IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 26 (Cited 26 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 26 (Cited 26 Imm. L.R. (4th))

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ISSN 0835-3808 ISBN 978-0-7798-4670-2 Printed in Canada by Thomson Reuters

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[Indexed as: Jin v. Canada (Minister of Citizenship and Immigration)] Jin, Liwen, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6342-13 2014 FC 612, 2014 CF 612 Yvan Roy J. Heard: May 21, 2014 Judgment: June 25, 2014 Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Experience –––– Immigration officer denied applicant permanent resident visa as member of Canadian Experience Class — Fairness letter sent to applicant raised concern about whether applicant intended to live in different province than Quebec — Officer found applicant provided no tangible evidence that she was returning to Canada — Officer was not satisfied it was applicant’s intent to establish in Canada and in province other than Quebec — Applicant was working in Shanghai, but indicated in e- mail that she planned to return to Canada on specified date to lease condominium in Toronto and that she would not reside in Quebec because she did not speak French — Officer indicated letter from owner of condominium was not sufficient and required signed lease — Applicant brought application for judicial review — Application granted — Decision letter was not reasonable — Appli- cant responded to concern raised — It was unreasonable to require application to purchase airline ticket and incur significant costs to satisfy officer that she intended to avail herself of permanent resident visa requested — There was no indication why letter from owner of condominium was no sufficient and why signed letter would be needed — If officer had concerns about employment situation once in Toronto officer should have raised them with applicant — It was not reasonable to deny application for permanent residence on different basis not alluded to — If doubts about residency in Quebec deserved fairness letter, doubts about return to Canada deserved fair warning. Cases considered by Yvan Roy J.: Hassani v. Canada (Minister of Citizenship & Immigration) (2006), 2006 CF 1283, 2006 CarswellNat 5123, [2007] 3 F.C.R. 501, 2006 CarswellNat 3387, 2006 FC 1283, 302 F.T.R. 39 (Eng.), [2006] F.C.J. No. 1597 (F.C.) — referred to 176 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to

APPLICATION for judicial review of decision by officer denying applicant’s application for permanent resident visa.

Jean-Fran¸cois Bertrand, for Applicant Pavol Janura, for Respondent

Yvan Roy J.:

1 In this application for judicial review made pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], it is the decision of an Immigration Officer that is challenged. 2 The decision, dated May 22, 2013, denies an application for a permanent resident visa as a member of the Canadian Experience Class. 3 In the decision, which was transmitted by email, the Immigration Of- ficer states that: [Y]ou have not provided tangible evidence you are returning to Can- ada, i.e. copy of a purchased an [sic] airline ticket, offer/contract of employment in Toronto. In addition, there is no indication Yutong Wu is the proprietor of the condo, nor was a signed lease provided. Based on the above, I am not satisfied it is your intent to establish in Canada and in a province other than the province [sic] of Quebec. 4 That letter of decision followed what has been called a “fairness letter” which was sent on February 20, 2013. Such a letter is for the purpose of indicating to applicants why their application will be denied if additional information or evidence is not provided. In the case at bar, the only indication of the concerns reads as follows: Please provide written evidence that you intend to live in a different province than Quebec in order for me to take a final decision on your application. If you choose not to respond with additional information and/or documentation, or if your submission does not respond to these concerns, you [sic] application may be refused. 5 Within the 30 days given in order to provide a response, the applicant, through a representative who was not her counsel in these proceedings, responded with an email on March 19, 2013. In that email, the Im- migration Officer is advised that the applicant has left Canada and a copy of her passport showing her entry into China on June 21, 2012 is ap- Jin v. Canada (MCI) Yvan Roy J. 177

pended. The email also advises that the applicant is working in Shanghai since November 1, 2012. The third paragraph is particularly relevant. It reads: Mrs. Jin plans to come back to Canada on September 1st, 2014. She will lease a condo in Toronto. Please refer to the attached rental con- firmation. Mrs. Jin lived and studied in London, Ontario from Sep- tember 2006 to October 2010. She intends to settle in Ontario because her second language is English and because of her relations in the province of Ontario. She feels it would be difficult to find a permanent job in Qu´ebec because she doesn’t speak French. 6 There is in fact a letter confirming her employment in Shanghai and a document, which is not dated, which seeks to provide evidence that a condominium owned by that person, Yutong Wu, will be leased to Ms Jin. 7 It is not disputed by the parties that the standard of review in the circumstances is the standard of reasonableness. The task at hand is therefore to determine whether the decision letter of May 22, 2013 meets the reasonableness standard. In my view, it does not. 8 The concern that was raised initially was to the effect that the applicant would in fact reside in the Province of Quebec. As indicated in that letter, “the Canadian experience class is prescribed as a class of persons who may become permanent residents on the basis of their experience in Canada and who intend to reside in a province other than the Province of Quebec.” Thus, the applicant, through a representative, sought to allevi- ate the concern by providing evidence that she would indeed reside outside of the Province of Quebec. The applicant responded to the concern raised. 9 However, the decision letter switches gears in that the decision is based on the argument that “[Y]ou have not provided tangible evidence you are returning to Canada”. The concern that was present that the applicant would reside in Quebec has magically become whether or not the applicant would be returning to Canada at all. One has to wonder why an applicant would go through the trouble of retaining a consultant and fill out the various forms and questionnaires that need to be completed if the person does not intend to return to Canada. What is more is that the further explanation of what might be missing appears to be inaccurate. The Immigration Officer declares that there is no indication that Yutong Wu is the proprietor of the condo. This is not so. On the basis of the evidence before the decision-maker, this gentleman is the owner of the condomin- 178 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

ium. There is no indication in the decision as to why the Immigration Officer would refute that information. 10 In my view, it is unreasonable to require, for instance, that an applicant would have to purchase an airline ticket, and incur a significant cost, for the sole purpose of satisfying an Immigration Officer that she intends to avail herself of the permanent residence visa she requested. It would be more reasonable to purchase such an expensive ticket after the Cana- dian authorities have confirmed that a visa will be delivered. Similarly, there is no indication why the letter from the owner of the condominium would not be sufficient and why a signed lease would be needed. 11 Accordingly, one is left with a refusal based on concerns that were not raised in the fairness letter and for reasons that appear on their face to be less than convincing. One has to consider that the exchange of information was taking place some six months before the applicant would make her way to Canada. Had the Immigration Officer had concerns about the employment situation once in Toronto, she could, and I suggest she should, have raised these with the applicant. Limiting her concerns to where the applicant will reside in the Province of Quebec sets up the applicant for failure if other concerns are present. 12 The respondent has alluded to the case law that finds that there is no need to enter into a discussion with applicants about their credibility or authenticity of information submitted in support of an applicant (Hassani v. Canada (Minister of Citizenship & Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 (F.C.)). 13 With respect, such is not the case here. The respondent raised a very specific concern in the fairness letter: will the applicant reside in the Province of Quebec. That is the matter that is addressed squarely in the response. There is no further discussion of the credibility or authenticity of that information. Rather, a completely different issue, the return to Canada altogether, becomes the reason for the refusal. Black’s Law Dic- tionary (West Group, 7th ed) defines “bait and switch” as “A sales practice whereby a merchant advertises a low-priced product to lure custom- ers into the store only to induce them to buy a higher-priced product.” Although most analogies are somewhat defective, this one illustrates the point in that the applicant is lured into thinking that the issue is one thing, to be told that it is something else of an even higher order. 14 I would not dispute that the concerns about the residency in the Prov- ince of Quebec of the applicant were legitimate. In her initial application, it was clear that following her studies in London, Ontario, she resided in Jin v. Canada (MCI) Yvan Roy J. 179

the Province of Quebec and, indeed, held a job in the province. However, it was incumbent on the Immigration Officer to deal with those concerns on the basis of the information that was provided on March 19. They were deemed to address the concerns raised in the fairness letter and, in my estimation, it was not reasonable to deny the application for permanent residence on a completely different basis not even alluded to. If doubts about residency in Quebec deserved a fairness letter, doubts about a return to Canada were equally deserving of a fair warning. 15 As a result, the application for judicial review is granted, and this application for permanent residence as a member of the Canadian Expe- rience Class has to be reassessed and determined anew by a different immigration officer. There is no question for certification.

Order THIS COURT’S JUDGMENT is that the application for judicial review is granted, and this application for permanent residence as a member of the Canadian Experience Class has to be reassessed and determined anew by a different immigration officer. There is no question for certification. Application granted. 180 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

[Indexed as: Mahjoub, Re] In the Matter of a Certificate Signed Pursuant to Subsection 77(1) of the Immigration and Refugee Protection Act (IRPA) In the Matter of the Referral of a Certificate to the Federal Court Pursuant to Subsection 77(1) of the IRPA In the Matter of Mohamed Zeki Mahjoub Federal Court Docket: DES-7-08 2013 FC 1095 Edmond P. Blanchard J. Heard: October 12-13, 15, 18-22, 25-27, 2010; November 1-2, 23-25, 29-30, 2010; December 1, 6-8, 14-15, 2010; January 10- 12, 17, 19-21, 2011; June 2-3, 9, 13-15, 17, 20-21, 27-29, 2011; July 4-8, 11-14, 24-26, 2012; August 1, 8, 2012; September 6, 9-12, 2012; November 26-30, 2012; December 3-4, 6-7, 10, 2012 Judgment: October 25, 2013 Immigration and citizenship –––– Constitutional issues — Charter of Rights and Freedoms — Visitors and immigrants — Exclusion and removal –––– Security certificate proceedings — On basis of Canadian Security Intelligence Service (“CSIS”) reports, Ministers signed security certificate deeming M inadmissible to Canada on grounds of national security — After successful constitutional challenge in unrelated case, Parliament amended security certificate regime — M was named in certificate under new regime — M brought motion for declaration that his rights under Canadian Charter of Rights and Freedoms were violated, for permanent stay of proceedings or, alternatively, for order quashing certificate — Motion granted in part — Ministers did not unlawfully delegate authority in signing certificate — Because M was not detained during voluntary CSIS interviews, he had no right to interpreter and did not need to be informed of right to silence or right to counsel — M’s rights to fair trial and to be free from unreasonable search and seizure were violated — Ministers’ conduct also constituted abuse of process — Ministers failed to produce original notes, recordings and transcripts of intercepted communications because they were deliberately destroyed by CSIS based on misunderstanding of its obligations — Min- isters relied on information from interrogation of detainees involving foreign agencies that they knew or ought to have known routinely practiced torture on detainees — CSIS listened to entire content of intercepted solicitor-client com- Mahjoub, Re 181 munications while M detained and involved with first certificate proceedings under authority of warrant powers that did not adequately protect his rights and, during another period, due misunderstanding of release order — Ministers negligently seized privileged material and commingled it with their own, causing several months of undue delay — Ministers also provided incomplete and delayed disclosure to M — However, cumulative effect of Charter violations and abuse of process not sufficiently severe to warrant permanent stay of proceedings and no basis to quash certificate. Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Life, liberty and security — Miscellaneous –––– Right to fair trial — Immigration — On basis of Canadian Security Intelligence Service (“CSIS”) reports, Ministers signed security certificate deeming M inadmissible to Canada on grounds of national security — After successful constitutional challenge in unrelated case, Parliament amended security certificate regime — M was named in certificate under new regime — M brought motion for declaration that his rights under Canadian Charter of Rights and Freedoms were violated, for permanent stay of proceedings or, alternatively, for order quashing certificate — Motion granted in part — M’s rights to fair trial and to be free from unreasonable search and seizure were violated — Ministers’ conduct also constituted abuse of process — Ministers failed to produce original notes, recordings and transcripts of intercepted communications because they were deliberately destroyed by CSIS based on misunderstanding of its obligations — Ministers relied on information from interrogation of detainees involving foreign agencies that they knew or ought to have known routinely practiced torture on detainees — CSIS listened to entire content of intercepted solicitor-client communications while M detained and involved with first certificate proceedings under authority of warrant powers that did not adequately protect his rights and, during another period, due misunderstanding of release order — Ministers negligently seized privileged material and commingled it with their own, causing several months of undue delay — Ministers also provided incomplete and delayed disclosure to M — However, cumulative effect of Charter violations and abuse of process not sufficiently severe to warrant permanent stay of proceedings and no basis to quash certificate. Constitutional law –––– Charter of Rights and Freedoms — Nature of remedies under Charter — General principles –––– Stay of proceedings — Immi- gration — On basis of Canadian Security Intelligence Service (“CSIS”) reports, Ministers signed security certificate deeming M inadmissible to Canada on grounds of national security — After successful constitutional challenge in unrelated case, Parliament amended security certificate regime — M was named in certificate under new regime — M brought motion for declaration that his rights under Canadian Charter of Rights and Freedoms were violated, for permanent stay of proceedings or, alternatively, for order quashing certificate — Motion 182 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th) granted in part — M’s rights to fair trial and to be free from unreasonable search and seizure were violated — Ministers’ conduct also constituted abuse of process — Ministers failed to produce original notes, recordings and transcripts of intercepted communications because they were deliberately destroyed by CSIS based on misunderstanding of its obligations — Ministers relied on information from interrogation of detainees involving foreign agencies that they knew or ought to have known routinely practiced torture on detainees — CSIS listened to entire content of intercepted solicitor-client communications while M detained and involved with first certificate proceedings under authority of warrant powers that did not adequately protect his rights and, during another period, due misunderstanding of release order — Ministers negligently seized privileged material and commingled it with their own, causing several months of undue delay — Ministers also provided incomplete and delayed disclosure to M — However, cumulative effect of Charter violations and abuse of process not sufficiently severe to warrant permanent stay of proceedings and no basis to quash certificate — Remedies had been provided for prejudice caused or circumstances had mitigated Charter violations — Any remaining prejudice was relatively minor in circumstances of case and could be remedied by declaration of violation of rights — Gravity of allegations against M, which impacted security of all Canadians, outweighed potential unfairness from Charter violations and abuse of process. Administrative law –––– Delegation of decision-making power — Miscella- neous –––– Immigration — On basis of Canadian Security Intelligence Service (“CSIS”) reports, Ministers signed security certificate deeming M inadmissible to Canada on grounds of national security — M brought motion for declaration that his rights under Canadian Charter of Rights and Freedoms were violated, for permanent stay of proceedings or, alternatively, for order quashing certificate — Motion granted in part on other grounds — Ministers did not unlawfully delegate authority in violation of s. 6(3) of Immigration and Refugee Protection Act — Ministers were not required to read all of facting material and were entitled to rely on advice, expertise and recommendations of officials — Ministers conducted own review of report and recommendations and personally decided to sign certificate — Recommendations were not merely “rubber stamped” — M’s rights to fair trial and to be free from unreasonable search and seizure were violated — However, cumulative effect of Charter violations and abuse of process not sufficiently severe to warrant permanent stay of proceedings and no basis to quash certificate. Cases considered by Edmond P. Blanchard J.: Al Tayar c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 CF 567, 2009 CarswellNat 1835, 2009 FC 567, 2009 CarswellNat 5895, [2009] F.C.J. No. 733 (F.C.) — followed Mahjoub, Re 183

