2017 FCA 157, 2017 FCA 157

[2018] 2 F.C.R. 344 2017 FCA 157 A-478-14 A-313-12 A-479-14 Mohamed Zeki Mahjoub ( Appellant ) v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness ( Respondents ) Indexed as: Mahjoub v. Canada (Citizenship and Immigration) Federal Court of Appeal, Stratas, Boivin and Woods JJ.A.—Toronto and Ottawa, December 7, 8 and 13, 2016; Ottawa July 19, 2017.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Security Certificate — Appeals from Federal Court decisions upholding reasonableness of security certificate stating appellant not admissible due to security grounds, refusing to grant appellant’s request proceedings be stayed on account of abuse of process — Investigation leading to issuance of security certificate against appellant, Egyptian national — Federal Court determining that certificate reasonable — Finding reasonable grounds to believe that two inadmissibility grounds present, i.e.

Immigration and Refugee Protection Act (Act), ss. 34(1) (d),(f) — Appellant submitting that certificate not reasonable — In particular, submitting, inter alia, that Federal Court applying too broad a definition of “membership” for purposes of Act, s. 34(1) (f), that there must be evidence of “intention to participate or contribute” to an organization — Whether Act, ss. 33, 34 and Division 9, as well as An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act , ss. 4 , 6 , 7(3) breaching Canadian Charter of Rights and Freedoms, s. 7 by denying appellant’s right to fair hearing — Formal membership in terrorist organization not required — Certain activities that materially support terrorist group’s objectives can be evidence of membership — Act, s. 34(1)(

f) not specifying mental element that must be satisfied for membership — Merely setting out status of membership — Appellant’s lack of credibility one of many elements underscoring reasonableness of certificate — Open to Federal Court to find that intercepted conversation containing admission of membership — Membership in one terrorist organization enough to uphold reasonableness of certificate — Standard for assessing security certificate “reasonable grounds to believe” that security grounds for inadmissibility present —Federal Court’s conclusions impeccably sourced, well-supported by admissible, considerable evidence — No basis for intervening with Federal Court’s decision on issue of appellant’s constitutional challenge — Question certified by Federal Court proper, not foreclosed by Canada (Citizenship and Immigration) v.

Harkat — While Act, s. 77 not giving respondent ministers untrammelled discretion, not necessary for ministers to have reviewed all information to satisfy themselves certificate reasonable before signing it — Otherwise, subsequent review of its reasonableness by Federal Court would be somewhat redundant — No necessary relationship between information disclosed under Act, s. 77(2) , information needed by ministers before considering whether to sign certificate — Ministers’ opinion having to be sufficiently well founded through cogent, credible evidence — This threshold met herein — Appellant not entitled to bring judicial review against issuance of certificate — Automatic referral of certificate to Federal Court for assessment of its reasonableness ousting judicial review, taking its place —Canadian Security Intelligence Service not owing duty of candour to ministers — Reasonableness of security certificate confirmed by evidence — Legislative regime concerning security certificates constitutional — Security certificate proceedings fundamentally fair — Proceedings properly running their course to final decision on merits — As result, security certificate herein continuing to be conclusive proof that appellant inadmissible, continuing to be removal order — Appeals dismissed.

Administrative Law — Judicial Review — Standard of Review — Federal Court upholding reasonableness of security certificate stating that appellant not admissible due to security grounds, refusing to grant appellant’s request that proceedings be stayed on account of abuse of process — Appellant submitting, inter alia, that Federal Court erring in identifying legal standard for reasonableness — Federal Court properly identifying standard to be applied in determining reasonableness of certificate — Federal Court’s fact-finding, factually suffused application of legal standards to the facts herein could only be reviewed for palpable, overriding error — “Palpable” meaning obvious error — “Overriding” meaning error affecting outcome of case — Not mentioning evidence in reasons not necessarily palpable, overriding error.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Federal Court upholding reasonableness of security certificate stating appellant not admissible due to security grounds, refusing to grant appellant’s request proceedings be stayed on account of abuse of process — Power under Canadian Security Intelligence Service Act (CSIS Act), s. 12 not untrammelled — S. 12 neither vague nor overbroad, limited by CSIS Act, s. 2 — Federal Court not erring in assessing constitutionality of s. 12, related warrant provisions — CSIS Act, ss. 21 –24 not invalid — Intelligence-sharing scheme under CSIS Act, s. 17 , subject to safeguards, oversight — Not resulting, in principle or on facts of case, in unreasonable searches in violation of Charter — No authority supporting proposition that state authorities cannot speak to appellant — Finding by Federal Court that appellant’s rights respected in interviews not vitiated by palpable, overriding error.

Constitutional Law — Charter of Rights — Unreasonable Search or Seizure — Federal Court upholding reasonableness of security certificate stating appellant not admissible due to security grounds, refusing to grant appellant’s request proceedings be stayed on account of abuse of process — Appellant challenging constitutionality of Canadian Security Intelligence Service Act (CSIS Act) — Power under CSIS Act, s. 12 not untrammelled — S. 12 neither vague nor overbroad, limited by CSIS Act, s. 2 — Federal Court not erring in assessing constitutionality of s. 12 — To extent CSIS Act, ss. 21 –24 improperly used, question to be resolved whether warrant issued valid — Provisions themselves not invalid — Intelligence-sharing scheme under CSIS Act, s. 17 not resulting, in principle or on facts of case, in unreasonable searches in violation of Charter — Solicitor-client communications interceptions inevitable, conducted in good faith — No evidence suggesting such intercepted information used.

Practice — Stay of proceedings — Federal Court upholding reasonableness of security certificate stating appellant not admissible due to security grounds, refusing to grant appellant’s request proceedings be stayed on account of abuse of process — No basis in law or in fact herein for award of permanent stay of proceedings — Such a stay warranted only in “clearest of cases” — Balance between permanent stay of proceedings, societal needs required — Stay warranted only where former disproportional to latter — Outcome of balancing having to show that public, individual interest in permanent stay of proceedings disproportionately greater than public interest in decision on merits — Federal Court applying test more favourable to appellant than warranted in law — Still finding security certificate proceedings should not be stayed permanently — Appellant not succeeding in demonstrating palpable, overriding error in Federal Court’s finding that stay of proceeding not warranted.

Evidence — Federal Court upholding reasonableness of security certificate stating appellant not admissible due to security grounds, refusing to grant appellant’s request that proceedings be stayed on account of abuse of process — No error of law or palpable, overriding error in Federal Court’s consideration of evidence under Immigration and Refugee Protection Act, s. 83(1) (h) — Federal Court appropriately cautious in assessing evidence herein — Traditional rules of evidence not to be disregarded in their entirety under s. 83(1) (h) — Federal Court bound by standards of reliability, fairness — Test used by Federal Court for unsourced evidence under Act, s. 83(1.1) correct, respecting principles of reliable evidence — Regarding use of information derived from torture or cruel, inhuman, degrading treatment, approach applied by Federal Court consistent with case law, operative provisions.

These were appeals from decisions of the Federal Court upholding the reasonableness of a security certificate stating that the appellant is not admissible in Canada due to security grounds, and refusing to grant the appellant’s request that the proceedings be stayed on account of abuse of process. The appellant is an Egyptian national who was granted refugee status in 1995. An investigation led to the issuance of a first security certificate against him in 2000.

While deportation proceedings were underway, the Supreme Court of Canada held that the security certificate provisions violated sections 7 , 9 and paragraph 10(

c) of the Canadian Charter of Rights and Freedoms . As a result, Parliament amended the invalid security certificate provisions in An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act . The respondents then issued a new security certificate, which was determined to be reasonable by the Federal Court and was the subject of the appeals herein. The Federal Court found that there were reasonable grounds to believe that two inadmissibility grounds were present: paragraph 34(1) (

d) of the Immigration and Refugee Protection Act (Act) (being a danger to the security of Canada) and paragraph 34(1)(

f) of the Act (being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage, subversion by force of a government or terrorism).

Three of the appellant’s notices of appeal were permitted to be filed: the Federal Court’s decision on the loss of legal professional and litigation privilege arising from the commingling of documents ( 2012 FC 669 ), the Federal Court’s judgment upholding the reasonableness of the certificate ( 2013 FC 1092 ), and the Federal Court’s refusal to grant the appellant’s request that the proceedings be stayed on account of abuse of process ( 2013 FC 1095 ).

