Mahjoub (Re)

Mahjoub (Re)
Court (s) Database
Federal Court Decisions
Date
2017-06-19
Neutral citation
2017 FC 603
File numbers
DES-7-08
Notes
A correction was made July 26, 2017
Decision Content
Date: 20170619
Docket: DES-7-08
Citation: 2017 FC 603
Ottawa, Ontario, June 19, 2017
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
IN THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration and Refugee Protection Act (IRPA);
AND IN THE MATTER OF the referral of a certificate to the Federal Court pursuant to section 77(1) of the IRPA;
AND IN THE MATTER OF
Mohamed Zeki MAHJOUB
JUDGMENT AND REASONS
I. Nature of the Matter [1] This is a motion by Mr. Mohamed Zeki Mahjoub [the Applicant] for an Order removing all but the usual conditions of release currently imposed on him pursuant to subsection 82(4) and paragraph 82(5)(b) of the Immigration and Refugee Protection Act SC 2001, c 27 [IRPA].
II. Procedural background: judgment, orders and directions [2] I considered and determined a motion for the same relief last year, in Re Mahjoub, 2016 FC 808 [July 20, 2016 Conditions of Release Order], at which time a number of his conditions of release were relaxed; however, the Court was not persuaded it should dispense with all but the usual conditions as the Applicant had requested.
[3] Subsequently, by Judgment dated March 31, 2017, Re Mahjoub, 2017 FC 334 [Constitutional and Certified Questions Judgment], I determined requests by the Applicant to certify numerous questions allegedly of general importance and answered a number of constitutional questions propounded by the Applicant.
[4] By Order dated March 15, 2017, I advised the parties that I was seized of the Applicant’s present motion to review his conditions of release. The record then before the Court included an e-mail and letter request by the Applicant that I not hear this motion; however, the Applicant had not filed any motion to that effect. Therefore, among other things dealt with in the motion, I declined to deal with the issue recusal. A copy of the March 15, 2017 Order is attached as Schedule “A”.
[5] By case management Direction dated March 28, 2017, the present hearing was scheduled to be heard May 16, 2017. That Direction also required all materials “to be served and filed no later than May 4, 2017”.
[6] On May 11, 2017, I heard and determined a motion brought by the Applicant that the Court neither receive nor review a redacted and an unredacted updated CBSA Risk Assessment concerning the Applicant [CBSA Risk Assessment Order]. By way of background, the redacted copy contained redactions considered appropriate by the Ministers. While neither party relied on either the redacted or unredacted report, the Court ordered the Ministers to have a redacted copy prepared in consultation with the Special Advocates and delivered to Applicant’s counsel; by subsequent Direction, changing the deadline for that to be done, the Court requested a copy of the unredacted copy. Later the same day, a Friday, the unredacted updated CBSA Risk Assessment was filed, without objection by the Applicant, but at a time when the Applicant’s counsel team was not aware of the email exchanges.
[7] The Applicant’s motion that the Court neither receive nor review redacted and unredacted updated CBSA Risk Assessment was argued in writing by the parties, including Special Advocates, who had agreed with the Ministers’ redactions. I determined I would review the unredacted CBSA Risk Assessment to determine if the redactions proposed by the Special Advocates and Ministers’ counsel were acceptable to the Court. A copy of the CBSA Risk Assessment Order of May 11, 2017, is attached as Schedule “B”.
[8] Unhappy with this Order, Applicant’s counsel sent an e-mail in effect asking for reconsideration of the May 11, 2017, CBSA Risk Assessment Order. Applicant’s Counsel followed up with a more detailed e-mail on Saturday, May 13, 2017, indicating they would be filing what may be seen as a more detailed motion for reconsideration of the CBSA Risk Assessment Order. The Applicants, in their e-mail of May 13, 2017, also indicated they would be filing a motion for my recusal from the hearing set for May 16, 2017. However, that motion was not filed prior to the May 4, 2017 deadline set by the case management Direction referred to in paragraph 5, above.
[9] On Monday, May 15, 2017, the day before this condition of review hearing, I was provided with a copy of a bare motion to reconsider the CBSA Risk Assessment Order. I say “bare” because only a notice of motion was filed: there was no supporting affidavit, cross-examination (if requested), record or memorandum as required, nor had any responding material been filed by the Ministers in accordance with their right to respond.
