IN THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration v. Refugee Protection Act, 2017 FC 603

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 inaccordance 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 forgrammar and syntax): Before the hearing starts, I want to address the order of proceedings.

Today’s hearing was scheduled some time ago to hear theapplicant’s request for a review of the conditions of his release. On May 11th, 2017, I made an order concerning an unredacted CBSArisk assessment and a redacted copy of that risk assessment. By e-mail dated May 12th, 2017, the applicant sought what might be calledreconsideration of that order, which request was reiterated by a bare motion served and filed by the applicant yesterday afternoon, May15, 2017.

Given, however, that neither party wishes to rely on either the unredacted or redacted risk assessment at today’s hearing, andthat I have reviewed neither the redacted nor the unredacted risk assessment, I have decided that I will not review either until after theCourt renders its decision on the Applicant’s current request for a review of the conditions of his release, and thereafter only after havingconsidered 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 unredactedCBSA material remain under seal, which has been the case.

Counsel for the Applicant also gave a heads up that he might seek furtherrelief (exclusion of evidence) under subsection 24(1) of the Charter of Rights and Freedoms regarding both the redacted and unredactedreports. [12] Thereupon, the Applicant addressed a motion that I recuse myself, filed May 15, 2017.

Again, the Applicant only filed a barenotice of motion for recusal, comprised of a short notice of motion without supporting affidavit, cross-examination (if requested), recordor 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 fromboth parties is to be served and filed no later than May 4, 2017”. After argument, I delivered an oral ruling from the bench dismissing therecusal motion because it was filed out of time, a copy of which is attached as

Schedule “C” to these Reasons and Judgment (formalOrder 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 thisHonourable Court’s Direction dated Friday, May 19, 2017, as the Ministers have not filed and do not rely upon any closed evidence andas they do not seek to make closed submissions on this detention review, the Special Advocates will, similarly, not be making any closedsubmissions”. [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, whichincludes: [21] The Applicant has a long history with this Court. In addition, the relevant legislation has evolved over time.

Important aspects ofhis original detention, subsequent release on conditions, the many subsequent reviews of his conditions of release, together with theevolving statutory framework are well summarized by Justice Noël at paras 5 to 20 in Mahjoub (Re), 2015 FC 1232 (Conditions ofRelease decision, October 30, 2015). This decision is the most recent review of the Applicant’s many reviews of his conditions ofrelease. [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 grantedin1996. He became a subject of interest to the Canadian Security Intelligence Service [“CSIS”] sometime in 1996. As a result of thisinvestigation, he became the named person in a certificate issued by the Ministers in June 2000 and was arrested on June 26, 2000. Hewas 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.

Inthe Reasons for Order, Justice Nadon noted that the Applicant admitted he had perjured himself by not admitting that he knew a certainindividual.

Justice Nadon concluded that he did not believe the Applicant’s explanation for lying and added that the Applicant had liedbefore his Court on a number of occasions (see Canada (Minister of Citizenship and Immigration) v Mahjoub, 2001 FCT 1095, atparagraphs 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 ofCitizenship and Immigration), 2007 SCC 9, [Charkaoui I]), a new statutory system was implemented which the Supreme Court ofCanada subsequently upheld [Canada (Minister of Citizenship and Immigration) v Harkat, 2014 SCC 37 , [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 Blanchardheld 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 itssplinter or sub-group, the Vanguards of Conquest, and that the Applicant posed a danger to the security of Canada given his contactswith many known or suspected terrorists in Canada and abroad.

Justice Blanchard found that Al Jihad and the Vanguards of Conquestare 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 releaseof 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 onthe terms and conditions of release was issued on July 20, 2016: Re Mahjoub, 2016 FC 808. He correctly submits that, according tosection 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 aconstitutional 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 madeunder C-3, require that conditions not be imposed and constitutional rights not be infringed without proof of a danger proved on balanceof probability. In support of this position, the Applicant cites the Ontario Court of Appeal ruling on preventive measures under the earlierversion of

section 810 of the Criminal Code in R v Budreo at para 43 (ONCA), aff’g R v Budreo, at para 27 (ON SC), 1996 CarswellOnt 24, [1996] OJ No 3, which was recently followed in Canada v Driver, 2016 MBPC 3 atparas 26, 29. This “balance of probabilities” argument has been advanced many times by the Applicant and consistently rejected as, forexample, most recently in the March 31, 2017, Constitutional and Certified Questions Judgment (at paras 43 to 53). I am not persuadedto 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 thecurrent conditions. Since the Applicant’s

interpretation is incorrect in this regard, in my respectful view, it may not be applied in thiscase. [21] I agree with the Applicant’s further submission that errors in previous rulings must not be continued for the sake ofconsistency (Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4 at para 18), although departures fromotherwise binding jurisprudence, especially that of the Supreme Court of Canada, requires the application of the Supreme Court’sguidelines 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 bythe Court in this review, the same arguments as those set out in their recent submissions on constitutional questions (decided on March31, 2017, Constitutional and Certified Questions Judgment) are repeated for purpose of determination and certification. In response atthis 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 wasapparently erroneously signed in advance.

