Mahjoub (Re)

Mahjoub (Re)
Court (s) Database
Federal Court Decisions
Date
2013-10-25
Neutral citation
2013 FC 1092
File numbers
DES-1-00, DES-7-08
Decision Content
Date: 20131025
Docket: DES-7-08
Citation: 2013 FC 1092
Ottawa, Ontario, October 25, 2013
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
IN THE MATTER OF A CERTIFICATE
SIGNED PURSUANT TO SUBSECTION 77(1)
OF THE IMMIGRATION AND REFUGEE PROTECTION ACT (IRPA);
AND IN THE MATTER OF THE REFERRAL
OF A CERTIFICATE TO THE FEDERAL COURT PURSUANT TO SUBSECTION 77(1)
OF THE IRPA;
AND IN THE MATTER OF
MOHAMED ZEKI MAHJOUB
|||||||||||||||||||||||||||||||||||| REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] Mr. Mohamed Zeki Mahjoub, an Egyptian national, is the subject ofa security certificate signed pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] on February 22, 2008 by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration. 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 sections 34(1)(b), 34 (1)(c), 34(1)(d) and 34(1)(f) of the Immigration and Refugee Protection Act.
The basis of the certificate is that Mr. Mahjoub poses a threat to national security. The Ministers believe that Mr. Mahjoub has engaged in terrorism and subversion, that he is a high-ranking member of organizations that have engaged in terrorism and subversion, namely Al Jihad (AJ) and the closely related Vanguards of Conquest (VOC), and that he is a danger to the security of Canada because he has and will continue, while in Canada, his involvement in terrorist activities.
[2] Pursuant to subsection 77(1) of the IRPA, the Ministers shall sign and refer the security certificates to the Federal Court so that a designated judge of that Court may determine whether the certificate is reasonable. That decision is this Court’s ultimate task in these proceedings.
[3] In essence, the Court is to decide whether the named person, Mr. Mahjoub, a Convention refugee, is entitled to remain in Canada. Unlike in a criminal proceeding, the named person is not charged with a crime, and the Court is not to determine the named person’s guilt or innocence. As such, the only remedy available to the Ministers, if successful in these proceedings, is the removal of Mr. Mahjoub from Canada on the grounds that he is a threat to national security, subject to deportation proceedings.
[4] After taking into consideration all of the evidence and the actions of the Ministers throughout these proceedings and leading to these proceedings, I find the security certificate signed pursuant to subsection 77(1) of the IRPA to be reasonable. While the Ministers have failed to establish reasonable grounds to believe that Mr. Mahjoub is or was directly engaged in terrorism or subversion, they have established reasonable grounds to believe that Mr. Mahjoub was a member of a group that engaged in terrorism and subversion, namely Al Jihad (also known as Egyptian Islamic Jihad) and its splinter or sub-group, the Vanguards of Conquest (also known as Tala al-Fath). I am satisfied that these groups targeted Canada and Canadians with their terrorist activities, and consequently as a member of this group, Mr. Mahjoub was a danger to the security of Canada. It was therefore reasonable for the Ministers to certify that Mr. Mahjoub was inadmissible to Canada pursuant to paragraphs 34(1)(f) and 34(1)(d) of the IRPA.
II. Background
[5] To provide context, I shall provide a brief summary of the events leading up to these proceedings and the procedural history of the proceedings. A lexicon of acronyms is appended to these Reasons for ease of reference.
1. History Prior to these Proceedings
[6] Mr. Mohamed Zeki Mahjoub is an Egyptian national born in Al-Sharkiya, Egypt, at the beginning of April 1960. Mr. Mahjoub arrived in Canada via Toronto Pearson International Airport during the night of December 30 and 31, 1995. He was traveling on a false Saudi Arabian passport. At the airport, Mr. Mahjoub claimed refugee status in Canada, which the Immigration and Refugee Board granted on October 24, 1996.
