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EXCLUSION (INADMISSIBLE PERSONS) - Grounds for inadmissibility - Security - Inadmissibility findings

Tuesday, August 29, 2017 @ 8:36 AM  


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Appeal by Mahjoub from decisions finding a security certificate reasonable and refusing to grant a stay due to Charter violations. The appellant argued that the certificate was unreasonable and challenged the security certificate regime on the basis of breaching his s. 7 of Charter rights by denying him the right to a fair hearing. He argued that given various instances of misconduct, errors and incidents, including instances of wrongful acquisition and wrongful use of evidence, violations of solicitor-client privilege and violations of Charter rights, the Federal Court committed reversible error in not staying the proceedings permanently. The Minister had signed a security certificate finding the appellant, a refugee, inadmissible to Canada for being danger to the security of Canada due to his continuing contact with terrorists and his membership in two organizations that engaged in subversion by force and terrorism. The Federal Court dismissed the appellant’s constitutional challenges.

HELD: Appeals dismissed. The security certificate was reasonable. The evidentiary record, largely comprised of open-source, open-court information, demonstrated that there were reasonable grounds to believe the appellant 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. The Federal Court properly identified the standard to be applied in determining the reasonableness of the certificate and properly understood the grounds for inadmissibility. The facts as found by the Federal Court amply demonstrated the reasonableness of the security certificate on the grounds specified. The legislative regime concerning security certificates, including the procedures for assessing the reasonableness of a security certificate, was constitutional. To the extent that the appellant or his counsel were not personally aware of all the details of classified information, the Special Advocates were aware and made use of it in a way that maximized the appellant’s chances of success in challenging the reasonableness of the security certificate. Section 12 of the Canadian Security Intelligence Service Act (Act), which empowered the collection of information and intelligence on activities that might on reasonable grounds be suspected of constituting threats to the security of Canada, was neither vague nor overbroad. Sections 21-24 of the Act did not violate s. 8 of the Charter. The sections were broad warrant-authorizing provisions, just like any other search warrant provisions. The intelligence-sharing scheme under s. 17 of the Act was 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. In many of the matters he identified, the appellant had not established in law instances of misconduct, violations of legal rights or Charter breaches. In other instances, while there was misconduct, violations of legal rights or Charter breaches, he had not established that the Federal Court committed palpable and overriding error in refusing to stay the security certificate proceedings. The cumulative Charter rights violations and abuse of process the Federal Court had identified did not approach the level of severity found in the very rare cases of egregious and intentional misconduct that called for an immediate and permanent stay of proceedings without further consideration.

Mahjoub v. Canada (Minister of Citizenship and Immigration), [2017] F.C.J. No. 726, Federal Court of Appeal, D.W. Stratas, R. Boivin and J.M. Woods JJ.A., July 19, 2017. Digest No. TLD-August282017005