The Applicant, by e-mail, described this error as “another big scandal”. The Respondentsobjected to its admission. Upon review, while the evidence post-dates May 4, 2017, I am not persuaded it is relevant either to the dangerassessment 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 needsto 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 securitygrounds. 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. Courtcomment: this finding was made by the late Justice Blanchard in his Reasonableness Decision, which the Applicant has appealed to theFederal Court of Appeal.

Judgment on appeal is now under reserve, until which time the late Justice Blanchard’s decision binds theApplicant; ▪ The Applicant ran one of Osama Bin Laden’s farms in Sudan while Al Qaeda terrorist training took place there.

Court comment: thisis 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, theApplicant admitted to having met Bin Laden, the person behind the 9-11 terrorist attack on the World Trade Center, on severaloccasions. 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 individuals were still demonstrably active in the militant AJ and associated Al Qaeda milieu when Mr. Mahjoub was in contact with them. The frequent use of aliases, lies and omissions to conceal these relationships from the authorities is indicative of the terrorist nature of these contacts. I find that these contacts support the Minister’s allegations of Mr.

Mahjoub’s membership in the AJ and the VOC. In addition, Mr. Mahjoub XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX contacted a telephone number associated with the VOC. v. Mr. Mahjoub’s security consciousness [625] There is evidence that Mr. Mahjoub exhibited security consciousness related to terrorism on occasion while in Canada. For instance, anti-surveillance tactics when making phone calls or being followed by the Service, his use of aliases, and his lack of cooperation with Canadian authorities is consistent with an individual concerned with concealing his activities and contacts.

I find that this behaviour supports the Ministers’ allegations of Mr. Mahjoub’s membership in the AJ and the VOC. vi. The direct evidence affirming or denying that Mr. Mahjoub is a terrorist and member of the VOC Shura Council [626] As indicated above, the direct evidence relating to the Ministers’ allegations that Mr. Mahjoub is a member of the VOC and its Shura Council or a member of the AJ, consist of: XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX c. XXXXXXXXXXXXXXXXX [certain classified evidence] and d. an intercepted conversation.

I found that the [classified] reports XXXXXXXXXXXXXX were not sufficiently persuasive to support the Minister’s allegation of membership; however, I found that XXXXXXXXXXXXXXXX [one piece of evidence indicating that Mr. Mahjoub was an AJ leader] and Mr. Mahjoub’s self-identification as a “member” in the context of the Returnees of Albania Trial lends support to the allegation of membership.

c) Conclusion on membership [627] Upon considering the evidence holistically, and on the basis of substantiated and reasonable inferences, I find that the Ministers have established reasonable grounds to believe that Mr. Mahjoub is a member of the AJ and its splinter or sub-group, the VOC. [628] In so determining, I rely on my findings set out above which include: a. That the AJ and VOC existed as terrorist organizations at the relevant times; b. Mr. Mahjoub had contact in Canada and abroad with AJ and VOC terrorists; c. Mr. Mahjoub used aliases to conceal his terrorist contacts; d. Mr.

Mahjoub was dishonest with Canadian authorities to conceal his terrorist contacts; e. Mr. Mahjoub worked in a top executive position in a Bin Laden enterprise alongside terrorists in Sudan at a time when key terrorist leaders were in Sudan; f. Mr. Mahjoub was dishonest in concealing from Canadian authorities the nature of his position at Damazine Farm; g. Mr. Mahjoub travelled to and from Sudan at the same time as AJ and Al Qaeda elements; and h. XXXXXXXX [Some of the direct evidence] that Mr. Mahjoub was a member of the AJ and Mr.

Mahjoub’s intercepted conversation support the Minister’s allegation. [629] In my determination, I have also relied upon the following inferences relating to Mr. Mahjoub’s travels and activities. These include: a. Mr. Mahjoub’s contacts were of a terrorist nature; b. Mr. Mahjoub had a close and long-lasting relationship with a number of his terrorist contacts; c. Mr. Mahjoub was trusted by Mr. Bin Laden on the basis of his ties to the Islamic extremist community; d. Mr. Mahjoub was aware of and complicit in Al Qaeda weapons training occurring at Damazine Farm; and

e. Mr. Mahjoub’s travels to and from Sudan at the same time as AJ elements were not coincidental. [630] I am satisfied that even without the direct evidence XXXXXXX and from the intercepted conversation, my decision would not change. [631] On the basis of the above findings, I am satisfied that Mr. Mahjoub had an institutional link with the AJ and knowingly participated in that organization. While there is a dearth of compelling and credible evidence explicitly linking Mr.

