Canada (Citizenship and Immigration) v. Mahjoub

Canada (Citizenship and Immigration) v. Mahjoub
Court (s) Database
Federal Court Decisions
Date
2009-11-30
Neutral citation
2009 FC 1220
File numbers
DES-7-08
Decision Content
Federal Court
Cour fédérale
Date: 20091130
Docket: DES-7-08
Citation: 2009 FC 1220
Ottawa, Ontario, November 30, 2009
PRESENT: The Honourable Mr. Justice Blanchard
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 AND ORDER
Introduction
[1] Mohamed Zeki Mahjoub has been detained since March 18, 2009 pursuant to a security certificate issued on February 22, 2008. The reasonableness of the certificate issued by the Minister of Citizenship and Immigration and the Minister of Public Safety (the Ministers) will be examined at a later date. This decision follows a detention review and deals only with the question of whether Mr. Mahjoub can be released from detention and, more specifically, whether the threat Mr. Mahjoub poses to national security or the safety of any person can be neutralized by the imposition of conditions on his release from detention. For the reasons that follow, I have determined that Mr. Mahjoub should be released from detention under strict conditions pending determination of the reasonableness of the security certificate under which he is presently detained, and if the certificate should be found to be reasonable, until a determination is made whether he can be removed from Canada subject to a later six-month review.
Background
[2] Mr. Mahjoub, an Egyptian national, came to Canada in 1995 and was found to be a Convention refugee the following year. He met and married Mona El Fouli, a Canadian citizen; they have two sons, Yusuf now age 11, and Ibrahim, age 7. Ms. El Fouli also has a son, Haney El Fouli, age 26.
[3] The history of the proceedings concerning Mr. Mahjoub has been thoroughly documented in previous decisions of this Court (See: Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2001 FCT 1095; Mahjoub v. Canada (Minister of Citizenship and Immigration) 2007 FC 171; Canada (Minister of Citizenship and Immigration and Minister of Public Safety) v. Mahjoub, 2009 FC 34; Canada (Citizenship and Immigration) v. Mahjoub, 2009 FC 248; Canada (Citizenship and Immigration) v. Mahjoub, 2009 FC 439). Synoptically, Mr. Mahjoub was detained on June 26, 2000, pursuant to a security certificate under the Immigration Act, R.S.C. 1985, c. I-2 (the former Act). According to the summary of the Security Intelligence Report of June 27, 2000, prepared by the Canadian Security Intelligence Service (CSIS), Mr. Mahjoub was a high-ranking member of an Egyptian Islamic terrorist organization, the Vanguards of Conquest (VOC), a radical wing of the Egyptian Islamic Jihad or Al Jihad (AJ). According to the summary, AJ is one of the groups which split from Egypt's Muslim Brotherhood in the 1970's to form a more extremist and militant organization which advocates the use of violence as a means of establishing an Islamic state in Egypt. Mr. Mahjoub is believed to have been a senior member of the governing council of the VOC. In 1999, he was convicted in Egypt in absentia for offences relating to the activities of the VOC, and sentenced to 15 years imprisonment.
[4] In 2001, Mr. Justice Nadon determined that this certificate was reasonable (Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2001 FCT 1095). Justice Nadon was satisfied on the evidence before him that there were reasonable grounds to believe that the AJ and the VOC had engaged in terrorism, and that there were reasonable grounds to believe that Mr. Mahjoub had been a member of both of these organizations.
[5] On February 23, 2007, the Supreme Court of Canada found that the legislative procedure for judicial approval of certificates as then prescribed was inconsistent with the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.) 1982, c.11 (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, (Charkaoui 1)). As a result the certificate issued against Mr. Mahjoub was quashed.
[6] On February 22, 2008, a new security certificate was issued against Mr. Mahjoub pursuant to s. 77 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and s. 7(3) of Bill C-3, an Act to Amend the Immigration & Refugee Protection Act, 2nd Sess., 39th Parl., 2007-2008. The reasonableness of the new certificate has yet to be determined.
