Canada (Minister of Citizenship and Immigration) v. Mahjoub

Canada (Minister of Citizenship and Immigration) v. Mahjoub
Court (s) Database
Federal Court Decisions
Date
2005-11-25
Neutral citation
2005 FC 1596
File numbers
DES-1-00
Decision Content
Date: 20051125
Docket: DES-1-00
Citation: 2005 FC 1596
Ottawa, Ontario, Friday the 25th day of November 2005
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Applicants
- and -
MOHAMED ZEKI MAHJOUB
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] These are the final reasons of the Court with respect to Mr. Mahjoub's application, pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act"), that he be released from detention. In these reasons I find that:
(i) Mr. Mahjoub has satisfied me that he will not be removed from Canada within a reasonable period of time;
(ii) Mr. Mahjoub has not satisfied me that his release would not pose a danger to national security or to the safety of any person;
(iii) The imposition of conditions and the existence of sureties is not sufficient to neutralize the danger that I believe Mr. Mahjoub's release would pose.
[2] In the result, the application for release is dismissed.
TABLE OF CONTENTS
HISTORY OF PROCEEDINGS [3]
ISSUES [4]
THE ORAL EVIDENCE [9]
THE PSYCHOLOGIST'S REPORT [10]
HAS MR. MAHJOUB MET THE ONUS OF PROOF UPON HIM TO SATISFY THE COURT THAT HE WILL NOT BE REMOVED FROM CANADA WITHIN A REASONABLE PERIOD OF TIME?
(i) Relevant principles [12]
(ii) Length of detention [14]
(iii) Delay and causes of delay [15]
(iv) Forward-looking [25]
(v) Can time spent pursuing the legal remedies be considered in determining what is a "reasonable time"? [31]
(vi) Conditions of detention [33]
(vii) Conclusion with respect to reasonable time [40]
HAS MR. MAHJOUB MET THE ONUS UPON HIM TO SATISFY THE COURT THAT HIS RELEASE WILL NOT POSE A DANGER TO NATIONAL SECURITY OR TO THE SAFETY OF ANY PERSON?
(i) Applicable Legal Principles [43]
(ii) Application of the Legal Principles to the Evidence [49]
(iii) Mr. Mahjoub's Evidence with respect to the Danger, if any, posed by his Release [50]
(iv) The Manner in which the Evidence Adduced on the Ministers' Behalf ex Parte and in Camera was assessed [54]
(v) The Ministers' Responding Evidence [58]
(vi) Analysis of the Danger, if any, Mr. Mahjoub's Release Would Pose [60]
(a) Mr. Mahjoub's past support for Islamic extremism [61]
(b) Mr. Mahjoub's non-eschewal of the Islamic extremist cause [75]
(c) Mr. Mahjoub's potential to re-associate with Islamic extremists [78]
(d) Mr. Mahjoub's prior untruthful statements to the Court [83]
(e) Conclusions to be drawn from the above with respect to danger [86]
(vii) Can such Danger be Neutralized or Contained by the use of Sureties and the Imposition of Conditions [94]
ORDER [105]
APPENDIX A - Chronology of Events Pages 95 to 105
APPENDIX B - DIRECTION Pages 106 to 109
NAMES OF COUNSEL AND SOLICITORS OF RECORD Last page
HISTORY OF PROCEEDINGS
[3] The proceedings have been protracted. A detailed chronology of events is appended to these reasons as Appendix A. To summarize, the following are the most significant events:
June 26, 2000 Mr. Mahjoub is detained on the basis of a security certificate signed by the Minister of Citizenship and Immigration ("Minister") and the Solicitor General of Canada (together the "Ministers").
October 5, 2001 The certificate is found to be reasonable by Justice Nadon of this Court.
March 25, 2002 Mr. Mahjoub is found to be inadmissible to Canada and a deportation order is issued.
October 18, 2002 Mr. Mahjoub moves for release from detention.
October 31, 2002 The application for release is scheduled to be heard on January 28 and 29, 2003.
December 16, 2002 A summary of confidential information is provided to Mr. Mahjoub.
January 24, 2003 The hearing is adjourned at Mr. Mahjoub's request and subsequently set for March 29, 2003.