Mahjoub with the VOC, I am satisfied that the evidence establishes an institutional link and knowing participation in the faction of the AJ led by Dr. Al Zawahiri, which eventually aligned itself with Al Qaeda and continued to be militant after many members of the AJ had declared a ceasefire. I have found that this faction was likely known as the VOC, at least at some point in its history. Mr. Mahjoub was linked with this faction of the AJ and Al Qaeda through his employment at Althemar, his travels, and his terrorist contacts in Canada. This link was active and enduring for many years.

He knowingly participated in this network through his involvement in the Damazine weapons training, whether passive or active, and in maintaining contact with individuals who were active terrorists who were connected to either Mr. Bin Laden or Dr. Al Zawahiri. Although actual format membership has not been established, which would require proof that Mr. Mahjoub swore allegiance to the group, such proof is not necessary in the context of a security certificate proceeding. I am satisfied that Mr. Mahjoub’s links and participation fit within the unrestricted and broad

interpretation of “member” for the purposes of paragraph 34(1) (

f) of the IRPA . [632] On the basis of the above evidence as reflected in my finding, applying the principles of law discussed in the legal framework

section of these reasons, I find that the Ministers have established reasonable grounds to believe that Mr. Mahjoub was a member of the AJ and its splinter or sub-group the VOC. Consequently, the Ministers have satisfied the requirements of paragraph 34(1) (

f) of the IRPA . [633] Since the requirements provided for in

section 34 of the IRPA are disjunctive, my above finding is determinative of the reasonableness of the certificate. I therefore find, on the basis of the above conclusion, that the security certificate issued against Mr. Mahjoub pursuant to subsection 77(1) of the IRPA is reasonable. […] [668] During the 1996-1997 period, when terrorists associated with the groups at issue seemed to be accumulating in Canada, and during the 1998-2000 period after the AJ became a member of the Islamic Front with Al Qaeda and the fatwa against Americans and their allies was issued, Mr.

Mahjoub maintained contact from Canada with established or suspected terrorists either in Canada or abroad: Mr. Khadr, Mr. Al Duri, Mr. Jaballah, and in particular Mr. Marzouk XXXXXXXXXX. Importantly, the contacts abroad, Mr. Khadr and Mr. Al Duri, were Canadian citizens. I have found that there are reasonable grounds to believe that all of these individuals with the exception of XXXXXXXXX Mr. Jaballah, including Mr. Mahjoub himself, were present in Canada or had free access to Canada and were involved with terrorist groups committed to killing US allies including Canadians.

These facts establish that AJ members in Canada were a threat to Canadians. [669] I find that these facts establish reasonable grounds to believe that prior to his arrest, as a member of the AJ and its splinter or sub- group the VOC, Mr.

Mahjoub was a danger to the security of Canada. [Note: The redactions are the ones appearing on the public reasons.] [17] As the above reference to the Reasons for Judgment and Judgment indicate, the AJ (Al Jihad) and VOC (Vanguards of Conquest) are described by Justice Blanchard as important terrorist groups which were active in Egypt and had direct links and relationships with Osama Bin Laden and Al Qaeda (see also paragraph 177 and following of the Reasonableness Decision). [18] On December 17, 2013, as a result of an application filed by Mr.

Mahjoub to remove all conditions of release of detention except for a few, Justice Blanchard concluded: “I am satisfied that Mr. Mahjoub poses a threat to the security of Canada as described in my Reasons for Order dated January 7, 2013” and concluded that the conditions of release should not change except for small adaptations towards the use of calling cards. He also took note that Mr. Mahjoub was in technical breach of his conditions of release by not informing CBSA that he had acquired a mobile phone, but it was not a significant breach as Mr. Mahjoub had not used it. He also found that when Mr.

Mahjoub opted to cut off the GPS bracelet himself instead of letting CBSA remove it without destroying it, Mr. Mahjoub did not breach any conditions but indicated an “unwillingness” to cooperate with the CBSA (see Mahjoub (Re) , 2013 FC 1257, at paragraphs 5 , 6, 16, 17 and 18 [2013 Blanchard J. (December)]). [19] In May 2014, I stipulated that Mr. Mahjoub must give his computer password to the CBSA as the conditions of release granted CBSA access to it (see Mahjoub (Re) , 2014 FC 479 [2014 Noël J. (May)]). To this Court, it was evident that Mr.

Mahjoub’s attitude was indicative of a lack of collaboration and cooperation. His attitude does not help the CBSA fulfil its supervisory mandate as required by this Court’s Order. [20] A little more than six (6) months after Justice Blanchard’s last set of reasons on the review of conditions of detention, Mr. Mahjoub filed another application to review the conditions of release. He essentially requested the same outcome, namely that all conditions be repealed except for a few usual ones. This Court then made the following findings (see Mahjoub (Re) , 2014 FC 720 [2014 Noël J. (July)]): D.