[7] Mr. Mahjoub came to the attention of the Canadian Security Intelligence Service (CSIS or the Service) in |||||||||||||||||||||||||||||||||| 1996 |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The Service conducted an investigation into Mr. Mahjoub’s past and present activities and associations pursuant to section 12 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act). |||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| the Service sought a warrant at the Federal Court of Canada (as it then was) to collect further information on Mr. Mahjoub pursuant to section 21 of the CSIS Act. The Service obtained this warrant and subsequent warrants expanding its warrant powers. The warrants were in force from |||||||||||||| ||||||||||||||||||||||||||||||||||||||
[8] As a result of the information collected during its investigation, the Service prepared a Security Intelligence Report (SIR) recommending that the Solicitor General of Canada and the Minister of Citizenship and Immigration sign a security certificate pursuant to section 40.1(1) of the Immigration Act, R.S.C. 1985, c. I-2.The Solicitor General of Canada, the Honourable Lawrence MacAulay, and the Minister of Citizenship and Immigration, the Honourable Elinor Caplan, signed the first security certificate naming Mr. Mahjoub on May 17 and June 12, 2000 respectively.
[9] Mr. Mahjoub was arrested on June 26, 2000. The first security certificate was referred to the Federal Court of Canada in DES-1-00, and Justice Marc Nadon determined the first security certificate to be reasonable in a decision released on October 5, 2001 (Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2001 FCT 1095). Mr. Mahjoub remained in detention pending his deportation. On July 30, 2003 and November 25, 2005, Justice Eleanor Dawson dismissed Mr. Mahjoub’s applications pursuant to subsection 84(2) of the IRPA to be released from detention. In the meantime, Mr. Adil Charkaoui, another named person subject to a security certificate, appealed to the Supreme Court of Canada challenging the constitutionality of the security certificate regime.
[10] On February 23, 2007, the Supreme Court of Canada released Charkaoui v. Canada, 2007 SCC 9 [Charkaoui I], its first decision on the constitutionality of the regime. The Supreme Court’s ruling declared the security certificate regime under what was then section 77(1) of IRPA to be unconstitutional for two reasons: the named person did not sufficiently know the case to meet or have the means to meet it as required by section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Sch. B to the Canada Act 1982 (UK), 1982 c. 11 [Charter], and the regime made a discriminatory distinction between foreign nationals and permanent residents in its detention provisions, violating section 15 of the Charter. The Supreme Court suspended its declaration of invalidity of the security certificate scheme for one year to enable Parliament to bring the scheme into line with the constitution.
[11] Mr. Mahjoub was first released from detention on stringent conditions on June 14, 2007 by Order of Justice Mosley which followed his Reasons for Order on February 15, 2007 (2007 FC 171). The conditions required the supervision and monitoring of all of Mr. Mahjoub’s activities.
[12] Prior to the expiry of the year-long suspension of invalidity for the security certificate regime, Parliament passed Bill C-3, which came into force February 22, 2008, the last day of the old legislation’s validity. Bill C-3 made the following changes to the security certificate regime:
A new disclosure process;
A new process for closed hearings and classified information;
A provision for the appointment of Special Advocates to represent the named person’s interests in closed hearings, and
Elimination of the distinction between permanent residents and foreign nationals for the purposes of detention review.
[13] In the weeks leading up to the coming into force of Bill C-3, the Service prepared an updated SIR, concluding that Mr. Mahjoub was inadmissible to Canada. The Service submitted the SIR to the Minister of Public Safety and Emergency Preparedness, the Honourable Stockwell Day, and the Minister of Citizenship of Immigration, the Honourable Diane Finley. The Ministers signed the new security certificate, the subject of this proceeding, on February 22, 2008.
