by the Federal Court, that over time, no threat has been identified, and that he has consistently complied with the laws of Canada, the Court should favour lifting or modifying the conditions it imposes on him.
[40] Specifically, he argues his in-person weekly reporting requirement is excessive as it takes him about three (3) hours to commute. He suggests the condition be removed because in other cases the CBSA permits weekly telephone reporting.
[41] The Ministers respond that only fifteen (15) months have passed since the last review and such a short delay does not justify amending or cancelling the conditions. Furthermore, the lack of cooperation of Mr. Mahjoub with the CBSA justifies not amending any co