The elements of trust and credibility related to the behaviour of the Applicant after having being released with conditions and his compliance with them 57 The behaviour of an individual with respect to the conditions of his release is an important factor to consider when considering amending them or some of them. In Harkat (Re) , 2009 FC 241 at para 92 , [2009] FCJ No 316, the Court had this to say on this factor: [92] Credibility and trust are essential considerations in any judicial review of the appropriateness of conditions.

When considering whether conditions will neutralize danger, the Court must consider the efficacy of the conditions. The credibility of and the trust the Court has in a person who is the subject of the conditions will likely govern what type of conditions are necessary.

58 Mr. Mahjoub's record regarding his most recent conditions of release has not been exemplary, as noted by the Court in its December 17, 2013 review of conditions order, when it concluded that Mr. Mahjoub had breached his condition of release by not giving proper notice of the acquisition and use of the telephone and fax services. It was found that: “[...] Mr.

Mahjoub cannot be relied upon to respect his conditions of release.” (December 17, 2013 review of conditions order at para 18). 59 In that same decision, again as recently as December 2013, the Court also found that in relation to the cutting of the GPS bracelet and not permitting the CBSA to remove the bracelet without being damaged, Mr. Mahjoub’s actions were: “[...] indicative of an unwillingness to cooperate with the CBSA.” (see para. 17) 60 Mr.

Mahjoub’s recent attitude, action and behaviour are also indicative of an unwillingness to collaborate and cooperate with the supervision duty of the CBSA that the Court has imposed. Here are a few examples of this: A. January 2014 - Mr. Mahjoub, although obligated to do so by

section 7 of his conditions of release, did not give correct information to the CBSA concerning his travel from Toronto to Ottawa. Through counsel, the Applicant gave the wrong departure time which prevented the CBSA from assuming its supervisory role. The reasons given to explain this failure, to the effect that it was the error of counsel and that the CBSA should have informed Mr. Mahjoub of the discrepancy, are not accepted. Mr. Mahjoub was required by

section 7 of his conditions of release to give accurate information when traveling, and it is not for the CBSA to compensate for a lack of accuracy. Still, because of that blatant failure by Mr. Mahjoub to provide accurate factual information, the CBSA was rendered unable to assume its supervisory role as the Court so required. This is another indication showing a lack of collaboration and cooperation on his part. B. Mr. Mahjoub has failed to provide the Startec toll records as requested by the CBSA pursuant to paragraph 11(

b) of the conditions of release for the period of use between January 31, 2014 and February 21, 2014, and he has yet to do so. This matter was submitted to the Court sometime in late spring 2014. Paragraph 11(

b) of the conditions of release is clear: Mr. Mahjoub has the obligation to supply the Startec toll records for this three-week period. Again, this is another example of Mr. Mahjoub’s lack of collaboration and cooperation. As for the Startec toll records for the year 2013, pursuant to paragraph 11(

a) of the January 31, 2013 conditions of release, even though being asked to consent, Mr. Mahjoub still has not given consent. The reason he gives is that the CBSA should not gain retroactive access to these toll records. Furthermore, the Applicant has not given notice that he was using Startec as required by that condition of release. He argues that the CBSA knew of this account and should have asked them earlier. This argument does not relieve Mr. Mahjoub of his obligation to consent to the release of these toll records as required by the Court pursuant to paragraph 11(

a) of his conditions of release. Again, this is not an attitude that shows collaboration and cooperation as the conditions of release so require. By acting in such a way again, Mr. Mahjoub decides that the CBSA will not assume its supervisory role as requested by the Court. C. Pursuant to paragraph 10(

f) of the 2014 conditions of release, Mr. Mahjoub must give full access to his computer to the CBSA without notice, which includes the hard drive and the peripheral memory, and the CBSA may seize the computer for such purpose. On April 24, 2014, when requested by the CBSA, Mr. Mahjoub did not give the immediate access. He had the CBSA representative wait at the door and, as he went back to his computer, he appeared to be seen for a period of two minutes to be doing something to his computer. The condition compels Mr. Mahjoub to give access and control to the CBSA without notice. He did not.

He also objected to the taking of photographs by the CBSA, when the purpose of the picture is to wire the computer in the same way when it is brought back and to document any damage on the computer. This is standard procedure for the CBSA and an understandable policy to be followed. In addition, Mr. Mahjoub refused to provide any USB devices for inspection as required by paragraph 10(

f) of his conditions of release which stipulates not only the examination of the computer but also all peripheral memory devices. This is very close to a breach of the condition if not a breach. Finally on this matter, Mr. Mahjoub objected to giving his password to access his computer. This Court wrote Reasons for Order and Order obligating Mr. Mahjoub to do so (see Mahjoub (Re) , 2014 FC 479 and more specifically paragraph 21). To this Court, it was evident that the password had to be given for the purpose of examining the computer. What was evident to this Court, however, was not to Mr. Mahjoub.