[10] At the commencement of the hearing on May 16, 2017, I provided the following oral case management Decision (edited for grammar and syntax):
Before the hearing starts, I want to address the order of proceedings. Today’s hearing was scheduled some time ago to hear the applicant’s request for a review of the conditions of his release. On May 11th, 2017, I made an order concerning an unredacted CBSA risk assessment and a redacted copy of that risk assessment. By e-mail dated May 12th, 2017, the applicant sought what might be called reconsideration of that order, which request was reiterated by a bare motion served and filed by the applicant yesterday afternoon, May 15, 2017. Given, however, that neither party wishes to rely on either the unredacted or redacted risk assessment at today’s hearing, and that I have reviewed neither the redacted nor the unredacted risk assessment, I have decided that I will not review either until after the Court renders its decision on the Applicant’s current request for a review of the conditions of his release, and thereafter only after having considered the Applicant’s request for reconsideration either in writing or at a hearing to be specially scheduled.
[11] After a brief adjournment, both parties accepted this decision; however, the Applicant asked that the redacted and unredacted CBSA material remain under seal, which has been the case. Counsel for the Applicant also gave a heads up that he might seek further relief (exclusion of evidence) under subsection 24(1) of the Charter of Rights and Freedoms regarding both the redacted and unredacted reports.
[12] Thereupon, the Applicant addressed a motion that I recuse myself, filed May 15, 2017. Again, the Applicant only filed a bare notice of motion for recusal, comprised of a short notice of motion without supporting affidavit, cross-examination (if requested), record or memorandum of fact and law.
[13] As a preliminary matter, I asked for submissions on whether the recusal motion should be heard given that “all material from both parties is to be served and filed no later than May 4, 2017”. After argument, I delivered an oral ruling from the bench dismissing the recusal motion because it was filed out of time, a copy of which is attached as Schedule “C” to these Reasons and Judgment (formal Order issued June 1, 2017).
[14] At that point, the parties made submissions on the matter at hand, namely the review of conditions of release.
[15] After the hearing, I invited submissions from the Special Advocates who had none to provide and advised: “[F]urther to this Honourable Court’s Direction dated Friday, May 19, 2017, as the Ministers have not filed and do not rely upon any closed evidence and as they do not seek to make closed submissions on this detention review, the Special Advocates will, similarly, not be making any closed submissions”.
[16] Judgment was reserved. These are my Reasons and Judgment for making limited changes to the conditions of release.
III. Background [17] Part of the lengthy history of this case is outlined in my reasons on the July 20, 2016 Conditions of Release Order, which includes:
[21] The Applicant has a long history with this Court. In addition, the relevant legislation has evolved over time. Important aspects of his original detention, subsequent release on conditions, the many subsequent reviews of his conditions of release, together with the evolving statutory framework are well summarized by Justice Noël at paras 5 to 20 in Mahjoub (Re), 2015 FC 1232 (Conditions of Release decision, October 30, 2015). This decision is the most recent review of the Applicant’s many reviews of his conditions of release.
[22] The Applicant is an Egyptian national, born in April 1960. He came to Toronto, Canada, in the last days of December 1995, having arrived here on a false Saudi Arabian passport. He claimed refugee status, which the Immigration and Refugee Board granted in1996. He became a subject of interest to the Canadian Security Intelligence Service [“CSIS”] sometime in 1996. As a result of this investigation, he became the named person in a certificate issued by the Ministers in June 2000 and was arrested on June 26, 2000. He was in detention from 2000 to 2007; he was released in February 2007, under stringent conditions.
[23] Justice Nadon of the Federal Court of Canada (as he was then) determined that certificate to be reasonable on October 5, 2001. In the Reasons for Order, Justice Nadon noted that the Applicant admitted he had perjured himself by not admitting that he knew a certain individual. Justice Nadon concluded that he did not believe the Applicant’s explanation for lying and added that the Applicant had lied before his Court on a number of occasions (see Canada (Minister of Citizenship and Immigration) v Mahjoub, 2001 FCT 1095, at paragraphs 57, 58, 68 and 70 (Nadon Decision).