The appellant submitted that the security certificate is not reasonable, that the Federal Court erred in identifying the legal standard for reasonableness, and that the certificate is unreasonable on the evidence. In particular, the appellant submitted, inter alia , that the Federal Court applied too broad a definition of “membership” for the purposes of paragraph 34(1) (

f) of the Immigration and Refugee Protection Act and that there must be some evidence of an “intention to participate or contribute” to an organization. The main issue was whether sections 33, 34 and Division 9 of the Immigration and Refugee Protection Act , as well as sections 4 , 6 and subsection 7(3) of An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act breach

section 7 of the Charter by denying the named person (i.e. the appellant) the right to a fair hearing. But the issues to be considered on appeal were not limited to those in the certified question. All issues raised by the appellant that potentially affected the Federal Court’s determination that the certificate was reasonable were before the Court. Held , the appeals should be dismissed. Overall, the Federal Court properly identified the standard to be applied in determining the reasonableness of the certificate and properly understood the grounds for inadmissibility under

section 34 of the Immigration and Refugee Protection Act . Many of the appellant’s submissions focussed on the Federal Court’s fact-finding and its factually suffused application of legal standards to the facts, particularly on the issue of the reasonableness of the security certificate. These matters could only be reviewed for palpable and overriding error. “Palpable” means an error that is obvious. “Overriding” means an error that affects the outcome of the case. A court not mentioning evidence in its reasons does not necessarily lead to a finding of palpable and overriding error.

Terrorist organizations do not issue membership cards or keep membership lists. Thus, formal membership, in the sense understood for lawful organizations, is not required. Rather, certain activities that materially support a terrorist group’s objectives, such as providing funds, providing false documents, recruiting or sheltering persons, can be evidence of membership in a terrorist organization even though the activities do not directly link to terrorist violence. Paragraph 34(1) (

f) of the Act does not specify a mental element that must be satisfied for membership; on its face it merely sets out the status of membership, nothing more. The Federal Court did not uphold the reasonableness of the security certificate merely because the appellant’s statements were not credible. Rather, his lack of credibility was just one of many elements underscoring the reasonableness of the certificate. It was open to the Federal Court to find that an intercepted conversation contained an admission of membership.

The fact that another court might have ruled differently or might have attached less significance to a piece of evidence does not establish palpable and overriding error. Membership in one terrorist organization is enough for the Federal Court to uphold the reasonableness of the security certificate. The standard for assessing the security certificate is “reasonable grounds to believe” that the security grounds for inadmissibility under

section 34 of the Immigration and Refugee Protection Act are present. The Federal Court found reasonable grounds. Far from there being palpable and overriding error on this point, the Federal Court’s conclusions were impeccably sourced and well-supported by admissible, and often considerable, evidence. There was no basis for intervening with the Federal Court’s decision on the issue of the appellant’s constitutional challenge. The Supreme Court of Canada in Canada (Citizenship and Immigration) v.

Harkat rejected a similarly broad constitutional challenge against the security certificate provisions in issue in that case. Here, the appellant made arguments that differed in some respects from those raised in Harkat . For this reason, the constitutional question certified by the Federal Court was proper and not foreclosed by Harkat .

Nevertheless, the reasoning of the Supreme Court in Harkat still governed. The appellant’s constitutional arguments failed. The appellant challenged the constitutionality of specific sections of the Canadian Security Intelligence Service Act (CSIS Act). The power under

section 12 of the CSIS Act to collect information and intelligence on activities that may on reasonable grounds be suspected of constituting threats to the security of Canada is not untrammelled.

Section 12 is neither vague nor overbroad, and is limited by

section 2 of the CSIS Act. The Federal Court did not err in assessing the constitutionality of

section 12 and related warrant provisions on the basis of the appellant’s

section 8 Charter right. Sections 21 to 24 of the CSIS Act are broad warrant-authorizing provisions, just like any other search warrant provisions. To the extent the sections are used improperly, for instance to authorize the interception of solicitor- client communications, that is a question concerning the validity of the warrant issued under these provisions or the manner in which an interception is carried out. The provisions themselves are not invalid. The intelligence-sharing scheme under the CSIS Act, specifically under

section 17 , is subject to various safeguards and oversight and did not in principle or on the facts of this case result in unreasonable searches in violation of the Charter. The respondent ministers did not fail to exercise their powers properly in issuing the security certificate in this case. While

section 77 of the Act , which states that the respondent ministers “shall sign” a security certificate stating that the person named therein is inadmissible, does not give the ministers an untrammelled discretion, it is not necessary for the ministers to have reviewed every last bit of information and to satisfy themselves that a certificate is reasonable before signing it. If that were the standard, the later assessment by the Federal Court of the reasonableness of the security certificate would be somewhat redundant.

In no way does the Act require a double assessment of reasonableness of the security certificate. That being said, the issuance of a security certificate against a named person has drastic consequences. The ministers cannot just autograph the certificate blithely. There is no necessary relationship between the information disclosed under subsection 77(2) of the Act and the information that the ministers must have before them when considering whether to sign a security certificate under subsection 77(1) of the Act.

The ministers need to review enough material in order to be satisfied that they can express an opinion in the security certificate that the named person is inadmissible and that the opinion is sufficiently well founded. This requires supporting evidence that is cogent and credible. In this case, that threshold was easily met. The appellant was not entitled to bring a judicial review against the issuance of the certificate right after it was issued. Under this legislative regime, judicial review of the issuance of a security certificate is ousted.

In its place is an automatic referral of the certificate to the Federal Court for an assessment of its reasonableness. In these circumstances, it is open to Parliament to oust judicial review by enacting another form of meaningful review by a court; in no sense is immunization of executive action from review taking place. The Federal Court did not err in rejecting the submission that the Canadian Security Intelligence Service owes a duty of candour to the ministers so that they can properly assess whether to sign the security certificate.

There is no legal basis for the Court to reach behind the ministers and enforce a duty owed to them by their subordinate agencies and officials. There was no basis in law or in fact for the award of a permanent stay of proceedings. A permanent stay of proceedings is warranted only in the “clearest of cases”. A balancing of the need for this remedy against the societal interests of the proceeding continuing is required. Under this balancing, a stay is warranted only where the former is disproportional to the latter.

Where it is certain that the “clearest of cases” threshold for a permanent stay is met — for example where the conduct is particularly egregious — a balancing is not required. Short of that, balancing “the interests in maintaining the integrity of the judicial system and individual rights on the one hand and the public interest in proceeding with the case on the other” is a “useful tool in the exercise of…discretion.” The Supreme Court of Canada decisions in R. v. Conway and R. v.

Babos suggest that for a stay to be granted the outcome of the balancing must show that the public and individual interest in a permanent stay of proceedings is disproportionately greater than the public interest in a decision on the merits. The concept of disproportionality reflects the classic, oft-stated threshold that a permanent stay of proceedings is available only in the “clearest of cases”. As it turns out, the Federal Court applied a test that was more favourable to the appellant than was perhaps warranted in law.

And in applying that more favourable test, the Federal Court still found that the security certificate proceedings should not be stayed permanently. It followed, then, that in order to succeed in the area of abuse of process, the appellant had to undercut the Federal Court’s finding that a stay of proceeding was not warranted by demonstrating palpable and overriding error. This, the appellant did not do.

The appellant raised a panoply of issues, including the violations of his right to know the case to meet, his right to silence and to counsel of choice, the use of hearsay evidence, breaches of solicitor-client privilege and litigation privilege such as the commingling of documents. The Federal Court did not err in law or in extricable legal principle on any of these issues. Nor did it commit palpable and overriding error. The Canadian Security Intelligence Service conducted interviews of the appellant.