This type of attitude can only show a lack of collaboration and cooperation, and not only is this is not helpful to Mr. Mahjoub’s interest, but it also complicates and possibly makes it impossible for the CBSA to assume its supervisory role as the Court requires in the Conditions of Release of both 2013 and 2014. 61 Mr. Mahjoub explains that his attitude is intended to ensure that his conditions of release are limited to what they are and that his privacy is respected.

These are, to some degree, valid grounds, but they must not be used to the point of taking the essence of the conditions of release away from their purposes and preventing the supervision of the use of communication devices, computers and other modes of transmission of data, information and images. Without proper supervision by the CBSA, conditions of release become useless. [ 45 ] I add that, in the July 20, 2016 Conditions of Release Order, the Court relaxed a number of restrictions on Mr. Mahjoub.

It also agreed with the Ministers that the Applicant presented no difficulties in terms of compliance. [ 46 ] That said, his past history and the conclusions of so many release reviews conducted by so many Designated Judges continue to weigh on me and count against changing the conditions of release. I appreciate these previous findings are not determinative; this Court is not a rubber stamp of previous decisions. But neither may the Court or the Applicant ignore the many negative findings against him.

Cumulatively, even given the changes made last year, this factor militates in favour of maintaining the status quo. [ 47 ] This is all the more so given my credibility findings in the July 20, 2016 Conditions of Release Order, where the Applicant, for the first time since he appeared before Justice Nadon (as he then was), was cross-examined. I held, at paras 86 to 95: 86. And I note that the statements at issue before Justice Dawson were made under the regime that was subsequently declared unconstitutional according to the Charter in Charkaoui I .

Justice Blanchard in a related proceeding involving the Applicant, adopted “… Justice Dawson’s findings relating to any and all legal determinations in the Reasons for Order and Order, dated February 26, 2010”, to which I have just referred. 87. Frankly, I was not impressed with the Applicant’s evidence and attach little weight to it. His strategy, as implemented by his counsel, was to repeatedly interrupt Ministers’ counsel during his cross-examination. Each interruption, some of which not even framed

as objections, had the effect of buying time for the Applicant to reply and sheltering him from legitimate cross-examination. At various times his counsel’s many interruptions bordered on suggesting strategies and even answers to the Applicant. 88. These interruptions were continued notwithstanding the wide scope afforded to a cross-examiner, the stringent limits that are placed on interruptions during cross-examination, and even the Court’s admonitions. 89.

Eventually the Applicant through counsel moved from interruptions that were expressly not objections to interruptions framed as objections, and did so repeatedly. These interruptions intensified as the Ministers’ counsel moved into each new area. In my view, most if not almost all of the Applicant’s objections were without merit. 90. I also note the Applicant testified through a translator, although he quite frequently answered in English, and in what I consider very good English. 91.

In my view, multitudinous meritless interruptions during cross-examination and being led in re-direct had the cumulative effect of greatly diminishing the Applicant’s credibility. These strategies made it difficult for the Court to find and assess the real Mr. Mahjoub before it. Justice Noël at one point observed that the Applicant might have ‘something to hide’. The Applicant’s testimony at the hearing taken as a whole also had the effect of again hiding the Applicant from the Court; my concerns about his being a danger were not tempered in any way. 92.

In his factum the Applicant specifically asked to be allowed to visit gun stores. When cross-examined, his answers were defensive and argumentative. He betrayed a profound misunderstanding of his reality. He asked to be treated like any other person in Canada. However he is not like any other person (“any other citizen” according to his counsel): he is not a Canadian citizen, he is a foreign national who is inadmissible under the IRPA . He is a person against whom a security certificate has been issued, which security certificate was issued under legislation found constitutional by the Supreme Court of Canada.

And his security certificate was upheld as reasonable after a very lengthy review conducted by Justice Blanchard which stands unless and until it is contradicted on appeal. 93. Further, when questioned about his admitted lying before Justice Nadon (as he then was), the Applicant forcefully took the position that he had a good reason to lie to this Court, i.e., he lied to protect someone else. The Applicant does not accept that lying is not allowed. He showed no real remorse. His answers show he does not fully accept his duties as a witness.

In my respectful opinion his testimony confirmed he would perjure himself again if he thought he had a good reason to do so; the Applicant mistakenly sees himself as the arbiter of when he may lie and when he tells the truth to this Court. That is a disturbing flaw in his relationship with this Court which casts further doubt on his credibility. 94. The Applicant also admitted in cross-examination that he used the alias Shaker in connection with the activities discussed in Justice Blanchard’s Reasonableness Decision.