March 28, 2003 Mr. Mahjoub is served with the documents that are to be placed before the Minister for the purpose of making a decision, pursuant to paragraph 115(2)(b) of the Act, as to whether Mr. Mahjoub should be removed to Egypt. Mr. Mahjoub's responding submissions are to be provided before May 23, 2003.
March 28, 2003 The application for release is adjourned and subsequently set for May 10, 2003.
May 10, 2003 Evidence is led and the application for release is heard. The parties agree to bifurcate the proceedings so that if Mr. Mahjoub's application is not successful on the merits, the matter will resume for argument on the constitutionality of his detention.
July 30, 2003 The Court determines that Mr. Mahjoub has not met the onus of showing that he will not be removed from Canada within a reasonable time and that his release from detention will not pose a danger to national security or to the safety of any person. Counsel are directed to correspond with the Registry of the Court with respect to scheduling the resumption of the hearing for the purpose of considering the constitutional issues.
November 20, 2003 After counsel fail to contact the Registry, and after the Court issues three directions and holds a case management conference, the hearing is ordered to be resumed on January 10 and 11, 2004.
January 9, 2004 Mr. Mahjoub's motion to adjourn the scheduled hearing is allowed. The motion is brought on the ground that Mr. Mahjoub had retained new counsel "but they are unable to proceed with the application for release as currently scheduled given the state of application".
March 8, 2004 Mr. Mahjoub's further motion for leave to raise new issues and to adduce additional evidence is allowed.
May 31-June 4, 2004 Mr. Mahjoub's application for release is heard by the Court.
July 22, 2004 The Minister determines that Mr. Mahjoub should be removed from Canada and be returned to Egypt.
September 7-8, 2004 Further evidence is heard with respect to Mr. Mahjoub's application for release.
September 8, 2004 The Court stays Mr. Mahjoub's removal to Egypt, pending determination of the application for judicial review of the Minister's decision to remove him.
October 21, 2004 Mr. Mahjoub's written submissions are filed with respect to his application for release.
November 23, 2004 The Ministers' written submissions are filed.
December 3, 2004 Mr. Mahjoub advises that he will not be filing reply submissions.
December 13, 2004 As a result of the issuance of the reasons of the Court of Appeal in Charkaoui (Re), 2004 FCA 421, the Court inquires if counsel wish to make further submissions.
December 17, 2004 The Court hears the application for judicial review of the Minister's decision to remove Mr. Mahjoub to Egypt. At this hearing filing deadlines are agreed between counsel for the filing of additional submissions with respect to new jurisprudence, including Charkaoui (Re), supra. Such submissions are to be considered in both the judicial review application and the application for release from detention.
January 31, 2005 The application for judicial review is allowed, and the Minister's decision to remove Mr. Mahjoub to Egypt is set aside.
January 31, 2005 The Court issues a direction which expresses concern that when its reasons of July 30, 2003 were issued, the Court did not contemplate that as of January 31, 2005 it would still be awaiting final written argument with respect to the constitutionality of Mr. Mahjoub's detention, and notes that a number of circumstances have arisen or changed since July 30, 2003. Submissions were sought from counsel as to whether the detention review should be reopened by filing new evidence and argument. The full text of the Court's direction is set out at Appendix B to these reasons.
February 4, 2005 Counsel advise that they wish to adduce further evidence relevant to the criteria set out in subsection 84(2) of the Act. The Court will sit on February 11, 2005.
February 8, 2005 The Court directs that on February 11, 2005 it will hear submissions from counsel as to which constitutional issues remain live as a result of the decision of the Federal Court of Appeal in Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, released on that day.
February 11, 2005 At the commencement of the hearing, counsel for Mr. Mahjoub concedes that as a result of the binding authority of the Federal Court of Appeal's decision in Almrei, supra, no constitutional issues remain live. Mr. Mahjoub does not abandon the constitutional arguments, but does not intend to argue them again and expects the Court to dismiss the constitutional issues in accordance with the decision of the Federal Court of Appeal. Counsel for the Ministers adopt the submission that all of the constitutional issues have been decided in Almrei, against Mr. Mahjoub, and states that it is not necessary for the Court to hear submissions. The Court sits to hear new evidence relevant to the statutory criteria for release.
March 14-15, 2005 Further evidence is adduced with respect to Mr. Mahjoub's application for release.
March 18, 2005 The Court hears further evidence ex parte and in camera. This hearing is adjourned so that further information may be obtained in response to the Court's questions.
