Canada (Citizenship and Immigration) v. Mahjoub

Canada (Citizenship and Immigration) v. Mahjoub
Court (s) Database
Federal Court Decisions
Date
2011-05-02
Neutral citation
2011 FC 506
File numbers
DES-7-08
Decision Content
Federal Court
Cour fédérale
Date: 20110502
Docket: DES-7-08
Citation: 2011 FC 506
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
REASONS FOR ORDER
BLANCHARD J.
Introduction
[1] By “Re-Amended Notice of Motion for release, repealing of conditions and interim variance of conditions” dated October 25, 2010, Mr. Mahjoub seeks the following relief:
An order to release the Applicant and to repeal the conditions of the Applicant;
Pending the adjudication of this motion, an interim order to vary the conditions of the Applicant on the basis of the existing sureties and performance bonds previously approved by this Court, and on such terms as are just;
(…)
Such further relief as counsel may advise and this Honourable Court finds just under subsection 24(1) of the Charter;
[2] The grounds put forward in the Re-Amended Notice of Motion include the following:
1. The security certificate is void ab initio because it was issued contrary to both the IRPA and/or the Charter and the detention of the Mr. Mahjoub is therefore illegal.
2. The security certificate was issued and/or presented in an illegal, abusive and unconstitutional manner… [For reasons detailed in the re-amended Notice of Motion.]
[3] The above grounds relate to issues that are before the Court in the ongoing reasonableness hearing for which evidence is being called by both parties. An amended Notice of Motion was filed with the Court on the same day the reasonable hearing commenced prior to being re-amended on October 25, 2010. In the circumstances, the Court directed that the evidence called during the ongoing reasonableness hearing would also be applicable to the Re-Amended Notice of Motion.
[4] In his Re-Amended Notice of Motion, Mr. Mahjoub also seeks “an order to abolish all of his conditions save and except his existing sureties and performance bonds ….” The following grounds in respect to the request for interim relief are advanced in the Re-Amended Notice of Motion:
(a) There is no reasonable basis to believe that the Applicant will commit a criminal act;
(b) The Applicant is neither a flight risk nor a danger or inadmissible to
Canada
;
(c) The existing conditions for an alternative to detention for the Applicant are not justified by the IRPA and are otherwise inhumane and have resulted in irreparable psychological harm to the Applicant;
(d) There is no basis for continued detention with reference to the relevant factors set out in the Immigration and Refugee Protection Rules (IRPR);
(e) The Security Intelligence Report (SIR) concerning the Applicant is based on false information and is otherwise inconsistent with the previous determination of the Immigration Refugee Board (IRB) that the Applicant is a Convention Refugee based on the information set out in his Personal Information Form (PIF);
(f) Such other grounds as counsel may advise and this Honourable Court may allow.
[5] During the reasonableness hearing, Mr. Mahjoub requested that a hearing date be scheduled for his Re-Amended Notice of Motion. The circumstances surrounding the bringing of the motion need to be understood. Mr. Mahjoub had not informed the Court that he intended to seek a review of his conditions of detention prior to the scheduling of the reasonableness hearing. Indeed, at a case management conference on September 8, 2010, Mr. Mahjoub’s counsel expressed the opinion that it would be premature to schedule matters in relation to the motion at that time (Transcript of proceedings, September 8, 2010, at page 34). When the motion was filed, the reasonableness hearing had begun and was ongoing and witnesses were scheduled to attend before the Court. Given the delays experienced in setting down the reasonableness hearing (at that time two and a half years) and the Court’s concern that the hearing proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit, the Court was not prepared to again adjourn the reasonableness hearing. Since the issue of risk is relevant to both reasonableness and the review of conditions, the Court confirmed in its December 24, 2010 Direction that the request for “interim relief” was being heard in conjunction with the ongoing reasonableness hearing. The Court also indicated that any final pronouncement on the grounds set forth in Mr. Mahjoub’s Re-Amended Notice of Motion would only be made at the close of the reasonableness hearing.
[6] Further, pending the hearing of the motion, the Court indicated that it was prepared to consider discreet requests relating to his conditions of release during the reasonableness hearing. The record will show that such requests by Mr. Mahjoub were dealt with on several occasions and, in each case, the result was favourable to Mr. Mahjoub.