[24] After the original security certificate regime was held to infringe Charter rights in 2007 (see Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [Charkaoui I]), a new statutory system was implemented which the Supreme Court of Canada subsequently upheld [Canada (Minister of Citizenship and Immigration) v Harkat, [2014] 2 SCR 33].
[25] The Applicant began filing for conditions of release reviews under this new system in 2008.
[26] The new legislation also provides for security certificates that may be challenged in this Court on the basis of reasonableness. Such a certificate was issued against the Applicant. After very lengthy proceedings spanning several years, the late Justice Blanchard held the Applicant’s security certificate was reasonable in October, 2013 (see Mahjoub (Re), 2013 FC 1092 (Reasonableness Decision). The Applicant has appealed that decision to the Federal Court of Appeal, which appeal has not yet been heard.
[27] Justice Blanchard found that there were reasonable grounds to believe that the Applicant was a member of the Al Jihad and its splinter or sub-group, the Vanguards of Conquest, and that the Applicant posed a danger to the security of Canada given his contacts with many known or suspected terrorists in Canada and abroad. Justice Blanchard found that Al Jihad and the Vanguards of Conquest are important terrorist groups that were active in Egypt and had direct links and relationships with Osama Bin Laden and Al Qaeda.
[28] Thereafter, on December 17, 2013, after hearing an application by the Applicant to be released from all his conditions of release of detention except for a few, the late Justice Blanchard concluded:
I am satisfied that Mr. Mahjoub poses a threat to the security of Canada as described in my Reasons for Order dated January 7, 2013.
IV. Summary of the positions of the parties The position of the Applicant [18] The Applicant correctly states that the last review of conditions of release was heard on June 8 and 9, 2016 and a decision on the terms and conditions of release was issued on July 20, 2016: Re Mahjoub, 2016 FC 808. He correctly submits that, according to section 82(4) of the IRPA, he has a right to a review of his conditions of release every six (6) months. He submits that this review is a constitutional requirement per section 7 of the Charter Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9at paras 117, 122, 123 [Charkaoui I]. I agree he has the right to this review.
[19] The Applicant submits that section 7 of the Charter and constitutional interpretation of the IRPA, after amendments made under C-3, require that conditions not be imposed and constitutional rights not be infringed without proof of a danger proved on balance of probability. In support of this position, the Applicant cites the Ontario Court of Appeal ruling on preventive measures under the earlier version of section 810 of the Criminal Code in R v Budreo 2000 CANLII 5628 at para 43 (ONCA), aff’g R v Budreo, 1996 CanLII 11800 at para 27 (ON SC), 1996 CarswellOnt 24, [1996] OJ No 3, which was recently followed in Canada v Driver, 2016 MBPC 3 at paras 26, 29. This “balance of probabilities” argument has been advanced many times by the Applicant and consistently rejected as, for example, most recently in the March 31, 2017, Constitutional and Certified Questions Judgment (at paras 43 to 53). I am not persuaded to depart from the jurisprudence on this point at this time.
[20] The Applicant asks the Court to apply his interpretation as outlined above and to repeal all terms and conditions of release, except the usual conditions (as detailed in his Notice of Application), in light of the fact that there is no such proven danger justifying the current conditions. Since the Applicant’s interpretation is incorrect in this regard, in my respectful view, it may not be applied in this case.
[21] I agree with the Applicant’s further submission that errors in previous rulings must not be continued for the sake of consistency (Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4 at para 18), although departures from otherwise binding jurisprudence, especially that of the Supreme Court of Canada, requires the application of the Supreme Court’s guidelines in that regard.
[22] The Applicant concludes by arguing that if the Applicant’s interpretation of subsection 82(5) of the IRPA is not adopted by the Court in this review, the same arguments as those set out in their recent submissions on constitutional questions (decided on March 31, 2017, Constitutional and Certified Questions Judgment) are repeated for purpose of determination and certification. In response at this time, there is no reason shown to depart from those determinations as set out in that Judgment itself.
Evidentiary Issue [23] The Applicant filed a last-minute affidavit of Amelie Charbonneau, which concerned a CBSA sign-in sheet that was apparently erroneously signed in advance. The Applicant, by e-mail, described this error as “another big scandal”. The Respondents objected to its admission. Upon review, while the evidence post-dates May 4, 2017, I am not persuaded it is relevant either to the danger assessment or the Applicant’s conditions of release Therefore, the affidavit is not accepted.