Al Yamani v. Canada (Minister of Citizenship & Immigration) (2003), 2003 Car- swellNat 4143, 2003 FCA 482, 314 N.R. 347, 246 F.T.R. 320 (note), 2003 CarswellNat 4621, 2003 CAF 482, [2003] F.C.J. No. 1931 (F.C.A.) — followed Almrei, Re (2009), 2009 CF 1263, 2009 CarswellNat 4286, 2009 FC 1263, [2011] 1 F.C.R. 163, 355 F.T.R. 222 (Eng.), 2009 CarswellNat 5657, 86 Imm. L.R. (3d) 212, [2009] F.C.J. No. 1579, [2009] A.C.F. No. 1579 (F.C.) — considered Astrazeneca Canada Inc. v. Health Canada (2005), 2005 FC 645, 2005 Car- swellNat 1216, 2005 CF 645, 2005 CarswellNat 2290, 40 C.P.R. (4th) 322, (sub nom. AstraZeneca Canada Inc. v. Canada (Minister of Health)) 272 F.T.R. 227 (Eng.), [2005] F.C.J. No. 789 (F.C.) — considered Atwal v. Canada (1987), 79 N.R. 91, [1988] 1 F.C. 107, 1987 CarswellNat 2, 36 C.C.C. (3d) 161, 12 F.T.R. 318n, 28 Admin. L.R. 92, 32 C.R.R. 146, 59 C.R. (3d) 339, 1987 CarswellNat 874 (Fed. C.A.) — considered B. (A.) v. Canada (Minister of Citizenship and Immigration) (2013), 2013 CF 134, 2013 CarswellNat 830, 427 F.T.R. 116 (Eng.), 2013 FC 134, 2013 Car- swellNat 305 (F.C.) — followed Blank v. Canada (Department of Justice) (2006), 2006 CarswellNat 2704, 2006 CarswellNat 2705, 47 Admin. L.R. (4th) 84, 40 C.R. (6th) 1, 2006 SCC 39, (sub nom. Blank v. Canada (Minister of Justice)) 352 N.R. 201, 270 D.L.R. (4th) 257, 51 C.P.R. (4th) 1, (sub nom. Blank v. Canada (Minister of Jus- tice)) [2006] 2 S.C.R. 319, [2006] S.C.J. No. 39 (S.C.C.) — considered Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, REJB 2000-20288 (S.C.C.) — followed Canada (Attorney General) v. ’Isa (2012), 72 Alta. L.R. (5th) 120, (sub nom. United States of America v. Sharif) 548 A.R. 286, 2012 ABQB 641, 2012 CarswellAlta 1824 (Alta. Q.B.) — considered Canada (Minister of Citizenship & Immigration) v. Jaballah (1999), 1999 Car- swellNat 2317, 1999 CarswellNat 5777, [1999] F.C.J. No. 1681 (Fed. T.D.) — considered Canada (Minister of Citizenship & Immigration) v. Mahjoub (2001), 2001 Car- swellNat 2180, 2001 FCT 1095, [2001] 4 F.C. 644, 2001 CarswellNat 3109, 212 F.T.R. 42, [2001] F.C.J. No. 1483 (Fed. T.D.) — referred to Canada (Minister of Citizenship & Immigration) v. Mahjoub (2009), 2009 FC 439, 2009 CarswellNat 1208, 345 F.T.R. 139 (Eng.), 2009 CF 439, 2009 CarswellNat 6683 (F.C.) — referred to 184 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Canada (Minister of Citizenship & Immigration) v. Parekh (2010), 2010 FC 692, 2010 CarswellNat 1994, 372 F.T.R. 196 (Eng.), [2012] 1 F.C.R. 169, 2010 CF 692, 2010 CarswellNat 6193, [2010] F.C.J. No. 856 (F.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Tobiass (1997), 118 C.C.C. (3d) 443, 151 D.L.R. (4th) 119, 10 C.R. (5th) 163, 1997 CarswellNat 1385, 1997 CarswellNat 1386, 1 Admin. L.R. (3d) 1, 131 F.T.R. 230 (note), [1997] 3 S.C.R. 391, 40 Imm. L.R. (2d) 23, 14 C.P.C. (4th) 1, 218 N.R. 81, [1997] S.C.J. No. 82, REJB 1997-02452 (S.C.C.) — followed Celanese Canada Inc. v. Murray Demolition Corp. (2006), 215 O.A.C. 266, 2006 CarswellOnt 4623, 2006 CarswellOnt 4624, 2006 SCC 36, 50 C.P.R. (4th) 241, 269 D.L.R. (4th) 193, 30 C.P.C. (6th) 193, 352 N.R. 1, [2006] 2 S.C.R. 189, [2006] S.C.J. No. 35 (S.C.C.) — followed Cha v. Canada (Minister of Citizenship & Immigration) (2006), 2006 Car- swellNat 751, 2006 FCA 126, 2006 CarswellNat 3036, 267 D.L.R. (4th) 324, 349 N.R. 233, 42 Admin. L.R. (4th) 204, 2006 CAF 126, [2007] 1 F.C.R. 409, 53 Imm. L.R. (3d) 1, [2006] F.C.J. No. 491 (F.C.A.) — followed Charkaoui, Re (2004), 42 Imm. L.R. (3d) 165, 126 C.R.R. (2d) 298, 2004 CAF 421, 2004 CarswellNat 4495, 2004 FCA 421, 247 D.L.R. (4th) 405, [2005] 2 F.C.R. 299, 2004 CarswellNat 4849, 328 N.R. 201, [2004] F.C.J. No. 2060 (F.C.A.) — considered Charkaoui, Re (2007), 54 Admin. L.R. (4th) 1, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 152 C.R.R. (2d) 17, 2007 SCC 9, 44 C.R. (6th) 1, 59 Imm. L.R. (3d) 1, 2007 CarswellNat 325, 2007 Car- swellNat 326, 358 N.R. 1, 276 D.L.R. (4th) 594, (sub nom. Charkaoui v. Canada) [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9 (S.C.C.) — followed Charkaoui, Re (2008), 2008 CarswellNat 1898, 2008 CarswellNat 1899, 2008 SCC 38, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immi- gration)) 175 C.R.R. (2d) 120, 294 D.L.R. (4th) 478, 58 C.R. (6th) 45, 376 N.R. 154, (sub nom. Charkaoui v. Canada (Minister of Citizenship and Im- migration)) [2008] 2 S.C.R. 326, 70 Imm. L.R. (3d) 1, [2008] S.C.J. No. 39 (S.C.C.) — followed Charkaoui, Re (2009), [2010] 4 F.C.R. 448, 2009 CarswellNat 3799, 2009 FC 1030, 353 F.T.R. 187 (Eng.), 2009 CarswellNat 3125, 2009 CF 1030 (F.C.) — considered Chiarelli v. Canada (Minister of Employment & Immigration) (1992), 2 Admin. L.R. (2d) 125, 16 Imm. L.R. (2d) 1, 135 N.R. 161, 72 C.C.C. (3d) 214, 8 C.R.R. (2d) 234, [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, EYB 1992- 67215, [1992] S.C.J. No. 27, 1992 CarswellNat 18, 1992 CarswellNat 653 (S.C.C.) — considered Chogolzadeh v. Canada (Minister of Public Safety & Emergency Preparedness) (2008), 2008 FC 405, 2008 CarswellNat 836, 2008 CF 405, 71 Imm. L.R. Mahjoub, Re 185

(3d) 300, 327 F.T.R. 39 (Eng.), 2008 CarswellNat 2394, [2008] F.C.J. No. 544 (F.C.) — considered Cyanamid Canada Inc. v. Canada (Minister of National Health & Welfare) (1992), 45 C.P.R. (3d) 390, 148 N.R. 147, 9 Admin. L.R. (2d) 161, 1992 CarswellNat 216, [1992] F.C.J. No. 950 (Fed. C.A.) — followed Garro c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2007), 2007 CarswellNat 1827, 2007 CF 670, 2007 FC 670, 2007 CarswellNat 4509, 67 Imm. L.R. (3d) 263 (F.C.) — considered Harkat, Re (2010), 380 F.T.R. 255 (Eng.), 95 Imm. L.R. (3d) 1, 2010 Car- swellNat 5848, 2010 CarswellNat 5849, 224 C.R.R. (2d) 167, 2010 CF 1243, 2010 FC 1243 (F.C.) — followed Harkat, Re (2012), 2012 FCA 122, 2012 CAF 122, 2012 CarswellNat 1155, 2012 CarswellNat 1156, 429 N.R. 1, 7 Imm. L.R. (4th) 175, 349 D.L.R. (4th) 519, [2012] 3 F.C.R. 635, [2012] F.C.J. No. 492, [2012] A.C.F. No. 492 (F.C.A.) — followed Inuit Tapirisat of Canada v. Canada (Attorney General) (1980), 1980 Car- swellNat 633, [1980] 2 F.C.R. 735, [1980] 2 S.C.R. 735, 115 D.L.R. (3d) 1, 33 N.R. 304, 1980 CarswellNat 633F, [1980] S.C.J. No. 99 (S.C.C.) — considered Jaballah, Re (2006), 58 Imm. L.R. (3d) 267, 2006 CarswellNat 5629, 2006 CF 1230, 301 F.T.R. 102 (Eng.), 148 C.R.R. (2d) 1, 2006 CarswellNat 3662, 2006 FC 1230, [2006] F.C.J. No. 1706 (F.C.) — considered Jaballah, Re (2010), 204 C.R.R. (2d) 262, [2011] 2 F.C.R. 145, 2010 Car- swellNat 130, 2010 FC 79, 364 F.T.R. 72 (Eng.), 2010 CarswellNat 1657, 2010 CF 79 (F.C.) — referred to Jaballah, Re (2010), 88 Imm. L.R. (3d) 268, 2010 CarswellNat 1174, 2010 CF 224, 363 F.T.R. 160 (Eng.), [2011] 3 F.C.R. 155, 2010 FC 224, 2010 Car- swellNat 448 (F.C.) — referred to Jaballah, Re (2010), 2010 CF 507, 2010 CarswellNat 2932, 2010 FC 507, 2010 CarswellNat 1328, 365 F.T.R. 264 (Eng.) (F.C.) — considered Jaballah, Re (2010), 1 C.P.C. (7th) 74, 2010 CarswellNat 4127, 2010 FC 1084, 382 F.T.R. 26 (Eng.), 2010 CarswellNat 4814, 91 Imm. L.R. (3d) 252, 2010 CF 1084, [2012] 2 F.C.R. 179 (F.C.) — referred to Kissel v. United States (2006), 2006 CarswellOnt 8044, [2006] O.J. No. 5020 (Ont. S.C.J.) — followed MacDonald Estate v. Martin (1990), [1991] 1 W.W.R. 705, 77 D.L.R. (4th) 249, 121 N.R. 1, (sub nom. Martin v. Gray) [1990] 3 S.C.R. 1235, 48 C.P.C. (2d) 113, 70 Man. R. (2d) 241, 1990 CarswellMan 384, 285 W.A.C. 241, 1990 CarswellMan 233, [1990] S.C.J. No. 41, EYB 1990-68602 (S.C.C.) — followed Mahjoub, Re (2010), 2010 FC 300, 363 F.T.R. 154 (Eng.), 2010 CarswellNat 2085, 2010 CF 300, 2010 CarswellNat 1222 (F.C.) — referred to 186 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Mahjoub, Re (2010), 366 F.T.R. 108 (Eng.), 2010 FC 325, 2010 CarswellNat 3552, 2010 CF 325, 2010 CarswellNat 1241 (F.C.) — referred to Mahjoub, Re (2010), 373 F.T.R. 36 (Eng.), 90 Imm. L.R. (3d) 76, 2010 CF 787, 2010 FC 787, 2010 CarswellNat 2473, 2010 CarswellNat 6157 (F.C.) — referred to Mahjoub, Re (2010), 383 F.T.R. 1 (Eng.), 2010 CarswellNat 4584, 2010 FC 1193 (F.C.) — referred to Mahjoub, Re (2011), 2011 FC 506, 2011 CarswellNat 2355, 389 F.T.R. 47 (Eng.), [2011] F.C.J. No. 936 (F.C.) — referred to Mahjoub, Re (2011), 2011 CarswellNat 3117, 2011 FC 977 (F.C.) — referred to Mahjoub, Re (2012), 2012 CarswellNat 3343, 2012 CF 669, 2012 CarswellNat 1634, 2012 FC 669, 412 F.T.R. 216 (Eng.), [2014] 1 F.C.R. 457 (F.C.) — referred to Mahjoub v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 171, 2007 CarswellNat 648, 2007 FC 171, 2007 CarswellNat 319, 61 Imm. L.R. (3d) 1, 309 F.T.R. 72 (Eng.), [2007] F.C.J. No. 206 (F.C.) — referred to May v. Ferndale Institution (2005), 343 N.R. 69, 34 C.R. (6th) 228, [2005] 3 S.C.R. 809, 2005 SCC 82, 2005 CarswellBC 3037, 2005 CarswellBC 3038, 261 D.L.R. (4th) 541, 204 C.C.C. (3d) 1, 49 B.C.L.R. (4th) 199, 220 B.C.A.C. 1, 362 W.A.C. 1, 38 Admin. L.R. (4th) 1, 136 C.R.R. (2d) 146, [2006] 5 W.W.R. 65, [2005] S.C.J. No. 84 (S.C.C.) — considered Pottruff v. Don Berry Holdings Inc. (2012), 2012 CarswellOnt 525, 2012 ONSC 311 (Ont. S.C.J.) — followed Québec (Procureur général) c. Laroche (2002), 2002 SCC 72, 2002 Carswell- Que 2413, 2002 CarswellQue 2414, (sub nom. Quebec (Attorney General) v. Laroche) 99 C.R.R. (2d) 252, [2002] 3 S.C.R. 708, 219 D.L.R. (4th) 723, 6 C.R. (6th) 272, 295 N.R. 291, (sub nom. Quebec (Attorney General) v. La- roche) 169 C.C.C. (3d) 97, [2002] S.C.J. No. 74, REJB 2002-35623 (S.C.C.) — considered R. v. Araujo (2000), [2000] 2 S.C.R. 992, 79 C.R.R. (2d) 1, 2000 SCC 65, 2000 CarswellBC 2438, 2000 CarswellBC 2440, 38 C.R. (5th) 307, 193 D.L.R. (4th) 440, 149 C.C.C. (3d) 449, 143 B.C.A.C. 257, 235 W.A.C. 257, 262 N.R. 346, [2000] S.C.J. No. 65, REJB 2000-21474 (S.C.C.) — referred to R. v. Brown (2002), 285 N.R. 201, 157 O.A.C. 1, 2002 CarswellOnt 916, 2002 CarswellOnt 917, 2002 SCC 32, 50 C.R. (5th) 1, 162 C.C.C. (3d) 257, (sub nom. Benson v. Brown) 210 D.L.R. (4th) 341, 92 C.R.R. (2d) 189, [2002] 2 S.C.R. 185, [2002] S.C.J. No. 35, REJB 2002-29748 (S.C.C.) — referred to R. v. Bruce Power Inc. (2009), 2009 ONCA 573, 2009 CarswellOnt 4157, 245 C.C.C. (3d) 315, 254 O.A.C. 335, 98 O.R. (3d) 272, [2009] O.J. No. 3016 (Ont. C.A.) — considered R. v. Carosella (1997), 1997 CarswellOnt 85, 1997 CarswellOnt 86, 2 B.H.R.C. 23, 112 C.C.C. (3d) 289, 98 O.A.C. 81, 4 C.R. (5th) 139, [1997] 1 S.C.R. 80, Mahjoub, Re 187