[7] The oral hearing relating to Mr. Mahjoub’s review of conditions of release (the interim relief) was scheduled by the Court at the earliest opportunity. Both parties were given the opportunity to call additional witnesses on the review of conditions and they declined the offer.
History of the Proceeding
[8] The last detention review was conducted in the months of October and November 2009. At that time, Mr. Mahjoub was in detention and on a hunger strike. In my reasons dated November 30, 2009, I set out the procedural history of the proceeding until that time and will not repeat it here. Suffice it to say that, by agreement, the legal issues in the last detention review were narrowed to the examination of only two of the five factors to be considered in detention reviews as set out by the Supreme Court of Canada in Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350 [Charkaoui I], namely the length of detention and availability of alternatives to detention. The first factor, the reasons for detention, was agreed to.For the purposes of the detention review, the parties agreed with the 2007 danger findings of Mr. Justice Mosley who had found in his December 24, 2007 Reasons for Order that Mr. Mahjoub posed a danger or threat to national security or the safety of any person. The same findings were agreed to in respect to the 2008 detention review conducted by Mme Justice Layden-Stevenson. No such agreement was reached by the parties for the purposes of this review. I will return to the Charkaoui factors later in these reasons.
[9] I will now provide an overview of developments in the proceeding since the last detention review.
[10] At the completion of the last detention review, which provided for Mr. Mahjoub’s release on conditions, the reasonableness hearing was scheduled to begin on February 22, 2010. That date had to be postponed at least twice for reasons related to exceptional developments. First, an expert witness had been retained by both parties unbeknown to either. An adjournment was granted to allow another expert witness to be identified. Second, an adjournment was granted to allow the Ministers time to comply with their Charkaoui II (Charkaoui v
Canada
(Minister of Citizenship and Immigration), 2008 SCC 38) disclosure obligations. The reasonableness hearing was then re-scheduled to begin on June 7, 2010. On June 1, 2010, public counsel filed a motion to be removed as solicitors of record by reason of loss of confidence. The reasonableness hearing was again postponed to accommodate new public counsel. Mr. Mahjoub was afforded over four months to retain new counsel and to prepare for the public reasonableness hearing. At that time, the Court informed all parties that the time for preliminary motions had passed and, but for exceptional circumstances, requests for further adjournments would not be entertained. The reasonableness hearing was subsequently scheduled to begin and did begin on October 12, 2010. In the meantime, new public counsel filed a number of motions: a motion challenging section 21 warrants and a motion for disclosure of the warrants, affidavits and documents used in support of the application for warrants; a motion for an adjournment and for further disclosure relating to: (a) information destroyed by Canadian Security Intelligence Service (CSIS); (b) information relating to Mr. Jaballah to be withdrawn from the public SIR; (c) materials concerning warrants and solicitor-client privileged communications; and (d) foreign agency information relied on in the SIR. Finally, as stated above, on the first day of the reasonableness hearing Mr. Mahjoub filed his notice of motion for release, repealing of conditions and interim variance of conditions, which was twice amended.
Mr. Mahjoub’s Current Conditions of Release
[11] Conditions respecting the release of Mr. Mahjoub are set out in schedule “A” to the Reasons for Order and Order dated November 30, 2009, a copy of which is attached to these Reasons for Order.
Mr. Mahjoub’s Proposed Conditions of Release
[12] Mr. Mahjoub seeks an Order releasing him from his conditions of release save and except his existing sureties and performance bonds already deposed. Schedule “A” of a draft order submitted on behalf of Mr. Mahjoub on February 3, 2011 sets out the conditions of release for the Court’s consideration agreed to by Mr. Mahjoub. Schedule “A” of the draft order is annexed to these Reasons.
Mr. Mahjoub’s position on the review
[13] Mr. Mahjoub argues that the review be conducted in accord with the following principles:
(1) “that the appropriate conditions under section 82(5)(b) of IRPA be imposed only if it is determined that a serious prejudicial act will be committed … [on] ‘a belief, objectively established, that the individual will commit an offence’”
(2) The fear on reasonable grounds “must reflect a risk of serious and imminent danger”.
(3) “The principles of fundamental justice require that the restrictions on the person’s liberty be minimal and that the conditions be applied restrictively.”
(4) The evidence adduced must demonstrate “reasonable grounds to believe that the Applicant will commit an offence if the conditions are substantially modified or that these modifications would be injurious to national security or endanger the safety of any person.”