[7] Mr. Mahjoub was detained from June 26, 2000 until April 2006 at the Toronto West Detention Centre (TWDC). His detention continued until April 11, 2007 at the Kingston Immigration Holding Center (KIHC), a federal detention facility designed and used exclusively for security certificate detainees. This facility is located on the premises of the Millhaven Institution, a federal penitentiary in Bath, Ontario (Millhaven).
[8] Mr. Mahjoub’s first two applications for release from detention were denied on the grounds that he did not satisfy the Court that his release would not pose a danger to national security or to the safety of any person, nor did he satisfy the Court that the imposition of conditions was sufficient to warrant his release from detention (Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2003 FC 928, (Mahjoub 1); (Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2005 FC 1596 (Mahjoub 2)).
[9] Mr. Mahjoub was released 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(Mahjoub 3)). At that time, Mr. Mahjoub had been in detention for a total of six and a half years. Mr. Mahjoub was released on stringent terms and conditions akin to house arrest on April 11, 2007. His wife, Ms. El Fouli, and his step son, Mr. El Fouli, were designated as sureties and supervisors. In subsequent reviews conducted in June, September and December of 2007, the conditions of release were varied but not materially altered.
[10] Justice Layden-Stevenson conducted a review of Mr. Mahjoub’s conditions of release and on March 9, 2009 ordered certain substantial amendments to the conditions of release (Canada (Citizenship and Immigration) v. Mahjoub, 2009 FC 248, (Mahjoub 4)).
[11] On March 17, 2009, Mr. Mahjoub advised the Court that his supervisors were withdrawing their undertakings. The Court convened an emergency hearing on March 18, 2009 at which time it heard evidence from Ms. El Fouli, Mr. El Fouli and Mr. Mahjoub. Mr. Mahjoub informed the Court that his wife and his stepson had decided that they did not wish to remain supervisors and sureties and that he and his family could no longer live with the stringent conditions of his release. Justice Noël, presiding at this special hearing, ensured that Mr. Mahjoub understood the consequences of these developments and that by no longer meeting the conditions of his release, he would be required to return into the custody of the Canada Border Service Agency (CBSA) (Canada (Citizenship and Immigration) v. Mahjoub, 2009 FC 439). Mr. Mahjoub returned into custody on March 18, 2009, and was placed once again at KIHC. Since that time Mr. Mahjoub has remained in detention and has been the sole detainee at KIHC. On June 1, 2009, Mr. Mahjoub began a hunger strike to protest the conditions of his detention.
History of the Proceedings
[12] The detention review of Mr. Mahjoub, mandated by sub-section 82(2) of the IPRA, commenced on September 10, 2009, only to be adjourned to a case management conference held on September 21, 2009. During this case management conference, counsel for Mr. Mahjoub requested that a psychiatric evaluation of Mr. Mahjoub be completed prior to undertaking the detention review, and advised that they intended to challenge the admissibility of the Risk Assessment of Mr. Mahjoub prepared by the CBSA (the Risk Assessment) as evidence. As a consequence, and on the Ministers’ consent, the Court adjourned the detention review to November 23, 2009.
[13] On October 5, 2009, counsel for Mr. Mahjoub indicated that Mr. Mahjoub’s physical condition was seriously deteriorating by reason of his hunger strike, and requested that a detention review be urgently rescheduled to resume as soon as possible. On October 8, 2009, with the consent of the Ministers, the Court ordered the detention review to resume on October 13, 2009.
[14] In view of the urgency of the matter, and on consent of the parties, the Court ordered that Mr. Mahjoub file a record prior to the commencement of the detention review consisting of: (1) a description of the legal issues to be addressed; (2) an outline of Mr. Mahjoub’s submissions on the issues; and (3) a list of witnesses. Due to the accelerated schedule of the proceedings, it was agreed that the Ministers would not be required to file written submissions, and that Mr. Mahjoub would proceed first at the hearing. By agreement of the parties, the legal issues were narrowed to the examination of two out of the five factors required to be considered in detention reviews which are set out and discussed in Charkaoui 1. These two factors are: length of detention, and availability of alternatives to detention.
