Mahjoub, Re, (2011) 389 F.T.R. 47 (FC)

• Judge: Blanchard, J.
• Court: Federal Court (Canada)
• Case Date: March 23, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 389 F.T.R. 47 (FC);2011 FC 506

Mahjoub, Re (2011), 389 F.T.R. 47 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JL.001

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 (DES-7-08; 2011 FC 506)

Indexed As: Mahjoub, Re

Federal Court

Blanchard, J.

May 2, 2011.

Summary:

Mahjoub was detained under a ministerial security certificate naming him as a person inadmissible to Canada on grounds of national security. Numerous proceedings ensued. In 2009, following a detention review, he was released on conditions. A reasonableness hearing commenced in October 2010. On the first day of the reasonableness hearing Mahjoub filed a notice of motion seeking to have all of the conditions of release abolished except for those conditions respecting sureties and performance bonds.

The Federal Court held that it could not eliminate what was essentially all the conditions of Mahjoub's release at this time (i.e., his release from detention on conditions was confirmed). However, the court considered that certain of the conditions could be amended or relaxed.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - In 2010, Mahjoub, who was the subject of a ministerial security certificate, sought to have the conditions of his release abolished except for those conditions respecting sureties and performance bonds - Mahjoub argued that by reason of the modifications to s. 82(5) of the Immigration and Refugee Protection Act, the applicable standard of proof for the review of conditions was now a balance of probabilities unlike the applicable standard under the prior provision, s. 83(3) - The Federal Court was not convinced by Mahjoub's arguments - The court failed to see how the amendments referred to had any impact on the applicable standard of proof - The appropriate standard for a judge to apply in reviewing conditions of release was still "reasonable grounds to believe" - See paragraph 18.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - In 2010, Mahjoub, who was the subject of a ministerial security certificate, brought a motion (the current motion) to have most of the conditions of his release abolished - Mahjoub argued that in light of a new provision of the Immigration and Refugee Protection Act (s. 82(5)), the court could not consider its analysis relating to danger in prior detention reviews and reviews of conditions of release - Rather, the court was restricted to the evidence led and adduced on Mahjoub's current motion - The Federal Court rejected Mahjoub's argument - The court held that it was appropriate to look to those prior decisions for guidance on the principles to be applied relating to the proportionality of the conditions and on the question of danger - See paragraphs 19 and 20.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - In 2010, Mahjoub, who was the subject of a ministerial security certificate, brought a motion (the current motion) to have most of the conditions of his release abolished - The Federal Court (Blanchard, J.), in conducting the review applied the same legal framework he had applied on Mahjoub's last detention review in 2009 - Blanchard, J., opined that although the wording of certain provisions of the Immigration and Refugee Protection Act (IRPA) had changed following the decision in Charkaoui I (SCC 2007), the principles established in that case were applicable under the current legislation to a review of conditions of release - Blanchard, J., noted that in Charkaoui I, the court held that regular detention reviews had to take into account five obligatory, but non-exclusive factors (which he listed) - See paragraphs 21 and 22.

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, brought a motion to have most of the stringent conditions of his release abolished - The Federal Court held that it could not release Mahjoub essentially without conditions solely on the strength of his submissions - The justification for such a fundamental change to the current conditions of release was not established at this time - Conclusions in prior proceedings as to the danger or threat to national security posed by Mahjoub could not be ignored - However, upon a consideration of the Charkaoui I (SCC 2007) factors, the court concluded that the current conditions of release could be relaxed (e.g., conditions respecting curfew, outings, visitors and electronic monitoring) - See paragraphs 27 to 63.

Cases Noticed:

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 8].

Charkaoui, Re, [2008] 2 S.C.R. 326; 376 N.R. 154; 2008 SCC 38, refd to. [para. 10].

Harkat, Re (2006), 278 F.T.R. 118; 2006 FC 628, refd to. [para. 65].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 82(5) [para. 18].

Counsel:

David Tyndale, Sharon Stewart-Guthrie, Daniel Engel and Nimanthika Kaneira, for the applicants;

Johanne Doyon, Yavar Hameed and David Kolinsky, for the respondent;

Gordon Cameron and Anil Kapoor, Special Advocates.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicants;

Doyon & Associés Inc., Desrosiers, Joncas, Massicotte, Hameed & Farrokhzad, David J.M. Kolinsky, for the respondent;

Gordon Cameron and Anil Kapoor, Special Advocates.

This motion was heard in Ottawa, Ontario, on March 23, 2011, before Blanchard, J., of the Federal Court, who delivered the following decision on May 2, 2011.