(5) “The judge must render an order that takes into account the constitutional rights at stake and that the conditions must be relevant, proportionate, based on a risk assessment founded on evidence and respecting the principles of fundamental justice and the right to privacy.”
(6) “That the conditions must infringe on the person’s rights as minimally as possible and that the conditions must be applied restrictively.”
(7) “The conditions of release must permit the person to live a normal life to the extent possible and in proportion to the danger involved and proven.”
(8) “The danger to the security of Canada must be grave in the sense that the danger must be serious according to a broad and fair interpretation and in conformity with the international standards which require evidence of a potentially grave threat that puts the nation in danger.”
(9) “The onus of proving that the person will pose a danger requiring detention or conditions of release rests on the Ministers.”
(10) “The standard of proof normally applicable in immigration to determine if a person must be detained or released is that of the balance of probabilities.”
[14] Mr. Mahjoub argues that there is no evidence that he is a danger to national security or to the safety of any person and there are no reasonable grounds to believe that he will commit an offence in violation of any law related to national security, if released. He further argues that the Ministers do not allege he is a flight risk and that his current conditions are unnecessary and disproportionate in the circumstances. Further, he contends that the interpretation of subsection 85(5) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA) must be made in accordance with the presumption of innocence and with section 7 of the Constitution Act 1982 being schedule B to the Canada Act 1982 (U.K.) 1982, c 11 (the Charter).
[15] Mr. Mahjoub contends that the two prior detention reviews were made on the basis of a threat assessment completed under the previous unconstitutional law and, as a consequence, findings made in the prior detention reviews relating to the danger posed by Mr. Mahjoub ought not to be relied upon or imported into this review. Mr. Mahjoub also relies on the recent up-dated risk assessment prepared by the Canadian Border Services Agency [CBSA] to show that he has been in compliance with his conditions of release and in support of his contention that his conditions of release should be changed fundamentally. At the outset, Mr. Mahjoub objected to the up-dated risk assessment being considered but conceded at the hearing that it was “a permissible document” for the purposes of this review.
[16] I will now turn to the legal principles that govern this application.
Legal Framework
[17] In my Reasons for Order and Order relating to the last detention review in this matter (Mahjoub v Canada (Minister of Citizenship and Immigration) 2009 FC 1220), I stated that the governing authority for review of conditions of release and the assessment of threat is the Supreme Court’s decision in Charkaoui 1.
[18] Mr. Mahjoub argues that by reason of the modifications to subsection 82(5) of the IRPA, the applicable standard of proof for the review of condition is now a balance of probabilities unlike the applicable standard under the prior provision, subsection 83(3). I am not convinced by the arguments advanced by Mr. Mahjoub. I fail to see how the amendments referred to have any impact on the applicable standard of proof. As stated in my earlier reasons, the Supreme Court has confirmed (paragraph 39 of Charkaoui 1) that the appropriate standard for a judge to apply in reviewing conditions of release is “reasonable grounds to believe”.
[19] Mr. Mahjoub also argues that Justice Mosley’s 2007 analysis and findings relating to danger should not be considered or adopted for the purpose of this review. It is argued that the new provision, subsection 82(5), explicitly requires consideration of whether “release under conditions would be injurious to national security…” as opposed to the prior provision, subsection 83(3) which required that detention “be continued if satisfied that the permanent resident continues to be a danger to national security…” It is argued that unlike subsection 83(3), subsection 82(5) now underscores the liberty interest of the named person in a different way. Mr. Mahjoub contends that by reason of the “taint of constitutional invalidity” of the former scheme, the Court should not rely on or import in this review Justice Mosley’s analysis and findings relating to the threat he poses to national security. He maintains that the Court is restricted to the evidence that is led and adduced on this motion.
[20] I reject Mr. Mahjoub’s argument. In Charkaoui I, the Supreme Court did not take issue with the wording of the former subsection 83(3) of the IRPA. It found unacceptable that part of the scheme that drew an artificial and impermissible distinction between the rights of foreign nationals and permanent residents. The former scheme did not have the benefit of a six month detention review. I agree with the Ministers’ submission, that both subsection 82(5) and the former subsection 83(3) of the IRPA are legally and logically equivalent in that they both require the Court to be satisfied that the release would pose a risk to national security.The difference between the two does not necessitate a different analysis relating to the legal issues with respect to the danger of the security of
Canada
. Therefore, the Court’s analysis relating to danger in prior detention reviews and reviews of conditions of release in 2007, 2008 and 2009 are relevant. It is appropriate, in my view, to look to those prior decisions for guidance on the principles to be applied relating to the proportionality of the conditions and on questions of danger.
