Secret Trial Detainee Wins Significant Court Victory

Canadian Government Decision to Deport Mohammad Mahjoub to Torture Found to be "Patently Unreasonable," but Constitutionality of Deportation to Torture Remains to be Tested in the Courts


TORONTO, JANUARY 31, 2005 -- In a significant victory for Canadian secret trial detainee Mohammad Mahjoub, federal court Justice Elinor Dawson has ruled that an immigration department's deportation order that would have sent Mr. Mahjoub back to torture or worse in Egypt is "patently unreasonable."

Mahjoub, an Egyptian refugee held without charge or bail since June, 2000, will now have his case remitted to Immigration for another decision, but in the meantime he remains stuck in solitary confinement at Toronto's Metro West Detention Centre.

The deportation decision, which was supposed to balance the risk faced by Mahjoub if returned to Egypt versus the alleged risk he might pose to Canada, relied on a minister's delegate who, according to Dawson, "did not consider whether the avoidance of torture would constitute a good reason" for allowing Mahjoub to stay in Canada.

In a decision which could have significant implications for the Secret Trial Five -- including Hassan Almrei and Mahmoud Jaballah in Toronto, Mohamed Harkat in Ottawa and Adil Charkaoui in Montreal -- Dawson questioned how the minister's delegate concluded that Mahjoub allegedly posed a risk to Canada without having full access to the secret "evidence" that is used in security certificate cases. In fact, the minister's delegate only had access to the useless public "summary" of allegations which is all that's disclosed to the detainee and his lawyer, neither of whom have a chance to cross-examine the secret evidence behind closed doors.

Dawson said her role was to determine whether there was evidence before the delegate which could have led to a finding of danger to the security of Canada. That danger finding had been based on the upholding of the security certificate as well as the fact that in the early 1990s Mahjoub had met and worked on a farm in the Sudan owned by Osama bin Laden (a fact which Mahjoub admitted to and that should come as no surprise to the tens of thousands who have worked on bin-laden properties) and that he had met some members of the Khadr family, all of whom are currently living freely in Canada. Dawson says that in none of the above instances could an inference of danger be drawn.

Indeed, Dawson notes that neither the original decision upholding the certificate nor the CSIS public summary of allegations "were directed primarily to assessing the nature or extent of the risk to national security posed by Mr. Mahjoub." Indeed, as she goes on to point out, "when reviewing the reasonableness of a security certificate, at issue is whether there are 'reasonable grounds to believe' certain facts. The issue is not whether those facts are true." (Welcome to a 21st century democracy!). Dawson says the minister's delegate conflated the idea that Mahjoub was deemed a member of an inadmissable class of persons with the idea that he allegedly posed a risk to the security of Canada, based on no cogent evidence.

When the judicial review of the deportation decision was originally heard, Mahjoub's attorneys, Barb Jackman and John Norris, argued that the court should also consider the constitutional issues involved in deporting someone to torture, something which clearly violates the Convention Against Torture, to which Canada is a signatory.

Although Dawson did not rule on that issue, she came close to closing the door on the possibility of deportation to torture, an issue which she says will have to be determined by the Supreme Court. "I acknowledge an issue of importance has been raised which I do not decide: whether circumstances would ever justify deportation to face torture," she concluded.

Having said that, however, she then makes the strong observation that there are "powerful indicia that deportation to face torture is conduct fundamentally unacceptable; conduct that shocks the Canadian conscience and therefore violates fundamental justice in a manner that can not be justified under section 1 of the Charter." Among the indicia to which she refers are the domestic prohibition against torture in Canadian law; section 12 of the Charter, which prohibits cruel or unusual punishment "(reflecting that, within Canada, torture is seen to be so repugnant that it can never be an appropriate punishment); extraditing a person to face torture has been found to be inconsistent with fundamental justice; and, a strong argument exists that international law prohibits deportation to torture, even when national security interests are at stake."

Dawson says such a decision cannot yet be made because there is no proper factual foundation on which "to support the determination of the constitutionality of legislative provisions. By remitting this matter for redetermination, it is possible that a decision will be made that is favourable to Mr. Mahjoub. If the result is not favourable to Mr. Mahjoub, then there will be a proper evidentiary record to support the determination of the constitutional issues."

And so as the matter heads back to immigration authorities, Mr. Mahjoub awaits the outcome of his challenge to the denial of bail, facing once again indefinite incarceration in solitary confinement, from which he has been allowed only once to hug his children in almost five years.

It is remarkable that in a so-called enlightened country like ours, we still have to litigate the issue of whether the Government of Canada has the right to send someone to a place where electric shocks will be attached to a person's genitals, where someone will be hung upside down for hours at a time or dunked in water repeatedly until the point of drowning; where an individual will be sodomized with a crude, splintering wooden stick, beaten on the soles of the feet, or be subject to sleep deprivation or have their back bent to the breaking point for hours on end.

Such is truly part of the challenge facing the Canadian conscience in 2005.

(report from Matthew Behrens of the Campaign to Stop Secret Trials in Canada)