There is no authority supporting the proposition that, in the national security context, state authorities cannot speak to the appellant at all. Overall, the Federal Court found that the appellant’s rights were fully respected in the interviews and his participation and statements made during those interviews were voluntary. This fact- based finding was not vitiated by palpable and overriding error. In fact, it was fully supported by the evidence. Here, there was no ground for the issuance of a permanent stay of proceedings. Warrants issued under

section 21 of the CSIS Act should not be treated differently from criminal law warrants. The different nature of

section 21 warrants does not justify a different legal standard. The fact that a

section 21 warrant may be hard to challenge in some contexts does not logically lead to the conclusion that when it is challenged in court for omissions or inaccuracies — exactly like a criminal law search warrant — it should be subject to a different legal test. In terms of legal policy, it is hard to understand why a

section 21 warrant that could have issued despite omissions or inaccuracies should be treated differently from a criminal law warrant. In fact, given the ever-increasing need to guard against terrorism and other threats to national security it is difficult to understand why admissibility standards in the national security context should be more stringent than those in the criminal law context. Paragraph 21(2) (

b) of the CSIS Act should not be interpreted to require an evidentiary showing of investigative necessity. Paragraph 21(1) (

b) requires a deponent seeking a warrant to depose that “other investigative procedures have been tried and have failed” or “that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures”. But an alternative ground is where, without a warrant, “it is likely that information of importance with respect to the threat to the security of Canada …would not be obtained.” This third ground provides an independent basis for obtaining a warrant and does not require a demonstration of investigative necessity.

There was no error of law or palpable and overriding error in the Federal Court’s consideration of the evidence under paragraph 83(1)(h)of the Act, including the evidence said to be hearsay and unsourced. In assessing evidence using the reliability and appropriatenessstandard under paragraph 83(1)(h), the Federal Court was appropriately cautious.

Although the paragraph allows evidence to be admitted“even if it is inadmissible in a court of law”, the Federal Court observed that the traditional rules of evidence are not to be disregarded intheir entirety, observing that many of them grew out of a concern about reliability and fairness. Overall, the Federal Court considereditself to be bound by standards of reliability and fairness or, broadly put, the guarantee of trial fairness under the principles offundamental justice in

section 7 of the Charter. The test used by the Federal Court for unsourced evidence under subsection 83(1.1) ofthe Act respected the principles of what constitutes reliable evidence set out in the case law. In this case, this approach seemed to haveworked. The test formulated by the Federal Court was correct. As well, the reasonableness of the security certificate was amplyconfirmed by evidence other than unsourced evidence.

Regarding the use of information derived from torture or cruel, inhuman anddegrading treatment, the approach applied by the Federal Court in this matter was consistent with both other national security case lawand the text of the operative provisions themselves. There was no basis upon which to intervene. All of the solicitor-client communications interceptions were carried out under

section 21 of the CSIS Act or by way of judicialauthorization and were conducted in good faith. It was inevitable that national security warrants authorizing the interception ofcommunications sent and received using the appellant’s phone would result in such interceptions. This sort of “initial interception” is notfodder for an abuse of process complaint in itself. The key is what happens to those interceptions afterwards. There was no evidencebefore the Federal Court suggesting that any intercepted information was used, directly or indirectly.

Finally, the legislative regime concerning security certificates, including the procedures for assessing the reasonableness of a securitycertificate, is constitutional. The security certificate proceedings can only be seen as fundamentally fair in their execution. Mistakes andfaults occasionally happened and often remedies were needed to redress them. But individually or collectively, there was no factual andlegal basis upon which the Federal Court could have permanently stayed these proceedings. They properly ran their course to a finaldecision on the merits. As a result, under

section 80 of the Act, the security certificate continues to be “conclusive proof” that theappellant is inadmissible and continues to be “a removal order that is in force without it being necessary to hold or continue anexamination or admissibility hearing.” STATUTES AND REGULATIONS CITED

An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendmentto another Act, S.C. 2008, c. 3, ss. 4, 6, 7(3). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 8, 9, 10, 11(b), 24(1). Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 2, 12, 17, 21–24. Federal Courts Act, R.S.C., 1985, c. F-7, s. 50. Immigration Act, R.S.C., 1985, c. I-2. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 6(3), 33, 34, 77, 78, 79, 80, 81, 82, 83(1)(c),(e),(h),(1.1), 85–85.5. CASES CITED APPLIED: Charkaoui v. Canada, 2007 SCC 9, [2007] 1 S.C.R. 350; Harkat (Re), 2012 FCA 122, [2012] 3 F.C.R. 635; Housen v.

Nikolaisen, 2002SCC 33, [2002] 2 S.C.R. 235; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33; Canada v. SouthYukon Forest Corporation, 2012 FCA 165, 431 N.R. 286; Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016FCA 215, [2017] 1 F.C.R. 331, 402 D.L.R. (4th) 497; Decor Grates Incorporated v. Imperial Manufacturing Group Inc., 2015 FCA 100,[2016] 1 F.C.R. 246; Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163; Mugesera v. Canada (Minister of Citizenship and Immigration),2005 SCC 40, [2005] 2 S.C.R. 100; Jaballah (Re), 2010 FC 79, [2011] 2 F.C.R. 145; R. v.

Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, (1992) 93 D.L.R. (4th) 36; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3S.C.R. 1101; Atwal v. Canada, (FCA), [1988] 1 F.C. 107, (1987), 79 N.R. 91 (C.A.); Wakeling v. United States ofAmerica, 2014 SCC 72, [2014] 3 S.C.R. 549; Roncarelli v. Duplessis, (SCC), [1959] S.C.R. 121, (1959), 16 D.L.R. (2d)689; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193; Bell ExpressVu LimitedPartnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Power, (SCC), [1994] 1 S.C.R. 601, (1994), 89 C.C.C.(3d) 1; R. v.

Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Conway, (SCC), [1989] 1 S.C.R. 1659, (1989), 49 C.C.C.(3d) 289; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; R. v. Alizadeh, 2014 ONSC1624, 315 C.C.C. (3d) 295; Committee for Justice and Liberty et al. v. National Energy Board et al., (SCC), [1978] 1S.C.R. 369, (1976), 68 D.L.R. (3d) 716. DISTINGUISHED: R. v. Carosella, (SCC), [1997] 1 S.C.R. 80, 142 D.L.R. (4th) 595. CONSIDERED: Mahjoub (Re), 2013 FC 1094; Mahjoub (Re), 2013 FC 1095; Canada (Minister of Citizenship and Immigration) v.

Mahjoub, 2001 FCT1095, [2001] 4 F.C.R. 644; Charkaoui v. Canada, 2008 SCC 38, [2008] 2 S.C.R. 326; Vancouver Sun (Re), 2004 SCC 43, [2004] 2S.C.R. 332; Mahjoub v. Canada (Citizenship and Immigration), 2012 FCA 218, 265 C.R.R. (2d) 259; Pushpanathan v. Canada (Ministerof Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, (1998), 160 D.L.R. (4th) 193, amended reasons, (SCC), [1998] 1 S.C.R. 1222; Ramoutar v. Canada (Minister of Employment and Immigration), (FC),

[1993] 3 F.C. 370,(1993), 65 F.T.R. 32 (T.D.); JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA250, [2014] 2 F.C.R. 557; United States v. Bin Laden, 146 F. Supp. 2d 373 (S.D.N.Y. 2001); R. v. O’Connor, (SCC),[1995] 4 S.C.R. 411, (1995), 130 D.L.R. (4th) 235; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566; R. v. Jewitt, (SCC),[1985] 2 S.C.R. 128, (1985), 20 D.L.R. (4th) 651; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 144; R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, (1990) 60 C.C.C. (3d) 161; R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148; R. v.

L.(D.O.), (SCC), [1993] 4 S.C.R. 419, (1993), 85 C.C.C. (3d) 289; A. and Others v. Secretary of State for the HomeDepartment, 2005 UKHL 71, [2006] 2 A.C. 221; Mahjoub (Re), 2010 FC 787, 373 F.T.R. 36; R. v. S.(R.J.), (SCC),[1995] 1 S.C.R. 451, (1995), 121 D.L.R. (4th) 589; France v. Diab, 2014 ONCA 374, 120 O.R. (3d) 174; Celanese Canada Inc. v.Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189; Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012FCA 59, [2013] 4 F.C.R. 3; Canada (Minister of Citizenship and Immigration) v.

Tobiass, (SCC), [1997] 3 S.C.R. 391,(1997), 151 D.L.R. (4th) 119; Yamani v. Canada (Minister of Citizenship and Immigration), 2003 FCA 482, 314 N.R. 347. REFERRED TO: Mahjoub (Re), 2013 FC 1096, 457 F.T.R. 1; Mahjoub (Re), 2013 FC 1097, 450 F.T.R. 28; Mahjoub (Re), 2013 FC 1093; Canada(Citizenship and Immigration) v. Singh, 2016 FCA 300, [2017] 3 F.C.R. 263; Canadian National Railway Company v. BNSF RailwayCompany, 2016 FCA 284; McKittrick Properties Ltd. (Re), (ON CA), [1926] 4 D.L.R. 44, (1926), 59 O.L.R. 199(C.A.); Manie v. Ford (Town) (1918), 14 O.W.N. 83, [1918] O.J.