[14] On June 26, 2008, the Supreme Court of Canada released Charkaoui v. Canada, 2008 SCC 38, its second decision relating to the security certificate regime, also known as Charkaoui II. The Supreme Court declared the Service’s policy of destroying its operational notes to be a serious breach of the Service’s duty to retain and disclose information. The decision outlined the Service’s disclosure obligations in a security certificate proceeding, adapting the principles in R. v. Stinchcombe, [1991] 3 S.C.R. 326 to the distinguishable security certificate context, while confirming that the named person’s right to disclosure is not absolute and is subject to national security privilege (Charkaoui II at paragraphs 48-63).
2. Procedural History
[15] The following is a summary of the procedural history of this case from its beginnings in spring 2008.
[16] The first schedule for the proceedings was set at the end of April 2008. Justice Carolyn Layden-Stevenson was appointed the designated judge for Mr. Mahjoub’s file, DES-7-08. Mr. Mahjoub retained Ms. Marlys Edwardh and Ms. Barbara Jackman, the same counsel as another person subject to a security certificate, Mr. Mahmoud Jaballah. The Special Advocates, Mr. Anil Kapoor and Mr. Gordon Cameron, were appointed in July 2008. In the late summer and fall of 2008, the Ministers and several of the named persons and special advocates litigated a motion to implement the Supreme Court’s Charkaoui II decision.
[17] The Ministers’ case opened on September 29, 2008 with in camera evidence in support of the reasonableness of the security certificate and the threat that the Ministers alleged in support of maintaining Mr. Mahjoub’s conditions of release. On October 3, 2008, the Court issued a disclosure order implementing the Charkaoui II decision. The Ministers’ evidence continued until October 20, 2008, when the proceeding was suspended. The Special Advocates elected not to continue their cross-examination, reserving it until they had access to the Charkaoui II disclosure. The Ministers delivered two phases of classified Charkaoui II disclosure to the Special Advocates, the first on December 15, 2008 and the second on January 15, 2009.
[18] Justice Layden-Stevenson was elevated to the Federal Court of Appeal on December 12, 2008. She subsequently ordered that issues of “variation of conditions of release” and reasonableness of the certificate be bifurcated to avoid undue complication and delay. The learned judge went on to complete the outstanding detention reviews and issued her reasons therein on December 18, 2008, and then again on March 9, 2009. By Communication dated December 19, 2008, Justice Layden-Stevenson also noted the unanimous agreement of all counsel that evidence adduced on the detention review relating to Mr. Mahjoub’s threat assessment can be read into the record of this proceeding.
[19] In early 2009, by agreement, a number of issues, including constitutional issues, were litigated before Justice Dawson with the view of having her determinations apply to the outstanding certificate proceedings, including Mr. Mahjoub’s proceedings. Justice Dawson issued her decisions on these matters in March 2009, January 2010 and February 2010 (Almrei (Re), 2009 FC 240; Jaballah (Re), 2010 FC 79 and Jaballah (Re), 2010 FC 224; the latter two decisions were adopted in this proceeding by orders dated March 11, 2010 and March 15, 2010).
[20] On March 17, 2009, Mr. Mahjoub’s supervising sureties, his wife and stepson, withdrew their consent to act as sureties for Mr. Mahjoub. The Court convened on an urgent basis, and Mr. Mahjoub consented to return to detention, which he did on April 30, 2009.
[21] Throughout the spring, summer, and fall of 2009, the Court dealt with a number of contentious issues. These issues related to the lack of compatibility between the electronic formatting of the Charkaoui II disclosure and the systems used by the Special Advocates to review this disclosure, litigation over national security privilege and disclosure of Charkaoui II materials to Mr. Mahjoub (including a late change of position by the Ministers over the content of their own proposed summaries), Mr. Mahjoub’s constitutional challenge to the Corrections and Conditional Release Act, S.C. 1992, c. 20, and Mr. Mahjoub’s detention review.