[15] On October 6, 2009, Mr. Mahjoub was provided with a redacted version of the Risk Assessment. Justice Layden-Stevenson had urged the CBSA to conduct such a personalized risk assessment of Mr. Mahjoub in the previous review of conditions of release (Mahjoub 4). She stated at paragraph 126 of her reasons:
[A]n individualized risk assessment regarding Mr. Mahjoub should be conducted forthwith. Justice Mosley’s factual findings [in Mahjoub 3], combined with the Charkaoui 1 factors, demand no less.
I note that at the time the Risk Assessment was ordered Mr. Mahjoub was not in detention. Mr. Mahjoub had initially requested that a witness be produced by the Ministers for the purpose of cross-examination on the Risk Assessment during this detention review. The Ministers advised that the author of the Risk Assessment was unavailable at the time he was initially required to attend. Even though the schedule of the hearing was extended beyond the initial period during which the witness was said to be unavailable, the witness was not produced. Instead, the Ministers informed the Court that they would not be relying on the Risk Assessment for the purposes of this detention review.
[16] A new Threat Assessment of Mr. Mahjoub, dated October 7, 2009, was prepared by CSIS (the Threat Assessment). The Public Summary of the Threat Assessment of Mr. Mahjoub, dated October 12, 2009 (the Public Summary of the Threat Assessment) was made available to public counsel. Counsel for Mr. Mahjoub asked that a witness be produced for the purpose of cross-examination on the Public Summary of the Threat Assessment and its preparation. Counsel for the Ministers requested, pursuant to subsection 83(1)(c) of the IRPA, that the CSIS witness be heard in closed session, in the absence of Mr. Mahjoub and his counsel, on the grounds that the disclosure of information to be adduced by the witness could be injurious to national security or endanger the safety of any person. The witness was produced in closed session on October 19, 2009. The Court was satisfied that the CSIS witness could give evidence in public without injuring national security or endangering the safety of any person, as long as his identity was protected. The CSIS witness was produced in public session on October 26, 2009.
[17] Mr. Mahjoub asks for his release from detention on modified conditions of release. He proposes that his detention be reviewed within the boundaries of the following framework:
(a) Mr. Mahjoub submits that because he was previously released from detention by this Court and voluntarily returned into custody, the appropriate issue to be determined in this review is not whether he should be released from detention, but rather what conditions of release are sufficient to neutralize or contain the threat that he now poses to national security or the safety of any person (or that he would abscond);
(b) Mr. Mahjoub does not ask that the conditions of release be eliminated, he acknowledges and accepts that conditions of release are required;
(c) Mr. Mahjoub accepts, solely for the purpose of the detention review, the factual determinations of Justice Mosley regarding the threat that Mr. Mahjoub poses to national security, with certain caveats to which I shall return;
(d) No individuals are available to act as live-in supervisors for Mr. Mahjoub. If released, Mr. Mahjoub would live alone;
(e) Mr. Mahjoub asserts that a number of factors justify his request that the conditions of his release be modified, and made less stringent;
(f) Mr. Mahjoub submits that the proposed modified conditions of release will neutralize the threat he poses to national security or the safety of any person.
[18] The conditions proposed by Mr. Mahjoub differ from the previous conditions of release, which were imposed on him prior to his voluntary re-incarceration. Before examining the various factors that must be considered in this detention review, it is useful to review Mr. Mahjoub’s previous conditions of release and the changes he proposes.