[21] On the last detention review, I found that, notwithstanding changes in the wording of impugned provisions of the IRPA, the principles established in Charkaoui 1 are applicable under the current legislation to a review of conditions of release. I remain of that view. I therefore adopt as part of these reasons the legal framework I articulated in my reasons relating to Mr. Mahjoub’s last detention review, at paragraphs 35 to 44.
[22] I will therefore conduct this review by applying the above discussed legal framework. In Charkaoui I, the Supreme Court held that regular reviews of detention must take into account the following five obligatory, but non-exclusive, factors: (1) reasons for detention; (2) length of detention; (3) reasons for delay in deportation; (4) anticipated future length of detention; and (5) availability of alternatives to detention. The Supreme Court stipulated that the same factors apply to extended periods of release subject to onerous or restrictive conditions. Such conditions must be subject to ongoing, regular, and robust review under a review process that takes into account all the above factors which are to be contextualized to a review of the conditions of release of Mr. Mahjoub.
[23] The Ministers bear the burden of establishing the need to maintain stringent conditions of release. Pursuant to subsection 82(5) of the IRPA, on review, the judge:
(a) …
(b) In any other case, shall order or confirm the person’s release form detention and set any conditions the judge considers appropriate.
Analysis
[24] In conducting the review, I will have regard to all factors including the reasons for the initial detention; the conditions of release imposed at the last detention review; the length of time the stringent conditions have been in place; the anticipated future duration of conditions and the existence of alternatives to the conditions, if any; and any changes in the threat posed by Mr. Mahjoub since the last review. These factors will be considered in the context and circumstances surrounding Mr. Mahjoub’s case. At the outset, it is useful to note that there is no issue in this review relating to whether Mr. Mahjoub would be unlikely to appear at a proceeding or for removal.
[25] I have before me the parties’ motion materials, the Ministers evidence on risk adduced in the ongoing reasonableness hearing, the updated risk assessment dated February 2011, and the threat assessment released to Mr. Mahjoub on October 12, 2009.
[26] The Court has also had the benefit of public written submissions from each party and oral arguments concerning the review of conditions. The Special Advocates were afforded the opportunity to make submissions on the review and they declined. I will now turn to the above-noted Charkaoui I factors.
Reasons for the stringent conditions of release
[27] In Charkaoui 1, the Supreme Court explained that the “more important” factor for the purpose of justifying continued detention is the continuing threat to national security or to the safety of any person (Charkaoui 1, at paragraph 111). Mr. Mahjoub was released from detention on his third application for release from detention by Justice Mosley by judgment dated February 17, 2007. (Mahjoub v.
Canada
(Citizenship and Immigration), 2007 FC 171). There is no dispute that Justice Mosley’s determination that Mr. Mahjoub posed a danger or threat to national security or to the safety of any person is the reason for the imposition of Mr. Mahjoub’s stringent conditions of release akin to house arrest on April 11, 2007. These conditions of release were imposed to neutralize the threat posed by Mr. Mahjoub. In his reasons, Justice Mosley articulated the danger posed by Mr. Mahjoub to national security or the safety of any person. I reproduce below the relevant paragraphs of his finding.
[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.
…
[125] It is clear from the evidence noted above that Mr. Mahjoub has in the past associated with persons linked to terrorist organizations. I would include in that category specifically Ahmed Said Khadr, Mubarak Al Duri, Essam Marzouk and Ahmed Agiza. While one of these individuals is now dead and two others are incarcerated in
Egypt
, it is not unreasonable to conclude that the Service is not aware of all of Mr. Mahjoub’s past extremist contacts.
[28] Justice Mosley was satisfied that the threat posed by Mr. Mahjoub was accurately articulated in the November 28, 2006 summary of the SIR, which 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.”
[29] In assessing the conditions of release, Justice Mosley affirmed that the conditions must be sufficient to neutralize or contain the threat. He stated that it is necessary to consider: “the nature of the acts that it is believed Mr. Mahjoub would engage in: the nature of the threatthat would result from those acts; and an analysis of why it is believed that the conditions would or would not neutralize or contain the threat” (paragraph 141). He also considered 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]’” (paragraph 142 citing paragraph 83 of Harkat v Canada (Minister of Citizenship and Immigration) 2006 FC 628). I concur with the approach adopted by Justice Mosley in assessing the proper terms and conditions of release.