No. 430 (QL) (H.C.), affd (1918), 15 O.W.N. 27, [1918] O.J. No. 233(QL) (C.A.); Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999) 174D.L.R. (4th) 193; Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 218, 141 C.P.R. (4th) 165; Benhaim v. St-Germain, 2016 SCC48, [2016] 2 S.C.R. 352; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; R. v. R.E.M., 2008 SCC 51, [2008] 3S.C.R. 3; Kanagendren v.

Canada (Citizenship and Immigration), 2015 FCA 86, [2016] 1 F.C.R. 428; Entreprises Sibeca Inc. v.Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 S.C.R. 304; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] UKHL1, [1968] A.C. 997; Carltona Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.); Tsleil-Waututh Nation v. Canada (AttorneyGeneral), 2017 FCA 128; Philipos v. Canada (Attorney General), 2016 FCA 79, [2016] 4 F.C.R. 268; Mazhero v. Fox, 2014 FCA 219;Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, [2013] 3 C.T.C. 126; R. v.

Regan, 2002 SCC 12, [2002] 1S.C.R. 297; R. v. Morin, (SCC), [1992] 1 S.C.R. 771, (1992), 71 C.C.C. (3d) 1; R. v. Grant, 2009 SCC 32, [2009] 2S.C.R. 353; Harkat (Re), 2010 FC 1243, 380 F.T.R. 255; Dehghani v. Canada (Minister of Employment and Immigration), (SCC), [1993] 1 S.C.R. 1053, (1993) 101 D.L.R. (4th) 654; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Singh, 2007 SCC 48,[2007] 3 S.C.R. 405; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Ward, 2012ONCA 660, 112 O.R. (3d) 321; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v.

Godin, 2009 SCC 26, [2009] 2 S.C.R. 3. AUTHORS CITED Al-Ahram Center for Political and Strategic Studies. The Spectrum of Islamist Movements, Berlin: Verlag Hans Schiler, 2007. Al-Zayyat, Montasser. The Road to Al-Qaeda: The Story of Bin Laden’s Right-Hand Man (Critical Studies on Islam), London: PlutoPress, 2004. National Post, October 28, 2006. New York Times, December 3, 2008. Wright, Lawrence. The Looming Tower: Al-Qaeda and the Road to 9/11, New York: Vintage, 2006.

APPEALS from decisions of the Federal Court (which certified a question in 2014 FC 200) upholding the reasonableness of a securitycertificate stating that the appellant is not admissible in Canada due to security grounds (2013 FC 1092), and refusing to grant theappellant’s request that the proceedings be stayed on account of abuse of process (2013 FC 1095 and 2012 FC 669, [2014] 1 F.C.R. 457).Appeals dismissed. APPEARANCES Paul B. Slansky, Johanne Doyon and Yavar Hameed for appellant. Anil K. Kapoor and Gordon Cameron as special advocates. Marianne Zoric, Christopher Ezrin and Nathalie Benoit for respondents.

SOLICITORS OF RECORD Doyon & Associés, Montréal, Paul Slansky, Toronto, and Hameed Law, Ottawa, for appellant. Anil K. Kapoor and Gordon Cameron as special advocates. Deputy Attorney General of Canada for respondents. The following are the reasons for judgment rendered in English by Stratas J.A.: A. Introduction [1] The Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration signed a securitycertificate under subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 stating that Mr.

Mahjoub—a refugeein Canada—is not admissible in Canada due to security grounds. The security certificate states:

We hereby certify that we were of the opinion, based on a Security Intelligence Report received and considered by us, that Mohamed Zeki Mahjoub, a foreign national, is inadmissible on grounds of security for the reasons described in section 34(1) ( b ), 34(1)( c ), 34(1)(

d) and 34(1)(

f) of the Immigration and Refugee Protection Act . [ 2 ] In the security certificate, the grounds for Mr. Mahjoub’s inadmissibility to Canada—in other words, the portions of

section 34 mentioned in the security certificate—are “engaging in or instigating the subversion by force of any government” , “engaging in terrorism” , “being a danger to the security of Canada”, and “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage” in conduct such as “an act of subversion against a democratic government, institution or process as they are understood in Canada” , “the subversion by force of any government” , or “terrorism”. [ 3 ] Under

section 77 of the Immigration and Refugee Protection Act , the ministers referred the security certificate to the Federal Court for a determination of its reasonableness. [ 4 ] Acting under

section 78 of the Immigration and Refugee Protection Act , the Federal Court ( per Blanchard J.) determined that the security certificate was reasonable: Mahjoub (Re) , 2013 FC 1092 .

It found that there were reasonable grounds to believe that two inadmissibility grounds were present: paragraph 34(1) (d) (being a danger to the security of Canada) and paragraph 34(1) (f) (being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage, subversion by force of a government or terrorism). [ 5 ] The Federal Court’s judgment declaring the security certificate to be reasonable ( Mahjoub (Re) , 2013 FC 1092 ) was the culmination of several complex, interrelated decisions in this matter: Mahjoub (Re) , 2012 FC 669 , [2014] 1 F.C.R. 457; 2013 FC 1094 ; 2013 FC 1095 ; Mahjoub (Re) , 2013 FC 1096 , 457 F.T.R. 1; Mahjoub (Re) , 2013 FC 1097 , 450 F.T.R. 28, and an additional set of confidential reasons ( 2013 FC 1093 ) (all per Blanchard J.).

Leading up to these are 53 orders, a number of which are supported by full reasons for order (most per Blanchard J.). [ 6 ] When the Federal Court determined the security certificate to be reasonable, the security certificate became “conclusive proof” that Mr. Mahjoub is inadmissible to Canada. It also became “a removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing.” See

section 80 of the Immigration and Refugee Protection Act . [ 7 ] Mr. Mahjoub appeals to this Court. Specifically, three appeals are before us: • File A-478-14, an appeal from the Federal Court’s judgment upholding the reasonableness of the certificate ( 2013 FC 1092 ). • File A-479-14, an appeal from an order of the Federal Court ( 2013 FC 1095 ). In this order, the Federal Court, among other things, refused to grant Mr. Mahjoub’s request that the proceedings be stayed on account of abuse of process.

The abuse of process was said to arise from, among other things, alleged Charter breaches, instances of procedural unfairness, and substantive errors and unfairness in the ministers’ issuance of the certificate. • File A-313-12, an appeal from an order of the Federal Court ( 2012 FC 669 ). In this order, the Federal Court, among other things, refused to grant Mr. Mahjoub’s request that the proceedings be stayed on account of abuse of process.

The abuse of process was said to arise from the commingling of the parties’ courtroom materials following a hearing, resulting in the infringement of legal professional and litigation privilege. [ 8 ] For the following reasons, I would dismiss the appeals. The various grounds asserted by the appellant against the security certificate are without merit. In particular, there are no grounds to set aside the Federal Court’s finding that the security certificate is reasonable.

Further, there are no grounds to set aside the Federal Court’s refusal to stay the proceedings permanently on account of abuse of process. [ 9 ] The evidentiary record, largely comprised of open-source, open-court information, demonstrates that there are reasonable grounds to believe that Mr. Mahjoub was a member of two terrorist organizations and that, by maintaining contact in Canada with other terrorists, he was a danger to the security of Canada: see paragraphs 107–151, below. As for the Federal Court’s legal rulings on various issues raised by Mr.

Mahjoub and the manner in which the Federal Court applied the law, a

summary appears at paragraphs 76–82, below. An overall conclusion is at paragraphs 353–355, below. B. Procedural background [ 10 ] Only a brief

summary of the proceedings against the appellant is needed; a more comprehensive review of the facts appears in the seven, highly detailed decisions of the Federal Court in this matter. [ 11 ] Mr. Mahjoub is an Egyptian national. He arrived in Canada on December 31, 1995 and claimed refugee status. Less than a year later, the Immigration and Refugee Board granted him this status. [ 12 ] In the meantime, Mr. Mahjoub came to the attention of the Canadian Security Intelligence Service. An investigation of Mr. Mahjoub started. [ 13 ] The investigation led to the issuance of a security certificate against Mr.