Mr. Mahjoub’s Previous Conditions of Release
[19] The conditions imposed on Mr. Mahjoub prior to his voluntary re-incarceration were the following:
(a) The sum of $32,500.00 was paid as a cash surety pursuant to Rule 149 of the Federal Courts Rules, S.O.R./2004-283 s. 2, and the sum of $58,000.00 was provided as performance bonds, pursuant to section 56 of the IRPA.
(b) Mr. Mahjoub was fitted at all times with an electronic monitoring device (GPS) by which the CBSA could track his location;
(c) Mr. Mahjoub was to be supervised at all times by his court approved supervisors, which were Ms. El Fouli, Mr. El Fouli, El Sayed Ahmed and Murray Lumley;
(d) In exception to the above-condition, Mr. Mahjoub was permitted to remain home alone without a supervisor on weekdays from 8:00 a.m. to 6:00 p.m. on condition that: a video conference device be connected in the living room, that he advise the CBSA that he would be home alone by way of the video-conferencing device, and that the CBSA be allowed to periodically contact Mr. Mahjoub by way of the video-conferencing device. He could not have visitors when he was home alone;
(e) Mr. Mahjoub was imposed a curfew between the hours of 11:00 p.m. and 8:00 a.m.;
(f) Mr. Mahjoub was permitted to leave his residence in the presence of a supervisor outside curfew hours with prior approval of the CBSA, 3 times per week for periods not exceeding 4 hours, within a pre-determined perimeter, and with the obligation that he notify the CBSA prior to leaving and upon returning to the residence;
(g) The following outings were exempt from the requirement of prior approval: when Mr. Mahjoub accompanied his children to or from school; when Mr. Mahjoub took walks for exercise purposes; religious outings to the mosque; doctor and psychologist appointments. For these outings, Mr. Mahjoub was required to give notice: immediate notice for the walks and accompanying of the children; 30 minute notice for religious outings during business hours, and 90 minutes outside business hours; 48 hours notice for doctor and psychologist appointments;
(h) It was permissible for Mr. Mahjoub to “pass the time of day” with persons he encountered “happenstance” during outings;
(i) Visitors were limited to his legal counsel, supervisors, friends of his sons under the age of 15 years, building superintendent and any other person who was approved by the CBSA;
(j) Mr. Mahjoub had to agree to the interception of all oral and written communication;
(k) Mr. Mahjoub was prohibited from having access to any radio device that had transmission capabilities, equipment capable of connecting to the internet, or cell phones;
(l) Mr. Mahjoub was to allow employees of the CBSA to access his residence at any time for the purposes of verifying his presence and his compliance with the conditions of release.
Mr. Mahjoub’s Proposed Conditions of Release
[20] I shall outline the major amendments that are proposed by Mr. Mahjoub.
[21] Mr. Mahjoub now proposes that the sum of $7,500.00 be paid as a cash surety and the total sum of $48,000.00 be provided as performance bonds, as opposed to the previous amounts of $32,500.00 and $58,000.00.
[22] Under the previous conditions of release, Mr. Mahjoub was living with his family. As noted above, he was to be supervised at all times by his court approved supervisors even while in the residence with the exception of limited periods during which he was permitted to remain at home alone. Mr. Mahjoub now seeks to alter the condition so that he may live alone, as living with Ms. El Fouli and his two children is no longer an option. He therefore proposes that he be permitted to live without a live-in supervisor, and that he be permitted to remain in his residence alone without the presence of a supervising surety.
[23] With regards to outings, Mr. Mahjoub proposes that he be allowed to go on outings without the presence of a supervisor. He also requests that the Court eliminate the condition that outings be pre-approved and eliminate the restriction on the number and duration of such outings.
[24] Mr. Mahjoub seeks to have the curfew reduced by one hour. He proposes a curfew between the hours of 11:00 p.m. and 7:00 a.m. He also asks that he be permitted to be away from his residence until 12:00 a.m. during the month of Ramadan so that he may attend evening prayers.