[30] The above findings by Justice Mosley relating to the threat posed by Mr. Mahjoub were agreed to by the parties in subsequent detention reviews and reviews of conditions of release; even though Mr. Mahjoub qualified his position by noting the findings arose from a constitutionally-deficient process. Justice Mosley’s danger findings form the basis upon which the Court imposed the current conditions of release on Mr. Mahjoub. As stated above, Mr. Mahjoub no longer accepts the findings of Justice Mosley. He argues that he is neither a flight risk nor a danger to national security or to the danger of any person. He claims that the question of his danger to the security of
Canada
must be proven by the Ministers and cannot be based on allegations without evidence or information.
[31] The Ministers dispute Mr. Mahjoub’s claim that he is not a danger or inadmissible to
Canada
and point to the evidence adduced in the reasonableness hearing to support their allegations against Mr. Mahjoub and the threat he poses. These allegations are the same as those relied upon by Justice Mosley for his danger findings. The issues raised in this review, including whether Mr. Mahjoub poses a threat to the security of
Canada
, are the object of litigation in the ongoing reasonableness hearing. The evidence in support of the Ministers’ allegation is vigorously disputed by Mr. Mahjoub. Further Mr. Mahjoub’s evidence is incomplete at this stage of the proceeding and arguments have yet to be heard. Consequently, the Court is not in a position to make any final pronouncement on these issues. To do so would be tantamount to pre-judging the issue of reasonableness without the benefit of all of the evidence, including the testimony of Mr. Mahjoub if he elects to give evidence. As a result, no determinative findings can be made at this point relating to Mr. Mahjoub’s membership in the Vanguards of Conquest (VOC) and/or its Shura council, his contacts, or his past association with persons linked to terrorist organizations. These same allegations by the Ministers, supported by the record before the Court at the time of Justice Mosley’s danger findings, are the basis upon which Mr. Mahjoub was found to pose a danger to national security and to the safety of any person. It is on this basis that he was initially detained and then released under stringent conditions. The same allegations are before me on this review.
[32] The evidentiary basis in support of the allegations adduced by the Ministers has changed. As a result of the “torture motion” the SIR and the public summary of the SIR have been amended and certain information found to have been obtained from torture, or to be derivative of torture has been held to be inadmissible and consequently struck from the record. However, the allegations against Mr. Mahjoub remain unchanged. The lack of foundation for a danger finding argued by Mr. Mahjoub in this review is premised on disputed evidence and arguments relating to issues that have yet to be decided in the ongoing reasonableness hearing. Until the Court renders final pronouncements on these issues, the danger findings of Justice Mosley cannot be ignored.
[33] Mr. Mahjoub would have me release him essentially without conditions, solely on the strength of his submissions. The justification for such a fundamental change to the current conditions of release has not been established at this time. On the record before me, having regard to the nature of the allegations against Mr. Mahjoub, I am unable to accede to Mr. Mahjoub’s request that he be released essentially without conditions. Other factors, to which I now turn, will be considered to determine whether the level of threat posed by Mr. Mahjoub may have attenuated since the last review, and if so, whether his current conditions of release should be relaxed.
The length of time the current stringent conditions have been in place
[34] In Charkaoui I, the Supreme Court of Canada found that the longer a person is in detention, the less likely it is that an individual will remain a threat to national security. The Supreme Court also found that in cases of lengthy detention, the Ministers’ evidentiary onus is heavier since they have had more time to investigate and document the threat. See:Charkaoui I at paragraphs 112 and 113.
[35] I am satisfied that the length of Mr. Mahjoub’s detention and release on stringent conditions has disrupted his ability to communicate with extremist individuals or groups he is alleged to have previously engaged with. Further, his notoriety and public exposure have made it less likely that persons who would be of interest to the CSIS or the CBSA would risk drawing attention to themselves by contacting Mr. Mahjoub or that Mr. Mahjoub would be effective as a covert agent. The Supreme Court has observed that lengthy detention results in a disruption of contact and communication with extremist individuals or groups. Since his initial arrest in 2000, under the first certificate, Mr. Mahjoub has either been detained or released on onerous conditions. There has been, over the years, no indication of a serious breach of his conditions of release. The Ministers contend that this may well be attributed to the very terms and conditions imposed to neutralize the threat posed by Mr. Mahjoub. I am nevertheless of the view that Mr. Mahjoub’s lengthy detention and/or stringent conditions of release have had a significant impact on his ability to communicate with extremist individuals or engage in terrorism related activities as alleged.
