Court ruling removes most remaining conditions from security certificate detainee Mohammad Mahjoub

Toronto – In a judgement released yesterday, the Federal Court has removed most of the conditions imposed on Mohammad Mahjoub, a Toronto man detained without charge on the basis of secret information since June 2000.

Notably, Mr. Mahjoub will no longer be forced to wear a GPS-tracking device, he will be able to use internet and cell phone, surveillance equipment inside his home will be removed and his phone calls and mail will no longer be subject to automatic surveillance. He will also be able to use the subway and will be able to change his residence without getting prior approval from the government.

The change of conditions will only be implemented in about two weeks time, after the two sides in the case work out the details.

“This is good news not only for the immediate freedoms it represents for Mohammad, which are significant, but because the judge is clearly signalling that he no longer buys the government’s bogeyman story about Mohammad. For over a decade, the story has been that national security would be terribly compromised if Mohammad were to step out of his house without a GPS-tracking bracelet – and of course no one would be safe if he were to use the internet or a cell phone. Well, the judge is saying that is simply not true,” said Victoria Barnett, active in the grassroots support committee, Justice for Mahjoub Network.

“This change in conditions has been a long time coming. It reveals the utter disproportionality and arbitrariness of bail conditions against Mahjoub. Moreover, the dissolution of the draconian conditions against Mahjoub illustrates the unsustainability of the security certificate system and the mythology of the ostensibly unfathomable danger that belies this case,” added Yavar Hameed, legal counsel for Mr. Mahjoub.

In his decision, Justice Blanchard directly states that it would, “not be appropriate, at this stage, to make a definitive finding on the disputed evidence relating to the alleged threat”, pointedly refusing to qualify what kind of basis there is for keeping any conditions on Mr Mahjoub. This long-awaited finding is reserved for a final ruling on the merits of the case which Justice Blanchard hints may be made in the coming months.

In the meantime, Justice Blanchard finds that the government, “argue[d] for the status quo while failing to establish that the threat they are alleging continues undiminished.” The judge is also unimpressed with the fact that the most recent government threat assessment of Mr. Mahjoub “speaks of the risk … in terms of a ‘possibility’ …” He finds expert testimony, from Professor Stéphane Leman-Langlois, criticizing the methodology used to prepare the CSIS case against Mr Mahjoub to be “useful”.

Importantly, Justice Blanchard notes that there has been a “significant change” in the evidentiary basis which, “has weakened the Ministers’ case against Mr Mahjoub”– an indirect admission that, until June of last year, the Federal Court wrongly relied on destroyed evidence to deprive Mr Mahjoub of his freedom.

Mr. Mahjoub’s scrupulous respect for his conditions, “weigh[ed] heavily in his favour”. Justice Blanchard also took into account the expert evidence of Dr. Donald Payne, acknowledging that the “constant monitoring under the current restrictive conditions” could have a negative impact on Mr. Mahjoub’s psychological health.

As a framework for his decision, Justice Blanchard quotes an earlier ruling that, because there are no charges in security certificate cases, the presumption of innocence does not apply to Mr. Mahjoub. He also decides not to deal with the constitutional issues raised by Mr Mahjoub’s lawyers.

“He is unfortunately still willing to go along with the unjust and racist security certificate process in this judgement, but after all that he has seen in this case, Justice Blanchard appears to be increasingly sceptical about the government’s line about Mohammad,” added Mary Foster, also with the Justice for Mahjoub Network. “This gives us a glimmer of hope that this 12 year nightmare, which has stolen so much of Mohammad’s life, may be drawing to a close.”

Mr. Mahjoub has been detained without charge since June 2000 under a security certificate, a measure that only applies to immigrants and that the government uses to detain people indefinitely on secret suspicions that they may pose a threat. Government allegations are reviewed by the Federal Court in a largely secret and deeply unfair process marked by racial profiling.

The government has admitted that the bulk of information in Mr. Mahjoub’s case comes from foreign agencies known to use torture – a reference to the former Mubarak regime’s notorious security service. After the Mubarak regime was toppled in a popular uprising last year, Egyptian courts cleared Mr. Mahjoub’s name in that country. However, here in Canada, the process continues on its own momentum.

A secret hearing, from which Mr. Mahjoub and his lawyers will be excluded, will take place next week, on January 15th. Mr. Mahjoub is currently awaiting a court ruling on a motion to throw out the proceedings against him because of multiple and repeated violations that have compromised all possibility of fairness in the outcome.

Mr. Mahjoub will be speaking this evening after the Toronto premiere screening of Doctors of the Dark Side, a documentary about the role of heath professionals in the American torture programme.