31 O.R. (3d) 575 (headnote only), 142 D.L.R. (4th) 595, 207 N.R. 321, 41 C.R.R. (2d) 189, [1997] S.C.J. No. 12 (S.C.C.) — considered R. v. Chaplin (1994), 27 Alta. L.R. (3d) 1, 36 C.R. (4th) 201, 178 N.R. 118, 96 C.C.C. (3d) 225, 162 A.R. 272, 83 W.A.C. 272, [1995] 1 S.C.R. 727, 26 C.R.R. (2d) 189, 1994 CarswellAlta 1069, 1994 CarswellAlta 1070, EYB 1995-66862, [1994] S.C.J. No. 89 (S.C.C.) — followed R. v. Colarusso (1994), 49 M.V.R. (2d) 161, 69 O.A.C. 81, 110 D.L.R. (4th) 297, 19 C.R.R. (2d) 193, 162 N.R. 321, 26 C.R. (4th) 289, [1994] 1 S.C.R. 20, 87 C.C.C. (3d) 193, 1994 CarswellOnt 1149, 1994 CarswellOnt 50, EYB 1994-67649, [1994] S.C.J. No. 2, [1994] A.C.S. No. 2 (S.C.C.) — distinguished R. v. Conway (1989), [1989] 1 S.C.R. 1659, 96 N.R. 241, 34 O.A.C. 165, 49 C.C.C. (3d) 289, 70 C.R. (3d) 209, 40 C.R.R. 1, 1989 CarswellOnt 94, 1989 CarswellOnt 962, EYB 1989-67460, [1989] S.C.J. No. 70 (S.C.C.) — followed R. v. Dersch (1993), 25 C.R. (4th) 88, 33 B.C.A.C. 269, 54 W.A.C. 269, 85 C.C.C. (3d) 1, [1993] 3 S.C.R. 768, 158 N.R. 375, 18 C.R.R. (2d) 87, 48 M.V.R. (2d) 161, 1993 CarswellBC 508, 1993 CarswellBC 1268, EYB 1993-67110, [1993] S.C.J. No. 116 (S.C.C.) — distinguished R. v. Dyment (1988), 10 M.V.R. (2d) 1, 1988 CarswellPEI 7, 1988 CarswellPEI 73, 66 C.R. (3d) 348, 89 N.R. 249, [1988] 2 S.C.R. 417, 45 C.C.C. (3d) 244, 73 Nfld. & P.E.I.R. 13, 229 A.P.R. 13, 55 D.L.R. (4th) 503, 38 C.R.R. 301, EYB 1988-67715, [1988] S.C.J. No. 82 (S.C.C.) — distinguished R. v. Ferris (1994), 34 C.R. (4th) 26, 174 N.R. 158, [1994] 3 S.C.R. 756, 162 A.R. 108, 83 W.A.C. 108, 1994 CarswellAlta 328, 1994 CarswellAlta 750, [1994] S.C.J. No. 97, EYB 1994-66957 (S.C.C.) — distinguished R. v. Godin (2009), 192 C.R.R. (2d) 184, 67 C.R. (6th) 95, 389 N.R. 1, 245 C.C.C. (3d) 271, [2009] 2 S.C.R. 3, 2009 CarswellOnt 3100, 2009 Carswell- Ont 3101, 2009 SCC 26, 309 D.L.R. (4th) 149, 252 O.A.C. 377, [2009] S.C.J. No. 26 (S.C.C.) — followed R. v. Grant (2009), 193 C.R.R. (2d) 1, 2009 SCC 32, 2009 CarswellOnt 4104, 2009 CarswellOnt 4105, 253 O.A.C. 124, 82 M.V.R. (5th) 1, 245 C.C.C. (3d) 1, 66 C.R. (6th) 1, [2009] 2 S.C.R. 353, 391 N.R. 1, 309 D.L.R. (4th) 1, 97 O.R. (3d) 318 (note), EYB 2009-161617, [2009] A.C.S. No. 32, [2009] S.C.J. No. 32 (S.C.C.) — followed R. v. Hebert (1990), 47 B.C.L.R. (2d) 1, [1990] 2 S.C.R. 151, 1990 CarswellY- ukon 4, 1990 CarswellYukon 7, 77 C.R. (3d) 145, [1990] 5 W.W.R. 1, 57 C.C.C. (3d) 1, 110 N.R. 1, 49 C.R.R. 114, EYB 1990-67969, [1990] S.C.J. No. 64 (S.C.C.) — considered R. v. Jones (1994), 30 C.R. (4th) 1, 166 N.R. 321, 43 B.C.A.C. 241, 69 W.A.C. 241, 89 C.C.C. (3d) 353, [1994] 2 S.C.R. 229, 114 D.L.R. (4th) 645, 21 C.R.R. (2d) 286, 1994 CarswellBC 580, 1994 CarswellBC 1240, EYB 1994- 67084, [1994] S.C.J. No. 42 (S.C.C.) — followed 188 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

R. v. Mann (2004), 21 C.R. (6th) 1, 241 D.L.R. (4th) 214, 185 C.C.C. (3d) 308, 122 C.R.R. (2d) 189, 324 N.R. 215, [2004] 3 S.C.R. 59, 2004 SCC 52, 2004 CarswellMan 303, 2004 CarswellMan 304, [2004] 11 W.W.R. 601, 187 Man. R. (2d) 1, 330 W.A.C. 1, [2004] S.C.J. No. 49, REJB 2004-68801 (S.C.C.) — referred to R. v. McClure (2001), 40 C.R. (5th) 1, 195 D.L.R. (4th) 513, 151 C.C.C. (3d) 321, 142 O.A.C. 201, 80 C.R.R. (2d) 217, 2001 SCC 14, 2001 CarswellOnt 496, 2001 CarswellOnt 497, [2001] 1 S.C.R. 445, 266 N.R. 275, REJB 2001-22807, [2001] S.C.J. No. 13 (S.C.C.) — followed R. v. Morin (1992), 12 C.R. (4th) 1, 71 C.C.C. (3d) 1, 134 N.R. 321, 8 C.R.R. (2d) 193, 53 O.A.C. 241, [1992] 1 S.C.R. 771, 1992 CarswellOnt 984, 1992 CarswellOnt 75, EYB 1992-67508, [1992] S.C.J. No. 25 (S.C.C.) — followed R. v. Nixon (2011), 2011 SCC 34, 417 N.R. 274, 13 M.V.R. (6th) 1, 85 C.R. (6th) 1, 237 C.R.R. (2d) 333, 335 D.L.R. (4th) 565, 502 A.R. 18, 517 W.A.C. 18, 271 C.C.C. (3d) 36, 41 Alta. L.R. (5th) 221, [2011] 7 W.W.R. 429, 2011 CarswellAlta 988, 2011 CarswellAlta 989, [2011] 2 S.C.R. 566, [2011] S.C.J. No. 34 (S.C.C.) — followed R. v. O’Connor (1995), [1996] 2 W.W.R. 153, 1995 CarswellBC 1098, 1995 CarswellBC 1151, [1995] 4 S.C.R. 411, 44 C.R. (4th) 1, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235, 191 N.R. 1, 68 B.C.A.C. 1, 112 W.A.C. 1, 33 C.R.R. (2d) 1, EYB 1995-67073, [1995] S.C.J. No. 98 (S.C.C.) — followed R. v. Odones (2012), 2012 QCCS 7080, 2012 CarswellQue 14996, EYB 2012- 219286 (C.S. Que.) — referred to R. v. Power (1994), 2 M.V.R. (3d) 161, [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1, 117 Nfld. & P.E.I.R. 269, 365 A.P.R. 269, 165 N.R. 241, 29 C.R. (4th) 1, 1994 CarswellNfld 9, 1994 CarswellNfld 278, EYB 1994-80059, [1994] S.C.J. No. 29 (S.C.C.) — followed R. v. Ratelle (1996), (sub nom. R. v. Smith) 88 O.A.C. 374, (sub nom. R. v. Smith) 28 O.R. (3d) 75, (sub nom. R. v. Smith) 46 C.R. (4th) 229, (sub nom. R. v. Smith) 105 C.C.C. (3d) 58, (sub nom. R. v. Smith) 34 C.R.R. (2d) 314, 1996 CarswellOnt 318, (sub nom. R. v. Smith) 19 M.V.R. (3d) 262, [1996] O.J. No. 372 (Ont. C.A.) — considered R. v. Regan (2002), [2002] 1 S.C.R. 297, 2002 CarswellNS 61, 2002 Car- swellNS 62, 2002 SCC 12, 282 N.R. 1, 91 C.R.R. (2d) 51, 49 C.R. (5th) 1, 201 N.S.R. (2d) 63, 629 A.P.R. 63, 161 C.C.C. (3d) 97, 209 D.L.R. (4th) 41, [2002] S.C.J. No. 14, REJB 2002-27926 (S.C.C.) — followed R. v. Stinchcombe (1991), 18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 W.A.C. 161, 1991 CarswellAlta 559, 1991 CarswellAlta 192, [1992] 1 W.W.R. 97, [1991] 3 S.C.R. 326, 130 N.R. 277, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 8 C.R. (4th) 277, EYB 1991-66887, [1991] S.C.J. No. 83 (S.C.C.) — followed R. v. Therens (1985), 38 Alta. L.R. (2d) 99, 1985 CarswellSask 851, 1985 Car- swellSask 368, [1985] 1 S.C.R. 613, 13 C.R.R. 193, [1985] 4 W.W.R. 286, Mahjoub, Re 189

18 D.L.R. (4th) 655, 59 N.R. 122, 40 Sask. R. 122, 18 C.C.C. (3d) 481, 45 C.R. (3d) 97, 32 M.V.R. 153, [1985] S.C.J. No. 30 (S.C.C.) — followed R. v. Zarinchang (2010), 261 O.A.C. 153, 2010 CarswellOnt 2253, 2010 ONCA 286, 254 C.C.C. (3d) 133, 210 C.R.R. (2d) 173, 99 O.R. (3d) 721, 73 C.R. (6th) 199, [2010] O.J. No. 1548 (Ont. C.A.) — followed Ratnasingam v. Canada (Minister of Public Safety & Emergency Preparedness) (2007), 2007 CF 1096, 2007 CarswellNat 6292, 2007 FC 1096, 2007 Car- swellNat 3648, 66 Imm. L.R. (3d) 231, 319 F.T.R. 133 (Eng.), [2007] F.C.J. No. 1422, [2007] A.C.F. No. 1422 (F.C.) — followed Roncarelli c. Duplessis (1959), 1959 CarswellQue 37, [1959] S.C.R. 121, 16 D.L.R. (2d) 689, [1959] S.C.J. No. 1 (S.C.C.) — considered Ruby v. Canada (Solicitor General) (2002), 2002 SCC 75, 2002 CarswellNat 3225, 2002 CarswellNat 3226, 99 C.R.R. (2d) 324, 219 D.L.R. (4th) 385, 295 N.R. 353, 7 C.R. (6th) 88, 22 C.P.R. (4th) 289, 49 Admin. L.R. (3d) 1, [2002] 4 S.C.R. 3, [2002] S.C.J. No. 73, REJB 2002-35620 (S.C.C.) — considered Slaight Communications Inc. v. Davidson (1989), 26 C.C.E.L. 85, 1989 Car- swellNat 193, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416, (sub nom. Davidson v. Slaight Communications Inc.) 93 N.R. 183, 89 C.L.L.C. 14,031, 40 C.R.R. 100, 1989 CarswellNat 695, EYB 1989-67228, [1989] S.C.J. No. 45 (S.C.C.) — followed Smith v. Canada (Attorney General) (2001), 2001 SCC 88, 2001 CarswellNat 2692, 2001 CarswellNat 2693, 17 C.P.R. (4th) 427, 279 N.R. 197, [2001] 3 S.C.R. 902, 210 D.L.R. (4th) 289, [2001] S.C.J. No. 85, REJB 2001-27061 (S.C.C.) — considered Solosky v. R. (1979), 1979 CarswellNat 4, [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745, 16 C.R. (3d) 294, 30 N.R. 380, 50 C.C.C. (2d) 495, 1979 CarswellNat 630, [1979] S.C.J. No. 130 (S.C.C.) — followed Thompson v. Minister of National Revenue (2013), 2013 CarswellNat 3092, 2013 FCA 197, 2013 D.T.C. 5146 (Eng.), 366 D.L.R. (4th) 169, 448 N.R. 339 (F.C.A.) — followed United States v. Khadr (2011), 85 C.R. (6th) 143, 273 C.C.C. (3d) 55, 337 D.L.R. (4th) 638, 234 C.R.R. (2d) 31, 2011 CarswellOnt 2998, 2011 ONCA 358, (sub nom. Canada (Attorney General) v. Khadr) 280 O.A.C. 210, 106 O.R. (3d) 449, [2011] O.J. No. 2060 (Ont. C.A.) — followed United States of America v. Wakeling (2012), 293 C.C.C. (3d) 196, 266 C.R.R. (2d) 279, 2012 BCCA 397, 2012 CarswellBC 3067, 328 B.C.A.C. 174, 558 W.A.C. 174, [2012] B.C.J. No. 2057 (B.C. C.A.) — followed Yang v. Canada (Minister of Public Safety) (2008), 2008 CarswellNat 302, 2008 FC 158, 2008 CF 158, 324 F.T.R. 22 (Eng.), 79 Admin. L.R. (4th) 168, 2008 CarswellNat 1139, [2008] F.C.J. No. 197 (F.C.) — considered 190 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 2 — considered s. 7 — considered s. 8 — considered s. 9 — considered s. 10 — considered s. 11(a)-11(e) — referred to s. 11(b) — considered s. 11(c) — considered s. 12 — considered s. 13 — considered s. 24(1) — considered Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 Generally — referred to s. 12 — considered s. 19(2) — considered s. 21 — considered Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11, reprinted R.S.C. 1985, App. II, No. 44 s. 52(1) — considered Corrections and Conditional Release Act, S.C. 1992, c. 20 Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 269.1 [en. R.S.C. 1985, c. 10 (3rd Supp.), s. 2] — considered Immigration Act, R.S.C. 1985, c. I-2 s. 40.1(1) [en. R.S.C. 1985, c. 29 (4th Supp.), s. 4(1)] — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to Pt. 1, Div. 9 — referred to s. 3 — considered s. 6 — considered s. 6(1) — considered s. 6(2) — considered s. 6(3) — considered s. 20.1 [en. 2012, c. 17, s. 10] — considered s. 33 — considered s. 34 — considered s. 34(2) — considered s. 35(2) — considered Mahjoub, Re Edmond P. Blanchard J. 191

s. 37(2)(a) — considered s. 77 — considered s. 77(1) — considered ss. 77-85 — referred to s. 78 — considered s. 81(1)(a) — considered s. 83 — considered s. 83(1)(a) — considered s. 83(1)(d) — considered s. 83(1)(e) — considered s. 83(1)(h) — considered s. 83(1)(j) — considered s. 83(1.1) [en. 2008, c. 3, s. 4] — considered s. 83(1.2) [en. 2008, c. 3, s. 4] — considered s. 85(3) — considered Privacy Act, R.S.C. 1985, c. P-21 Generally — referred to Rules considered: Federal Courts Rules, SOR/98-106 R. 151 — considered

MOTION by person named in security certificate for declaration that his rights under Canadian Charter of Rights and Freedoms were violated, for permanent stay of proceedings and, alternatively, for order quashing certificate.