On multiple occasions prior to that decision, the Applicant had denied using the alias Shaker in CSIS interviews, and disputed that point before Justice Blanchard. In the end, Justice Blanchard concluded there was “insufficient evidence to establish that Mr. Mahjoub used the alias Shaker”. Justice Blanchard said of this finding that it was “critically important that no basis whatsoever is provided by [the Ministers] XXXXXXXXXXXX for connecting Mr. Mahjoub with the alias “Shaker”, at para 248. We now know that the Applicant did use the alias Shaker. This admission was not made before Justice Blanchard.

In my view, based on the public record, this admission supports the allegation that the Applicant was at the very least a Mujahideen fighter. In my view this admission, had it been before Justice Blanchard, could have made a significant difference to the Reasonableness Decision: Justice Blanchard himself ruled that his inability to find the Applicant used the Shaker alias was “critically important.” 95. The evidence leads me to conclude not that the Applicant has ceased to be a danger, but that the danger remains.

His danger to the extent it has been reduced came about not by any transformation on his part, but by the conditions of his release. That is not an argument to do away with those conditions but instead, and in my respectful view, is an argument to maintain them to neutralized the danger, as intended by

section 85 of the IRPA . [ 48 ] Despite his urgings that they in effect be ignored, these findings do not support the Applicant’s request to remove all but the usual conditions of release. 2. The Court’s assessment of the danger to the security of Canada or to other persons associated to the Applicant in light of the evidence presented [ 49 ] In law, the Ministers have the initial burden to establish danger.

The facts must show that the danger is serious, grounded in an objectively reasonable suspicion and that the potential harm resulting from the said danger is substantial rather than negligible, as set out by the Supreme Court of Canada in Suresh . [ 50 ] The evidence in this respect has not materially changed since that of the last review, except for the fact of the Applicant’s compliance with the relaxed conditions. But it is a common sense inference, and one that I draw, that because the conditions were less onerous, the Applicant would have a less difficulty complying with them.

This alone does not warrant the relief sought in this application. I come to this conclusion without the benefit of whatever findings may have been made in the most recent CBSA Risk Assessment, which the Applicant has asked the Court not to read; I do not know if it assists or hurts the Applicant’s case in this respect. [ 51 ] The Applicant says that meeting the conditions of release means he is no longer a danger. That raises the issue of whether he is of himself no longer a danger, or whether the conditions of release have neutralized that danger.

The Applicant argues that the Court, as a matter of law, may not find that the conditions of release have neutralized his danger without “proof” . He seems to insist that this “proof” cannot be based on inference drawn from the evidence before the Court. [ 52 ] In this, and with respect, the Applicant is incorrect. The Court is entitled on review of the record to infer from the evidence, as it does now, that the fact the Applicant is not currently involved in activities that endanger Canadians is contributed to, if not caused by, the conditions of his release.

[ 53 ] The Applicant further submits that the previous decisions of this Court relying upon and the Reasonableness Decision cannot establish the Applicant’s dangerousness. In this, he is mistaken. While I agree the Reasonableness Decision in essence assessed the Applicant’s conduct in terms of the Security Certificate and thus focussed on past conduct, that is not the end of the matter. This Court is entitled to assess both present and future danger with reference to the Applicant’s past conduct as found in the Reasonableness Decision.

If it were otherwise, release from detention and removal of conditions of release would be almost if not automatic in all cases. Past conduct is very relevant in assessing present and future dangerousness and I see no merit in the Applicant’s suggestion otherwise. [ 54 ] No one suggests the Applicant is currently engaged in activities dangerous to Canadians; however, his previous active and material support for terrorists, including Mr.

Bin Laden, Al Qaeda and others, are facts that lead me to find that his danger is serious, that it is grounded in an objectively reasonable suspicion and that the potential harm resulting from that danger is substantial rather than negligible, as required by the IRPA and by the Supreme Court of Canada in Suresh . [ 55 ] In this connection, it should be noted that his conditions of release are, in many ways, designed to neutralize the danger that the Applicant will acquire, re-acquire, or communicate with terrorist contacts as he did in the past, as found by this Court in the Reasonableness Decision. [ 56 ] Therefore, this factor supports continuing the existing conditions of release notwithstanding that CSIS no longer considers the Applicant a threat to the security of Canada pursuant to the CSIS Act . [ 57 ] In this connection, the Applicant drew the Court’s attention to a decision of the Ontario Superior Court of Justice in Ali v Canada (Minister of Public Safety and Emergency Preparedness) et al , 2017 ONSC 2660 [ Ali ], where, acting under its habeas corpus jurisdiction, the Superior Court reviewed the detention of Mr.

Ali under the IRPA . I was also referred to another Superior Court of Justice decision, namely, Wang v Canada (Minister of Public Safety and Emergency Preparedness) et al , 2017 ONSC 2841 .

Finally, I was referred to the Ontario Court of Appeal decision in R v Panday , 2007 ONCA 598 , leave to appeal to SCC refused, 32434 (3 April 2008). [ 58 ] Counsel relied on several points made in Ali : ▪ A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control; ▪ The purpose under the IRPA is not the punishment of uncooperative detainees; and, ▪ The authorities cannot discharge the onus that rests on them to demonstrate that the continued detention of Mr.