[36] As stated earlier in these reasons, the up-dated risk assessment prepared by the CBSA dated February 2011 indicates that with the exception of unreported mail deliveries which have been shown to be deliveries from public counsel, there have been no suspected acts of non-compliance with the terms and conditions of release by Mr. Mahjoub.The up-dated risk assessment was prepared at the Court’s direction by the CBSA and is based on the revised SIR dated September 23, 2010 prepared by the CSIS. This is CBSA’s assessment risk based on Mr. Mahjoub’s circumstances in the context of the terms and conditions of the Release Order imposed on Mr. Mahjoub to neutralize the threat he posed as found by the Court. The CSIS did not provide the Court with an up-dated threat assessment.
[37] The last threat assessment was released to Mr. Mahjoub on October 12, 2009, and was prepared at the time Mr. Mahjoub was incarcerated. In this document, the CSIS articulates the threat posed as one founded on the allegations contained in the SIR and indicates that the threat has remained essentially unchanged since Mr. Mahjoub’s initial detention. It concludes as follows: “The threat posed by Mahjoub is believed to have been mitigated by his incarceration and his previous release under terms and conditions. The CSIS has no information indicating that he has resumed threat-related activities, either since his release in April 2007, or since his incarceration in March 2009, or that he has renounced his belief and support of Islamist extremism.” Nothing in the record would suggest that Mr. Mahjoub’s circumstances relating to threat related activities have changed since preparation of the 2009 threat assessment by the CSIS.
[38] In the circumstances, the length of detention and the time released on conditions, coupled with the absence of any significant new evidence, are factors that favour Mr. Mahjoub.
The anticipated length of time the conditions of release will apply
[39] The parties did not expressly address this factor. Given the procedural history of the reasonableness proceeding, it is difficult to predict with any degree of certainty when the hearing will be concluded. When a final determination is made, there will likely be appeals relating to the Court’s determination and findings; the constitutionality of the process; and on issues relating to abuse of process. It could take years before these proceedings are concluded. Consequently, the period of time under which Mr. Mahjoub will be subject to terms and conditions is likely to be lengthy.
[40] If there will be a lengthy continuation of conditions, or the future duration of conditions cannot be ascertained, this is a factor that weighs in favour of a person named in the security certificate.See: Charkaoui I at paragraph 115.
Reasons for the delay of removal
[41] Mr. Mahjoub cannot be deported until the reasonableness of the security certificate has been determined. The history of this proceeding will show there have been significant delays that have resulted in the reasonableness hearing being rescheduled on more than one occasion for a variety of reasons. Since no arguments are raised in this review relating to delay, I will make no further comment on the issue at this time. For the purpose of this review, I will consequently consider this factor to be neutral.
The availability of alternatives to stringent conditions
[42] The terms and conditions must be subject to a proportionality analysis and tailored to Mr. Mahjoub’s precise circumstances. The terms and conditions must also be related to the threat sought to be neutralized. That is to say they must be proportionate to the risk posed and designed to prevent his involvement in any activity that commits, encourages, facilitates, assists or instigates an act of terrorism, or any similar activity. (See paragraph 142 of Justice Mosley Reasons for Order on the 2007 detention review.)
[43] The Ministers contend that there remains on the amended record before the Court sufficient material to establish the allegations set out in the SIR against Mr. Mahjoub to find him inadmissible to
Canada
. The Ministers maintain that in relation to the kinds of activities Mr. Mahjoub is alleged to have participated in the past; the organizations he is alleged to have belonged to; the people he is alleged to have maintained contact with; and the conduct he is alleged to have engaged in have not changed since the last review. Consequently, it is submitted that the Court would be justified in imposing the same terms and conditions based on its reasoning at the time of the last review in 2009.