Mr. Donald MacIntosh, Mr. David Tyndale, Mr. Bernard Assan, Mr. Peter Southey, Ms Marianne Zoric, Ms Mahan Keramati, Mr. Christopher Ezrin, Ms Balqees Mihirig, Ms Judy Michaely, Ms Rhonda Marquis, Mr. James Mathieson, Mr. Marcel Larouche, Mr. Toby Hoffmann, Ms Proja Filipovich, Mr. Philippe Lacasse, for Applicants, Minister of Citizenship and Immigra- tion and Minister of Public Safety Ms Johanne Doyon, Mr. Paul Slansky, Mr. Yavar Hameed, Mr. David Kolinsky, Mr. Khalid Elgazzar, Ms Lucie Joncas, for Respondent, Mr. Mohamed Zeki Mahjoub Mr. Gordon Cameron, Mr. Anil Kapoor — Special Advocates

Edmond P. Blanchard J.:

1 Mr. Mohamed Zeki Mahjoub is the named person in security certificate proceedings initiated pursuant to subsection 77(1) of the Immigra- tion and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. In the course of the proceedings, Mr. Mahjoub brought two motions for a permanent 192 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

stay of proceedings. The grounds of these motions are that the Ministers, their departments, the Canadian Security Intelligence Service (CSIS or the Service), and the Canadian Border Services Agency (the CBSA) have committed such grave violations of Mr. Mahjoub’s rights under the Ca- nadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter] and abuses of the Court’s process throughout these proceedings that the only sufficient remedy is a permanent stay of proceedings.

Relief Sought 2 In his “Re-Modified Notice of Motion Pursuant to Section 24 (1) of the Charter for a Permanent Stay of Proceedings” dated October 3, 2011, Mr. Mahjoub seeks: • A judgment ordering a permanent stay of the proceedings against the applicant pursuant to subsection 24(1) of the Canadian Char- ter of Rights and Freedoms (named hereafter: “Charter”) and order for release of the applicant; • In the alternative, an order to quash the certificate pursuant to subsection 24(1) of the Charter and for the exclusion of all information generated and/or gathered in a manner that amounts to a breach of section 7, 8, 9 and 10 of the Charter; • A declaratory judgement declaring the violation of the applicant’s constitutional rights as described below; • A judgment reserving the rights of the applicant to address the present Court to obtain any additional remedy; • Such further and other remedy as this Honourable Court considers appropriate and just in the circumstances; 3 The constitutional grounds for Mr. Mahjoub’s motion are as follows: The applicant respectfully submits that, since the beginning of the security certificate proceedings undertaken against him in 2000 (including the underlying investigations), the Ministers, the Canadian Security Intelligence Service (CSIS), Citizenship and Immigration Canada (CIC) and/or the Canadian Border Service Agency (CBSA) have gravely and repeatedly violated his constitutional rights including: (a) His right to fundamental freedoms under section 2 of the Charter (freedom of thought, belief, opinion, expression, and association, in relation to his religion); Mahjoub, Re Edmond P. Blanchard J. 193

(b) His rights under section 7 of the Charter (and related to section 11 a) to e) of the Charter) including but not limited to the right: • to be informed of the allegations against him, • to be represented by counsel with the benefit of solicitor-client privileged communication, • to receive disclosure in a timely manner (including the right to the preservation of the evidence), • to a full answer and defence, • to have his case determined without unreasonable delay, • not to be compelled to be a witness in proceedings, • to be presumed innocent, • not to be denied reasonable bail and • not to be arbitrarily detained; (c) His rights under section 8 of the Charter to be secure against unreasonable search or seizure; (d) His rights under section 9 of the Charter not to be arbitrarily detained; (e) His rights under section 10 of the Charter to be informed promptly of the reasons for his arrest or his detention and to be released if the detention is not lawful; (f) His rights under section 12 of the Charter not to be subjected to any cruel and unusual treatment. 4 Mr. Mahjoub further alleges that sections 3, 6 and 83 of the IRPA have not been respected. He argues that the security certificate naming him is based on “unlawful information”, “material misrepresentation”, a failure of the Service, Citizenship and Immigration Canada (CIC) and the Ministry of Public Safety and Emergency Preparedness to present complete, verified evidence and to act fairly and in utmost good faith, and the Ministers’ failure to read, consider and assess “the evidence and information on which the certificate was based.”

Second Motion for a Permanent Stay of Proceedings 5 At the beginning of October, 2012, Mr. Mahjoub brought a second motion for a permanent stay of proceedings. 6 In addition to repeating his allegation that the Ministers have failed to make disclosure to him in a timely manner and adding new examples, 194 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Mr. Mahjoub’s grounds for this motion are that the Ministers split their case in calling evidence in camera after the close of Mr. Mahjoub’s case, and that the Ministers’ disclosure was incomplete. 7 In my reasons disposing of these motions, I shall also incorporate Mr. Mahjoub’s allegations of Charter-violating conduct by the Ministers, their departments, the Service and the CBSA found in his motion challenging the constitutionality of Division 9 of the IRPA and provisions of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 [CSIS Act] and found in his motion for the exclusion of evidence obtained by warrants pursuant to section 21 of the CSIS Act. My reasons for doing so are that these allegations are largely repetitive of allegations raised in these two motions and allege state conduct that violates the Charter. In my view, such questions are more appropriately dealt with in the context of the within motion rather than a motion to determine the constitutionality of certain provisions or the validity of warrants.

Facts and Procedural History 8 Mr. Mohamed Zeki Mahjoub arrived in Canada on December 30, 1995 and claimed asylum. On October 24, 1996, he obtained refugee status (Exhibit A2, Tab 4). He then applied for permanent resident status. At some point after Mr. Mahjoub obtained refugee status, Mr. Mahjoub was the subject of the Service’s interest. 9 The Service’s inquiries involved interviews with Service personnel, including Mr. Michel Guay who testified in these proceedings on August 8, 1997, October 24, 1997, October 5, 1998, and March 31, 1999 (Ex- hibit A2, Tabs 21, 22, 24, and 25). Mr. Mahjoub also had an immigration screening interview on January 13 and 20, 1998 (Exhibit A2, Tab 23). In addition, they included interviews with other individuals, including Mr. Jaballah on March 5, 1998 (Exhibit A2, Tab 15), and the receipt of intelligence from foreign agencies. At some point, an investigation into Mr. Mahjoub began, and it included physical surveillance and the interception of Mr. Mahjoub’s communications under CSIS Act warrants (e.g. Exhibit A8). 10 As a result of this investigation, the Service prepared a Security Intel- ligence Report (SIR) to support its opinion that Mr. Mahjoub was inadmissible to Canada on the grounds of national security, namely that he was a member of Egyptian terrorist groups Al Jihad (AJ) and the Van- guards of Conquest (VOC), engaged in the subversion by force of the government of Egypt and terrorism, and a danger to the security of Can- Mahjoub, Re Edmond P. Blanchard J. 195

ada. On the basis of the SIR, the Service recommended to the Solicitor General of Canada and the Minister of Citizenship and Immigration that they sign a security certificate. 11 On May 17 and June 12, 2000, the Solicitor General of Canada and the Minister of Citizenship and Immigration signed the first security certificate, pursuant to subsection 40.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, deeming Mr. Mahjoub inadmissible to Canada on the grounds of national security. Shortly after, on June 26, 2000, Mr. Mahjoub was arrested. At the time of his arrest, the arresting officers seized the contents of Mr. Mahjoub’s pockets (the “pocket litter”) and his address book (Exhibit A7, Tab 16). A few days later, Mr. Mahjoub’s home was searched, and a letter addressed to Mr. Mahjoub from Mr. Mubarak Al Duri, found in a locked briefcase, was seized (Exhibit A2, Tab 83). 12 The security certificate was referred to the Federal Court of Canada (as it then was) to have its reasonableness determined. Mr. Mahjoub retained Mr. Rocco Galati and Mr. Roger Rodrigues to represent him at the hearing, and he relied on his wife, Ms. Mona El Fouli, to convey information about his case back and forth between him and the two lawyers. Following the reasonableness proceeding in 2001, Justice Nadon determined the certificate to be reasonable (Canada (Minister of Citizenship & Immigration) v. Mahjoub, 2001 FCT 1095 (Fed. T.D.)). 13 The Ministers began deportation proceedings against Mr. Mahjoub. Mr. Mahjoub was successful in challenging his removal before the Court at several reprises. 14 On February 23, 2007, the Supreme Court of Canada found sections 33 and 77 to 85 of the IRPA unconstitutional in Charkaoui, Re, 2007 SCC 9 (S.C.C.) [Charkaoui I]. The Supreme Court suspended the application of its decision to allow Parliament time to address the constitutional deficiencies of the IRPA. 15 Mr. Mahjoub was incarcerated until June 14, 2007 when the Court ordered Mr. Mahjoub to be released on stringent conditions. These conditions included restrictions on his movement and communications. Pur- suant to the Court Order, he, his wife, and his stepson Hani El Fouli consented to the interception of their communications by the CBSA or its agent (Exhibits A68, A69 and A70). 16 On February 22, 2008, Bill C-3, the amendment responding to Charkaoui I and enacting the current IRPA regime received Royal As- sent. That same day, Mr. Stockwell Day, Minister of Public Safety, and 196 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Ms Diane Finley, Minister of Citizenship and Immigration, signed the security certificate at issue in these proceedings. CSIS Witness #3, super- vised by Ms. Barbara Campion (testimony 7 July 2011, p. 3) had prepared on behalf of the Service a revised but largely unchanged SIR which again recommended that the Ministers sign the security certificate. 17 The security certificate was recommended to the Federal Court, and by Order of the Chief Justice dated April 29, 2008, the proceedings commenced. Shortly thereafter, Mr. Anil Kapoor and Mr. Gordon Cameron were appointed as Mr. Mahjoub’s Special Advocates. Justice Carolyn Layden-Stevenson was appointed as the designated judge in the proceedings (and would remain designated judge until early 2009, when she was elevated to the Federal Court of Appeal at which time I was appointed designated judge in the proceeding). Mr. Mahjoub retained Ms. Marlys Edwardh, Ms. Adriel Weaver, and Ms. Barbara Jackman to represent him in a joint retainer with the subject of another security certificate, Mr. Mahmoud Jaballah. The Ministers opened their in camera case in the fall of 2008. 18 A second Supreme Court decision, Charkaoui, Re, 2008 SCC 38 (S.C.C.) [Charkaoui II], was released on June 26, 2008. It declared the destruction by the Service of its operational notes during its investigation into Mr. Charkaoui to be a breach of the Ministers’ duty to retain and disclose information pursuant to section 7 of the Charter. It also established the requirement for the Ministers to disclose, on an ongoing basis, all relevant information in the Service’s holdings after vetting for national security privileged information. Mr. Mahjoub requested compliance with the Charkaoui II decision in the summer of 2008. The Minis- ters’ in camera evidence was halted and the Court ordered the Ministers to disclose the materials required by Charkaoui II. The Special Advo- cates received this material on January 15, 2009. Then the lengthy process of the Special Advocates’ analysis of the disclosure and litigation between them and the Ministers over what could be disclosed to Mr. Mahjoub began. This process would not be substantially completed for the better part of a year. In the meantime, Mr. Mahjoub, along with a number of the other individuals subject to security certificates, brought challenges to the constitutionality of several provisions of the IRPA that were decided in January and February 2010. 19 On March 25, 2009, Mr. Mahjoub received summaries of conversations and surveillance reports. On December 23, 2009, Mr. Mahjoub received summaries of the first tranche of ongoing Charkaoui II disclo- Mahjoub, Re Edmond P. Blanchard J. 197

sure. Mr. Mahjoub received summaries of additional tranches of the Charkaoui II disclosure throughout the proceedings, namely on January 22, 2010, February 24, 2010, October 6, 2011, March 6, 2012, and Sep- tember 18, 2012. 20 Also in March 2009, Mr. Mahjoub elected to return to detention because his family members withdrew as supervising sureties. He was ordered released again on stringent conditions on November 30, 2009, and he was in fact released on March 11, 2010. Since that time, Mr. Mahjoub’s conditions have been relaxed following each detention review in accordance with the diminished threat that he was found to pose and his compliance with the conditions of release. 21 On January 22, 2010, the Ministers disclosed a “Supplemental Public Summary of the SIR” to Mr. Mahjoub containing some allegations against him that had not been previously disclosed. As a result of further disclosure and a delay to the reasonableness hearings caused by a conflict of interest with one of the expert witnesses, the Court took the opportunity to hear and decide the Special Advocates’ motion to exclude evidence pursuant to subsection 83(1.1) of the IRPA. The decision was released on June 9, 2010 [2010 CarswellNat 2473 (F.C.)]. 22 On June 2, 2010, Mr. Mahjoub’s Public Counsel filed a motion to be removed as solicitors of record for Mr. Mahjoub. Mr. Mahjoub advised that he had lost confidence in his counsel. On June 14, 2010, the Court ordered that Ms. Barbara Jackman and Ms. Marlys Edwardh be removed as Mr. Mahjoub’s counsel of record. In subsequent case management conferences, the Court made clear to proposed new Public Counsel that the time for preliminary motions was passed, no request for further adjournments would be entertained and, in a Direction dated July 27, 2010, scheduled the reasonableness hearing to begin on October 12, 2010. 23 The Court determined the process by which the exclusion of evidence pursuant to subsection 83(1.1) would proceed in its August 31, 2010 Reasons for Order. This evidence was removed from the record and the Ministers opened their public case as scheduled on October 12, 2010. The Ministers closed their public case on reasonableness on November 2, 2010. 24 During this time, in late October 2010, Mr. Mahjoub brought several significant late motions, including this motion for a stay of proceedings. In order to prevent further delay and due to the likelihood of overlap in witness testimony, the Court decided in its Order dated November 3, 2010, that the evidence on these motions would best be heard together 198 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

with the remaining reasonableness evidence. In addition, “[a]t the outset it was agreed between the parties that the matters that could only be addressed in camera in the absence of Mr. Mahjoub and his counsel would be dealt with at the close of Mr. Mahjoub’s public case, subject only to matters that would flow from the in camera proceeding that needed to be considered in public” (November 3, 2010 Order, p.3). 25 Mr. Mahjoub opened his case on the motions and reasonableness on November 22, 2010 and continued it into spring 2011. 26 In July 2011, Department of Justice staff accessed break-out rooms and rooms adjacent to the courtroom at the Federal Court premises at 180 Queen Street in Toronto with the intent to remove the Ministers’ documents for the summer recess. Those individuals inadvertently seized Mr. Mahjoub’s documents as well and commingled them with the Ministers’ documents. Mr. Mahjoub brought a motion for abuse of process seeking an order for a permanent stay of proceedings. The Court established a process for separating the commingled documents, and Prothonotary Aalto presided over the process and prepared a report on the results. On May 31, 2012, the Court found that the Ministers had committed an abuse of process and ordered that several counsel for the Ministers and Department of Justice staff be removed from Mr. Mahjoub’s case and prohibited from speaking to anyone about the case. The Court declined to grant the permanent stay of proceedings sought by Mr. Mahjoub, but the commingling of the documents was to be taken into consideration in evaluating the cumulative effects of the Ministers’ abuse of process. 27 Mr. Mahjoub resumed his case in the summer and fall of 2012. In the meantime, the Special Advocates brought a motion to exclude the summaries of intercepted communications to which Mr. Mahjoub was not privy, pursuant to the Federal Court of Appeal’s decision in Harkat, Re, 2012 FCA 122 (F.C.A.) [Harkat]. The Court granted this motion on June 19, 2012, and on consent the Ministers removed such evidence from their case, submitting a revised version of the SIR, the latest Public Summary of which is filed as Exhibit A76. 28 On September 13, 2012, Mr. Mahjoub closed his case, deciding not to testify. The Ministers then resumed their in camera evidence on October 9, 2012. The Special Advocates had objected to this evidence as early as October 3, 2011, an objection that was dismissed in Reasons for Order dated November 9, 2011. The Special Advocates challenged this evidence again at the beginning of the Ministers’ in camera evidence, but Mahjoub, Re Edmond P. Blanchard J. 199

their motion was dismissed. The Ministers closed their in camera case on October 12, 2012. 29 In September 2012, the Special Advocates brought a motion to exclude the “unsourced” foreign agency evidence in the case. The Minis- ters adduced evidence on this motion in camera on October 24, 2012. 30 Mr. Mahjoub continued to adduce additional documentary evidence until final submissions began on November 26, 2012. These submissions carried through until January 22, 2013. 31 The Court reserved on all outstanding matters, namely: this motion, the motion challenging the constitutionality of Division 9 of the IRPA and several provisions of the CSIS Act (Constitutional Decision), the motion to exclude evidence obtained pursuant to warrants issued pursuant to section 21 of the CSIS Act (Warrants Decision), the motion to exclude “unsourced” foreign agency evidence (Foreign Agency Evidence Deci- sion), and the reasonableness of the certificate (Reasonableness Decision).