Ali is justified, for immigration purposes, based on skepticism and speculation. [ 59 ] Accepting these as legitimate concerns, I am not persuaded they assist the Applicant in the circumstances of this case. Generally, Ali involved a detention whereas the present case involves conditions of release. The Applicant’s conditions of release have been relaxed over a number of successive reviews over a number of years.

We are, at this time, far removed from the stringent conditions originally imposed when the Applicant was released from detention, at which time the Applicant was subjected to GPS ankle bracelet monitoring, supervising sureties and the interception of telephone communications and mail, as well as many other conditions that have since been removed.

The Applicant is no longer incarcerated; his conditions of release are the result of evolving fact-driven determinations made by Designated Judges of this Court based on the evidence before them. [ 60 ] The Applicant argues that conditions of release cannot go on forever.

The flaw with this argument is that is not what has happened in his case: his conditions have been reviewed regularly and adjusted and relaxed over time, although on occasion they have been tightened in response to the Applicant’s conduct. [ 61 ] This case involves the release of a person named in a Security Certificate issued on national security grounds under a constitutionally valid legislative scheme: Canada (Citizenship and Immigration) v Harkat , 2014 SCC 37 at para 4 . Further, that Security Certificate has been tested and found reasonable by this Court in its Reasonableness Decision. Mr.

Mahjoub was a high-ranking associate of Mr. Bin Laden. He was actively involved in serious terrorist communities. Indeed, the Reasonableness Decision found that “Mr. Mahjoub was aware of and complicit in Al Qaeda weapons training occurring at Damazine Farm” in Sudan. While the Applicant did not give evidence on the reasonableness review, as was his right, he did admit his work for Mr. Bin Laden as manager of the farm in Sudan when cross-examined before this Court at the hearing leading to the July 20, 2016 Conditions of Release Order.

His involvement with terrorists is therefore not a matter of skepticism or speculation, but a determination of fact made after a lengthy multi-year proceeding conducted before this Court and decided by the late Justice Blanchard.

The Court is unable to ignore these and other findings in this respect as set out in the Reasonableness Decision. [ 62 ] There is no evidence to suggest that the Applicant is being punished for lack of cooperation; the record demonstrates that his conditions of release have been reviewed regularly and adjusted in an ongoing effort to balance his rights against the objectives and purpose of the IRPA . [ 63 ] The Applicant also relies on an affidavit one Vaughan Barrett dating from 2012 that the Applicant filed in a previous hearing several years ago.

However, I am unable to give it much weight because of its generality and because of Mr. Barrett’s lack of relevant expertise and expert knowledge, both of the Applicant and his present circumstances. Mr. Barrett does not appear to have any expertise relating to detention proceedings in a Security Certificate context. Moreover, his professional experience in this regard consists of assisting at parole hearings prior to 2003. Further weakening his evidence is the fact that his opinions are not based on any interviews with or knowledge of the Applicant’s circumstances.

These findings were made by the late Justice Blanchard in this very matter some four-and-a-half years ago ( Re Mahjoub , 2013 FC 10 at paras 26-27 ), at which time the Court added that Mr. Barrett’s evidence had little relevance because “it has not been established that his dated expertise has any application to current circumstances.” In these circumstances, I give it little weight on this application. [ 64 ] In this connection, the Applicant asks that the following question be certified:

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? [ 65 ] As reported in the July 20, 2016 Conditions of Release Order, CSIS has advised the Court that it no longer considers the Applicant to be a threat to national security. It has so advised domestic and international agencies and has requested they take appropriate action.

It is also the case that the Applicant does not appear to be a flight risk. [ 66 ] However, this proposed question is not a proper candidate for certification for several reasons. First, it is fact-specific and therefore does not rise to a matter of general importance. Second, it would not be dispositive of an appeal. Third, in that it does not identify which condition(

s) infringe the listed rights provided by the Charter of Rights and Freedoms , the proposed question is an impermissible attempt to obtain a general right to appeal against all conditions of release in the face of the contrary legislative provision set out in

section 82.3 of the IRPA . For these reasons, this question is not certified. 3. The decision, if any, on the reasonableness of the certificate [ 67 ] The Reasonableness Decision on the Security Certificate was the result of a very lengthy hearing process in which the Applicant was successful on some points, but unsuccessful on many others, and unsuccessful overall. While he emphasizes the points on which he was successful, he cannot ignore the facts found by this Court in the course determining that the Security Certificate was reasonable.

There is nothing in the evidence on today’s application to suggest a change is warranted on this basis. This counts against the Applicant. 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 [ 68 ] These points have been canvassed before. I refer to my July 20, 2016 Conditions of Release Order findings in this respect.