[22] Mr. Mahjoub went on a hunger strike in July 2009 to protest the conditions of his detention. In September 2009, the Court was informed that his medical condition was deteriorating, requiring the Court to urgently reschedule a detention review hearing approximately one month earlier. By the end of September, Mr. Mahjoub had ended his hunger strike. On November 30, 2009, the Court released Mr. Mahjoub on strict conditions that nevertheless permitted him to live without supervising sureties. The passage of time and Mr. Mahjoub’s essential compliance with his conditions of release resulted in the relaxation of these conditions in subsequent detention reviews.
[23] Ongoing litigation concerning disclosure required the reasonableness hearings, originally scheduled for February 2010, to be adjourned to March 2010. In the first few months of 2010, Mr. Mahjoub received summaries of most of the Charkaoui II disclosure and a revised public summary of the SIR. The reasonableness hearings were adjourned again because the Special Advocates’ expert, Dr. Omar Ashour, failed to disclose his conflict of interest when approached in January 2010 by the Ministers to be retained as their expert. By reason of this unexpected delay and with the consent of the parties, the Court heard the Special Advocates’ motion to exclude evidence for which there are reasonable grounds to believe it was obtained from torture or cruel, inhuman and degrading treatment or punishment pursuant to subsection 83(1.1) of the IRPA. The Court released its Reasons for Order on June 9, 2010 (2010 FC 737) and its Order implementing the Reasons on August 31, 2010, excluding some of the Ministers’ evidence.
[24] On June 1, 2010, counsel for Mr. Mahjoub brought a motion to be removed as Mr. Mahjoub’s solicitors of record on the grounds of an irrevocable breakdown in the solicitor‑client relationship. The Court granted the motion on June 14, 2010. In late June, the Court had a three-way case management conference call with Mr. Mahjoub’s prospective counsel, including some individuals who would later become Mr. Mahjoub’s retained counsel, informing them that the reasonableness hearing would resume by October 12, 2010, which it did. The Ministers closed their public case on November 2, 2010.
[25] In July 2010, the Court also clarified that preliminary matters and motions were complete. Nevertheless, during September and October 2010, Mr. Mahjoub brought motions for further disclosure and informally advised of his intention to bring a motion challenging the admissibility of evidence obtained by warrants and a motion for a permanent stay of proceedings on the grounds of abuse of process. The Court granted a two-week adjournment and decided by Order dated November 3, 2010 to avoid the repetition of evidence and to mitigate the delay by hearing all of the evidence for the two motions and reasonableness prior to deciding the motions.
[26] After issuing additional subpoenas and making additional motions for disclosure, Mr. Mahjoub opened his case in late November 2010. The evidence continued until January 2011, and disclosure to Mr. Mahjoub, particularly in relation to the motions that he had brought in fall 2010, was ongoing. Mr. Mahjoub continued to make broad disclosure requests in support of his motions into April 2011. He also requested additional subpoenas to issue. The Ministers challenged the issuance of some of these subpoenas.This required litigation and as a result, no hearings relating to reasonableness were held from the end of January until June 2011. The hearing resumed in early June, 2011 until July 14, 2011.
[27] On September 8, 2011, the Court received notification from Mr. Mahjoub’s counsel that the Ministers had seized Mr. Mahjoub’s materials from a court breakout room beginning on July 15, 2011 and commingled those documents with the Ministers’ documents. Mr. Mahjoub subsequently brought a motion for a permanent stay of proceedings and a motion for adjournment of the reasonableness proceedings. The Court adjourned the reasonableness proceedings and determined that the commingled documents needed to be separated before Mr. Mahjoub’s motion could be dealt with. Prothonotary Aalto was designated to oversee the separation process and report to the Court at the conclusion of the process. Subsequently, the Court declined to grant a permanent stay of proceedings for the Ministers’ negligent commingling of the documents, but instead removed eleven members of the Ministers’ litigation team from the case to remedy the abuse of process.