[25] Mr. Mahjoub seeks to limit the interception of oral communication by the CBSA. He proposes that where the analyst intercepting the communication identifies the communication being intercepted as one between Mr. Mahjoub and his healthcare provider, the analyst shall cease monitoring the communication and shall delete the interception as is now the case with his legal counsel.
[26] Mr. Mahjoub asks for specific restrictions to limit the use of intercepts and photographs taken by the CBSA, and more specifically that these not be released to any other entity.
[27] Mr. Mahjoub asks that searches of his residence by the CBSA only be performed with prior Court approval. Mr. Mahjoub also asks that he be allowed to video and audio record CBSA officers.
[28] The Ministers also seek changes to certain conditions. It is argued that these changes are needed, if Mr. Mahjoub is permitted to live alone, to counterbalance the lack of a live-in supervising surety.
[29] The Ministers seek that the total amount provided by cash sureties be set at $20,000, a significant decrease from the prior requirement.
[30] The Ministers’ request that Mr. Mahjoub’s curfew be extended to the hours of 9:00 p.m. to 8:00 a.m.
[31] The Ministers also request that Mr. Mahjoub continue to be accompanied by a supervisor on all outings and that outings be subject to pre-approval and the limit of three outings per week for a period of four hours for each outing.
[32] Additional monitoring of Mr. Mahjoub’s residence is also sought. The Ministers ask that Mr. Mahjoub agree to 24 hour physical monitoring of the residence and video surveillance of all entrances. The Ministers also request that the CBSA be permitted to install video-conferencing, video surveillance equipment and alarm sensors on all doors and windows inside the residence, and that the CBSA have sole discretion over the placement of the video surveillance equipment in order to ensure operational and security needs.
[33] The Ministers also ask that visitors to Mr. Mahjoub’s residence bear the responsibility of understanding the terms and conditions of Mr. Mahjoub’s release and of reporting any breaches by Mr. Mahjoub to the conditions.
[34] I now turn to the legal principles that govern this application.
Legal Framework
[35] Security certificate and detention review proceedings are governed by Part 1, Division 9 of the IRPA. Section 82 of the IRPA deals with review of detention and conditions of release, the relevant sub-sections are the following:
82. (2) Until it is determined whether a certificate is reasonable, a judge shall commence another review of the reasons for the person’s continued detention at least once in the six-month period following the conclusion of each preceding review.
…
(4) A person who is released from detention under conditions may apply to the Federal Court for another review of the reasons for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.
(5) On review, the judge
(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
(b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate.
82. (2) Tant qu’il n’est pas statué sur le certificat, le juge entreprend un autre contrôle des motifs justifiant le maintien en détention au moins une fois au cours des six mois suivant la conclusion du dernier contrôle.
[…]
(4) La personne mise en liberté sous condition peut demander à la Cour fédérale un autre contrôle des motifs justifiant le maintien des conditions une fois expiré un délai de six mois suivant la conclusion du dernier contrôle.
(5) Lors du contrôle, le juge :
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) dans les autres cas, ordonne ou confirme sa mise en liberté et assortit celle-ci des conditions qu’il estime indiquées.
[36] It is common ground that the governing authority for detention, conditions of release and the assessment of threat is the Supreme Court’s decision in Charkaoui 1. Although the wording of the IRPA has been amended since the decision, the principles established in Charkaoui 1, remain applicable under the current legislation.
[37] In Charkaoui 1, the Supreme Court explained that the detention or the conditions of release imposed on a named person “must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case” (para. 107). The procedure must be consistent with the principles of fundamental justice including meaningful opportunities for the named person to challenge his or her continued detention or his or her conditions of release (Charkaoui 1, para. 107). If the review of the conditions occurs prior to the determination of the reasonableness of the certificate, the review must be based on an assessment of the danger to national security in evidence at the time of the review (Harkat 2009 FC 241, para. 36). The review of detention or conditions of release must take into account all relevant factors (Charkaoui 1, para. 110 and 123; Jaballah v. Canada (Public Safety and Emergency Preparedness), 2007 FC 379, para. 19). The five obligatory, but non-exclusive, factors that must be taken into account are the following:
(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.