Mahjoub in June 2000. Soon after, on the authority of the security certificate, he was arrested and detained. [ 14 ] As required by law, the security certificate was automatically referred to the Federal Court for an assessment of its reasonableness. The Federal Court determined the security certificate to be reasonable: Canada (Minister of Citizenship and Immigration) v. Mahjoub , 2001 FCT 1095 , [2001] 4 F.C.R. 644. [ 15 ] All of this took place under the security certificate provisions of the Immigration Act , R.S.C., 1985, c. I-2.

In 2001, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 was enacted in its place. The security certificate provisions in the former

Immigration Act were not substantially changed. [ 16 ] In 2007, while deportation proceedings against Mr. Mahjoub were underway, the constitutionality of the security certificate provisions fell for decision in the Supreme Court of Canada. [ 17 ] The Supreme Court held that the provisions violated sections 7 , 9 and paragraph 10(

c) of the Charter [ Canadian Charter of Rights and Freedoms ]: Charkaoui v. Canada , 2007 SCC 9 , [2007] 1 S.C.R. 350 ( Charkaoui I ).

Section 7 was violated because the person named in the security certificate did not sufficiently know the case to meet and did not have the means to meet it, given the secrecy attaching to many aspects of the security certificate procedures.

Section 9 and paragraph 10 (

c) were violated because the detention provisions included a lengthy period of time in which subjects were barred from challenging the lawfulness of their detention. Neither violation was saved by

section 1. [ 18 ] The Supreme Court declared the unconstitutional provisions to be of no force or effect. But it suspended its declaration for one year in order to allow Parliament to amend the Act . [ 19 ] For present purposes, the practical effect of Charkaoui I was to render invalid the first security certificate issued in 2000 against Mr. Mahjoub.

Having been authorized under invalid provisions, it too was invalid. [ 20 ] Before the expiry of the one-year suspension of the declaration of invalidity, Parliament amended the invalid security certificate provisions: An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act , S.C. 2008, c. 3. These new provisions came into force on February 22, 2008. [ 21 ] On that same day, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration issued a new security certificate against Mr.

Mahjoub. This is the one the Federal Court has determined to be reasonable. This is the one now before this Court. [ 22 ] Shortly after the ministers issued the new security certificate against Mr. Mahjoub, the Supreme Court released a second decision concerning the security certificate proceedings against Mr. Charkaoui: Charkaoui v. Canada , 2008 SCC 38 , [2008] 2 S.C.R. 326 ( Charkaoui II ). The Supreme Court of Canada found that the Canadian Security Intelligence Service’s policy of destroying notes from interviews and intercepts in the course of intelligence gathering breached

section 7 of the Charter because it infringed Mr. Charkaoui’s right to know the case against him. [ 23 ] Charkaoui II , unlike Charkaoui I , did not automatically render the new security certificate against Mr. Mahjoub invalid. But, broadly speaking, Charkaoui II says much about substantive and procedural fairness obligations in security certificate proceedings.

Whether the proceedings concerning the new security certificate have complied with these obligations is just one small cluster of trees in the larger forest of issues the Federal Court had to explore. [ 24 ] Since 2008 the appellant has continuously received disclosure materials from the ministers in purported compliance with the requirements of Charkaoui II . He has also received a revised

summary of the Security Intelligence Report, which formed the primary basis for the security certificate. [ 25 ] In 2009, Mr. Mahjoub was released from detention on strict conditions. These conditions have been relaxed over time. There are many decisions concerning this. [ 26 ] The proceedings in the Federal Court concerning the new certificate—the one now before this Court—were most complex and challenging.

Due to the manner in which the parties conducted the proceedings and due to other circumstances, many motions fraught with difficult issues were brought—many on extremely short notice, many often overlapping and interrelating with other motions and many requiring prompt determination. Faced with this chaos, it fell to the Federal Court to bring order. It did so.

The end product is 1 021 pages and 2 160 paragraphs of tightly-written, crystal-clear reasons. [ 27 ] Portions of the hearings in the Federal Court and this Court were closed to the public so that submissions could be made concerning national security and intelligence evidence. A provision added by the amendments in 2008, paragraph 83(1) (

c) of the Immigration and Refugee Protection Act , allows this. [ 28 ] In these closed hearings, the interests of Mr. Mahjoub were represented by two special advocates who are authorized and regulated under sections 85 –85.5 of the Immigration and Refugee Protection Act . They have a security clearance that allows them to make submissions in the closed hearing about the confidential material. Before us, I confirm that Mr.

Mahjoub’s interests were expertly represented, in complete fulfilment of the purposes behind the 2008 amendments. [ 29 ] In some cases, the Court needs to explain its decision by going into the confidential material and must issue confidential reasons alongside public, expurgated reasons. However, given the status and importance of the open court principle— “a hallmark of a democratic society” ( Re Vancouver Sun , 2004 SCC 43 , [2004] 2 S.C.R. 332, at paragraph 23 )—to the extent possible, the Court should try to express all of its reasons for judgment publicly. [ 30 ] Confidentiality is not required here.

This public document contains all of my reasons for proposing that these appeals be dismissed. C. What appeals are properly before this Court?

(1) Introduction [ 31 ] After the final decision of the Federal Court, Mr. Mahjoub brought a number of appeals in this Court. Owing to interlocutory proceedings in this Court and the strict limits on the ability to appeal to this Court from matters arising under the Immigration and Refugee Protection Act , some complexity has arisen.

[32] As will be seen, some of the appeals before this Court are improper and must be dismissed at the outset. Nevertheless, in the endthis does not matter: all of the issues raised in all of the appeals, whether or not proper, have ended up before us. Some explanation isneeded as to why that is so.

(2) Procedural history in this Court [33] Mr. Mahjoub presented to this Court a total of five notices of appeal. [34] The Registry accepted the first notice of appeal for filing (file A-313-12). This concerned the Federal Court’s decision on theloss of legal professional and litigation privilege arising from the commingling of documents (2012 FC 669). [35] Later, following the Federal Court’s decisions in 2013 FC 1092, 2013 FC 1095, 2013 FC 1096 and 2013 FC 1097, Mr. Mahjoubpresented four notices of appeal. The ministers objected to the filing of the notices of appeal.

This Court allowed in part their objection. [36] Two of the four were not permitted to be filed. One concerned 2013 FC 1096 and another concerned 2013 FC 1097. As a result,these two notices of appeal are not before us. [37] The remaining two notices of appeal were permitted to be filed. One concerned the Federal Court’s judgment upholding thereasonableness of the certificate (2013 FC 1092). This is file A-478-14. The other concerned the Federal Court’s refusal to grant Mr.Mahjoub’s request that the proceedings be stayed on account of abuse of process.

This is file A-479-14. [38] As a result of the foregoing—as mentioned at the outset of these reasons—three appeals are before this Court: files A-478-14, A-479-14 and A-313-12.

(3) This Court’s jurisdiction to entertain these appeals [39] In this Court, the ministers did not object to this Court’s jurisdiction to entertain these three appeals. However, this Court mustalways ensure that it has the subject-matter jurisdiction to determine matters placed before it: Canada (Citizenship and Immigration) v.Singh, 2016 FCA 300, [2017] 3 F.C.R. 263, at paragraph 16; Canadian National Railway Company v. BNSF Railway Company, 2016FCA 284, at paragraphs 22–23.