March 22, 2005 Oral submissions are made by counsel for the parties, subject to the right to address further submissions following the further in camera session.
May 2-3, 2005 Further evidence is received in camera and ex parte.
May 12, June 21,
and June 29, 2005 Public summaries are released summarizing information received ex parte and in camera.
June 17, 2005 Counsel for Mr. Mahjoub advises that a psychologist has been found who is willing to assess Mr. Mahjoub and a written report is to be filed with the Court.
July 6, 2005 The psychological assessment is received by the Court.
July 15, 2005 Counsel for the Ministers advise they will not be filing any responsive evidence, but ask for the opportunity to address final oral submissions to the Court.
August 3, 2005 Final oral submissions are made to the Court. Mr. Mahjoub is given one week to submit a clarification of the psychologist's report.
August 9, 2005 Clarification of the report is filed by Mr. Mahjoub's counsel.
August 22, 2005 The most recent public summary is amended by the Court to provide further disclosure.
ISSUES
[4] As can be seen from the chronology, Mr. Mahjoub raised a number of issues with respect to the constitutionality of his detention. Counsel agreed, however, that all of the constitutional issues raised by Mr. Mahjoub were decided against him by the Federal Court of Appeal in Almrei, supra. Both counsel for Mr. Mahjoub, Ms. Jackman and Mr. Norris, and counsel for the Minister, Mr. MacIntosh, were before the Court of Appeal in Almrei, and I agree that no purpose would be served by requiring them to reargue what they advise are the same issues. For the purpose of preserving Mr. Mahjoub's rights of appeal, the issues decided by the Federal Court of Appeal are deemed to be decided by me for the reasons given by the Federal Court of Appeal.
[5] Turning then to subsection 84(2) of the Act, as noted in the above chronology, in July of 2003 the Court determined that Mr. Mahjoub had not met the onus upon him to show that he would not be removed from Canada within a reasonable period of time and that his release would not pose a danger to national security, or to the safety of any person. Notwithstanding, in Almrei, supra, at paragraph 36 the Court of Appeal endorsed an expansive interpretation of subsection 84(2) which could encompass successive applications for release. In the present case, all counsel agreed in January of 2005 that because of the effluxion of time it was appropriate to reopen the hearing and hear new evidence and submissions with respect to the statutory criteria. I am satisfied this was an appropriate exercise of discretion consistent with Parliament's objective of appropriate judicial examination of detention.
[6] Subsection 84(2) of the Act is as follows:
84(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
84(2) Sur demande de l'étranger dont la mesure de renvoi n'a pas été exécutée dans les cent vingt jours suivant la décision sur le certificat, le juge peut, aux conditions qu'il estime indiquées, le mettre en liberté sur preuve que la mesure ne sera pas exécutée dans un délai raisonnable et que la mise en liberté ne constituera pas un danger pour la sécurité nationale ou la sécurité d'autrui.
[7] There is no dispute that at least 120 days have elapsed since the security certificate was found to be reasonable and that Mr. Mahjoub has not been removed from Canada.
[8] The issues remaining to be decided by the Court are, therefore:
1. Has Mr. Mahjoub met the onus of proof upon him to satisfy the Court that he will not be removed from Canada within a reasonable time?
2. Has Mr. Mahjoub met the onus of proof upon him to satisfy the Court that his release will not pose a danger to national security or to the safety of any person?
THE ORAL EVIDENCE
[9] In my reasons of July 30, 2003, I summarized the public evidence then before the Court. What follows is a summary of the public evidence given subsequently as a result of Mr. Mahjoub's counsel's successful motion to reopen the evidence, and the Court's step in January of 2005 to again reopen the evidence. This summary is organized by reference to the date the testimony was given.
May 31, 2004
Peter Dietrich (Acting Director - Enforcement Programs, Canadian Border Services Agency ("CBSA"))
· When people are detained under the Act, they are put in one of two places. People who do not pose a risk are maintained in an immigration detention centre. People who are considered to pose a risk are detained in provincial facilities.
· Without being able to give a definite answer, by and large, people who are detained and then removed from Canada, are detained for less than four years.
· The federal government does not have a secure detention facility for federal immigration detainees; the only facilities available are the provincial facilities. There is an unwritten agreement with the provinces to accept these detainees into their facilities. The care and welfare of those detainees is the responsibility of the province.