Legal Framework 32 Before turning to any of the issues raised by Mr. Mahjoub in these two motions for a permanent stay of proceedings, I shall set out the legal framework to assist me in determining whether the Charter violation affecting Mr. Mahjoub’s right to a fair trial pursuant to section 7 or an abuse of process merits the remedies of a permanent stay of proceedings or quashing the security certificate against Mr. Mahjoub. The authority for such remedies is found in section 24(1) of the Charter when Charter rights are violated, and in common law when the Court determines that there has been an abuse of process or the certificate was issued unlawfully.

Stay of Proceedings 33 In R. v. O’Connor, [1995] 4 S.C.R. 411 (S.C.C.) [O’Connor], the Su- preme Court of Canada explained that Charter violations and abuse of the Court’s process overlap (paragraphs 63-64). The appropriate framework for the analysis is therefore to examine whether the alleged conduct violates individual rights and/or undermines the integrity of the justice system under the rubric of the Charter where possible, and reserve any distinct analysis of abuse of process for instances where the Charter “does not apply yet where the circumstances nevertheless point to an abuse of the court’s process” (ibid. at paragraph 70). The Ontario Court 200 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

of Appeal notes in R. v. Zarinchang, 2010 ONCA 286 (Ont. C.A.) at paragraph 60, that extra care must be taken with the latter, “residual” category because in these cases, a stay amounts to a windfall for the individual. In both circumstances, a violation of the Charter or an abuse of process, the appropriate remedy is a stay of proceedings “only in the clearest of cases” (O’Connor at paragraph 68). The Supreme Court re- prised this reasoning more recently in R. v. Nixon, 2011 SCC 34 (S.C.C.) at paragraph 37 [Nixon]. 34 I adopted this approach in my Reasons for Order dated May 31, 2012, dealing with Mr. Mahjoub’s previous motion for a stay of proceedings (Mahjoub, Re, 2012 FC 669 (F.C.)). 35 In determining whether a stay of proceedings should be granted, it is useful to canvass the law relating to the stay of proceedings remedy. 36 In R. v. Conway, [1989] 1 S.C.R. 1659 (S.C.C.), at page 1667, the Supreme Court outlined the doctrine of abuse of process in the common law criminal context: Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure “that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society” (Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It ac- knowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. [Emphasis added] 37 Similarly, in Blencoe v. British Columbia (Human Rights Commis- sion), 2000 SCC 44 (S.C.C.) [Blencoe] at paragraph 120, the Supreme Court explained that in the administrative context: In order to find an abuse of process, the court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” (Brown and Evans, supra, at p. 9-68). Accord- Mahjoub, Re Edmond P. Blanchard J. 201

ing to L’Heureux Dubé J. in Power, supra, at p. 616, “abuse of process” has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the proceedings must, in the words of L’Heureux Dubé J., be “unfair to the point that they are contrary to the interests of justice” (p. 616). “Cases of this nature will be extremely rare” (Power, supra, at p. 616). In the administrative context, there may be abuse of process where conduct is equally oppressive. [Emphasis added] 38 Mr. Mahjoub contends that the balancing between the public interest in fairness and individual rights on one hand and the public interest in the adjudication of the proceeding on the merits should only be conducted in “close cases.” He relies on United States v. Khadr, 2011 ONCA 358 (Ont. C.A.) [Khadr] at paragraphs 67-78, in particularly paragraph 69 in which the Ontario Court of Appeal maintains that “[b]alancing is the exception, not the rule.” I agree that where it is clear that a Charter violation or an abuse of process warrants a stay, balancing is not required. However, the Supreme Court considers this balance of interests to be fundamental to the abuse of process analysis, for example in Blencoe above, R. v. Morin, [1992] 1 S.C.R. 771 (S.C.C.) [Morin] at pages 811- 812, R. v. Regan, 2002 SCC 12 (S.C.C.) [Regan] at paragraph 57, R. v. Grant, 2009 SCC 32 (S.C.C.) [Grant] at paragraph 200, and especially Nixon at paragraphs 37-38. In cases where the facts are not as egregious as those in Khadr, I view balancing of the interests in maintaining the integrity of the judicial system and individual rights on one hand and the public interest in proceeding with the case on the other as a useful tool in the exercise of my discretion in considering whether to grant a stay. This is the same approach adopted by Justice Noël in Harkat, Re, 2010 FC 1243 (F.C.) at paragraph 56. 39 Mr. Mahjoub also objects to the use of Blencoe in the context of a security certificate proceeding where detention of the named person is involved. He proposes instead that the Court adopt the test for abuse of process allegedly found in May v. Ferndale Institution, 2005 SCC 82 (S.C.C.) [May]. While May discussed Charter violations, it does not provide any guidance to the Court on the doctrine of abuse of process. In addition, it is my view that there is no contradiction between Blencoe and the corpus of abuse of process jurisprudence, including the criminal law jurisprudence. 202 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

40 While the Ministers submit that there must be misconduct or a breach of the Charter for abuse of process to apply, the Supreme Court warns in Nixon at paragraph 40 that misconduct or improper motivation are only two factors to consider when finding an abuse of process. Any conduct that negatively impacts the integrity of the Court can be an abuse of process. Nonetheless, “[m]ost often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from state misconduct” (Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (S.C.C.) [Tobiass] at paragraph 89). 41 The first step in the analysis, therefore, is to determine whether or not there has been an abuse of the Court’s process, in other words that harm has been done to the individual’s right to a fair trial or to the integrity of the justice system. Nixon warns against an over-reliance on prejudice to the applicant party. Justice Charron explained in Nixon at paragraph 41: Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative. Of course, in most cases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim. But prejudice under the residual category of cases is better conceptualized as an act tending to undermine society’s expectations of fairness in the administration of justice... 42 Finally, at paragraph 42 of Nixon, Justice Charron outlined the second and third step of the test for an abuse of process warranting a stay: The test for granting a stay of proceedings for abuse of process, regardless of whether the abuse causes prejudice to the accused’s fair trial interests or to the integrity of the justice system, is that set out in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. A stay of proceedings will only be appropriate when: “(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice” (Regan, at para. 54, citing O’Connor, at para. 75). 43 The Ontario Court of Appeal in Khadr instructed that the test is not to be applied too rigidly. There may be “exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive,” and the applicant need not prove that prejudice to either the administration of justice or the applicant will be perpetuated or aggravated (at paragraph 56). As the Supreme Court Mahjoub, Re Edmond P. Blanchard J. 203

maintains at paragraph 91 of Tobiass, “such cases should be relatively very rare” and only arise in the extreme circumstances outlined in paragraph 96, such as fabrication and planting of evidence by police. Of course, Khadr is a similar extreme example. 44 While the decision whether or not to grant a stay is ultimately discre- tionary (Tobiass at paragraph 87), the above considerations provide important guidance in exercising that discretion. I therefore articulate the applicable test in determining whether there has been a violation of Mr. Mahjoub’s section 7 Charter right to a fair trial or abuse of process warranting a permanent stay of proceedings in this case as follows: (a) Did the Ministers, their departments, the Service or the CBSA engage in conduct that violated Mr. Mahjoub’s right to a fair trial or undermined society’s expectations of fairness in the administration of justice? (b) Will the prejudice to Mr. Mahjoub or to the administration of justice caused by the violation or abuse in question be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome? Or is this an exceptional case where the past conduct is so egregious that the mere fact of going forward in the light of it will be offensive? (c) Is this the clearest of cases in which no other remedy is reasonably capable of removing that prejudice? In other words, if it is not obvious that this is the clearest of cases, is the public and individual interest in a permanent stay of proceedings greater than the public interest in a decision on the merits? 45 The above jurisprudence provides the test for the remedy of a permanent stay of proceedings for both Charter violations and abuses of the Court’s process.

Quashing the certificate 46 Concerning Mr. Mahjoub’s alternative requested remedy of quashing the certificate, the Supreme Court’s comments at paragraph 77 of May and page 1078 of Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 (S.C.C.), apply: “[a]dministrative decisions that violate the Charter are null and void for lack of jurisdiction.” Thus, if the Ministers issued the security certificate on the basis of a Charter violation or otherwise unlawfully, the certificate may be quashed. 204 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Issues 47 I will address the following issues on this motion, structured in accordance with the test to determine whether a stay of proceedings or quashing the certificate is the just and appropriate remedy in the circumstances. The alleged Charter violations and abuses of the Court’s process will be addressed roughly in the order in which they are alleged to have occurred: 1. Did the Ministers, their departments, the Service or the CBSA engage in conduct that violated Mr. Mahjoub’s right to a fair trial or undermined society’s expectations of fairness in the administration of justice? (a) Did the Service fail to investigate the allegations against Mr. Mahjoub to an extent that constitutes a Charter violation or abuse? (b) Was the Service obligated, pursuant to the Charter, to inform Mr. Mahjoub of his right to remain silent, to retain counsel and to an interpreter during its voluntary interviews with Mr. Mahjoub, and did it fail to do so? (c) Was the Service’s and the CBSA’s destruction of notes, original transcripts, recordings, and other original materials a Charter violation? (d) Did the Ministers’ departments violate sections 3, 6 and 83 of the IRPA by failing to provide the Ministers with substantiated recommendations to an extent that renders the certificates unlawful? (e) Did the Ministers unlawfully delegate their authority in violation of subsection 6(3) of the IRPA? (f) Was the Ministers’ use of information that the Court later found to be derived from torture or cruel, inhuman and degrading treatment or punishment to support the issuance of the security certificate an abuse? (g) Did the Ministers, their departments or the Service fail to make full, fair and frank disclosure in ex parte proceedings before the Court or in the process leading up to the signing of the security certificates to an extent that constitutes a Charter violation or abuse? (h) Did the Ministers’ failure to raise the issue of Mr. Mahjoub’s inadmissibility to Canada on the grounds of na- Mahjoub, Re Edmond P. Blanchard J. 205

tional security at Mr. Mahjoub’s hearing before the Immi- gration and Refugee Board constitute a Charter violation or an abuse? (i) Did the Service intercept Mr. Mahjoub’s solicitor-client communications, and does that interception constitute a Charter violation? (j) Did the Service’s and the CBSA’s policy of sharing the intercepts of Mr. Mahjoub’s private communications constitute a Charter violation or an abuse? (k) Were the Ministers responsible for delays in the proceedings to an extent that constitutes a Charter violation or an abuse? (l) Did the Ministers fail to make timely and complete disclosure to Mr. Mahjoub to an extent that constitutes a Charter violation or an abuse? (m) Did the Ministers split their case by presenting evidence in camera after the close of Mr. Mahjoub’s case, violating the Charter? (n) Is the impartiality of the Court impacted by any of the Charter violations or abuses found above? 2. Will the prejudice to the administration of justice or to Mr. Mahjoub caused by the abuse in question be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome? Alternatively, are any of the Charter violations or abuses so egregious that it would be offensive to continue with the proceeding? (a) What is the prejudice to the administration of justice or to Mr. Mahjoub caused by the Charter violation or abuse in question? (b) Are the remedies that have been afforded on an ongoing basis sufficient to address the cumulative prejudice? 3. Taking into account all of the Charter violations and abuses holistically and cumulatively, is this the clearest of cases in which no other remedy is reasonably capable of removing that prejudice?

Analysis 48 As a preliminary remark, in my view, the Court must remedy a Char- ter violation or misconduct amounting to an abuse of process even if it 206 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

occurred prior to the decision on the reasonableness of the first security certificate, provided that the violation or abuse of process has an impact on these proceedings. I will therefore consider Mr. Mahjoub’s allegations as they pertain to pre-2001 conduct of the Ministers or government agents, so long as he has established that it impacts on these proceedings. Charkaoui I has provided a complete remedy for any Charter violation or abuse of process that only impacted on the first security certificate proceedings. 49 I now turn to the issue of whether or not the Ministers or the government agencies who acted in this case engaged in conduct that violated Mr. Mahjoub’s section 7 Charter right to a fair trial or that constitutes an abuse of process.