The position of the Ministers [24] The Ministers’ position is that current conditions of release should be maintained with the exception that the Applicant needs to set his computer to save its history. They summarize their case by stating the following; my comments follow each:
▪ The Court has found there to be reasonable grounds to believe the Applicant is inadmissible to Canada on terrorism and security grounds. Court comment: this is not disputed;
▪ The Applicant was a member of the Al Qaeda predecessor, Al Jihad, and its splinter or sub-group, the Vanguards of Conquest. Court comment: this finding was made by the late Justice Blanchard in his Reasonableness Decision, which the Applicant has appealed to the Federal Court of Appeal. Judgment on appeal is now under reserve, until which time the late Justice Blanchard’s decision binds the Applicant;
▪ The Applicant ran one of Osama Bin Laden’s farms in Sudan while Al Qaeda terrorist training took place there. Court comment: this is an important and accurate finding made in the Reasonableness Decision of the late Justice Blanchard;
▪ Although he did not testify at his security certificate hearing, when recently cross-examined at his last conditions review hearing, the Applicant admitted to having met Bin Laden, the person behind the 9-11 terrorist attack on the World Trade Center, on several occasions. Court comment: this statement is correct. I would add that the Applicant testified before me that he was hired directly by Bin Laden to manage the previously mentioned farm in Sudan;
▪ The Applicant also conceded that he had used the alias “Shaker”, despite having disputed this identity at every prior turn. Court comment: this is also correct; in cross-examination before me during the July 2016 review, the Applicant admitted he had used the alias “Shaker”;
▪ Finally, the Applicant was forced to admit to having perjured himself in earlier proceedings before Justice Nadon when he claimed not to have known the notorious terrorist, Essam Marzouk. Court comment: this statement is correct as that finding was made by Justice Nadon.
[25] Thus, the Ministers argue that the Applicant has lied to the Court and to immigration and intelligence officials about his terrorist contacts and has refused to acknowledge or disavow his terrorist engagements. In my respectful view, this is an accurate reflection of the Applicant’s situation.
[26] The Ministers also submit that the conditions that remain are limited and focus on neutralizing the danger that the Applicant will acquire, re-acquire, or communicate with terrorist contacts. They say this is entirely appropriate given the Court’s findings in this case. What would not be appropriate, they argue, is the removal of all conditions as the Applicant proposes. They argue that his evidence on this review and his past conduct does not support such a request and does not support the Court placing greater trust in him. They also argue that targeted conditions allowing for verification of his communications and contacts remains appropriate.
[27] The Ministers criticize the Applicant’s attempt to re-litigate many of the issues he raises as abusive and a waste of judicial resources because they have been raised and decided before. I do not accept this argument. While it is abusive for a litigant to repeatedly raise the same issues, in this case, I excuse the Applicant because he has raised some of these issues to the Federal Court of Appeal for consideration in his appeal of the Reasonableness Decisions (which judgment is now reserved). As I see it, his purpose in raising them here is protective only.
[28] In addition, the Applicant has not provided a valid reason to depart from the Court’s recent conclusions, set out in the Constitutional and Certified Questions Judgment, although I will address material points he raises now that were not previously addressed. These include the following three additional questions the Applicant asks the Court to certify, which I will deal with later in the course of these reasons:
1. Whether conditions of release, such as the ones imposed on Mr. Mahjoub, become abusive and arbitrary in violation of sections 7, 8 and/or 12 of the Charter when the person is not deportable in fact and in law and such deprivation has been ongoing for over 16 years and therefore have become unjustified and/or unhinged from their underlying purpose of removal under IRPA (section 80 of the IRPA)?
2. Whether conditions of release, such as the ones imposed on Mr. Mahjoub become abusive and arbitrary in violation of sections 7, 8 and/or 12 of the Charter in face of a no-threat conclusion from CSIS and in face of a no flight risk admission?
3. Whether the conditions of release, such as the ones imposed on Mr. Mahjoub, become abusive and arbitrary contrary to sections 7, 8 and/or 12 of the Charter in the above-mentioned circumstances in addition to the recognised negative impact on one’s health?