This is the case even if the parties do not raise any jurisdictional concerns: McKittrick Properties Ltd.(Re), (ON CA), [1926] 4 D.L.R. 44, (1926), 59 O.L.R. 199 (C.A.); Manie v. Ford (Town) (1918), 14 O.W.N. 83(H.C.), affd (1918), 15 O.W.N. 27 (C.A.). If this Court does not have the subject-matter jurisdiction over an appeal, it cannot determineit. [40] Therefore, at the outset, two of the three notices of appeal—those in files A-479-14 and A-313-12—must be quashed for want ofjurisdiction. [41] Under

section 79 of the Immigration and Refugee Protection Act, appeals to this Court are strictly limited. Only when the FederalCourt has made a “determination” concerning the reasonableness of the certificate under

section 78 of the Act can an appeal be brought.Under

section 79 an appeal can only be “from the determination” and only if the Federal Court “certifies that a serious question ofgeneral importance is involved and states the question.” For good measure,

section 79 adds that “no appeal may be made from aninterlocutory decision in the proceeding.” [42] In this matter, the Federal Court certified only one question for this Court’s consideration. Its reasons on the issue of certificationappear at 2014 FC 200. The question it certified concerned one of the issues bound up in the Federal Court’s judgment that the certificatewas reasonable (2013 FC 1092), a matter now before this Court in file A-478-14. [43] The certified question is as follows: Do

Part 1, Division 4, Sections 33 and 34, and

Part 1, Division 9 of the IRPA, as well as sections 4, 6 and 7(3) of

An Act to amend theImmigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Actbreach

section 7 of the Charter by denying the named person [here, Mr. Mahjoub] the right to a fair hearing? If so, are the provisionsjustified under

section 1? [44] This is a valid question. Accordingly, the appeal from the Federal Court’s reasonableness decision (file A-478-14) is properlybefore us. [45] The notice of appeal in file A-313-12 was the subject of an earlier ruling in this Court. The ministers moved to strike the notice ofappeal for want of jurisdiction due to the bar in

section 79 of the Immigration and Refugee Protection Act. Mr. Mahjoub submitted,among other things, that the motion giving rise to the ruling concerning the loss of privilege arising from the comingling of documentshad nothing to do with the determination of the reasonableness of the certificate. This Court declined to decide the matter by way ofpreliminary motion and left it for this panel to determine: Mahjoub v. Canada (Citizenship and Immigration), 2012 FCA 218, 265 C.R.R.(2d) 259. This notice of appeal can be considered alongside the one in file A-479-14 as they are similarly situated. [46] Both of these notices of appeal concern, in the words of

section 79 of the Immigration and Refugee Protection Act, “interlocutorydecision[s] in the proceeding” arising under the Immigration and Refugee Protection Act.

Section 79 prohibits them from being appealed. [47] Therefore, I would dismiss the appeals in files A-479-14 and A-313-12 for want of jurisdiction. [48] In the end, then, only one appeal properly remains before us: the appeal in file A-478-14 concerning the Federal Court’sreasonableness decision (2013 FC 1092).

(4) The issues before this Court [49] As mentioned, the appeal in file A-478-14 arrives in this Court by way of a certified question. But the issues to be considered on

appeal are not limited to those in the certified question. [50] Once an appeal has been brought to this Court by way of certified question, this Court must deal with the certified question andall other issues that might affect the validity of the judgment under appeal: Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, at paragraph 12; Harkat (Re), 2012 FCA 122, [2012] 3 F.C.R. 635[Harkat], at paragraph 6.

The certification of a question “is the trigger by which an appeal is justified” and, once triggered, the appealconcerns “the judgment itself, not merely the certified question”: Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, (1998), 160 D.L.R. (4th) 193, at paragraph 25. Simply put, “once a case is to beconsidered by the Federal Court of Appeal, that Court is not restricted only to deciding the question certified”; instead, the Court may“consider all aspects of the appeal before it”: Ramoutar v.

Canada (Minister of Employment and Immigration), (FC),[1993] 3 F.C. 370, (1993), 65 F.T.R. 32 (T.D.), at pages 379 and 380. [51] The issues in the appeal in file A-478-14 are defined by the notice of appeal: Pfizer Canada Inc. v. Teva Canada Limited, 2016FCA 218, 141 C.P.R. (4th) 165, at paragraph 22. Originating documents such as this are to be construed in order to gain “a realisticappreciation” of their “essential character” by “reading [them] holistically and practically without fastening onto matters of form”: JPMorgan Asset Management (Canada) Inc. v.

Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557, at paragraph 50. [52] Mr. Mahjoub’s notice of appeal clearly places in issue the validity of the Federal Court’s decisions leading up to the judgment onthe reasonableness of the certificate. Mr. Mahjoub alleges in his notice of appeal that the Federal Court’s judgment on the reasonablenessof the certificate “concerns or is linked” with the earlier decisions. [53] Indeed it is. Just a few examples will illustrate this.

If the Federal Court should have issued a permanent stay of proceedings in itsearlier decisions (2013 FC 1095 and 2012 FC 669) on account of abuse of process or the violation of privilege arising from thecommingling of documents, it could not have gone on to determine whether the certificate is reasonable. If the Federal Court wronglydecided (in its confidential reasons in 2013 FC 1093, and also in 2013 FC 1094 and 2013 FC 1096) to rely upon improperly-obtainedevidence, for example by way of an improper warrant or unsourced intelligence, its conclusion that the certificate was reasonable may bevitiated.

Finally, if the Federal Court wrongly dismissed certain constitutional challenges advanced by Mr. Mahjoub against the securitycertificate provisions (2013 FC 1097), the certificate must fall. [54] Therefore, all issues raised by Mr. Mahjoub that potentially affect the Federal Court’s determination that the certificate wasreasonable are before us.

In practical terms, this means that pretty much all of the issues determined in 2010 FC 989, 2012 FC 669, 2013FC 1092, 2013 FC 1094, 2013 FC 1095, 2013 FC 1096, 2013 FC 1097 and another confidential matter (2013 FC 1093) are properlybefore this Court. [55] All parties proceeded in this matter on this basis. Full argument was received on all issues. D. Analysis

(1) The standard of review [56] The Supreme Court has confirmed that the standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.235 [Housen] apply when this Court reviews the Federal Court’s finding that a security certificate is reasonable: Canada (Citizenshipand Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33, at paragraphs 107–109. [57] Therefore, for questions of law, questions of legal principle and questions of mixed fact and law where there are extricablequestions of law or legal principle, the Federal Court shall be reviewed for correctness.

On all other questions, particularly questions offact, the Federal Court shall be reviewed for palpable and overriding error. [58] Everyone knows what correctness review is: if there is error, this Court can substitute its opinion for that of the Federal Court.But not everyone knows what palpable and overriding error is. [59] On occasion during argument, it became apparent that Mr. Mahjoub’s view of what constitutes palpable and overriding errordiverges from our own. As well, as will be seen, the high threshold for finding palpable and overriding error plays a significant role inthis matter.

Thus, at the outset of my analysis, I wish to say a few words about palpable and overriding error. [60] In this case, many of Mr. Mahjoub’s submissions focus on the Federal Court’s fact-finding and its factually suffused applicationof legal standards to the facts, particularly on the issue of the reasonableness of the security certificate. These matters can only bereviewed for palpable and overriding error. [61] Palpable and overriding error is a highly deferential standard of review: Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R.352, at paragraph 38; H.L. v.

Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. When arguing palpable and overridingerror, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. See Canada v. South YukonForest Corporation, 2012 FCA 165, 431 N.R. 286 [South Yukon], at paragraph 46, cited with approval by the Supreme Court in St-Germain, above. [62] “Palpable” means an error that is obvious. Many things can qualify as “palpable”.

Examples include obvious illogic in thereasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received inaccordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findingsdue to a complete or near-complete disregard of evidence. [63] But even if an error is palpable, the judgment below does not necessarily fall. The error must also be overriding. [64] “Overriding” means an error that affects the outcome of the case.

It may be that a particular fact should not have been foundbecause there is no evidence to support it. If this palpably wrong fact is excluded but the outcome stands without it, the error is not

“overriding”. The judgment of the first-instance court remains in place. [ 65 ] There may also be situations where a palpable error by itself is not overriding but when seen together with other palpable errors, the outcome of the case can no longer be left to stand. So to speak, the tree is felled not by one decisive chop but by several telling ones. [ 66 ] Often those alleging palpable and overriding error submit that a first-instance court forgot, ignored, misconceived or gave insufficient weight to evidence because it did not mention the evidence in its reasons. Before us, Mr.

Mahjoub frequently makes that submission. But a non-mention in reasons does not necessarily lead to a finding of palpable and overriding error. [ 67 ] For one thing, first-instance courts benefit from a rebuttable presumption that they considered and assessed all of the material placed before them: Housen , at paragraph 46 . [ 68 ] Further, when an appellate court considers a submission of palpable and overriding error, often it focuses on the reasons of the first-instance court.

But its reasons are to be viewed in context and construed in light of both the evidentiary record before it and the submissions made to it: R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3, at paragraphs 35 and 55 . Although the reasons may not mention a particular matter or a particular body of evidence, the evidentiary record and the context may shed light on why the first-instance court did what it did.