1. Did the Ministers, their departments, the Service or the CBSA engage in conduct that violated Mr. Mahjoub’s right to a fair trial or undermined society’s expectation of fairness in the administration of justice (a) Did the Service fail to investigate the allegations against Mr. Mahjoub to an extent that constitutes a Charter violation or abuse 50 Mr. Mahjoub argues that the Service’s investigation into the alleged inadmissibility of Mr. Mahjoub to Canada was negligent, wilfully blind, and in breach of its duty to act fairly and in conformity with the Charter. He argues that the Service failed to minimally verify all of the allegations against Mr. Mahjoub, and to check the details of the source of all of its information including indicia of reliability. He again raises the issue of information that the Court ordered excluded from these proceedings because there were reasonable grounds to believe that the evidence derived from torture or cruel, inhuman and degrading treatment or punishment (CIDT). He submits that the Service had a duty to update its investigation from 2000 prior to presenting the Ministers with the SIR in 2008, and yet it did not do so. Mr. Mahjoub argues that since the Service’s investigation was targeted and the Service had a judicial process in mind, these duties apply. In essence, Mr. Mahjoub argues that the alleged deficiencies and shortcomings of the Service at the investigative stage, prior to the issuance of the certificate, amounts to an abuse of process that warrants a stay of proceedings. 51 The above allegations of abuse described by Mr. Mahjoub involve the actions of the Service at the investigative stage when the Service’s recommendations to the Ministers are developed and intelligence is gath- Mahjoub, Re Edmond P. Blanchard J. 207

ered. The Service’s investigation is governed by internal policies and executive directions. It is at the conclusion of this stage that the Ministers decide whether or not to sign the security certificate if satisfied that the named person is inadmissible in accordance with subsection 77(1) of the IRPA. It is therefore the Ministers who take responsibility for the issuance of the certificate and any actions that would flow therefrom, not the Service. Consequently, the issue is more appropriately framed as whether or not the Ministers’ decision to sign the certificate, and thus bring the case to Court, based on the Service’s allegedly defective investigation, was an abuse of process. 52 In criminal law, it is a well-established principle that it is for the prosecution, not the court, to decide whether a criminal case should be brought to court, and if commenced, whether it should be continued. In R. v. Power, [1994] 1 S.C.R. 601 (S.C.C.) [Power], the Supreme Court considered the applicable test concerning allegations of abuse of process involving prosecutorial discretion. Justice L’Heureux-Dub´e (writing for the majority) articulated the following stringent test at pages 615-616 of the reasons: I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court’s process but only in the “clearest of cases”, which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. To conclude that the situation “is tainted to such a degree” and that it amounts to one of the “clearest of cases”, as the abuse of process has been characterized by the jurisprudence requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. As will be developed in more detail further in these reasons, the Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General’s role in this regard is not only to protect the public, but also to honour and express the community’s sense of justice. Accordingly, courts should be careful before they attempt to “second-guess” the prosecutor’s motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the ad- 208 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

ministration of justice into disrepute. Cases of this nature will be extremely rare. [Emphasis added] 53 In my view, the situation of the prosecutor is analogous to that of the Ministers. When allegations of abuse of process are raised concerning the Ministers’ reliance on defective investigation, the same cautious approach is warranted in security certificate proceedings. The basic principle is that it is for the Ministers to decide whether or not to issue a certificate and continue their case, not the Court. Of course, if there is no foundation to the Ministers’ exercise in discretion in signing the certificate, it is open to the Court to find that the Ministers did not act in good faith in discharging a public duty as per Roncarelli c. Duplessis, [1959] S.C.R. 121 (S.C.C.). Despite the deficiencies in the Ministers’ case, it is clear that the Ministers’ exercise of discretion in signing the certificate naming Mr. Mahjoub had a foundation. 54 Further, there is simply no conspicuous evidence of improper motives, bad faith or an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed. In the absence of such evidence, I am left to conclude that the deficiencies in the Service investigation complained of by Mr. Mahjoub do not amount to an abuse of process. 55 The points raised by Mr. Mahjoub, in support of his argument of abuse of process, may be relied on as mitigating factors on the merits of his case, and have been considered by the Court in its Reasonableness Decision (for example, the exclusion of evidence for which there are reasonable grounds to believe it derived from torture or CIDT, the possibility of mistaken identity at paragraphs 240-241, and the reliability of the evidence starting at paragraph 92). Alternatively, it is open to Mr. Mahjoub to seek redress in an action for damages against the state for any losses that he believes he has suffered as a result of the negligence of any government actor involved.

(b) Was the Service obligated, pursuant to the Charter, to inform Mr. Mahjoub of his right to remain silent, to retain counsel, and to an interpreter during its voluntary interviews with Mr. Mahjoub, did it fail to do so? 56 Mr. Mahjoub argues that the Service was obligated to inform Mr. Mahjoub of his right to remain silent, to retain counsel and to the use of an interpreter during its voluntary interviews with Mr. Mahjoub, and it Mahjoub, Re Edmond P. Blanchard J. 209

failed to do so. He maintains that this constitutes abusive conduct on the part of Service personnel. 57 Mr. Mahjoub further contends that his subsection 11(c) and section 13 Charter rights have been infringed as a result of the interviews. Chief Justice Lamer in dissent, in R. v. Jones, [1994] 2 S.C.R. 229 (S.C.C.), described the principle against self-incrimination in general terms at page 249 (cited with approval by the majority in R. v. Brown, 2002 SCC 32 (S.C.C.) at paragraph 92): Any state action that coerces an individual to furnish evidence against him or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent. 58 Since the Charter rights that apply to criminal proceedings do not, as a rule, apply to a security certificate proceeding, as discussed in the Con- stitutional Decision, neither can they apply to a Service investigation of a threat to national security. I shall therefore turn to the residual right to silence protected under section 7 of the Charter since Mr. Mahjoub was detained partly as a result of these interviews. In R. v. Hebert, [1990] 2 S.C.R. 151 (S.C.C.), the Supreme Court stated that “a person whose liberty is placed in jeopardy by the criminal process be required to give evidence against himself or herself, but rather has the right to choose whether to speak or to remain silent” (at page 175). As Justice Doherty explained in R. v. Ratelle (1996), 105 C.C.C. (3d) 58 (Ont. C.A.) at page 80, “[t]he so-called right to remain silent found in s. 7 of the Charter is in fact the right of the detained person to make an informed choice as to whether to speak to the police.” 59 These section 7 residual rights, except for the right to an interpreter, require Mr. Mahjoub to be in detention or subjected to some other form of coercion while being asked for his statements. As discussed in more detail in the Warrants Decision at paragraph 153, and for the reasons that follow, I find that Mr. Mahjoub was not “detained” during voluntary Ser- vice interviews. As Service witness Mr. Michel Guay testified, the Ser- vice had no power to detain anyone or compel a person to answer questions (18 October 2010, p. 68). He therefore did not need to be informed of his right to silence or his right to counsel. Mr. Mahjoub also had no Charter or statutory right to an interpreter during the interviews. Moreo- ver, a functional interpreter was present during all of Mr. Mahjoub’s interviews. 210 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

60 The test for detention is found in R. v. Therens, [1985] 1 S.C.R. 613 (S.C.C.) [Therens], whether a reasonable person in Mr. Mahjoub’s position would have believed him or herself to be physically or legally compelled to do what an agent of the state asked. There must be: (a) An authoritative “demand or direction”, rather than a mere request, in response to which (b) “the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes the choice to do otherwise does not exist.” 61 Neither of these elements was present during the interviews at issue. A reasonable person in Mr. Mahjoub’s position would have understood that his participation in the interviews was voluntary. Voluntary police interviews, depending on the circumstances, often do not meet the Ther- ens criteria (see R. v. Mann, 2004 SCC 52 (S.C.C.) [Mann]). The onus is on Mr. Mahjoub to establish that his right has been infringed. Mr. Mahjoub has provided the Court with no evidence to suggest that the interviews were conducted in such a way that a reasonable person would have believed himself or herself to be physically or legally compelled to let the Service personnel into his home and answer their questions or to attend his immigration screening interview. 62 Indeed, there is evidence on the record from one of the interviewers that the Service personnel sought and were granted permission by Mr. Mahjoub to enter his home and pose questions (M. Guay testimony, 12 October 2010, p. 91) and that Service personnel explained to Mr. Mahjoub that the Service had no power to detain him or force him to answer questions (M. Guay testimony, 18 October 2010, p. 68). The summaries of his interviews provide evidence that Mr. Mahjoub also exercised his freedom not to answer questions, such as his refusal to discuss Mr. El Jamal any further (Exhibit A2, Tab 22) and refusing to provide the names of friends who knew him by the name “Abu Ibrahim” (Exhibit A2, Tab 23). Mr. Mahjoub voluntarily attended and submitted to immigration screening interviews in order to obtain the permanent resident status that he sought. Consequently, I find that Mr. Mahjoub was not in detention at the time of the interviews. 63 In addition, there is evidence on the record to suggest that Mr. Mahjoub asked at several reprises whether he should obtain a lawyer. On one occasion the Service personnel did not continue to question him when he made such queries (Exhibit A2, Tab 24). On another occasion Service personnel offered to end the interview but Mr. Mahjoub invited Mahjoub, Re Edmond P. Blanchard J. 211

them to continue (Exhibit A2, Tab 22). While Mr. Guay testified that it was not the Service’s practice to inform individuals of a right to counsel, it ensured that if the individual expressed a desire to have counsel present the opportunity could be arranged (M. Guay testimony, 18 October 2010, p. 69). 64 Further, Mr. Mahjoub alleges that he had a Charter right to be informed of the purpose and potential consequences of the Service’s interviews (namely intelligence-gathering to support a possible security certificate). He relies on recommendations by the Security Intelligence Review Committee (SIRC) that individuals should be informed at the outset of the purpose of Service interviews in order to be given the opportunity to explain adverse information (SIRC audit 1999-2000, Exhibit R3). 65 Mr. Mahjoub does not provide a legal foundation for his ostensible right to be informed of the purpose of the interviews. The Service’s policy dated January 14, 1994, that governed the interviews at the time states that “[a]n interview may provide the prospective immigrant an opportunity to explain any adverse information in relation to his/her security status” but does not go beyond that (Exhibit R31, Tab 1). Procedural fairness only requires an individual in immigration proceedings to be informed of the exact purpose of a security interview, including specific concerns that the government has with an applicant, in situations where the interview amounts to a hearing (as was the case in B. (A.) v. Canada (Minister of Citizenship and Immigration), 2013 FC 134 (F.C.) or Cha v. Canada (Minister of Citizenship & Immigration), 2006 FCA 126 (F.C.A.)). There is no evidence on the record that the Service was con- templating recommending a security certificate to the Ministers with respect to Mr. Mahjoub at the time of the interviews, nor can I infer that it was. Mr. Guay testified that he did not know when a certificate was contemplated, but that it was not contemplated while he was on Mr. Mahjoub’s file at the time of the August 8 and October 24, 1997 interviews. Further, Mr. Mahjoub’s first security certificate was not signed until more than a year after the final interview in March 1999. 66 There is evidence in the summaries of the interviews and the testimony of Mr. Guay (testimony, 12 October 2010, p.91; 18 October 2010, p. 76) that Mr. Mahjoub was told that the interviewers were from the Service and that he was aware that the interviews were for the purpose of security, and more specifically, counter-terrorism. During his first interview, the Service reports that Mr. Mahjoub “denied ever participating in 212 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

any violence in Egypt and belonging to any groups such as AL JIHAD (AJ) or AL GAMAA AL ISLAMIYA (AGAI). He also denied ever trav- eling to countries such as Pakistan, Afghanistan, Bosnia and Chechnya. According to MAHJOUB, he never used names other than his own” (Ex- hibit A2, Tab 21). I infer from the answers given by Mr. Mahjoub that the Service had to some extent revealed its concerns to Mr. Mahjoub through the questions asked by Mr. Guay and his colleague. During his immigration screening interview, Mr. Mahjoub indicated that he had been interviewed twice previously by the “Security of Canada” and that they had wanted to know whether he used the name “Mahmoud Shaker” or “Shukri” (Exhibit A2, Tab 23). 67 Guided by the above jurisprudence, I find that in the circumstances, the Service was not required to notify Mr. Mahjoub of the purpose or potential consequences of the interviews any more than it did. 68 I now turn to Mr. Mahjoub’s allegation that the Service failed to inform him of his right to an interpreter during the interviews. 69 As discussed at length by Justice Germain in Canada (Attorney General) v. ’Isa, 2012 ABQB 641 (Alta. Q.B.) [’Isa] at paragraphs 96- 102, concerning the admissibility of police interviews, there is no recognized Charter right to an interpreter. However, an interpreter may be required for Mr. Mahjoub to understand his right to silence and his right to counsel (’Isa at paragraph 98) where such rights apply. See also: R. v. Odones, 2012 QCCS 7080 (C.S. Que.) at paragraphs 28-43. There is consequently no free-standing right to an interpreter. Since I have determined that Mr. Mahjoub had no residual right to silence or right to counsel, the right to an interpreter is also inapplicable in the circumstances. 70 Moreover, during the interviews, Mr. Mahjoub had the benefit of a functional interpreter, namely his wife, Mona El Fouli (Exhibit A2, Tabs 21, 22, 24, 25), his friend (Exhibit A2, Tab 23), or a professional interpreter provided by the government whose services Mr. Mahjoub did not end up using (Exhibit A2, Tabs 23 and 25). Mr. Guay testified that Mr. Mahjoub was comfortable with using his wife for translation purposes during the interviews that he conducted (testimony, 18 October 2010, p. 83). In Garro c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2007 FC 670 (F.C.) at paragraph 22, Justice Beaudry held that there is no need for a professional interpreter if an individual who can interpret, the applicant’s counsel in that case, is present. 71 I therefore conclude that Mr. Mahjoub’s decision to answer questions from Service personnel during the interviews conducted by the Service Mahjoub, Re Edmond P. Blanchard J. 213

from 1997 to 1999 was informed and voluntary. I am not persuaded that the Service breached any of Mr. Mahjoub’s Charter rights or otherwise committed any abuse of process in conducting the interviews.

(c) Was the Service’s and CBSA’s destruction of notes, original transcripts, recordings and other original materials a Charter violation? 72 Throughout these proceedings, the Ministers have relied on evidence for which the original transcripts, recordings or materials have been destroyed, a table of which was disclosed to Mr. Mahjoub on September 9, 2010. The table of evidence indicating which of the original materials have been wholly or partly destroyed, provides as follows: a. The August 8, 1997 Service interview of Mr. Mahjoub (partly destroyed); b. The January 13, 1998 and January 20, 1998 Service immigration screening interviews (wholly destroyed); c. The October 5, 1998 Service interview of Mr. Mahjoub and Ms. El Fouli (wholly destroyed); d. Notes of the March 31, 1999 Service interview of Mr. Mahjoub (wholly destroyed); e. Notes or transcripts of conversations at the end of December 1996 in which Mr. Jaballah allegedly said Mr. Mahjoub was the only person in Canada in contact with “Adnan” and on May 9, 1997, in which he allegedly said that Mr. Mahjoub was in regular contact with Adnan (wholly destroyed); f. Notes of the March 5, 1998 Service interview of Mr. Jaballah (wholly destroyed); g. Telephone records showing contact between Mr. Mahjoub and Mr. Marzouk in 1997 and 1998 (wholly destroyed); h. Physical evidence seized during Mr. Mahjoub’s arrest on June 26, 2000 (partly destroyed, his address book was wholly destroyed); i. Notes or transcripts of conversations summarized at Tabs 2, 4, 8 and 10-19 of the Summaries of notes or transcripts of conversations and surveillance (Exhibit A8), February 27, 2009 (partly destroyed); j. Conversations summarized at Tab 6 and 13 of the summaries of conversations and surveillance (Exhibit A8), February 27, 2009 (wholly destroyed); 214 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

k. Evidence supporting the allegation that Mr. Marzouk was believed to be preparing an attack on American interests in Azerbaijan and he was there arrested and sent to Egypt (wholly destroyed). Mr. Guay testified that “partly destroyed” means that the originals of one piece or some pieces of evidence supporting an allegation were destroyed, but there are other pieces of evidence that support the allegation (testimony, 15 October 2010, p. 144). 73 Mr. Mahjoub argues that the destruction of these original materials constitutes an abuse of process. He submits that not only were the transcripts of intercepts and interviews obtained by the Service destroyed, but also the original letter from Mr. Al Duri and the original pocket litter, including the address book, obtained from Mr. Mahjoub upon arrest. He alleges that the destroyed evidence could have been useful to the defence, and without it he was unable to fully test or know the exact wording, source and context of the evidence. In support of his argument, Mr. Mahjoub relies on R. v. Ferris, [1994] 3 S.C.R. 756 (S.C.C.) [Ferris]. In that case, the Alberta Court of Appeal set aside the accused’s conviction and ordered a new trial because the context of the accused’s statement “I killed David” was unknown. In upholding the Court of Appeal’s decision, the Supreme Court of Canada held that the statement ought to have been excluded on the ground that its prejudicial effect overbore its proba- tive value. The Supreme Court adopted the finding that the statement was adduced without context. 74 Mr. Mahjoub contends that the absence of context for the statement in Ferris is analogous to the lack of original material supporting the Minis- ters’ evidence, which has been to a significant extent adduced in the form of summaries or copies. Further, Mr. Mahjoub argues that the destruction was deliberate and intended to frustrate the judicial process, including this abuse of process motion.