[29] The Applicant also asks for leave to make submissions regarding additional certified questions after the release of this decision. I will deal with this now. While such leave has been granted in the past, and while I granted such leave prior to hearing the motion concerning conditions of release in June 2016, such practice is contrary to the jurisprudence of the Federal Court of Appeal. Justice Pelletier, writing for the Federal Court of Appeal in Varela v Canada (Minister of Citizenship and Immigration), 2009 FCA 145 [Varela], criticized the practice of allowing requests to certify questions after reasons are provided, stating on behalf of a unanimous Court of Appeal:
[29] Additionally, a serious question of general importance arises from the issues in the case and not from the judge’s reasons. The judge, who has heard the case and has had the benefit of the best arguments of counsel on behalf of both parties, should be in a position to identify whether such a question arises on the facts of the case, without circulating draft reasons to counsel. Such a practice lends itself, as it did in this case, to a “laundry list” of questions, which may or may not meet the statutory test. In this case, none of them did.
[emphasis added]
[30] The finding that such serious questions of general importance arise from the issues in the case and not from the judge’s reasons is in my view conclusive on this point. The fact that such a practice lends itself to a “laundry list” of questions was the case in Varela and, it is worth noting, was also the case in the recently decided Constitutional and Certified Questions Judgment issued in respect of this Applicant on March 31, 2017, in which none of the numerous proposed questions had merit. In my view, the practice should not be encouraged and the Applicant’s request in this regard is denied.
V. Summary of disposition [31] In my respectful view, given his past history with violent terrorists, including his direct relationship with Osama Bin Laden and Al Qaeda and other factors referred to above and subsequently in these Reasons, the Applicant continues to be a danger under the IRPA. Therefore, I confirm his release on conditions which shall continue to be as set out in the July 20, 2016 Conditions of Release Order. However, as set out in the Judgment which follows these Reasons, the conditions should be clarified such that, regarding the use of Skype, notice need only be given once in respect of the same person. Additionally, the Applicant is required to set his computer so that it keeps its cache forever; neither manual nor automatic deletions may be made at any time. I also wish to clarify, by way of a condition of release, that while the Applicant may obtain and use a cell phone, he may not use a mobile phone to access the internet.
[32] As noted previously, it is very important that the Applicant not delete Internet tracking information from his computer. I also wish to reiterate that the Ministers are at liberty to apply to vary these conditions of release and perhaps others as required if there is evidence of non-compliance in this regard.
[33] At the last condition of release review, as set out in the July 20, 2016 Conditions of Release Order, the Applicant made specific requests to visit both gun stores/shooting clubs and internet cafés. These requests were not specifically reiterated on this review. However, the sweeping change requested would allow the Applicant to do both. In my view, neither change is any more acceptable now than it was in July 2016: the first request, regarding attendance at gun stores and/or shooting clubs, because of the combination of the Applicant’s danger and his army background, which included training in automatic weapons; and the second, regarding attendance at internet cafés, because such visits would allow open passage to circumvent the Court’s long-standing restrictions on unsupervised internet access be it by computer or mobile phone.
[34] In my respectful view, these conditions are necessary under paragraph 85(2)(b) of the IRPA to neutralize the danger the Applicant continues to present. In my view, they are proportionate and reasonable in the circumstances. They take into account that his circumstances have not evolved materially since July 20, 2016. I wish to emphasize that they also take into account that CSIS no longer considers the Applicant a threat to national security, as well as the fact that CSIS has advised domestic and international agencies of this and requested they take appropriate action.
[35] In coming to these conclusions, and at the Applicant’s request, I confirm that I have not reviewed either the redacted or unredacted updated CBSA Risk Assessment, which neither party relied on in any event.
VI. Framework for analysis Relevant Provisions [36] Subsection 82(5) of the IRPA states:
Immigration and Refugee Protection Act, SC 2001, c 27
Loi sur l’immigration et la protection des réfugiés, LC 2001, ch 27
82(5) On review, the judge :
82(5) Lors du contrôle, le juge :
(a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or
a) ordonne le maintien en détention s’il est convaincu que la mise en liberté sous condition de la personne constituera un danger pour la sécurité nationale ou la sécurité d’autrui ou qu’elle se soustraira vraisemblablement à la procédure ou au renvoi si elle est mise en liberté sous condition;
(b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate.
b) dans les autres cas, ordonne ou confirme sa mise en liberté et assortit celle-ci des conditions qu’il estime indiquées.
