Mahjoub, Re, (2013) 425 F.T.R. 1 (FC)

• Judge: Blanchard, J.
• Court: Federal Court (Canada)
• Case Date: December 11, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 425 F.T.R. 1 (FC);2013 FC 10

Mahjoub, Re (2013), 425 F.T.R. 1 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2013] F.T.R. TBEd. FE.005

In The Matter of a Certificate Signed Pursuant to Subsection 77(1) of the Immigration and Refugee Protection Act (IRPA)

And In The Matter of a Referral of a Certificate to the Federal Court Pursuant to Subsection 77(1) of the IRPA

And In The Matter of Mohamed Zeki Mahjoub (DES-7-08; 2013 FC 10; 2013 CF 10)

Indexed As: Mahjoub, Re

Federal Court

Blanchard, J.

January 7, 2013.

Summary:

Mahjoub was the subject of a ministerial security certificate naming him as a person inadmissible to Canada on grounds of national security. He was released on conditions. He brought a motion seeking to have the conditions relaxed.

The Federal Court granted the motion and listed guidelines from which a new set of conditions should be prepared.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - Mahjoub, who was the subject of a ministerial security certificate, was released on conditions - He sought changes in the conditions - The Federal Court, considering the Charkaoui factors, found that the current conditions of release were no longer appropriate or proportionate to the threat posed by Mahjoub - The Ministers did not demonstrate the necessity of any particular measure - Instead they argued for the status quo while failing to establish that the threat they were alleging continued undiminished - For purposes of the review of the conditions of release, the court accepted that Mahjoub continued to pose a danger to the security of Canada, but found that that threat had significantly decreased since the last review - Thus the court listed guidelines from which a new set of conditions was to be prepared - See paragraphs 17 to 68.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - Mahjoub, who was the subject of a ministerial security certificate, was released on conditions - He moved to have the conditions repealed - Mahjoub argued that Doré (SCC 2012), imported considerations from R. v. Oakes (SCC 1986) into security certificate detention review analysis (i.e., that proportionality had to be assessed in making an order) - The Federal Court opined that Doré did not change the law respecting detention reviews - In conducting a review of release conditions, the court was required to determine whether there were reasonable grounds to believe that Mahjoub posed a threat to Canadian security, and if so, which conditions of release were a proportionate response to the nature of that threat, having regard to all of the circumstances - Doré added little to that analysis - Charkaoui (SCC 2007) already mandated that the release conditions take into account Charter values including proportionality - See paragraphs 15 and 16.

Cases Noticed:

Charkaoui, Re (2007), 358 N.R. 1; 2007 SCC 9, refd to. [para. 14].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 14].

Doré v. Barreau du Québec (2012), 428 N.R. 146; 2012 SCC 12, refd to. [para. 15].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 15].

United States of America v. Khadr, [2008] O.T.C. Uned. H23; 234 C.C.C.(3d) 129 (Sup. Ct.), refd to. [para. 55].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 82(5)(b) [para. 13].

Counsel:

Peter Southey, Bernard Assan, Mahan Keramati, Christopher Ezrin, Balqees Mihirig, Philippe Lacasse and Proja Filipovich, for the applicant Ministers;

Paul Slansky, Johanne Doyon and Yavar Hameed, for the respondent;

Anil Kapoor, Special Advocate.

Solicitors of Record:

William F. Pentney, Deputy Minister and Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant Ministers;

Doyon & Associés, Montreal, Quebec, for the respondent;

Slansky Law Professional Corp., Toronto, Ontario, for the Special Advocates;

Hameed & Farrokhad and Gordon Cameron, Ottawa, Ontario, for the Special Advocates;

Anil Kapoor, Toronto, Ontario, Special Advocate.

This motion was heard in Toronto, Ontario, on December 11, 2012, before Blanchard, J., of the Federal Court, who delivered the following decision on January 7, 2013.