Restrain: Limiting Threats

• Author: Craig Forcese; Kent Roach
• Pages: 201-224

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CHAPTER SEVEN

Restrain: Limiting Threats

I. INTRODUCTION

Egyptian national Mohammed Zeki Mahjoub came to Canada from Sudan

in December . Upon arrival, he immediately applied for asylum. In Oc-

tober , the refugee board declared him a refugee. ereafter, he married

a Canadian citizen and started a family.

In June , he was detained under an immigration “security certi-

cate.” at instrument declared Mahjoub inadmissible for security reasons.

Documents summarizing the government’s position alleged that Mahjoub

was a senior member in the militant wing of the Egyptian Islamic Jihad.

is group splintered from Egypt’s Muslim Brotherhood in order to pursue

a more violent path to an Islamic Egyptian state. In , Egyptian courts

convicted Mahjoub in absentia for his role in the group.

e Canadian security certicate process was (and remains) secretive,

and persons in Mahjoub’s circumstances were not (and are not) fully apprised

of the evidence and the case against them. But the Federal Court armed

the government’s security certicate in October . ereafter, Mahjoub’s

actual removal quickly become mired in questions about whether he could

be removed to Egypt, where he might be subjected to torture. e resulting

delays were protracted. Mahjoub remained in custody, rst at the Toronto

West Detention Centre and then at the special Kingston Immigrat ion Hold-

ing Centre. His imprisonment lasted until February  — a total of six

and a half years — at wh ich point a Federal Court judge concluded he would

FALSE SECURITY

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not be removed from Canada in a reasonable time and the risk to security he

might pose could be contained by conditions on his release.

At around the same time, the Supreme Court

decided a constitution-

al challenge brought by three other security certicate “named persons” in

similar cases. In this rst of a series of modern security certicate decisions,

the Court invalidated t he secretive process and held that the Charter required

better eorts to square fair trials with secrecy preoccupations. At the same

time, the Court also indicated that alternatives to full-time detention, such

as release on strict conditions (which was used in t wo of the cases), were still

“less severe than incarceration” even though they also “severely limit[ed] lib-

erty.” All ve men subjected to security certicates were eventually released

on strict conditions.

In , Parliament enacted a new securit y certicate system incorporat-

ing standards responsive to the Supreme Court’s holding. And in February

, the government issued a second security certicate against Mahjoub

under the new process. During this second proceeding, Mahjoub remained

free, but under very stringent conditions. His family and friends acted as

sureties, posting performance bonds, and he was restrained by a list of con-

ditions on his movement, conduct, use of communications devices, and a

willingness to co-operate in surveillance.

But in March , Mahjoub chose to return to prison, telling the cour t

that “he and his family could no longer live with the stringent conditions of

his release.” He rst voiced this intent reportedly “after federal a gents’ policy

of ‘eyes-on’ surveillance led them to follow Mr. Mahjoub into a closed hospi-

tal room, while his wife wa s having a miscarriage.” Reincarcerated for several

months, Mahjoub began a hunger strike. In November , he was relea sed

under court-imposed conditions less stringent than the original limitations.

e revised conditions still ran to several pages and fty-ve paragraphs.

After assorted other legal challenges, in  the Federal Court ruled

that the security cer ticate was reasonable, and concluded that Mahjoub was

inadmissible to Canada on grounds of security. He has now appealed this

holding and a series of earlier constitutional matters in his case. rough-

out these protracted legal disputes (there are over thirty reported decisions

in Mahjoub’s case), he has remained subject to the November  release

conditions, as modied. In total, he has been subjected to either detention

or strict conditions on release for over fteen years. His appea ls will consume

still more time, as wil l any subsequent adjudication of whether he can actual-

ly be removed to possible abuse in Egypt.