[28] In the meantime, significant ongoing disclosure, including tranches of Charkaoui II disclosure, was released to Mr. Mahjoub. The most critical disclosure was the release to Mr. Mahjoub in October 2011 of a number of allegations that were contained in the foreign agency information. The Service had received permission to disclose these allegations in response to the requests that it had sent to the foreign agencies in late 2010. Mr. Mahjoub also received responses to the Ministers’ national security privilege objections made during several Service witnesses’ testimony.
[29] In addition, Mr. Mahjoub had been gathering additional evidence to support his case as of March 2011 and throughout 2011. On the request of Mr. Mahjoub once the commingling issue was decided, the Court agreed to adjourn the reasonableness proceeding until July 2012. Mr. Mahjoub’s request to adjourn until October 2012 was refused on the basis that there had been significant previous rescheduling of the proceeding, and given the increased number of witnesses since July 2011, it was important to move the proceeding forward. Witness testimony resumed on July 6, 2012.
[30] On June 19, 2012, the Court ruled on the Special Advocates’ motion to exclude evidence pursuant to the Federal Court of Appeal’s decision in Harkat v. Canada (Minister of Citizenship and Immigration, 2012 FCA 122 [Harkat]. Evidence consisting of the Service’s summaries of conversations to which Mr. Mahjoub was not privy was excluded.
[31] By consent of the Ministers, much of Mr. Mahjoub’s remaining evidence was adduced by affidavit, and Mr. Mahjoub closed his case on September 13, 2012. On that day, Mr. Mahjoub sought to obtain final decisions in his late filed motion relating to abuse of process and his constitutional and warrant challenges, which would effectively postpone his decision whether or not to testify. These issues have been explained at length in my reasons deciding the Abuse of Process Decision at paragraphs 340-346. The Court ordered Mr. Mahjoub to file a motion justifying why the schedule should be changed at this late stage. On September 19, 2012, Mr. Mahjoub decided not to testify. On October 2, 2012 the Court dismissed Mr. Mahjoub’s motion to change the schedule on the basis that the process to be followed in the proceeding had been decided much earlier in the proceeding (the November 3, 2010 Order, re-confirmed in the June 28, 2012 Order) and that it was not appropriate or efficient to modify the process at that late stage.
[32] In addition, the Special Advocates brought a motion to exclude “unsourced intelligence” from the Ministers’ evidence in the proceedings on September 28, 2012. The Ministers adduced evidence on this motion on October 24, 2012.
[33] The Ministers brought the remainder of their in camera evidence from October 9 to 12, 2012 and then closed their in camera case. The Court dismissed the Special Advocates’ objection that the Ministers were splitting their case in bringing this evidence. The Ministers and Special Advocates agreed that no public litigation was required as a result of the in camera evidence.
[34] The Ministers continued to make required Charkaoui II disclosure, and Mr. Mahjoub continued to attempt to adduce new evidence until the eve of final submissions, which took place from November 26, 2012 to January 22, 2013.
[35] The Court reserved on all five outstanding matters: the motion to exclude evidence obtained by the CSIS Act section 21 warrants (Warrants Decision), the constitutional challenge to the CSIS Act and Division 9 of the IRPA (Constitutional Decision) the motion for a permanent stay of proceedings due to abuse of process (Abuse of Process Decision), the motion to exclude “unsourced intelligence” (Foreign Agency Evidence Decision), and the reasonableness of the security certificate (Reasonableness Decision).
III. Legal Framework
[36] The certificate signed pursuant to subsection 77(1) of the IRPA naming Mr. Mahjoub states that he is inadmissible on grounds of security. Pursuant to section 78 of the IRPA, on referral of the certificate, the designated judge shall determine whether it is reasonable and shall quash the certificate if he or she determines that it is not.