[38] As stated in Charkaoui 1, in addition to these factors:
…the reviewing judge should be able to look at all factors relevant to the justice of continued detention, including the possibility of the IRPA’s detention provisions being misused or abused Charkaoui 1, par. 117).
[39] I will comment briefly on the threshold for release under the IRPA, the burden of proof and the standard of proof.
[40] The IRPA expressly sets out the threshold to be met for a designated judge to release a named person from detention. Paragraph 82(5)(a) of the IRPA provides that the designated judge must order the detention to continue if 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 …” Paragraph 82(5)(b) of the IRPA provides that the designated judge “in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate.” In Charkaoui 1, the Supreme Court recognized the authority of the designated judge in a detention review under the IRPA to fashion conditions that would neutralize the risk of danger upon release and to order the release of the detained person on that basis (para. 121).
[41] The Ministers bear the initial burden of establishing the need for continued detention (Charkaoui 1, para. 100).
[42] In Charkaoui 1, the Supreme Court confirmed, at paragraph 39, that: “‘reasonable grounds to believe’ is the appropriate standard for judges to apply when reviewing a continuation of detention under the certificate provisions of the IRPA.” This standard requires the designated judge to consider whether “there is an objective basis… which is based on compelling and credible information” (Charkaoui 1, para. 39). The Supreme Court found that the IRPA therefore required the designated judge not to be deferential, but rather, to engage in a searching review (Charkaoui I, para. 39). It is on this basis that I will consider the evidence adduced in this proceeding.
[43] In a detention review, the designated judge is to proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit (83(1)(a) of the IRPA). The designated judge is also authorized under paragraph 83(1)(h) of the IRPA to receive into evidence “anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence.” As noted by Justice Mosley in Almrei (Re) 2009 FC 3, (Almrei) at paragraph 53, this permits the reception of hearsay evidence.
[44] Both information provided in public session and in closed session is admissible as evidence and can be relied upon by the designated judge. For the purpose of this detention review, I heard the evidence of the CSIS witness on the production of the Threat Assessment dated, which was given in closed session on October 19, 2009.
Analysis
[45] I will now turn to the above listed Charkaoui 1 factors to be considered in a detention review. Before doing so, I wish to address an argument raised by the Ministers.
[46] The Ministers argue that a substantial lessening of the conditions of release would amount to a decision favourable to Mr. Mahjoub in the merits of the case, namely the reasonableness of the certificate, and for this position rely on Charkaoui (Re), 2006 FC 555. In that case, Mr. Charkaoui asked that his conditions of release be abolished. Justice Noël at paragraph 22, concluded as follows:
Abolishing the preventive conditions, as Mr. Charkaoui is asking the Court to do, would amount to a decision favourable to Mr. Charkaoui on the merits of the case, namely the reasonableness of the certificate.
[47] In my view, Mr. Mahjoub’s situation is distinguishable from the case of Mr. Charkaoui because Mr. Mahjoub is not asking for release without conditions. In addition, I do not accept the position put forward by the Ministers that a release on less stringent conditions would be akin to a determination favourable to Mr. Mahjoub on the reasonableness of the certificate. The findings in a detention review are distinct from the findings on the reasonableness of the certificate. In this regard, Justice Mosley noted in Almrei, at paragraph 236:
In Suresh it was held that a finding that a security certificate is reasonable is not the same as a finding that the person named is actually a danger (at para. 83). Similarly, a finding that any risk of injury to national security from release will be mitigated by conditions is not the same as a finding that the certificate is unreasonable.
