Mahjoub v. Canada (Citizenship and Immigration)

Mahjoub v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2017-07-19
Neutral citation
2017 FCA 157
File numbers
A-313-12, A-478-14, A-479-14
Notes
A correction was made on June 26, 2018
Reported Decision
Decision Content
Date: 20170719
Dockets: A-478-14
A-313-12
A-479-14
Citation: 2017 FCA 157
CORAM:
STRATAS J.A.
BOIVIN J.A.
WOODS J.A.
BETWEEN:
MOHAMED ZEKI MAHJOUB
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
Heard at Toronto, Ontario, on December 7 and 8, 2016 and
Ottawa, Ontario, on December 13, 2016
Judgment delivered at Ottawa, Ontario, on July 19, 2017.
REASONS FOR JUDGMENT BY:
STRATAS J.A.
CONCURRED IN BY:
BOIVIN J.A.
WOODS J.A.
Date: 20170719
Dockets: A-478-14
A-313-12
A-479-14
Citation: 2017 FCA 157
CORAM:
STRATAS J.A.
BOIVIN J.A.
WOODS J.A.
BETWEEN:
MOHAMED ZEKI MAHJOUB
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT
STRATAS J.A.
A. Introduction
[1] The Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration signed a security certificate under subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 stating that Mr. Mahjoub—a refugee in 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: 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 (2013 FC 1092) was the culmination of several complex, interrelated decisions in this matter: 2012 FC 669, 2013 FC 1094, 2013 FC 1095, 2013 FC 1096, 2013 FC 1097, 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 10(c) of the Charter: 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. Sections 9 and 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 para. 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 end this does not matter: all of the issues raised in all of the appeals, whether or not proper, have ended up before us. Some explanation is needed 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 the loss 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. Mahjoub presented 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 the reasonableness 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 must always ensure that it has the subject-matter jurisdiction to determine matters placed before it: Canada (Citizenship and Immigration) v. Singh, 2016 FCA 300 at para. 16; Canadian National Railway Company v. BNSF Railway Company, 2016 FCA 284 at paras. 22-23. This is the case even if the parties do not raise any jurisdictional concerns: Re McKittrick Properties Ltd., [1926] 4 D.L.R. 44, 59 O.L.R. 199 (C.A.); Manie v. Ford (Town) (1918), 14 O.W.N. 83 (H.C.), aff’d (1918), 15 O.W.N. 27 (C.A.). If this Court does not have the subject-matter jurisdiction over an appeal, it cannot determine it.
[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 of jurisdiction.
[41] Under section 79 of the Immigration and Refugee Protection Act, appeals to this Court are strictly limited. Only when the Federal Court 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 of general importance is involved and states the question.” For good measure, section 79 adds that “no appeal may be made from an interlocutory 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 certification appear at 2014 FC 200. The question it certified concerned one of the issues bound up in the Federal Court’s judgment that the certificate was 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 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 [here, Mr. Mahjoub] the right to a fair hearing? If so, are the provisions justified under section 1?
[44] This is a valid question. Accordingly, the appeal from the Federal Court’s reasonableness decision (file A-478-14) is properly before 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 of appeal 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 documents had nothing to do with the determination of the reasonableness of the certificate. This Court declined to decide the matter by way of preliminary motion and left it for this panel to determine: 2012 FCA 218. 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, “interlocutory decision[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’s reasonableness 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 and all other issues that might affect the validity of the judgment under appeal: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 12; Harkat v. Canada (Citizenship and Immigration), 2012 FCA 122, [2012] 3 F.C.R. 635 at para. 6. The certification of a question “is the trigger by which an appeal is justified” and, once triggered, the appeal concerns “the judgment itself, not merely the certified question”: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193 at para. 25. Simply put, “once a case is to be considered 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) (1993), 65 F.T.R. 32, [1993] 3 F.C.R. 370 at pp. 379-380.
[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, 2016 FCA 218, 141 C.P.R. (4th) 165 at para. 22. Originating documents such as this are to be construed in order to gain “a realistic appreciation” of their “essential character” by “reading [them] holistically and practically without fastening onto matters of form”: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 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 on the reasonableness of the certificate. Mr. Mahjoub alleges in his notice of appeal that the Federal Court’s judgment on the reasonableness of 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 its earlier decisions (2013 FC 1095 and 2012 FC 669) on account of abuse of process or the violation of privilege arising from the commingling of documents, it could not have gone on to determine whether the certificate is reasonable. If the Federal Court wrongly decided (in its confidential reasons in 2013 FC 1093, and also in 2013 FC 1094 and 2013 FC 1096) to rely upon improperly-obtained evidence, for example by way of an improper warrant or unsourced intelligence, its conclusion that the certificate was reasonable may be vitiated. Finally, if the Federal Court wrongly dismissed certain constitutional challenges advanced by Mr. Mahjoub against the security certificate 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 was reasonable are before us. In practical terms, this means that pretty much all of the issues determined in 2010 FC 989, 2012 FC 669, 2013 FC 1092, 2013 FC 1094, 2013 FC 1095, 2013 FC 1096, 2013 FC 1097 and another confidential matter (2013 FC 1093) are properly before 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 apply when this Court reviews the Federal Court’s finding that a security certificate is reasonable: Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33 at paras. 107-109.
[57] Therefore, for questions of law, questions of legal principle and questions of mixed fact and law where there are extricable questions of law or legal principle, the Federal Court shall be reviewed for correctness. On all other questions, particularly questions of fact, 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 error diverges from our own. As well, as will be seen, the high threshold for finding palpable and overriding error plays a significant role in this 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 application of legal standards to the facts, particularly on the issue of the reasonableness of the security certificate. These matters can only be reviewed 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 para. 38; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. See Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286 at para. 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 the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due 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 found because 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 para. 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 paras. 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 paras. 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, 402 D.L.R. (4th) 497 at paras. 28 and 71-72; Imperial Manufacturing Group Inc. v. Decor Grates Incorporated, 2015 FCA 100, [2016] 1 F.C.R. 246 at para. 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 para. 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 to 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., paras. 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 para. 19), to find more prejudice on the facts than the Federal Court was willing to find (see, e.g., ibid. at para. 20), to assume the Federal Court disregarded evidence that it did not mention (see, e.g., ibid. at paras. 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 paras. 48, 55, 64-65 and 69), and to challenge credibility findings (see, e.g., ibid. at para. 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 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 paras. 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 at para. 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 paras. 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 Employment and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 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 para. 39, citing Mugesera, above at para. 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 para. 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 para. 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 paras. 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 para. 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 paras. 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.