[37] As Justice Dawson has explained in one of her decisions in the common issues proceedings (Jaballah (Re), 2010 FC 79), the referral of a certificate may be characterized as follows:
[19] The Act requires the Ministers to refer security certificates to the Court. When a certificate is referred, the Ministers are required to file with the Court the information and evidence upon which the certificate is based, and a summary of such information and evidence that enables the person named in the certificate to be reasonably informed of the case made by the Ministers. There is no requirement for leave to proceed before the Court and the Ministers bear the onus of establishing that the certificate is reasonable. [Emphasis added]
[38] To determine whether the certificate is reasonable, the judge must be satisfied that the Ministers have established that, with respect to the person named in the security certificate, he or she meets the criteria set out in subsection 34(1) of the IRPA, which provides as follows:
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :
a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada;
b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité du Canada;
e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada;
f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
[39] As Justice Mosley comments in Almrei (Re), 2009 FC 1263 at paragraph 59: “[w]here a security certificate asserts inadmissibility on more than one ground, each ground must be read disjunctively. If any one ground is established, the certificate is to be determined to be reasonable…”
[40] The standard of proof for the facts constituting inadmissibility is set out in section 33 of the IRPA:
33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.
[41] The wording of section 33 does not support Mr. Mahjoub’s and the Special Advocates’ submission that each fact alleged by the Ministers must be proven on a balance of probabilities and then holistically assessed as to whether the facts so proven constitute reasonable grounds to believe. Each fact alleged that constitutes inadmissibility need only be proven on a reasonable grounds to believe standard.
[42] The Supreme court of Canada makes this clear in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 [Mugesera] at paragraph 116 in which the Court states that because the reasonable grounds to believe standard applies to questions of fact, “[t]his means that in this appeal the standard applies to whether Mr. Mugasera gave the speech, to the message it conveyed in a factual sense and to the context in which it was delivered.” These are the type of facts constituting inadmissibility. While the Supreme Court was dealing with a slightly different inadmissibility provision in the former Immigration and Refugee Act, in my view it also finds application to sections 33 and 34 of the current IRPA.
1. Reasonable Grounds to Believe
[43] Charkaoui I provides the definition of the “reasonable grounds to believe” standard as it applies in security certificate referrals as well as reviews of the named person’s detention. The standard “requires the judge to consider whether ‘there is an objective basis [for the belief] … which is based on compelling and credible information’: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, at para. 114.” The Supreme Court in Mugasera further explains at paragraph 114 that the standard is “something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities.”
[44] The named person may present a contrary version of the facts alleged by the Ministers, requiring the designated judge to examine which version is more probable. As established in the subsequent security certificate jurisprudence, in particular Almrei (Re), 2009 FC 1263 at paragraph 101 and Harkat (Re), 2010 FC 1241 at paragraph 64, if the “preponderance of the evidence” is contrary to the version of the facts alleged by the Ministers, the certificate cannot be upheld as reasonable. As Justice Dawson further explains in Jaballah (Re), 2010 FC 79:
[43] The requirement that the belief be objectively grounded on compelling and credible evidence is an important protection. The standard connotes a degree of probability found on credible evidence, although the required degree of probability is less than a balance of probabilities. See: Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 474 (C.A.) at paragraph 22.
[44] I therefore disagree with Mr. Jaballah that, for example, it is possible to conclude that it is probable a person is not a member of a terrorist organization and still have a reasonable belief that the person is a member. If the evidence establishes a probability, that is, anything more likely than not, this would preclude reasonable grounds for belief of the contrary.
[45] Further, notwithstanding the interpretive rule contained in section 33 of the Act, where there is conflicting evidence on a point, the Court must resolve such conflict by deciding which version of events is more likely to have occurred. A security certificate cannot be found to be reasonable if the Court is satisfied that the preponderance of credible evidence is contrary to the allegations of the Ministers. [Emphasis added]
To be clear, this does not mean that the Ministers must prove that the facts as they allege on a balance of probabilities. The standard of proof is not changed. The guidance provided by Justice Dawson addresses how the Court should resolve circumstances involving conflicting evidence on a point. If the evidence establishes there are reasonable grounds to believe that certain facts occurred, are occurring or may occur, those facts may found the basis for inadmissibility. If however, on any given fact in support of an allegation by the Ministers, the preponderance of evidence is contrary to the Ministers allegation, there can be no reasonable grounds to support the allegation.