What is danger and how is it defined? [37] As seen from paragraph 82(5)(a), a key issue on the matter of conditions of release is whether the Applicant is a danger. The Applicant repeated his argument that, because CSIS no longer considers him a threat to the security of Canada pursuant to the CSIS Act, this Court must, as a matter of law, conclude that the Applicant is not a danger pursuant to the IRPA. I remain unpersuaded because, in my view, the objects and purposes of the two statutes (CSIS Act and IRPA) are very different. Danger in the sense of endangering others is a requirement of the IRPA and specifically of paragraph 85(2)(a) of the IRPA. While a CSIS threat assessment may ground a finding of danger under the IRPA, the absence of a threat assessment under the CSIS Act does not preclude the Court from finding danger under the IRPA.
[38] In other words, danger under IRPA may be found in the absence of a finding that a person is a threat to the security of Canada under the CSIS Act.
[39] I am also not persuaded to reject the definition of danger established by the Supreme Court of Canada in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] SCJ No 3 [Suresh]. There, the Supreme Court of Canada held that, to constitute danger, there must be a serious threat, grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible:
90. […] a person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious”, in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.
[emphasis added]
Type of review to be conducted [40] In Charkaoui I, the Supreme Court of Canada set out the requirement for a robust review of detention, which I consider applicable to a review of conditions of release:
123 In summary, the IRPA, interpreted in conformity with the Charter, permits robust ongoing judicial review of the continued need for and justice of the detainee’s detention pending deportation. On this basis, I conclude that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate s. 7 or s. 12 of the Charter, provided that reviewing courts adhere to the guidelines set out above. Thus, the IRPA procedure itself is not unconstitutional on this ground. However, this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter.
[emphasis added]
[41] I agree with Justice Noël, who stated in his Conditions of Release Decision) that robust reviews are required with a complete understanding of the state of the file including past reasons of this Court:
[21] … 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.
Re Mahjoub, 2015 FC 1232
Factors to be considered [42] Factors that have been applied on previous condition of release reviews will be applied in the present review. These were summarized by Justice Noël in Mahjoub (Re), 2014 FC 720. The Court followed this format in its July 20, 2016 Condition of Release Order. I follow these points, despite the Applicant’s objections, because they derive from Harkat v Canada (Minister of Citizenship and Immigration), 2013 FC 795 at para 26, [2013] FCJ No 860, and flow from the non-exhaustive summary set out by the Supreme Court of Canada in Charkaoui I:
1. Past decisions relating to the danger and the history of the proceedings pertaining to reviews of detention, release from detention with conditions and the decisions made;
2. The Court’s assessment of the danger to the security of Canada or to other persons associated with the Applicant in light of all the evidence presented;
3. The decision, if any, on the reasonableness of the certificate;
4. The elements of trust and credibility related to the behaviour of the Applicant after having been released with conditions and his compliance with them;
5. The uncertain future as to the finality of the procedures;
6. The passage of time (in itself, not a deciding factor – see Harkat v Canada (Minister of Citizenship and Immigration), 2007 FC 416 at para 9, [2007] FCJ No 540);
7. The impact of the conditions of release on the Applicant and his family and the proportionality between the danger posed by the Applicant and the conditions of release.
[43] I now turn to reviewing this application in terms of these factors.
1. Past decisions relating to danger and the history of the proceedings pertaining to reviews of detention and release from detention with conditions and the decisions made [44] My starting point in this respect is the summary of the history of proceedings set out by Justice Noël in Mahjoub (Re), 2015 FC 1232:
[5] Mr. Mahjoub, an Egyptian national, was born in April 1960. He came to Toronto, Canada, in the last days of December 1995. He travelled on a false Saudi Arabian passport and claimed refugee status, which the Immigration and Refugee Board granted on October 24, 1996. He became a subject of interest to the Canadian Security Intelligence Service [“CSIS”] sometime in 1996. As a result of this investigation, he became the named person in a certificate issued by the Ministers in June 2000 and was arrested on June 26, 2000.
[6] Justice Nadon of the Federal Court of Canada (as he was then) determined that certificate to be reasonable 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