· When asked whether CBSA addresses cases differently when a person has been detained on a federal detention order for a lengthy period of time, Mr. Dietrich responded that this is a provincial responsibility.
· In contested security certificate cases, there will generally be longer detentions. These detainees are left with the provinces. No other arrangements are in place.
· No arrangement exists to detain immigration detainees in federal facilities and he does not know whether such an arrangement could be made.
· Citizenship and Immigration Canada ("CIC") would likely be notified by the province if there was a major life-threatening crisis involving one of the immigration detainees, but lesser issues might not trigger any kind of notification.
· Mr. Mahjoub is detained at the Toronto West Detention Centre ("TWDC"). Mr. Mahjoub's file indicates that federal authorities were never notified that he was suicidal, on a special diet, or that he had made complaints about the conditions under which he was held.
Mrs. Mona El Fouli (Mr. Mahjoub's wife who previously testified.)
· When she and the children visit Mr. Mahjoub, the only contact is behind glass and through the telephone.
· When Mr. Mahjoub was in segregation, it was difficult for Mrs. El Fouli and her children to have access to him. She would schedule appointments to see her husband and then would be refused without being given an explanation.
· Mr. Mahjoub was placed in the general population, or "regular range", until September 11, 2001, at which time he was put in segregation. Mrs. El Fouli did not experience any problems visiting her husband during regular visiting hours while he was on the regular range.
· Mr. Mahjoub's children feel very sad and disappointed when they are not allowed to visit him. The six-year old, Ibrahim, is having separation anxiety and other emotional problems.
· Ibrahim is being counselled by Mrs. El Fouli, but is not seeing a specialist or taking any medication for his emotional problems.
Frank Geswaldo (Security Manager, TWDC)
· Until recently, there was a serious overcrowding problem at the TWDC.
· For inmates in the general population there are volunteer programs, including the "Quaker program" and different religious programs. Also, if the institution is running smoothly, offenders are allowed outside to walk or jog for 20 to 30 minutes per day.
· Generally no provision is made for contact visits between members of an inmate's family and the inmate. Contact is prevented by a plexiglass barrier. Contact visits may be applied for, but are not commonly granted.
· Staff members can not deny visits. A manager can deny visits, provided an explanation is given.
· When determining where inmates should be placed at the TWDC, various factors are considered, including whether the person is a high-profile offender, whether an incompatible inmate is on the same range, and the safety and security risks involved.
· The percentage of individuals detained at the TWDC for immigration purposes is approximately 15-20%. Generally, these individuals are treated like the other inmates. An immigration unit is kept generally for individuals on immigration holds.
· Looking at Mr. Mahjoub's status, it is not appropriate for him to be held in the immigration unit.
· If there were to be concerns regarding an inmate's security that could not be met by the TWDC, there is the option of moving the individual to another institution.
· "Segregation" is where offenders are housed when they are required to be placed on administrative hold - e.g. for misconduct, individuals having difficulty in protected custody and general population units, and very high-profile offenders. Generally it is the unit of last resort, if the inmate can not cope anywhere else.
· Inmates in segregation are permitted to have books, writing paper, a pillow, blankets, sheets and a mattress. They eat their meals in their cells and are allowed out of their cells for one half hour per day for exercise in the yard.
Mary Dwyer (Healthcare Co-ordinator, TWDC)
· Other than some lower back pain, Mr. Mahjoub was in relatively good health upon admission to the TWDC. He saw dermatologists regarding some warts, but otherwise there were no major problems recorded in the files for 2001.
· In January 2002, after he had difficulty sleeping he was seen by a psychiatrist, who diagnosed Mr. Mahjoub as having an adjustment disorder. In February, Mr. Mahjoub went on a hunger strike for a short period and lost two pounds. He complained of dizziness and kidney problems. An ultrasound indicated that the only visible abnormality was a dense liver.
· In 2003, blood work was done with no negative results. An EKG of Mr. Mahjoub's heart came back as "normal".
· On May 13, 2003, Mr. Mahjoub fell off a top bunk and x-rays and further diagnostic testing was conducted. No appointment with a specialist was ordered until July, and the resulting MRI was not conducted until October.
· On January 6, 2004, Mr. Mahjoub was diagnosed with Hepatitis C. Mr. Mahjoub does not appear to be requiring any treatment for this. Some people can "live fine with it", some people experience complications, and in advanced cases, some people may die. Ms. Dwyer has not personally examined Mr. Mahjoub herself.