2. Temporality
[45] Justice Dawson in Jaballah (Re) 2010 FC 79 has further explained that because the designated judge is required to conduct “a searching examination of the reasonableness of the certificate on the material placed before” him or her, according to paragraph 38 of Charkaoui I:
[26] The question the Court is to determine is whether, on all of the information and evidence before it, the certificate is reasonable at that point in time. See: Almrei (Re), 2009 FC 1263 at paragraph 6. The Court does not inquire as to whether the Ministers' decision was reasonable when made, based upon the evidence and information then before the Ministers.
[27] In light of the onus, the requirement that the Ministers adduce evidence in both open and closed proceedings, the right of the person concerned to cross-examine the Ministers’ witnesses and to adduce evidence, the required searching examination of the evidence led in both the open and closed hearings by the designated judge and the fact the decision is to be made on a contemporaneous (not retrospective) basis, it is not accurate to characterize the proceeding as a judicial review on an expanded evidentiary basis. [Emphasis added]
[46] Justice Dawson held that the designated judge is not to consider the reasonableness of the certificate within the framework of a judicial review whereby the judge determines whether it was reasonable for the Ministers to sign the security certificate at the time the certificate was issued. Rather, the certificate is considered on the judge’s de novo review of all of the evidence adduced since the Ministers signed the certificate. I agree with this assessment.
[47] Justice Dawson’s comments do not, however, restrict the temporality of the grounds of inadmissibility found in section 34 of the IRPA. At paragraph 33 of Jaballah (Re), 2010 FC 79, she further explains that the designated judge is to decide if there are “reasonable grounds to believe that the relevant matters alleged in subsection 34(1) of the Act have occurred, are occurring, or may occur” (emphasis added).
[48] The Federal Court of Appeal in Harkat concurs with designated judge Justice Simon Noël’s view of the temporality of paragraph 34(1)(d) of the IRPA:
[152] I agree with the [designated] judge’s conclusion on the issue of security under section 34 of the Act. The scope of application of this section is governed by the rules of interpretation found in section 33. Unless otherwise provided, the facts that constitute inadmissibility include facts for which there are reasonable grounds to believe that they have occurred are occurring or may occur. Section 33 covers past, present and future facts. Therefore, there is no requirement under the combined effect of sections 33 and 34 that the danger to the security of Canada be current in order to be inadmissible on security grounds. [Emphasis added]
[49] With respect to membership pursuant to paragraph 34(1)(f), the Federal Court of Appeal does not comment on Mr. Harkat’s argument that “the absence of a temporal nexus between membership and the terrorist nature of the organization leads to an interpretation which offends sections 2 and 7 of the Charter.” Subsequently, the Federal Court has interpreted paragraph 34(1)(f) to require a temporal nexus between membership and the reasonable grounds to believe that the organization engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c) (see Justice Leonard Mandamin’s comments in Werfalli v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 612 at paragraphs 61-78). This interpretation restricts the provision, for it will not capture individuals who are members of an organization before there were reasonable grounds to believe that the organization will engage in the enumerated acts, avoiding a situation where a member of a lawful group has a “Sword of Damocles suspended indefinitely over his or her head” in case that organization ever engages in acts described in (a), (b) or (c) (Werfalli at paragraph 62). This interpretation is in my view reasonable. If at the time of membership it is established, on reasonable grounds to believe, that the organization is not engaged, has not engaged or will not engage in the enumerated acts, the member will not be captured by the provision.