[48] I now turn to the stated factors. I recognize that by agreement the parties have focused their argumentation on only two of the five Charkaoui 1 factors: length of detention and availability of alternatives to detention. As acknowledged by the parties during the hearing, I must consider all of the stated factors. I propose to do so in turn.
(1) Reasons for Detention
[49] In Charkaoui 1, the Supreme Court explained “the reasons for detention” factor as follows, at paragraph 111:
The criteria for signing a certificate are “security, violating human or international rights, serious criminality or organized criminality” (s. 77). Detention pursuant to a certificate is justified on the basis of a continuing threat to national security or to the safety of any person. While the criteria for release under s. 83 of the IRPA [of the former Act, now the relevant sub-section is 82(5) of the IRPA] also include the likelihood that a person will appear at a proceeding or for removal, a threat to national security or to the safety of a person is a more important factor for the purpose of justifying continued detention. The more serious the threat, the greater will be the justification for detention. [My emphasis]
[50] In Mr. Mahjoub’s case it was not argued that he would be unlikely to appear at any proceeding or for removal. Mr. Mahjoub’s detention and prior release on stringent conditions were necessitated by reason of the Ministers’ opinion that he poses a danger to national security or to the safety of any person. This review will therefore focus on the alleged threat posed by Mr. Mahjoub to national security or the safety of any person.
[51] For the purpose of this detention review, the parties have agreed that the findings of Justice Mosley apply in respect of danger (Mahjoub 3). The Ministers also adduce the Threat Assessment. As noted above, counsel for Mr. Mahjoub was provided with the Public Summary of the Threat Assessment. The Ministers also rely on the testimony of the CSIS witness in respect to the preparation and content of the Threat Assessment. The Threat Assessment provides that “the Service [CSIS] still believes the statements made about [Mr.] Mahjoub in the public summary of the SIR.” The reference is to the Revised Public Summary of the Security Intelligence Report, dated October 24, 2008, prepared by CSIS (the Public Summary of the SIR).
[52] Given the above agreement, Justice Mosley’s findings on the danger posed by Mr. Mahjoub to national security or the safety of any person provide the starting point on the danger that Mr. Mahjoub presently poses. The relevant paragraphs are reproduced below:
[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.
The Ministers’ position
[53] The Ministers argue that Justice Mosley’s findings continue to apply today and that the danger posed by Mr. Mahjoub to national security or the safety of any person requires that he be subject to stringent conditions. In this respect, the Ministers ask that the Court take into consideration that in March of 2009 Justice Layden-Stevenson relied on the findings of Justice Mosley with respect to danger and concluded:
[I]n view of Justice Mosley’s findings (which constitute the factual underpinnings of this review), in my opinion, it is readily apparent that Mr. Mahjoub must be subject to restrictive conditions (Mahjoub 4, para. 73).
[54] The Ministers argue that the same conclusion should be reached by this Court. In addition, and in respect of the danger that Mr. Mahjoub presently poses, the Ministers argue that Mr. Mahjoub has not renounced his belief and support in Islamic extremism, and that the threat remains that Mr. Mahjoub will re-initiate contact with Islamic extremists. The issue of Mr. Mahjoub’s beliefs will now be examined.
[55] The Ministers are of the opinion that Mr. Mahjoub has not renounced his beliefs and support of Islamic extremism. The Ministers’ position is that the degree of Mr. Mahjoub’s dedication to the cause and his support for the AJ/VOC’s terrorist agenda is such that he would resort to violence and would direct others to resort to violence if he was so ordered by the leaders of Islamic extremist organizations. Mr. Mahjoub, has since his initial detention, repeatedly disavowed Islamic extremism. The Ministers submit that Mr. Mahjoub’s disavowal of Islamic extremism should be given little weight. In support of this position, they point to CSIS’ determination that Mr. Mahjoub is not credible. The CSIS witness testified to the effect that the disavowal made by Mr. Mahjoub was self-serving, not credible and that there was no evidence that would suggest that Mr. Mahjoub had credibly disavowed himself from the Islamic extremism philosophy.