· There is no way of knowing the onset date of the Hepatitis C.
· It is not unusual for a member of the general public to have to wait 6 to 12 months to get an MRI.
June 1, 2004
Frank Geswaldo (continued)
· Remand facilities generally play two primary roles: keeping offenders available for court, and protecting society from them. They hold persons on remand (awaiting trial, sentencing or other proceedings); offenders sentenced to short terms (approximately 60 days or less); and offenders awaiting transfer to a correctional facility.
· Mr. Geswaldo is not aware of any offender sentenced to detention for two years or more who serves that sentence in any type of provincial facility.
· With respect to programming available for inmates at the TWDC, there is the exercise yard, the chapel program and the volunteer program. Respectively, they involve: trying to escort inmates to the yard on a daily basis; a Muslim cleric who visits inmates from time to time; and programs put on by groups such as AA, the Quakers and likely a few more that involve one-on-one counselling. The library is not currently functioning due to a lack of volunteers.
· There are no formal education or counselling programs.
· On average, an inmate stays at the TWDC for 90 to 120 days. It is rare for an individual to stay at the TWDC for four years. The longest stay in memory is 8 years (an individual named Yousef who was being extradited to the United States).
· There is an internal mechanism for inmates to file complaints about treatment at the hands of staff, detention conditions, or other grievances. An offender's complaint is looked after by the correctional staff member assigned to that unit. If the officer feels the problem is severe, it is reported to the Operational Manager, who then interviews the offender. The complaint may go up to the next level of Deputy Superintendent. The information provided by the inmate is shared with the Administration and then different people are delegated to respond to the complaint, depending on what it is about. If the inmate is not happy with the internal procedure, he or she can contact their lawyer, the Ombudsman's office, or outside agencies.
· Mr. Geswaldo is not aware of any process for CIC to become involved in dealing with complaints about conditions or treatment.
· Extended stays in segregation can have a detrimental psychological effect on the inmate. According to TWDC policy, an individual's stay in segregation must be reviewed every 29 days. A new policy may shorten this to every 5_days. The reason for review is to ensure that the administration knows who is in segregation, that offenders are not left in segregation, and that paperwork which may be requested by outside agencies is in order.
· There is no process for regular or consistent monitoring of inmates in segregation by a psychologist or psychiatrist, aside from request-driven contact.
· Mr. Mahjoub's status at the TWDC is listed as high-profile, because an outside agency escorts him when he goes outside of the facility, so his case is dealt with differently.
· Individuals are strip-searched every time they pass through the Admitting and Discharge Department. The guideline is that the inmate is to be afforded the maximum amount of privacy that is reasonable in the circumstances. Inmates may also be searched if they are believed to be carrying contraband in the segregation units. The decision to search is usually made by front-line staff, but the manager will get involved if there is a problem, for instance, if an inmate refuses to be searched.
· Mr. Geswaldo is not aware of any religious concerns arising from such searches; none have been drawn to his attention. He does recall one incident in which Mr. Mahjoub was upset about how a strip-search was conducted. Mr. Geswaldo reviewed the incident, understood Mr. Mahjoub's position and responded by telling the staff member that there was "no need to go overboard" with the search.
· There was no indication of problems with Mr. Mahjoub while he was detained in the TWDC general population, in the early months after his arrival at the institution. Mr. Geswaldo was not informed of the reasons to transfer Mr. Mahjoub to segregation after September 11, 2001, but understands that individuals "like him" were placed in segregation at that time. (Mr. Mahjoub then remained in segregation until July 15, 2002.)
· Mr. Mahjoub had expressed complaints about how visits with his family were handled. Mr. Geswaldo is not aware of any complaints by Mr. Mahjoub involving physical or sexual assault, verbal abuse or threats against him. Mr. Geswaldo was contacted by the Ombudsman regarding the investigation of a complaint by Mr. Mahjoub about his medical needs.
· In March of 2004, Mr. Mahjoub was involved in an altercation with other offenders; they were all placed on misconduct and escorted to segregation. It was Mr. Geswaldo's understanding that Mr. Mahjoub was defending himself during this altercation. Mr. Mahjoub has remained in segregation since March of 2004. He can choose to leave segregation to go back into general population, but he has expressed concerns about being harmed again if returned there. Mr. Geswaldo has not been able to persuade Mr. Mahjoub to leave segregation.