[44] At this juncture, it is useful to note that, at the time of the last review, the parties were in significant agreement on many of the conditions of release. At that time, I dealt with proposed modifications to conditions that were in place at the time Mr. Mahjoub returned to detention and certain changes requested by the Ministers because Mr. Mahjoub would be living without supervision when released. In essence, there existed significant agreement on the imposition of conditions and the Court was called on to rule on disputes between the parties as to how these conditions would apply or be amended. For instance, there was agreement on the requirement of cash sureties and performance bonds, however, the amounts were in dispute; the parties agreed that Mr. Mahjoub should be fitted with an electronic monitoring device to be worn at all times, however, there was disagreement on when it could be removed for medical reasons; the parties agreed to a curfew, however, there was disagreement on its duration and when it would begin; Mr. Mahjoub agreed with the overall conditions relating to visitors but proposed certain changes to the conditions proposed by the Ministers; Mr. Mahjoub agreed to certain conditions relating to his daily outings. These are a few examples to illustrate that the current conditions were developed to a large extent as a result of a collaborative effort between the parties and not so much as the result of litigation. In this review, there is no agreement as to any of the conditions. As indicated earlier in these reasons, Mr. Mahjoub is opposed to any condition with the exception of those conditions relating to the existing sureties and previously ordered performance bonds. Mr. Mahjoub now questions the very purpose of the current conditions and argues that they are unnecessary and disproportionate in the circumstances.
[45] The purpose of a review of the terms and conditions of release is to ensure that the terms and conditions strike a balance between the liberty interests of the individual and the security interests of
Canada
and its people (Charkaoui I).It falls to the Court to determine the appropriate balance.
[46] I will now turn to the terms and conditions of release. Before doing so, it is useful to set out the respective positions of the parties.
Mr. Mahjoub’s submissions
[47] Mr. Mahjoub argues, for the most part, that the current terms and conditions are not rationally connected to the heart of the Minister’s concerns. For example, he argues that the electronic monitoring device does not prevent him from leaving the designated geographic perimeters and does not prevent him from communicating and potentially engaging in radicalizing individuals as alleged. Similarly, Mr. Mahjoub contends that the video camera installed outside the entrance of his apartment is not something that physically impedes people from coming to see him and engaging in impermissible conversation.
[48] Mr. Mahjoub also argues that the Ministers’ concerns relating to outings are not rationally connected to the conditions regulating his outings. He contends that he could spend all of his time during his outings at the Mosque where he is not supervised. Therefore, his alleged propensity to radicalize others or communicate with unauthorized contacts is not in any way addressed by this condition.
[49] Regarding the condition relating to visitors, Mr. Mahjoub contends that the terms imposed are not warranted since interaction with prohibited individuals is always possible but such activities by him are not supported by his pattern of behaviour or comportment.
[50] Mr. Mahjoub argues that conditions relating to the use of the internet, telephone and cell phone, do little to address the Ministers’ essential concern of face-to-face communications with unauthorized persons or his engagement in impermissible activities. It is argued that the sort of communications sought to be controlled by these conditions is allowed in more risky forums, such as unsupervised attendance at the Mosque. Consequently, it is submitted that the conditions are not rationally connected to the risk alleged.
[51] Mr. Mahjoub also argues that his record of compliance with his terms and conditions of release demonstrates that the current stringent conditions are not required and that “usual conditions” of release are sufficient.
The Ministers’ submissions
[52] The Ministers argue that Mr. Mahjoub’s terms and conditions of release are clearly connected to the alleged threat posed by Mr. Mahjoub as articulated in the SIR and accepted by the Court for the purpose of subsequent reviews. They are concerned mostly with supervision and monitoring of his communication and interaction with others by reason of the nature of the risk that has been identified.
[53] Regarding Mr. Mahjoub’s past record of compliance with his conditions of release, the Ministers argue that in the past ten years Mr. Mahjoub has been in detention or under close supervision, it therefore stands to reason that he hasn’t engaged in any kind of inappropriate behaviour. The Ministers argue that because Mr. Mahjoub has been compliant with his conditions does not mean the conditions are unnecessary or inappropriate. The Ministers argue that Mr. Mahjoub’s record of compliance with his terms and conditions of release is to be assessed as a neutral factor.
[54] In relation to Mr. Mahjoub’s assertion that the Ministers have not proven that he would engage in terrorist related activities, the Ministers say this is an unfair characterization of the record. The Ministers say they are asking the Court to draw reasonable inferences from the evidence that exists about Mr. Mahjoub’s past behaviour.
[55] Regarding the condition requiring video camera monitoring at Mr. Mahjoub’s residence, the Ministers acknowledge that video monitoring does not prevent impermissible contacts, but does provide a me