i. Summaries of Conversations 75 Harkat addresses the issue of destroyed original materials with respect to intercepted communications. Mr. Mahjoub contends that Harkat can be distinguished from this case because Mr. Harkat was not seeking a stay of proceedings as his prime remedy. However, at paragraph 48 of its reasons, the Court of Appeal clearly states that Mr. Harkat sought a stay of proceedings. Consequently, the cases cannot be distinguished on the basis of the remedy sought. Mahjoub, Re Edmond P. Blanchard J. 215

76 The Supreme Court in Charkaoui II had already found that the Ser- vice policy of destroying original notes, OPS-217 (Exhibit A4), although developed in good faith, violated the named person’s right to disclosure pursuant to section 7 of the Charter and violated the Service’s duty to retain raw intelligence in accordance with section 12 of the CSIS Act (at paragraph 64). In discussing Charkaoui II, the Court of Appeal in Harkat explained that the destruction “impacted on the appellant’s right to know the case and his ability to meet it [...and] also compromised the very function of judicial review” (at paragraph 125). At paragraph 123 of its reasons, reproduced below, the Court of Appeal discusses the destruction of the intercepts pursuant to Service policy OPS-217. The circumstances in Mr. Mahjoub’s case are the same. ...[The Service] destroyed the original records of interviews with the appellant as well as conversations about the appellant or to which the appellant was a privy. However, it made a summary of the contents of these interviews and conversations which was entered in CSIS data bank by a CSIS analyst. A number of these conversations were not originally in English and the summary was made from an English translation of their content. The three human interventions generated a possibility of errors, inaccuracies or distortions. 77 Relying on Charkaoui II and R. v. Carosella, [1997] 1 S.C.R. 80 (S.C.C.) [Carosella] at paragraphs 26 and 27, the Federal Court of Ap- peal in Harkat held that the breach of section 7 of the Charter caused by the destruction of the original intercepts necessitates a remedy after assessment of the prejudice that would flow from the breach (Harkat at paragraphs 130, 132 and 139). The Court of Appeal considered the various possible remedies from allowing cross-examination of the persons involved in the intercepted conversations to a stay of proceedings (ibid. at paragraphs 140-145). After canvassing the options, the Federal Court of Appeal concludes at paragraph 141 that: ... exclusion of the summaries would be the appropriate remedy. I would exclude all summaries of conversations except those conversations to which the appellant was privy. 78 For those conversations to which Mr. Harkat was privy, the Federal Court of Appeal held that a declaration that his Charter right to disclosure has been violated to be a sufficient remedy because “[h]e can, by his testimony and other specific evidence, raise any error, inconsistency or inaccuracy contained in these summaries which affect their accuracy and reliability” (at paragraph 143). Such is the case with Mr. Mahjoub, particularly concerning his interviews: it was open to him to testify or to call 216 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

others who were present at the interviews to testify, and he chose not to do so. 79 Notwithstanding the Federal Court of Appeal’s finding in Harkat that the Service’s destruction of original materials was done in “good faith” and according to its policy (Harkat at paragraph 125), Mr. Mahjoub argues that in his case the destruction of evidence was abusive because it was deliberate and designed to frustrate the judicial process, including the within abuse of process motion specifically by destroying evidence of the interception of solicitor-client communications. 80 The Ministers do not dispute that the destruction of the intercepts was deliberate. OPS-217 is clear that original notes and recordings were to be destroyed within 30 days of creating the summary report. The Service was ostensibly aware of its error, according to Mr. Mahjoub, because it changed its policy. He relies on the affidavit of Iwona Mooney submitted to the Supreme Court in Charkaoui II, which, in my view, establishes that the Supreme Court was aware of the change when considering Mr. Charkaoui’s case. The Supreme Court nevertheless found that this practice “should not be taken to signify that we consider investigations conducted pursuant to section 12 and proceedings in which the policy was applied to be unlawful” (Charkaoui II at paragraph 46) and that no stay of proceedings was warranted on the basis of the destruction alone (ibid. at paragraph 77). The Federal Court of Appeal was also aware of the Service’s change in policy when it decided Harkat, and yet it was also not satisfied that Mr. Harkat had established an abuse of process warranting a stay of proceedings. 81 Mr. Mahjoub submits that Paul Vrbanac’s testimony on June 3, 2011, proves that the Service was destroying original intercepts in order to avoid testifying in court proceedings (pp. 145-147). He also argues that the summaries of intercepted conversations are inherently unreliable because there are too many people involved in the preparation of the summaries for it to be objective. He further contends that the Arabic and English skills of the Communications Analysts, the individuals who entered the reports into the Service’s data base, are inadequate. 82 I agree with the Ministers that Mr. Mahjoub has taken Mr. Vrbanac’s remarks out of context to support his argument that the Service was deliberately attempting to undermine the administration of justice. The cross-examination proceeded as follows: Q. To the extent there was a policy that involved destroying any interceptions, was this based out of CSIS’s concern for fol- Mahjoub, Re Edmond P. Blanchard J. 217

lowing the law or based on CSIS’s concern to not be forced to testify in a court of law? A. At what point are we talking? Q. In relation to the interception of these communications on CBSA’s behalf before December of 2008? A. The policies and procedures of The Service at the time were to, up to I believe June 26th, 2008, were to, after 30 days, destroy the communications if they were not being used in reports. Q. That was because that was CSIS’s policy for principle [sic] reasons or because they didn’t want to be forced to have CSIS employees testify? A. The normal procedure or the mandate of The Service is not to enforce the law, but to collect information as it relates to a threat to the security of Canada. So when we start an investigation we’re not starting it assuming it’s going to result in a prosecution. Q. There might be proceedings such as the assessment of the reasonableness of a certificate which is certainly applicable to Mr. Mahjoub? A. That’s correct. Q. For that purpose CSIS was doing it for purposes of avoiding testifying in court? A. That’s correct. (P. Vrbanac testimony, 3 June 2011, pp.145-147). To what the final question in this excerpt refers is not clear. Mr. Vrbanac was being cross-examined in the context of the Service’s interception of Mr. Mahjoub’s communications on behalf of the CBSA in 2007-2008. The Service did not hide its reluctance to assume this role. Indeed, the former Director of the Service, Mr. Judd, made clear that there was a strong lack of willingness within certain segments of the Service to be involved in such activity that might require them to testify in court (13 July 2011, pp.38-39). In this context, I accept the Ministers’ submission that in responding as he did, Mr. Vrbanac meant that the Service did not want its officials to testify in court about its work as an agent of the CBSA. On the basis of his testimony read in its entirety and considered in the context of the evidence of other witnesses on the subject, I am not persuaded that the Service deliberately set out to frustrate the judicial process by destroying the intercepts as the sexual assault centre did in 218 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Carosella. The preponderance of the evidence supports a conclusion that the intercepts were destroyed in conformity with the Service’s policies, particularly OPS-217, in place at the time. These policies were founded on the Service’s understanding of their section 12 obligation to only retain information if strictly necessary and had their origins in the concerns raised by the MacDonald Commission (M. Guay testimony, 12 October 2010, pp.134-135). 83 In relation to Mr. Mahjoub’s second and third points, the uncontested evidence of Mr. Guay (testimony, 12 October 2010, pp.122-128) indicates that the numerous people involved in the process were there partly to provide quality control for the accuracy of the summaries, and the Communications Analysts were able to obtain translation support. CSIS Witness #2 and CSIS Witness #2B also testified to their own extensive knowledge of the Arabic language (6 July 2012, p. 9; 7 August 2012, pp.3-4). In my view, the record does not support Mr. Mahjoub’s allegation that the summaries are unreliable for this reason and, consequently, is not proof of abusive conduct on the part of the Service as alleged by Mr. Mahjoub. 84 Based on the record before me, I see no reason to depart from the conclusions of the Supreme Court or the Federal Court of Appeal. I find that, as a result of the Service’s destruction of original materials based on its incorrect interpretation of the CSIS Act, Mr. Mahjoub’s section 7 right to disclosure was violated. Although deliberate, the Service’s actions were carried out in good faith and do not so taint the proceedings as to warrant the remedy of a stay. My June 19, 2012 Order ordering the exclusion of summaries of conversations to which Mr. Mahjoub was not privy afforded Mr. Mahjoub an appropriate remedy in the circumstances. This remedy accords with the remedy prescribed by the Court of Appeal in similar circumstances in Harkat. 85 Mr. Mahjoub relies on the June 19, 2012 Order and all other orders in these proceedings that have resulted in the exclusion of evidence to support his submission that “[t]he certificate signed and filed with the Court included...information now excluded by the Court” and that the certificate is “void” because the Service failed to verify its holdings for “inadmissible” intercepts. He is, in essence, arguing that because this Court, subsequent to intensive litigation, found some of the evidence supporting the SIR to be inadmissible, the Service committed an abuse of process in tendering it in the first place. This is ex post facto reasoning that cannot be used to establish an abuse of process. Mahjoub, Re Edmond P. Blanchard J. 219

86 Mr. Mahjoub relies on Justice Tremblay-Lamer’s decision in Charkaoui, Re, 2009 FC 1030 (F.C.), to support his above argument. In my view, the circumstances in Charkaoui are different and do not assist Mr. Mahjoub. In Charkaoui, as a result of litigation in camera, the Court ordered disclosure of certain information. The Ministers exercised their right to withdraw the information rather than disclose it as provided by paragraph 83(1)(j) of the IRPA, and consequently the Court could not rely on that information (ibid. at paragraph 15). The Ministers admitted that the remaining evidence was insufficient to meet the burden of proof required for the certificate to be reasonable, but they requested that the Court determine the certificate’s reasonableness regardless (ibid. at paragraph 16). The determination in Charkaoui had nothing to do with the exclusion of evidence. In this case, the Ministers maintain that the remaining evidence is sufficient to meet the burden of proof of reasonable grounds to believe. 87 Concerning Mr. Mahjoub’s allegation that the Service destroyed solicitor-client intercepts to frustrate Mr. Mahjoub’s ability to remedy the breach of solicitor-client privilege, I am satisfied that these intercepted conversations, too, were destroyed in accordance with the Service’s policies. These policies were designed to implement the Service’s erroneous interpretation of section 12 of the CSIS Act, not to frustrate Mr. Mahjoub’s ability to remedy violations of his rights. Also, according to those policies, no summaries of these conversations were retained by the Service if they were not relevant to national security. 88 To conclude, the exclusion of the summaries of intercepted conversations to which Mr. Mahjoub was not privy by Order of the Court dated June 19, 2012, and a declaration that Mr. Mahjoub’s right to disclosure has been violated, are appropriate and sufficient remedies with respect to this issue. No further remedy is warranted.

ii. Other evidence 89 I now turn to the other evidence for which the originals were destroyed, including interview notes and physical evidence. With respect to the interview notes, Mr. Guay testified that it was his practice only to take notes into an interview to ensure that he did not forget an important topic. He might write down key names or places as the interviewee spoke (15 October 2010, pp.190-191). 90 The original letter from Mr. Al Duri found in Mr. Mahjoub’s briefcase the day after his arrest (Exhibit A2, Tab 83), and Mr. Mahjoub’s 220 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

original pocket litter and address book found when he was arrested (Ex- hibit A7, Tab 16) were both destroyed. Only photocopies were retained and presented as evidence in these proceedings. 91 I ruled on the admissibility of this evidence on October 22, 2010 (transcript, pp. 75-77). Mr. Mahjoub now frames a different challenge to this same evidence. He argues that the destruction of the original materials constitutes a violation of his section 7 right to disclosure because he is unable to fully test or know the exact wording, source and context of the evidence. In my opinion, it was open to Mr. Mahjoub to challenge the admissibility of the evidence on this basis in a timely manner, but he elected not to do so. He had the opportunity when he challenged the admissibility of the evidence on other grounds. It would be unfair to the Ministers to consider the admissibility of the evidence on this ground at this late stage. The Ministers would be deprived of the opportunity of adducing further evidence to address Mr. Mahjoub’s concerns about the admissibility of the evidence. 92 In addition, although the destruction of these original materials would amount to a breach of Mr. Mahjoub’s right to disclosure according to Charkaoui II, in these circumstances I am not prepared to remedy the violation by excluding the evidence from the record. Charkaoui II requires the designated judge to evaluate the prejudice before deciding the appropriate remedy. In my view, the remedy of exclusion is not warranted considering the minimal prejudice to Mr. Mahjoub. Mr. Mahjoub argues that he would suffer prejudice because he would be unable to test the evidence. However, he has access to copies of the evidence. With this information, it was open to Mr. Mahjoub to challenge the contents of the pocket litter, the address book, and the original letter. This was not done. This is not a situation analogous to Ferris in which the context of the evidence is unknown: Mr. Mahjoub is aware of where and when the Ser- vice or the arresting officers claim to have obtained these items, and it appears that copies of the entire letter, the pocket litter, and the relevant pages of the address book were provided to Mr. Mahjoub. 93 Mr. Mahjoub has not indicated why the originals were required to challenge the authenticity or the content of the evidence, nor what may have been omitted in the copies. In my view, the copies of these items are detailed and enable Mr. Mahjoub to challenge both their authenticity and their content. He or someone else familiar with them or with Mr. Mahjoub’s personal documents could have denied their existence, denied that they belonged to him, or testified that these were not authentic cop- Mahjoub, Re Edmond P. Blanchard J. 221

ies. This could be done by recollection or based on the details of these copies. 94 In Harkat, the Court of Appeal held that declaration of a breach was an appropriate remedy in circumstances where Mr. Harkat was privy to intercepted conversations for which the originals were destroyed. Here, Mr. Mahjoub was present during the seizure of the pocket litter and address book and was provided with copies of the impugned documents from the outset of the proceeding. Further, the Ministers are arguing that the original pocket litter and address book were written and owned by Mr. Mahjoub, and the letter is addressed to Mr. Mahjoub. The circumstances are analogous to Harkat: Mr. Mahjoub is well aware of the evidence and is in a position to challenge it. As in Harkat, I am of the view that the appropriate remedy in the circumstances is a declaration that Mr. Mahjoub’s right to disclosure has been violated.