· Neither CIC nor any of its officials play any role in the day-to-day management of Mr. Mahjoub while he is in the facility.
· After September 11, 2001, there was an influx of immigration detainees and they were housed in segregation. There was no documentation provided by external agencies regarding requests for segregation and security handling, nor any documentation made available to determine whether it was appropriate to continue segregating these detainees or not. No explanation was provided as to why Mr. Mahjoub was selected as one of the individuals to be segregated.
· Conditions at the TWDC are better today with respect to overcrowding than they were when Mr. Geswaldo testified in Mr. Almrei's case in June of 2003.
· Mr. Mahjoub still wants to remain in segregation. Mr. Geswaldo does not believe that there is any reason why Mr. Mahjoub would have to remain in segregation. He believes the earlier incident was an isolated incident.
· Mr. Mahjoub has never mentioned anything about being assaulted by correctional officers. There are protocols for when such an assault takes place, which require written reports to be filed and forwarded to supervisors, including Mr. Geswaldo. Also, the police would be called in to investigate. Nobody has come to investigate any alleged assaults pertaining to Mr. Mahjoub.
· Nobody from CIC has ever told anybody at the TWDC that Mr. Mahjoub should be kept in segregation.
· Every remand inmate, whether criminal or immigration, is automatically deemed to be a maximum security inmate, regardless of their individual circumstances.
Dr. Aly Hindy (The Imam of the Salahaddin Mosque who previously testified)
· Muslims have particular dietary concerns regarding meat. If they are not given Halal meat, they will not eat it.
· Muslims are supposed to pray five times per day; the individual must be in a state of cleanliness, the clothes must be clean, and the area you pray in must be clean. You can not pray in the washroom; that is where the devil is.
· Muslim men are not allowed to reveal their bodies between their navels and their knees; strip-searches would be very humiliating.
June 2, 2004
Mr. Mahjoub (previously testified)
· Before being put in segregation, Mr. Mahjoub was able to pray, with cooperation from other inmates. In mid-2003, Halal food became available in the jail. He has been able to observe the fast for Ramadan while at the TWDC.
· Mr. Mahjoub encountered some difficulties during the most recent month of Ramadan, but he wanted to thank the jail authorities because they did their best to accommodate the needs of Muslim inmates. Mr. Mahjoub suggested that Muslim staff handle these services, because they would better understand what to do.
· Mr. Mahjoub has been strip-searched throughout his time at the TWDC. He considers these searches to be an attack on his manhood. He has been strip-searched in front of female officers.
· Mr. Mahjoub has seen a psychiatrist in the jail three times upon his request.
· Mr. Mahjoub has a copy of the Koran and a prayer mat in his segregation cell.
· The toilet in his cell is in the direction Mr. Mahjoub must pray.
September 7, 2004
Mr. Mahjoub
· On March 7, 2001, Mr. Mahjoub was verbally abused during a strip-search. The guard used vulgar, racist language and told Mr. Mahjoub that he and all Muslims should be killed. Mr. Mahjoub complained to the superintendent and the provincial Ombudsman, and was referred to other agencies.
· On September 15, 2001, Mr. Mahjoub was moved to segregation, to a very cold cell with no window, inadequate light, a malfunctioning toilet and inadequate facilities to wash.
· During another incident, before morning, a guard was banging on Mr. Mahjoub's cell door, yelling profanities and threatening Mr. Mahjoub and his family. Mr. Mahjoub made a complaint, but got no response.
· After a brief time on the regular range, Mr. Mahjoub was returned to segregation on January 15, 2002. Mr. Mahjoub says the cells in segregation are used for different purposes - some for regular discipline, others for something more akin to torture. The latter cells, including the one Mr. Mahjoub was placed in, have no heat and no blanket. When an inmate makes trouble, he is usually moved to one of these cells.
· On January 25, 2002, an incident occurred during a strip-search about which Mr. Mahjoub did not want to testify in public. The incident involved an attempted sexual assault. Mr. Mahjoub made a complaint but, as far as he knows, it has not been acted upon. However, he no longer saw the guard involved at the TWDC.
· Mr. Mahjoub remained in segregation until July 15, 2002, during which time he continued to experience harassment from guards and officers.
