Dividing lines: The case of Mohamed Mahjoub

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Twelve years ago, Mohamed Mahjoub became a victim of one of the most egregious legal measures that can be taken against a person in Canada, a security certificate. Since then, though he was never even charged with a crime, he faced seven years of detention followed by release with draconian conditions. Though his conditions of release were recently loosened somewhat, troubling questions remain about the entire security apparatus in which Mahjoub and others are ensnared.

It was a mild summer afternoon in Toronto. Sunlight danced upon rustling tree leaves, and the streets were full of downtown office workers celebrating the perfect weather with chilled beverages and pleasant conversations. Mohamed Mahjoub's lawyers and I walked along Queen Street, as usual indecisive about where to have lunch. It had become a pleasant routine for us, to walk out of the Federal Court building after the rigorous morning proceedings, and to choose from the array of Indian, Japanese and Mediterranean restaurants that flanked the streets.

Mohamed also joined us in the walk that day, participating in laughter and lighthearted conversations. But soon enough, he disengaged from the group. As the rest of us stood by the entrance of our choice of restaurant, ready to enter, I watched him hurriedly walk ahead, eventually disappearing into the downtown crowd. I knew where he was headed -- there were only five restaurants (two of which were mere coffee shops) where he was permitted to have lunch without supervision. For him, there was no luxury to choose a favourite. For the first time, I witnessed the manifestation of one of the many conditions that accompanied his release from detention.

In 2000, Mohamed Mahjoub became a victim of one of the most egregious "legal" measures that can be taken against a person in Canada, a security certificate. Since then, he has either faced detention or release with conditions akin to house arrest.

Mohamed was first released from detention in 2007, following a 93-day hunger strike. But the conditions were so stringent that he actually requested to return to detention in 2009 in order to protect his family from the surveillance and scrutiny to which they were being subjected by the Canada Border Services Agency (CBSA). In June 2009, he went on another hunger strike protesting his prison conditions. This led to his release in 2010, once again with severe conditions that robbed him of his most basic liberties.

Under the Immigration and Refugee Protection Act, the government can sign a security certificate to arrest and deport a permanent resident or a foreign national from Canada to countries where they may face torture or execution. The document is signed if there are reasonable grounds to believe that the individual in question is a danger to the national security of Canada.

In 2007, the Supreme Court of Canada unanimously decided that security certificates were unconstitutional. Due to the use of secret evidence and secret trials, the security certificate process was deemed to be in violation of fundamental principles of justice. But it soon made its way back into the judicial landscape when the Conservatives reintroduced it in 2008 (albeit with specific amendments), and continues to haunt the lives of people like Mohamed Mahjoub. Today, more than a decade after his arrest, Mohamed continues to fight a new battle everyday -- some days it is a fight to prove his innocence, other days a struggle for the simple right to take a walk without being constantly monitored.

When Mohamed's file was introduced to me, a second-year law student, in 2010, I failed to perceive him as anything beyond a name, a file number, the subject of my very first casework. I was aware that he had fled persecution and torture in Egypt and attained convention refugee status in Canada in 1996. I came to know that he is alleged by the Canadian government to be a member of an Egyptian Islamist organization. I also knew a thing or two about his family, that he was married with three children.

With each turning of a page, a chapter of his story sprung before me like the images of a pop-up fairy tale book, where he emerged as the "villain" from which the "good guys" strived to protect the nation. That, I gradually realized, is all it was -- a story, a splendidly ludicrous fiction of a "dangerous man" who, if set free, would jeopardize Canada's safety by radicalizing people into supporting terrorism simply through conversations. It was through realizing the flimsiness of this very fiction that the truth became ironically blatant. The more apparent the absurdity of the case became to me, the more I became familiar with Mohamed, the individual beyond the file number. The truth pulsed when he greeted our legal team every morning with a polite "Assalamu Alaikum" (may peace be upon you), when he pulled out the chair for me every time he saw me standing, when he quietly spread his prayer mat during recess and immersed himself in deep spiritual devotion, oblivious of all that was happening around him. I began to wonder not so much about why he was arrested 12 years ago, but why after 12 years, we were still sitting in court. I wondered why it has not been sufficient for the court that this man has never been charged with a crime, that the sources of the allegations against him remain largely unknown, that much of the evidence against him may have been obtained through torture. I struggled to understand why it took numerous hunger strikes and eventual hospitalization for Mohamed to win his release, and why even after his release, he is burdened with conditions that force him to live the life of a prisoner.