At that time, I had the benefit of hearing the Applicant give evidence and found it did not allay my concerns but, instead, concerned me that he had something to hide. [ 69 ] That said, the Applicant is earning some credit as a result of his compliance with the conditions of release under which he now lives.

I have no evidence of CBSA’s current position or concerns in this respect - whether the CBSA Risk Assessment cuts one way or the other is not known to me, as indicated above. [ 70 ] Nevertheless, complying with decreasingly onerous conditions as the Applicant has in this case does not, in my view, warrant the removal of all but the usual conditions as the Applicant seeks. This factor militates but only slightly in the Applicant’s favour, given the danger he continues to present. 5.

The uncertain future as to the finality of the procedures [ 71 ] The Applicant maintains that his status as a convention refugee is a relevant factor to take into consideration for the review of conditions, notably in determining the length of time that conditions are likely to continue as per subrule 248(

c) of the Immigration and Refugee Protection Regulations , SOR/93-22 and paragraphs 114-115 of Charkaoui I . [ 72 ] I considered and found this to be premature in my July 20, 2016 Conditions of Release Order and conclude the same way today. There I stated: 105.

Justice Noël commented on this in his July 2014 review of conditions of release from detention: [63] As long as there are robust, periodic reviews of detention or of conditions of release, long periods of detention or of release with conditions that impact on the life and rights of an individual do not constitute violations of the Charter (see Charkaoui v Canada (Citizenship and Immigration) , 2007 SCC 9 at para 123 , [2007] SCJ No 9). [64] The Court has rendered the Reasonableness Decision as well as other decisions concerning the Applicant, including on the abuse of process and a permanent stay of the proceedings.

The procedures have now been moved in good part to the appeal level, and the Federal Court of Appeal will be dealing eventually with any issues arising from the Notice of Appeal or from the appeal itself. The Applicant is benefiting from the appeal procedure and time has to be reserved for such process. [65] There have been and continues to be ongoing reviews of the conditions of release of Mr. Mahjoub. Reviews of the conditions of release were held and decisions were rendered in January 2013, December 2013 and January 2014 and in the summer 2014 (the current decision).

Over a period of a little more than 18 months, Mr. Mahjoub has had three hearings dealing with reviews of the conditions of release and three decisions. [66] Undertaking robust reviews of the conditions of release from detention does not necessarily mean granting Mr. Mahjoub what he wants. It requires a careful examination of the conditions of release and their necessity, i.e. ensuring not only that they are required to neutralize the assessed danger but that they impact minimally on the rights and freedom of the Applicant.

In order to go along with less invasive conditions, it must be shown (1) that the danger has diminished and (2) that the conditions neutralize the lessened danger. In this regard, the Applicant has a strong interest in collaborating and cooperating so that the supervision of the conditions shows that they are respected. With such evidence, then it can be argued that the conditions are not necessary. This is what a robust review is all about. [ 73 ] In his Conditions of Release Decision, dated October 30, 2015, Justice Noël repeated these comments, adding: [100] Counsel for Mr.

Mahjoub argues that the conditions existing in Egypt which may subject him to torture or other inhumane treatment renders non enforceable the removal order issued against him as a result of the certificate being found reasonable. As a result, the conditions of release should be lifted for being unreasonable and arbitrary.

[101] The appeal process is unfolding as it should and no final, determinative decision has been rendered. This argument may perhaps be relied upon in the future, but it is not appropriate at this stage; it therefore cannot be retained. [ 74 ] The Applicant relied on the European Court of Human Rights, recalling the decision of the United Kingdom’s House of Lords in A (FC) and others (FC) (Appellants) v Secretary of State for the Home Department (Respondent) - 3455/05 [2009] ECHR 301 (19 February 2009): 17.

The applicants were granted leave to appeal to the House of Lords, which delivered its judgment on 16 December 2004 ( [2004] UKHL 56 ). A majority of the Law Lords, expressly or impliedly, found that the applicants’detention under

Part 4 of the 2001 Act did not fall within the exception to the general right of liberty set out in

Article 5 § 1(

f) of the Convention (see Lord Bingham, at paragraphs 8-9; Lord Hoffman, at paragraph 97; Lord Hope, at paragraphs 103-105; Lord Scott, at paragraph 155; Lord Rodger, at paragraph 163; Baroness Hale, at paragraph 222). Lord Bingham summarised the position in this way: 9. ... A person who commits a serious crime under the criminal law of this country may of course, whether a national or a non- national, be charged, tried and, if convicted, imprisoned. But a non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country, and is not charged with any crime, may not under article 5(1)(

f) of the Convention and

Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security . [Applicant’s emphasis] [ 75 ] This case is not applicable in the Applicant’s situation because it applies particular legislative provisions enacted in the United Kingdom. The Applicant was not able to point to any similar provision in Canadian law; therefore, I reject his submissions on this point. [ 76 ] The Applicant also advanced an argument concerning danger under

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