[56] The Ministers refer to Justice Nadon’s findings in Canada (Minister of Citizenship and Immigration) v. Mahjoub 2001 FCT 1095, at paragraphs 57, 59 and 67, to further support the position that Mr. Mahjoub is not credible in his disavowal. Overall, Justice Nadon had found Mr. Mahjoub not to be credible in his testimony for the following reasons: Mr. Mahjoub had admitted to having perjured himself, he had not told the truth with respect to his connection to Osama Ben Laden or Ahmad Said Kahdr or as to the identity of Mubarak Al-Duri.
[57] The Ministers also note that Mr. Mahjoub did not initially disavow Islamic extremism, and did so only after Justice Dawson took this to be a factor weighing against Mr. Mahjoub’s release from detention (Mahjoub 2).
Mr. Mahjoub’s position
[58] Mr. Mahjoub accepts Justice Mosley’s findings on danger, solely for the purpose of this detention review, with the caveat that the following factors be taken into consideration: Justice Mosley’s findings arose from a constitutionally-deficient process and these findings must be considered in light of the passage of time. Also, in relation to the danger he poses, Mr. Mahjoub argues that he has disavowed Islamic extremism, and that the allegations against him relate mostly to his associations with Islamic extremists but that there is no evidence that such associations are viable today. Lastly, he argues that the methodology used to produce the Public Summary of the Threat Assessment is lacking.
[59] In relation to the Ministers’ position that Mr. Mahjoub has not renounced Islamic extremism, Mr. Mahjoub points to the numerous times he has disavowed Islamic extremism in his prior testimony and affidavits and again in testimony given during this detention review.
[60] Mr. Mahjoub also raises a number of arguments to challenge the validity of the Public Summary of the Threat Assessment. Synoptically: Mr. Mahjoub argues that the accuracy of the report was not tested, the methodology was lacking, it was not a balanced assessment because there was no interview of Mr. Mahjoub or consideration of his evidence and the information relied on for its production may have been obtained as a result of torture.
Analysis
[61] As stated earlier in these reasons, by agreement between the parties, the prior findings on danger are admitted for the purpose of this detention review. The above arguments by Mr. Mahjoub on the validity of the Public Summary of the Threat Assessment touch on issues that are not frivolous and will undoubtedly be dealt with comprehensively at the reasonableness hearing with the benefit of fulsome records and arguments. However, since the Ministers are relying on the Threat Assessment in this detention review, the evidence adduced in respect to it is properly before the Court and must be considered. I note also that the evidence and allegations contained in the most recent Security Intelligence Report, dated February 22, 2008 (the SIR), and referred to in the Threat Assessment, are essentially the same evidence and allegations relied on by Justice Mosley in making his findings on danger, and that the parties have agreed to these findings for the purpose of this detention review.
[62] I am satisfied, based upon the agreed factual underpinnings of this review relating to danger, Mr. Mahjoub may only be released from detention on conditions. As stated above, while seeking release from detention, Mr. Mahjoub does not dispute that conditions are required.
(2) Length of Detention
[63] The Supreme Court in Charkaoui 1 stated that the longer the period of detention the less likely the individual will remain a threat to national security, and the higher the evidentiary onus on the government to establish that this person in fact poses a threat. In his submissions on length of detention, Mr. Mahjoub raised the issue of his conditions of detention. Mr. Mahjoub’s conditions of detention are a relevant factor and will be examined in the section “other factors,” below. In the present section, I will focus on whether the length of Mr. Mahjoub’s detention has lessened the threat he poses to national security, and whether the Ministers have met their higher onus imposed by the passage of time.
[64] The Supreme Court in Charkaoui 1 stated in regards to length of detention:
The length of the detention to date is an important factor, both from the perspective of the individual and from the perspective of national security. The longer the period, the less likely that an individual will remain a threat to security: “The imminence of danger may dec