Cuffed with a GPS bracelet that tracks his every move, Mohamed is subject to continuous monitoring. In order to ensure the monitoring of the device, he is required to remain above ground and therefore, unable to take underground subway routes. The court has also allowed for the interception of his telephone and written communications, essentially sanctioning the broadcasting of his private life to the CBSA.

It was only recently, in its decision of February 1, 2012, that the court ordered the removal of the surveillance camera that was installed in the doorway of his residence. The court also lifted Mohamed's curfew and allowed him, for the first time, to travel anywhere within the Greater Toronto Area without supervision. Although he is now also allowed to travel anywhere within Canada, he is required to do so with a court-approved supervisor and with seven-days' notice to the CBSA with a proposed trip itinerary. The loosening of the conditions was grounded on the court's position that the so-called threat posed by Mohamed is now "significantly diminished."

Despite these changes since the time that I was involved in Mohamed's file, the initial question in my mind remains. I continue to search for a rational explanation underlying any of the terms of his release. On its face, the removal of some of his conditions is a significant legal victory. Yet it is appalling that the government's continued failure to bring any conclusive evidence against Mohamed has not been sufficient for the court to toss out the conditions in their entirety. In fact, by positing that the level of threat posed by Mohamed has simply decreased to a "possibility of re-engagement" in terrorist-related activities, the court has essentially reinforced the unproven premise that has dictated all of its previous orders -- namely, the presumption, or rather, the strong belief, that Mohamed was never innocent.

I remember one particular Friday afternoon during the summer of 2011, when I sat in court for one of the hearings pertaining to Mohamed's case. It was almost time for lunch, and Mohamed advanced a request to travel to the mosque close to the courthouse so that he could return in time for the hearing. According to the court order at the time, he was only permitted to perform prayers at two mosques on an unsupervised basis, both of which were at a considerable distance from the Federal Court. As none of his supervising sureties were present in court that day, a massive debate commenced between the judge and the lawyers regarding how to accommodate Mohamed's request without violating the court order. Under no circumstance was the court prepared to allow him to go unsupervised, and the parties continued to argue back and forth. As the debate descended into technical questions of how best to comply with the court order, I continued to question the order itself, and the absurdity of the condition that imposed restrictions on a man's right to worship in the first place.

It was finally decided that my supervising lawyer, one of Mohamed's public counsel, would escort him to the mosque. I happened to tag along, and the two of us walked with Mohamed and accompanied him as he performed his Friday (Jum'uah) prayers. As he spoke to us cheerfully during the walk, often alternating between jokes and meaningful conversation, I could not help but get distracted. I glanced at the GPS bracelet around his ankle. I thought of the surveillance cameras in his residence, and all those eyes that scrutinized him and sought to demonize him. I looked at his feet as they moved along the street in synchrony with ours, wondering how they managed to keep track of the multiple boundaries within which they were trapped. I was reminded of the passion shown by the court in carving out these boundaries in the provisions of its order: separating the mosques where he could and could not worship, numerically listing the restaurants where he was permitted to eat, drawing out the precise contours of the geographical areas where he could set foot without being deemed a criminal.

But there is one boundary that the court has forgotten to etch in its orders -- a line incredibly sharp, immensely conspicuous, yet impossible to pinpoint within the pages of the law. It is the dividing line that separates Mohamed Mahjoub, a racialized man, a Muslim, a former refugee, from those "legitimate citizens" who belong in Canada. It is the defined yet invisible boundary within which it is justified to violate the rule of law, to make exceptions to fundamental legal standards, to rob one's basic human dignity.

When the security certificate was signed against Mohamed based on flimsy allegations and unfounded evidence, the government sent a message about the disposability of people like Mohammed -- that they can be thrust into the jaws of torture without due process. But the fact that, after more than a decade, the court still ponders whether the certificate is "reasonable" is deeply disconcerting. I wonder what to expect from a judiciary that justifies the violation of one's most basic liberties -- and that grounds this justification on "reasonable" concerns about future acts of the individual, acts that have not even come into existence, but are somehow believed to potentially take place. I become skeptical of a justice system that presumes the guilt of an individual. I wonder where justice really lies, and whether it was erased in the very act of drawing these dividing lines.

Silmi Abdullah is a third-year J.D. student at the University of Ottawa. Prior to law school, she completed her Bachelor of Science and Master of Education degrees at the University of Toronto. She has worked as a summer student for Yavar Hameed, one of Mohamed Mahjoub's lawyers.

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