· December 14, 2003, Mr. Mahjoub became ill. He was too weak to stand so he was dragged by two guards to a segregation cell and left there for 45 minutes before the nurses returned to take his blood pressure. The doctor visited Mr. Mahjoub in the morning, told him his condition was fine, and did a blood test. Mr. Mahjoub tested positive for Hepatitis C.
· Mr. Mahjoub was returned to segregation in March of 2004. He was involved in an incident with other inmates regarding a TV remote control. The next morning, two of the inmates were moved and the other inmates believed Mr. Mahjoub had "ratted" them out to guards during the night. A fight ensued and an officer took Mr. Mahjoub to segregation.
· Mr. Mahjoub remains in segregation. He does not want to leave segregation because being labelled as a "rat" is a serious threat to him in general population.
· During a provincial strike, Mr. Mahjoub was unable to have visits with his family for 33 days, even though other individuals (including Mr. Jaballah) were able to visit with their families.
· Since his last appearance in Court, Mr. Mahjoub has continued to have difficulty with family visits. He has complained three times with very little success. He has had difficulties obtaining food in accordance with the Muslim diet; he has been denied food, and denied yard visits.
· Currently, Mr. Mahjoub's cell is a comfortable temperature. He has a towel, shoes, toothbrush, toothpaste and sheets.
· Between July and August of 2004, Mr. Mahjoub was on a hunger strike. During this time, he was given juice, water and Ensure drinks. A health nurse followed up on a daily basis and a doctor did so two or three times a week. He also saw psychiatrists during the hunger strike.
· During his time in detention, Mr. Mahjoub has seen a psychiatrist, an orthopaedic surgeon, a podiatrist, a physiotherapist, two doctors in general practice, nurses, and a specialist for Hepatitis C. Each time he had a medical problem, he sought help from the health unit.
· Mr. Mahjoub denies ever being abusive to health care staff, even though such behaviour is listed in his medical file.
· Mr. Mahjoub is permitted to pray in prison, and has access to a Muslim cleric.
September 8, 2004
Deirdre Gilker (Operations Manager, CIC, responsible for removals)
· CIC is prepared to remove Mr. Mahjoub from Canada. Ms. Gilker is in possession of a valid travel document to remove him to Egypt, and claims that his removal is imminent.
February 11, 2005
Diana Ralph (Social Worker)
· Ms. Ralph is a psychiatric social worker and family social worker. As such, she is involved in assessing emotional states and making recommendations about social conditions. She is familiar with the diagnostic criteria for mental disorders (DSM-IV).
· She has no training in psychological testing.
· She is also involved in the Almrei case. Specifically, she offered bail surety. She visits and speaks to Mr. Almrei quite regularly and offered her basement as a place where Mr. Almrei could stay if released on conditions.
· Ms. Ralph does not believe that her personal opinions about the security certificate process have influenced her assessment of Mr. Mahjoub. She has demonstrated against the security certificate process in front of the Canadian Security Intelligence Service ("CSIS") in Toronto, and has been arrested for trespassing. She is part of a group called the "Campaign to Stop Secret Trials in Canada".
· She is not a registered psychologist and can not do the psychological testing needed to tell whether someone is actually suffering from a mental condition. She suggested that an independent psychologist be engaged to perform an assessment.
· She prepared a report concerning Mr. Mahjoub, after speaking to Mrs._ El Fouli, and Ms. Dwyer, the nurse, who both expressed concerns about him.
· In her report she concluded that Mr. Mahjoub did not appear to show the symptoms of clinical depression. Mr. Mahjoub seemed to her to be alert, cheerful, happy to see people and dynamic. He spoke of himself as strong, powerful and in possession of his dignity. However, in a second meeting, held approximately an hour after the first meeting, Mr. Mahjoub returned upset because his cell had been searched. He claimed that "they are trying to kill me", mentioned that "they tried to give me a glass of juice in an open container", and spoke about how the guards lie and "they have a green light to kill me".
· Ms. Ralph tried to convince Mr. Mahjoub to leave segregation, but he saw conspiracies and malicious intent in everything proposed.
· Ms. Ralph's report also concluded that Mr. Mahjoub is showing symptoms of paranoia. People who are paranoid feel like they are being targeted, and interpret innocent comments as dangerous or malicious. Mr. Mahjoub had been "compulsively working on a kind of obsessive diatribe about every slight that has happened to him and won't turn it over to Security to let them deal with it. He keeps saying 'I'm writing it down'".