3. Paragraph 34(1)(b): Subversion by force
[50] The Federal Court of Appeal accepted the Immigration and Refugee Board’s (IRB’s) definition of “subversion” as “accomplishing change by illicit means or for improper purposes related to an organization” (Qu v. Canada (Minister of Citizenship and Immigration), 2001 FCA 399 at paragraph 12). This definition was used by the Federal Court in Suleyman v. Canada (Minister of Citizenship and Immigration), 2008 FC 780 at paragraph 63 and in subsequent paragraph 34(1)(b) jurisprudence such as Jalloh v. Canada (Public Safety and Emergency Preparedness), 2012 FC 317 at paragraph 14 in defining the term “subversion by force”.
[51] Justice Michael Phelan further elaborated on the term in Oremade v. Canada (Minister of Citizenship and Immigration), 2005 FC 1077. In that case, “by force” was broadly defined to include “coercion or compulsion by violent means, coercion or compulsion by threats to use violent means, and…reasonably perceived potential for use of coercion by violent means” (ibid. at paragraph 27). The learned judge concluded that the provision required that there be intent to “use such means to subvert the particular government” (ibid. at paragraph 24). This intention “is not to be measured solely from the subjective perspective of the applicant” but from an objective perspective of what the reasonable person would assume (ibid. at paragraph 26). Justice Phelan’s definition has been adopted in subsequent jurisprudence (see: Eyakwe v. Canada (Minister of Citizenship and Immigration), 2011 FC 409; Jahazi v. Canada (Minister of Citizenship and Immigration), 2010 FC 242).
[52] As a final point, the Federal Court in Alemu v. Canada (Minister of Citizenship and Immigration), 2004 FC 997 points out that “since [paragraph 34(1)(b)] delineates two possibilities – engaging in subversion by force or instigating subversion by force – some specificity is required” (at paragraph 31). The Court must therefore determine specifically whether the named person engaged in and/or instigated subversion by force of any government.
4. Paragraph 34(1)(c): Terrorism
[53] The Supreme Court defines “terrorism” in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 [Suresh] at paragraph 98, as follows:
In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, that “terrorism” in s. 19 of the Act includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. This definition catches the essence of what the world understands by “terrorism”. Particular cases on the fringes of terrorist activity will inevitably provoke disagreement… [Emphasis added]
[54] Justice Mosley incorporates the Criminal Code, R.S.C. 1985, c. C-46 definition of “terrorist activity” into this definition in Almrei (Re), 2009 FC 1263:
[71] Any attempt to define “terrorism” in the immigration context must also now take into account the definition of “terrorist activity” found in subsection 83.01(1) of the Criminal Code: Soe v. Canada (Minister of Citizenship and Immigration), 2007 FC 671, [2007] F.C.J. No. 913. That definition is in two parts. The first part links the meaning of the term to the commission of certain listed offences enacted by Canada in the course of domestic ratification of international conventions and treaties against terrorism.
[72] The second part of the definition of terrorist activity in the Criminal Code, includes a number of elements which require proof of political, religious or ideological purpose, an intention to intimidate or compel action or inaction on the part of a government, organization or person and harmful consequences such as death, serious property damage or interference with essential services. [Emphasis added]
[55] Subsequent to the reasonableness decision in Almrei (Re), the Supreme Court of Canada has upheld the constitutionality of the definition of terrorism in the Criminal Code in R. v. Khawaja, 2012 SCC 69:
[62] I return to the central question: is s. 83.18 broader than necessary or does it have a grossly disproportionate impact, considering that the state objective is the prevention and prosecution of terrorism? It is true that s. 83.18 captures a wide range of conduct. However, as we have seen, the scope of that conduct is reduced by the requirement of specific intent and the exclusion of conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity. On the other side of the scale lies the objective of preventing the devastating harm that may result from terrorist activity. When the tailored reach of the section is weighed against the objective, it cannot be said that the selected means are broader than necessary or that the impact of the section is disproportionate.
[63] I add this. The breadth of the impugned provisions reflects Parliament’s determination that “there is substantive harm inherent in all aspects of preparation for a terrorist act because of the great harm that flows from the completion of terrorist acts”: R. v. Ahmad (2009), 257 C.C