They may also confirm that although a matter is not mentioned in the reasons, it was nevertheless within the court’s contemplation and considered by it. [ 69 ] Sometimes counsel submit that gaps in the reasons of the first-instance court show palpable and overriding error. In considering this sort of submission, appellate courts must remember certain realities about the craft of writing reasons. It is an imprecise art suffused by difficult judgment calls that cannot be easily second-guessed.

This Court has described the task of a first-instance court drafting reasons in the following way: Immersed from day-to-day and week-to-week in a long and complex trial such as this, trial judges occupy a privileged and unique position. Armed with the tools of logic and reason, they study and observe all of the witnesses and the exhibits. Over time, factual assessments develop, evolve, and ultimately solidify into a factual narrative, full of complex interconnections, nuances and flavour.

When it comes time to draft reasons in a complex case, trial judges are not trying to draft an encyclopedia memorializing every last morsel of factual minutiae, nor can they. They distill and synthesize masses of information, separating the wheat from the chaff and, in the end, expressing only the most important factual findings and justifications for them. Sometimes appellants attack as palpable and overriding error the non-mention or scanty mention of matters they consider to be important.

In assessing this, care must be taken to distinguish true palpable and overriding error on the one hand, from the legitimate by-product of distillation and synthesis or innocent inadequacies of expression on the other. ( South Yukon , above, at paragraphs 49–51.) These observations are particularly true in a case like this with a voluminous, complex and sprawling record scattered among numerous motions and proceedings. [ 70 ] Palpable and overriding error is often best defined by describing what it is not.

If an appellate court had a free hand, it might weigh the evidence differently and come to a different result. It might be inclined to draw different inferences or see different factual implications from the evidence. But these things, without more, do not rise to the level of palpable and overriding error. [ 71 ] Another point of confusion among counsel in this area is the standard of review for exercises of discretion by the first-instance court. [ 72 ] An exercise of discretion involves applying legal standards to the facts as found.

For the purposes of the Housen framework that governs the appellate standards of review, exercises of discretion are questions of mixed fact and law: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology , 2016 FCA 215 , [2017] 1 F.C.R. 331, 402 D.L.R. (4th) 497, at paragraphs 28 and 71–72 ; Decor Grates Incorporated v. Imperial Manufacturing Group Inc. , 2015 FCA 100 , [2016] 1 F.C.R. 246, at paragraph 18 . [ 73 ] Sometimes people are confused because not all questions of mixed fact and law are alike. Some questions of mixed fact and law are binary in nature.

For example, the question whether on the facts a professional has fallen below the legal standard of care is a question of mixed fact and law that admits of only a yes or no answer. Other questions of mixed fact and law allow for a whole range of possible answers. For example, consider the question of remedy for an abuse of process, a question very much before us. Governed by the legal standards set out in the case law, a court has a range of remedial options available to it. In cases where questions of mixed fact and law give rise to that range, we tend to speak of the court as having discretion.

But it is still a question of mixed fact and law for the purposes of the Housen framework that governs the appellate standards of review. [ 74 ] Under the Housen framework, questions of mixed fact and law, including exercises of discretion, can be set aside only on the basis of palpable and overriding error—the high standard described above—unless an error on an extricable question of law or legal principle is present.

So, for example, if an appellate court can discern some error in law or principle underlying the first-instance court’s exercise of discretion, it can reverse the exercise of discretion on account of that error. Another way of putting this is whether the discretion was “infected or tainted” by some misunderstanding of the law or legal principle: Housen , at paragraph 35 . [ 75 ] Having canvassed these basic principles of appellate review and viewing this matter—as this Court must—through the prism of the standards of review, I turn now to a general description of the nature of the submissions made in this Court.

I also offer an overall assessment of the Federal Court’s decisions in this matter.

(2) Applying the standard of review: a

summary conclusion [ 76 ] In the Federal Court, Mr. Mahjoub advanced dozens of legal issues, large and small. Except on one occasion, the Federal Court did not err in law or in legal principle. On that one occasion, the Federal Court did err—but, as we shall see, it erred in Mr. Mahjoub’s favour.

[ 77 ] Further, the Federal Court did not commit palpable and overriding error. [ 78 ] Thus, there are no grounds for this Court to interfere with the Federal Court’s decision. As a matter of law, its decision must stand. [ 79 ] In this Court, Mr. Mahjoub frequently invites this Court to reassess and reweigh the evidence before the Federal Court and to substitute its fact-finding and exercises of discretion for that of the Federal Court: see, e.g., paragraphs 12–15, 15.2–15.3, 50–53 and 67 of Mr. Mahjoub’s memorandum of fact and law.

Sometimes he asks this Court to draw factual inferences the Federal Court declined to draw (see e.g., ibid. , at paragraph 19), to find more prejudice on the facts than the Federal Court was willing to find (see , e.g., ibid. , at paragraph 20), to assume the Federal Court disregarded evidence that it did not mention (see, e.g., ibid ., at paragraphs 45 and 69), to allege the Federal Court misconceived evidence in order to encourage this Court to substitute its own factual finding for that of the Federal Court (see, e.g ., ibid ., at paragraphs 48, 55, 64–65 and 69), and to challenge credibility findings (see, e.g ., ibid. , at paragraph 87). [ 80 ] The invitations must be declined.

They tempt us to travel down a road the law forbids to us. Unless we see legal error, the only road we can travel is one in the direction of palpable and overriding error. [ 81 ] For the benefit of others who one day may have to decide a case as complex as this and who seek guidance, the Federal Court’s seven sets of reasons—1 021 pages and 2 160 paragraphs of tightly-written, crystal-clear reasons—are a model worthy of study and emulation, an example of the execution of the judicial craft at its finest.

Repeatedly and without unnecessary duplication, the Federal Court set out its methodology for fact-finding on each particular issue before it, the admissibility of evidence relevant to each issue, and its assessments of credibility and weight. Its factual conclusions, clearly and firmly expressed, relate directly to the legal tests supplied by the governing law. Even-handedness, neutrality, logic and clinical analysis were on display throughout.

See, for example, the searching examination, lucid discussion, and fair rejection of a number of the allegations and evidence offered by the ministers: 2013 FC 1092 , at paragraphs 218–228 , 230–231, 248–252, 254–259, 262, 268–269, 292, 294–295, 447, 450, 452–454, 456–457, 501–503, 528, 574–583, 595–596, 599, 600, 609, 614 and 615. [ 82 ] To be sure though, in no way does this play into this Court’s task in these appeals.

When an appellant persuades this Court that a judgment must be quashed on account of legal error or palpable and overriding error, magnificently crafted reasons and otherwise-stellar judicial method count for naught: the responsibility of this Court is to quash the judgment. But here, as I have said, there is no legal error, other than the one instance that favoured Mr. Mahjoub, and there is no palpable and overriding error.

(3) The reasonableness of the security certificate [ 83 ] In considering the reasonableness of the security certificate, the Federal Court had much evidence before it, both from open proceedings and closed proceedings. However, it was of the view that its ruling on the reasonableness of the certificate could be based largely on testimony received in open court and from other open, available sources—not evidence whose admissibility was subject to legal challenge. As can be seen from the following

summary of facts and the citations supporting them, this is very much the case. [ 84 ] The overall task of the Federal Court was to determine “whether the certificate is reasonable” and to “quash the certificate if [the Court] determines that it is not”: Immigration and Refugee Protection Act ,

section 78. [ 85 ] As mentioned at the outset of these reasons, several

section 34 grounds for inadmissibility were set out in the security certificate. The grounds are read disjunctively; if any one ground is established, the certificate is reasonable: Almrei (Re) , 2009 FC 1263 , [2011] F.C.R. 163 [ Almrei (Re) ], at paragraph 59 . Under

section 33 of the Immigration and Refugee Protection Act , the facts that constitute inadmissibility include “facts arising from omissions and … include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.” In this case, the Federal Court found that two grounds for inadmissibility were established. [ 86 ] In this Court, Mr. Mahjoub submits that the security certificate was not reasonable. He submits that the Federal Court erred in identifying the legal standard for reasonableness. He also submits that the certificate is unreasonable on the evidence. (

a) The legal standard for reasonableness [ 87 ] Mr. Mahjoub submits that each fact alleged by the ministers in the security certificate must be proven on the balance of probabilities and then holistically assessed as to whether the facts so proven constitute reasonable grounds to believe. [ 88 ] The Federal Court did not accept this submission ( 2013 FC 1092 , at paragraphs 41–44 ) and neither do I. Each fact alleged that establishes inadmissibility need only be proven on a standard of “reasonable grounds to believe”. This follows from Mugesera v.

Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100 [ Mugesera ], at paragraphs 114–116 and Charkaoui I , above, at paragraph 39. [ 89 ] The reasonable grounds to believe standard “requires the judge to consider whether ‘there is an objective basis [for the belief] … which is based on compelling and credible information’”: Charkaoui I , at paragraph 39, citing Mugesera , above, at paragraph 114 . This is “something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities”: Mugesera , at paragraph 114 .

If the “preponderance of the evidence” is contrary to the version of the facts alleged by the Minister, the security certificate cannot be upheld as reasonable: Jaballah (Re) , 2010 FC 79 , [2011] 2 F.C.R. 145, at paragraph 45 ; Almrei (Re) , above. The Federal Court followed this jurisprudence and applied the substantive standards prescribed by it. [ 90 ] I also agree with the reasons of the Federal Court on the meaning of the grounds of inadmissibility set out in paragraphs 34(1) (

d) and 34(1)(

f) of the Immigration and Refugee Protection Act , the two grounds on which the Federal Court found the certificate to be reasonable: 2013 FC 1092 , at paragraphs 50–66 and 673 . These two grounds are danger to the security of Canada and membership in organizations that engaged in subversion by force and terrorism. However, some specific submissions Mr. Mahjoub makes concerning these two grounds should be examined more closely. [ 91 ] Mr. Mahjoub submits that the Federal Court applied too broad a definition of “membership” for the purposes of paragraph

34(1) (

f) of the Immigration and Refugee Protection Act . I reject this. [ 92 ] Terrorist organizations do not issue membership cards or keep membership lists. Thus, as the Federal Court found ( 2013 FC 1092 , at paragraph 63 ), formal membership, in the sense understood for lawful organizations, is not required. Rather, certain activities that materially support a terrorist group’s objectives, such as providing funds, providing false documents, recruiting or sheltering persons, can be evidence of membership in a terrorist organization even though the activities do not directly link to terrorist violence. [ 93 ] Mr.

Mahjoub also submits that there must be some evidence of an “intention to participate or contribute” to an organization. I reject this. [ 94 ] Paragraph 34(1) (

f) of the Immigration and Refugee Protection Act does not specify a mental element that must be satisfied for membership; on its face it merely sets out the status of membership, nothing more. [ 95 ] In any event, the Federal Court found that Mr. Mahjoub had a mental element of membership: he had “an institutional link with [Al Jihad] and knowingly participated in that organization” and there were reasonable grounds to believe “he knew about [the terrorist] training” at a Sudanese farm where he worked and was “complicit” in it. See 2013 FC 1092 , at paragraphs 483 , 504, 628–632. [ 96 ] The appellant also submits that under paragraph 34(1)(

f) the person named in a security certificate must have been involved in the terrorist activity of the organization before the person can be found to be a member. I also reject this. [ 97 ] Involvement in acts of terrorism is a ground set out in paragraph 34(1) (c), a ground that, in the end, the Federal Court did not rely upon in this case. To require acts of terrorism before membership can be found in paragraph 34(1) (

f) would make this paragraph and others in subsection 34(1) redundant: Kanagendren v. Canada (Citizenship and Immigration) , 2015 FCA 86 , [2016] 1 F.C.R. 428, at paragraphs 20–26 . [ 98 ] Thus, overall, the Federal Court properly identified the standard to be applied in determining the reasonableness of the certificate and properly understood the grounds for inadmissibility under

section 34 of the Immigration and Refugee Protection Act . There are no grounds to interfere on these bases. (

b) The facts found by the Federal Court relating to the reasonableness of the security certificate [ 99 ] As mentioned above, the Federal Court found that there were reasonable grounds to believe that two inadmissibility grounds were present: paragraph 34(1) (d) (danger to the security of Canada) and paragraph 34(1) (f) (membership in two organizations that engaged in subversion by force and terrorism). [ 100 ] The Federal Court found that there were reasonable grounds to believe that Mr. Mahjoub was a danger to the security of Canada within the meaning of paragraph 34(1) (

d) by virtue of his continuing contact with terrorists: 2013 FC 1092 , at paragraph 673 . It also found that there were reasonable grounds to believe that Mr.

Mahjoub was a member of Al Jihad and the Vanguards of Conquest, two organizations that engaged in subversion by force and terrorism within the meaning of paragraph 34(1) (f): ibid . [ 101 ] The facts as found by the Federal Court amply demonstrate the reasonableness of the security certificate on these grounds. [ 102 ] Most of the facts found by the Federal Court are based on testimony received in open court and from other open, available sources —news articles, periodicals, books, encyclopaedias, online database entries, publications of non-governmental organizations, think tank publications, and both foreign and Canadian government publications.

These materials are of the sort often used in immigration proceedings. The Federal Court specifically held these materials to be reliable in this case, in part based on the expert testimony before it. The Federal Court was sensitive also to the weight that should be accorded to the materials and examined them on an individual basis. See generally, 2013 FC 1092 , at paragraphs 94–106 .

Expert testimony, used to some extent in the Court’s analysis, and other testimony, used less, was carefully assessed for credibility: see, e.g . , 2013 FC 1092, at paragraphs 124–135 and 139–171. [ 103 ] Other evidence relied upon in support of many of the facts included documentary evidence and physical evidence found in the possession of Mr. Mahjoub when he was arrested. [ 104 ] To the Federal Court, this was “the most reliable evidence adduced by the Ministers”: 2013 FC 1092 , at paragraph 93 . It was significant too—it formed the basis of several findings that linked Mr.

Mahjoub to known terrorists and established his membership in terrorist groups: 2013 FC 1092, at paragraphs 271, 274, 308 and 668–669. [ 105 ] The Federal Court also relied upon secret or closed evidence, primarily documents known as Bibliographic Reference System (BRS) and other intelligence reports but only after a careful assessment of their weight: see, e.g., 2013 FC 1092 , at paragraphs 107–122 . However, in the end result it found very little of this evidence necessary. [ 106 ] The Federal Court was also extremely solicitous about the use of much of the closed evidence.

In accordance with the Immigration and Refugee Protection Act , it excluded closed evidence for which there are reasonable grounds to believe the evidence was obtained from torture or cruel, inhuman or degrading treatment or punishment: orders dated June 9, 2010 and August 31, 2010 in file DES-7-08. Similarly, in another order dated June 19, 2012 in file DES-7-08, the Federal Court excluded BRS reports concerning conversations to which Mr. Mahjoub was not privy, in accordance with this Court’s decision in Harkat , above.

It also refused to rely on information tendered in private from human sources in support of the ministers’ claims. [ 107 ] The following is a

summary of the evidence the Federal Court relied upon to support the reasonableness of the security certificate. [ 108 ] Two terrorist organizations play a central role in this factual

summary: Al Jihad and the Vanguards of Conquest. A third—Al Qaeda—lurks amongst them.

[ 109 ] First, Al Jihad. Overall, the Federal Court found that the evidence of Al Jihad’s involvement in the subversion by force of the government of Egypt and terrorism, “including acts of terrorism resulting in the deaths of civilians”, was “overwhelming [and] compelling”: 2013 FC 1092 , at paragraphs 178–182 ; testimony of professors and open source evidence. [ 110 ] Al Jihad is “a militant Egyptian Sunni Islamist organization with a blind cell structure and a strict policy of secrecy” that is involved in terrorism: 2013 FC 1092 , at paragraph 178 ; testimony of Professor F. Gerges.

In 1998, it became part of the “World Islamic Front for the Destruction of Jews and Crusaders”: 2013 FC 1092, at paragraph 180; testimony of Professor Wark; publication called Al- Quds al’-Arabi . Al Jihad was in part responsible for the assassination of Egyptian President Anwar Sadat in October 1981 and was fully responsible for terrorism against other public officials, including car bombings, attacks on embassies, and so on: 2013 FC 1092, at paragraph 179; testimony of Professor Byman; testimony of M.

Guay; Al-Hayah newspaper, August 9, 1998. [ 111 ] Al Jihad also existed “as an independent entity or closely associated with Al Qaeda”

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