· Ms. Dwyer expressed concerns to Ms. Ralph that Mr. Mahjoub was "losing it", and decompensating.
· Ms. Ralph concluded that Mr. Mahjoub's problems might be attributable to post-traumatic stress disorder from the torture he claims to have suffered in Egypt.
· Ms. Ralph discussed with staff some steps that could be taken to reduce the risk of triggering Mr. Mahjoub's symptoms. These included allowing him more contact with other people, especially those he could touch, those who speak his language, and his family. Ms. Ralph also recommended more protection of Mr. Mahjoub during his interactions with guards.
· Mr. Mahjoub was asked if he wanted to move to the protective custody range instead. He refused, on the basis that perverts and child molesters go there and he does not want to be labelled as one.
· Ms. Ralph says her assessment of Mr. Mahjoub was informal, since she could not evaluate him properly under the circumstances.
· She has been advocating with representatives of the detention centre for changes of conditions in respect of Mr. Mahjoub and Mr. Almrei, and has become an advocate for the cause of these two men.
· Her report includes several unattributed statements, some of which appear to have been given the status of facts, such as the incident involving attempted sexual assault. Ms. Ralph said she believed this was a fact because she had seen it reported in the newspaper. She also believed Mrs. El Fouli's account of Mr. Mahjoub being tortured in Egypt, although she had no other evidence of it.
Louis Dumas (Director of Security Review, CBSA)
· The CBSA has accepted the Court's decision of January 31, 2005, and has amended procedures regarding the submission of information to the person at CIC charged with the responsibility of exercising the Minister's discretion under subsection 115(2) of the Act.
· CBSA has received up-to-date information from CSIS relevant to the risk Mr. Mahjoub is said to pose and a commitment that all required materials will be put before the decision-maker in Mr. Mahjoub's case. A memorandum is being prepared, to be submitted to Mr. Mahjoub's counsel by the end of February, and then counsel will have 15 days to respond. A request for an extension of time would be allowed to the end of March. Once all submissions are given to the decision-maker, CIC will require approximately three months to make a decision.
· The best case scenario would be the issuance of a new 115(2)(b) decision by the end of June. However, many aspects of this process are beyond Mr. Dumas' control, including CIC's decision itself.
· At the moment, no arrangements have been made for Mr. Mahjoub's removal following the second delegate's decision. If a decision were made and there were no legal impediments to his removal, then CBSA would be in a position to remove Mr. Mahjoub. Mr. Dumas thinks the removal would occur as quickly as legally possible, but he is not a removal expert. He can not predict how long it would take to get a valid travel document for Mr. Mahjoub.
March 14, 2005
JP (CSIS - Deputy Chief of Counter Terrorism and Counter Proliferation)
· Assistance from foreign government/agencies is important because the definition of "Canadian interests" goes beyond the physical borders of this country.
· The reliability of information obtained from a foreign agency is critically assessed in an ongoing feedback process. This includes such considerations as: How does it fit existing information? Can it be corroborated? Does it logically complement information that is evolving? Is it highly unusual or improbable?
· The human rights records of countries from which this information is received are taken into account and assessed on an annual basis. A country's politics and potential political agenda will also be considered when information is received from that country's agency.
· The advice CSIS gave the Government of Canada was that Mr. Mahjoub poses a danger to the security of Canada, given his record of activities with an Egyptian terrorist organization.
· JP did not assist with drafting the public summary, nor with preparing any of the documents in it.
· JP admitted that changes can occur over time with groups or individuals assessed by CSIS. For example, new groups may arise, or an existing group may be disbanded; a group's membership or allegiance to other groups can change; the preferred methodologies of a given group can change; political circumstances giving rise to security threats can change; and operation of intelligence services can disrupt activities that posed a threat to Canadian security.
· The June 2000 summary contained the CSIS findings on Mr. Mahjoub at that time. They will be subject to review in light of any new information that is relevant, as they were in the December 2002 summary.
· Jane's Information Service is a service CSIS makes use of from time to time and it is generally considered to be quite reliable.
· On January 17, 2005 a Jane's World Insurgency and Terrorism publication dealt with Al-Qaeda. JP has not read this report so can not comment