(d) Did the Ministers’ departments violate sections 3, 6 and 83 of the IRPA by failing to provide the Ministers with substantiated recommendations to an extent that constitutes abuse? 95 Mr. Mahjoub argues that the Ministers’ departments, specifically CIC and the CBSA, had a duty to verify the Service’s information prior to presenting the SIR and the security certificate to the Ministers in order to give the Ministers’ substantiated recommendations. He submits that they failed to do so and therefore breached this duty, violated sections 3, 6 and 83 of the IRPA, and committed an abuse of process. He specifically alleges that they failed to review the Service’s material for updates after Bill C-3 was passed and prior to the issuance of the February 22, 2008 certificate. 96 In order to better appreciate the arguments advanced, it is useful to review the impugned statutory provisions. Section 3 of the IRPA sets out a list of the statute’s objectives. Mr. Mahjoub has not directed me to any particular item on the list in support of his argument. Subsections 6(1) and 6(2) provide that the Minister may designate any persons as officers to carry out any purpose of any provision of the IRPA or authorize a person to do anything that may be done by the Minister under the IRPA. Subsection 6(3) provides an exception to these powers. The Minister may not delegate the power conferred by subsection 20.1 or 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or para- 222 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

graph 37(2)(a) of the IRPA. For ease of reference, I reproduce the provisions below: 6.(1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated. (2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization. (3) Despite subsection (2), the Minister may not delegate the power conferred by subsection 20.1(1) or 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a) 6.(1) Le ministre désigne, individuellement ou par catégorie, les personnes qu’il charge, a` titre d’agent, de l’application de tout ou partie des dispositions de la présente loi et précise les attributions attachées a` leurs fonctions. (2) Le ministre peut déléguer, par ecrit,´ les attributions qui lui sont conférées par la présente loi et il n’es pas nécessaire de prouver l’authenticité de la délégation. (3) Ne peuvent toutefois etreˆ déléguées les attributions conférées par les paragraphes 20l.1(1) ou 77(1) et la prise de décision au titre des paragraphes 34(2) ou 35(2) ou de l’alinéa 37(2) a). 97 Section 83 is the protection of information provision prescribing procedural rules for the designated judge in security certificate proceedings, including rules relating to the treatment of evidence. 98 Sections 3 and 83 create no duty on the part of CIC and the CBSA to verify allegations and provide substantiated recommendations to the Ministers. Section 3 provides broad guidance to the government in ad- ministering the IRPA. Section 83 is pertinent once a security certificate proceeding has commenced before a designated judge of the Federal Court. Subsections 6(3) and 77(1) find particular application to this proceeding. By operation of law, the Minister cannot delegate his or her power to sign a security certificate and refer the certificate to the Federal Court. 99 Mr. Mahjoub essentially contends that the CIC and the CBSA, in the conduct of their internal operations in preparing and assisting their respective Ministers to carry out their statutory duties and obligations, had a duty to conduct an independent verification of any and all information obtained by the Service before such information could be considered or used in the preparation of their briefings to the Ministers. Mahjoub, Re Edmond P. Blanchard J. 223

100 The argument is without merit. The duty and responsibility to decide whether to sign a security certificate and refer it to the Federal Court rest exclusively on the two Ministers, the Minister of Public Safety and the Minister of Citizenship and Immigration. Nothing in the IRPA compels officials in either department to conduct a particular kind of review of the information it elects to rely upon in the preparation of briefing notes and materials for their respective Ministers. So long as there is a clear understanding of the respective roles of all stakeholders involved, including an understanding that the Ministers cannot delegate their powers under subsection 77(1), it is up to the Ministers and departmental officials to decide how the information presented by the Service is to be considered and weighed and how officials are to brief the Ministers. 101 Further, given the Service’s expertise in national security matters, it was open to the CIC and the CBSA to rely on information received from the Service in conducting their assessments. This stands to reason since these other departments would have limited capacity to conduct their own investigations (see A. Jolicoeur testimony, 28 June 2011, pp. 67- 68). Within the limits of their investigative capacities, it is also open to these departments to conduct their own inquiries, at their own discretion or at the direction of their respective Ministers. However, there is no legal “duty” that would require a separate verification to be conducted independently from the Service in fulfilling their obligations to assist their respective Minister in his or her duties under the IRPA. If, in their estimation, the information obtained from the Service was reliable, they could use it without the need for independent verification. The Ministers, not their officials, bear the ultimate responsibility pursuant to subsection 6(3). Officials had a duty to act professionally and honestly in assisting their Ministers. There is no evidence on the record to suggest that they did not. 102 There is also evidence before the Court that CIC and the CBSA reviewed the Service’s information prior to presenting the SIR and the certificate to the Ministers. Both Mr. Jolicoeur, then President of the CBSA and Mr. Fadden, then Deputy Minister of CIC, testified that they had read the Service’s information and were satisfied with it (28 June 2011, pp.38-39, 66-67; 20 June 2011, pp.64, 98). Mr. Foley testified that CBSA received the facting package as of February 15, 2008 (5 July 2011, pp.14-17). CIC and CBSA officials testified that they or others in their departments considered the SIR and were satisfied that it established reasonable grounds to believe that Mr. Mahjoub was inadmissible (J. Judd testimony, 13 July 2011, pp.129-132; B. Foley testimony, 5 July 2011, 224 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

pp.10-11). As indicated above, CIC and the CBSA were entitled to consider and rely on the Service’s expertise. 103 I therefore find that the CIC and the CBSA had no duty to independently verify information obtained from the Service in preparing and briefing their respective Ministers while carrying out their statutory duties. I am satisfied that they reviewed the Service’s information and decided whether or not to rely on it. It was open to these departments to rely on information obtained from the Service, particularly when such information was within the Service’s area of expertise. The record does not support Mr. Mahjoub’s contention that the conduct of these officials constituted an abuse of process.

(e) Did the Ministers unlawfully delegate their authority in violation of subsection 6(3) of the IRPA, and does that delegation constitute an abuse? 104 Mr. Mahjoub further contends that the Ministers’ reliance on the advice and reporting of CIC, the CBSA and the Service in itself amounts to an improper delegation of their authority in violation of subsection 6(3) of the IRPA. 105 Ministers are entitled to rely on the advice of their officials. One of the primary purposes of CIC and the CBSA is to assist their respective Ministers in making their decisions. In addition, the Service conducted the investigation, knew all of the information in the greatest detail, and had expertise upon which the Ministers could rely in making their decision. Such reliance does not mean that the Ministers did not make the ultimate decision. 106 In Inuit Tapirisat of Canada v. Canada (Attorney General), [1980] 2 S.C.R. 735 (S.C.C.) at pages 753 and 754, the Supreme Court rejected a similar allegation that the Governor in Council should have personally read an entire petition, supporting material, evidence adduced, and submissions from the parties before he could fulfill his statutory duty to make a decision: The executive branch cannot be deprived of the right to resort to its staff, to departmental personnel concerned with the subject matter, and above all to the comments and advice of ministerial members of the Council who are by virtue of their office concerned with the policy issues arising by reason of the petition whether those policies be economic, political, commercial or of some other nature. Parliament might otherwise ordain, but in s. 64 [of the Access to Information Mahjoub, Re Edmond P. Blanchard J. 225

Act, R.S.C., 1985, c. A-1] no such limitation had been imposed on the Governor in Council... 107 In Astrazeneca Canada Inc. v. Health Canada, 2005 FC 645 (F.C.), the Federal Court addressed this argument as well. In that case, dealing with a request to disclose information, the Health Coordinator who was delegated the power to make the decision by the Minister relied on advice from officials. The plaintiff claimed that, in reality, the decision had been made by the officials in the department because the Coordinator did not have the expertise to make the decision on his own. Justice Phelan responds to this argument at paragraph 22 of the decision as follows: There is nothing in the Act which prevents the decision-maker from obtaining input and recommendations from staff. Given the technical and detailed analysis involved in many access requests, to limit such input and recommendation process would effectively shut down the operation of the Act. 108 The learned judge cites, at paragraph 23, Cyanamid Canada Inc. v. Canada (Minister of National Health & Welfare) (1992), 45 C.P.R. (3d) 390 (Fed. C.A.) [Cyanamid], for the principle “that common sense dic- tates that the decision-maker (in that instance, the Minister) would be guided by officials with more direct knowledge of the issues so long as the decision-maker makes the ultimate decision...” He concludes at paragraph 24 that “the ultimate decision was made by the person with legal authority to do so and that there was nothing improper in delegating aspects of the process to PSIA or in acting upon recommendations and advice from PSIA and other officials.” Further, the Federal Court of Appeal in Cyanamid at page 401 concludes that “[i]t is unthinkable that the Min- ister must personally conduct each and every investigation herself.” 109 The above jurisprudence applies to this case. The executive could not function if Ministers were required to personally conduct an investigation into every decision or even to read every facting document relevant to the decision, particularly if, as in this case, the case involves a large volume of material. The Ministers were entitled to rely on the advice and expertise of their officials, and this reliance does not amount to improper delegation. Mr. Judd’s (13 July 2011, pp.30-31) and Mr. Fadden’s (20 June 2011, pp.110-111) testimony reveals that the Ministers had all of the supporting documents (or “facting”) for the SIR available to them leading up to February 22, 2008. Ms. Finley had a meeting with Mr. Fad- den and Mr. Flanigan to go over some of this although the facting material was not available to Mr. Day on the actual day of signing (6 Septem- ber 2012, p.179). Mr. Foley testified that the Ministers had briefing 226 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

materials and briefings prior to January 28, 2008 (5 July 2011, p.18). Ms Finley had a meeting with Mr. Fadden and Mr. Flanigan from the Service to go over the SIR on February 14, 2008 (R. Fadden testimony, 20 June 2011, pp.15-16). The Ministers also had a draft copy of the SIR between February 12 and February 14, 2008, and according to Mr. Fadden and Mr. Flanigan, the changes between the draft and final copy were not material (20 June 2011, pp. 127, 130; 21 June 2011, p.29). Facting was to be shipped to the Ministers as of February 15, 2008, and the facting documents were to be held within the Ministers’ offices, if necessary delivered to them personally by secure briefcase (T. Flanigan testimony, 21 June 2011, p.28). Mr. Foley testified that the Ministers in fact had this package on February 15, 2008 (5 July 2011, p.19). It is not for the Court to dictate what process the Ministers were to use to consider that material. It was open to the Ministers to rely on the Service or their department’s officials to triage the supporting material, to present it to them in summary form or to devise some other way of processing the information. 110 It is also not for the Court to review the Ministers’ decision whether or not to consult the final reference indices when they were delivered to the Ministers’ offices prior to February 22, 2008. It was for the Ministers to decide which materials they needed to review to be satisfied that there were reasonable grounds to believe Mr. Mahjoub was inadmissible. In this case, I accept that all of the materials were made available for the Ministers to request in advance of February 22, 2008. It is also clear that the Ministers had numerous briefings in the weeks and months leading up to the signing of the certificate (see for example A. Jolicoeur testimony, 28 June 2011, p.32). I am satisfied that before making their decision, the Ministers were well aware of the circumstances underlying the SIR and the gravity of their decision. 111 Further, Mr. Mahjoub argues that the Ministers improperly delegated the decision to sign the certificate to their officials and the Service because they “rubber stamped” the SIR, effectively failing to make the decision themselves. 112 Simply because a minister accepts the recommendations of officials does not mean the minister did not render the decision himself or herself. In Cyanamid, the Federal Court of Appeal at page 401 of its reasons rejected a similar argument. In the context of a decision by a minister’s delegate to seize assets as the proceeds of crime, Justice Snider in Yang v. Canada (Minister of Public Safety), 2008 FC 158 (F.C.), similarly Mahjoub, Re Edmond P. Blanchard J. 227

found at paragraph 33 that “the Minister’s Delegate was entitled to rely on the Adjudicator to prepare a Case Synopsis provided the Minister’s Delegate retained his full decision-making authority and did not feel bound by the Adjudicator’s recommendation”. 113 In the context of subsection 6(3), Justice Shore explained at paragraphs 50 and 51 of Chogolzadeh v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 405 (F.C.): [50] The Minister was not bound by the recommendation and was able to decide on the basis of the material, submitted by Mr. Chogolzadeh, which included mention of the fact that an employee of CIC had recommended that a positive recommendation be made. A negative decision does not point to evidence having been ignored. [51] As stated by the Supreme Court of Canada in Thomson, above: “The simple term “recommendations” should be given its ordinary meaning. “Recommendations” ordinarily means the offering of advice and should not be taken to mean a binding decision.” [Emphasis added] 114 In this case, I am satisfied that the Ministers personally exercised their statutory powers to sign the February 22, 2008 security certificate naming Mr. Mahjoub. Although he ultimately accepted the Service’s and the CBSA’s recommendation, there is no evidence to suggest that Mr. Day ever felt bound by the recommendation of his officials to sign the certificate. On the contrary, Mr. Day’s testimony demonstrated that far from “rubber stamping”, the Minister engaged in a probing review of the SIR and held numerous meetings with his officials to question them on the SIR, some of the supporting materials, and the recommendations. Mr. Day testified that: Q....as best you can recall, I’d like to know what sort of discussions [about security certificates] you had at that time [the weeks and months leading up to the signing]? A...I am the type of individual who asks a lot of questions. I’d want to know, and would have asked, the basis for the posi- tions being taken. Certainly, when it came to work related to CSIS and intelligence- related activities, I was very interested in how material was acquired, how one establishes confidence in the material, especially coming from external sources and even day-to-day activities of our people who work in those agencies... Q. As best you can recall, can you tell us what you might have been told at that time about Mr. Mahjoub’s case in particular? 228 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

A. Well, some of the details of why he was considered a risk. I would have been informed of...why a security certificate had been signed by two previous Ministers and by a number of judges, I wasn’t wanting to leave that as sufficient, just that others had signed these certificates before I had, or that the Court upheld them before I came there. I didn’t feel that was sufficient. I wanted to know what type of work had gone into establishing what were purported to be the facts of this case. ... I wanted to know in his specific case, and with the others, who...CSIS — who they talked to. How they can be confident about the information and the allegations, what is their level of confidence, and what is the level of risk... (S. Day testimony, 6 September 2012, pp.10-13) In addition, Mr. Day testified that he took a “hands-on” approach and preferred to go through briefing materials prior to being briefed by his officials so that he could examine them himself (ibid. pp.14-15). He also testified to “asking questions beyond the notes or the references or in- dexes and, as far as possible, trying to get cross-references to those...” (ibid. p.28). 115 Further, Mr. Jolicoeur testified that Mr. Day understood that he had to personally decide before signing the security certificate (28 June 2011, pp.41-42). Mr. Day himself testified that he was personally satisfied with his decision (6 September 2012, p.115). I can infer from Mr. Fadden’s testimony that Ms Finley also understood that she had to make her own decision (20 June 2011, pp.20-21, 44-46). She was briefed by Mr. Flani- gan and Mr. Fadden on February 14, 2008 when she received her advance copy of the SIR, giving her the background necessary to review the facting documents “if she so desired” (T. Flanigan testimony, 21 June 2011, pp.22-23). 116 Mr. Mahjoub also criticizes the short time it took for the Ministers to consider the security certificate on February 22, 2008, namely 35 min- utes for five certificates in the case of each Minister (B. Foley testimony, 4 July 2011, pp.27, 125). In Kissel v. United States, [2006] O.J. No. 5020 (Ont. S.C.J.), the applicant in an extradition proceeding arguing an abuse of process warranting a stay levelled the same criticism against the minister in question. The Ontario Superior Court rejected this argument at paragraph 167 as follows: ...The fact that one working day separated the receipt of the appropriate documents and the issuance of the ATP is not sufficient evidence Mahjoub, Re Edmond P. Blanchard J. 229

for a finding of bad faith or improper motive. The Minister is due a great deal of deference in this decision-making process, as well as in how long he or his staff consider it appropriate for reviewing and deciding on a certain file. A contextual and case specific approach may require abiding by a different timeline in different cases; one case may require three hours, another three days. As a committal judge, I am not here to scrutinize their judgment call on such matters. [Emphasis added] 117 I adopt the above reasoning. It is not for this Court to impose a particular decision-making process or dictate an appropriate time frame for the Ministers’ consideration of a particular file before a decision is rendered. It is for the Ministers to decide what is sufficient. On the evidence, I am satisfied the Ministers took the necessary time to review and consider the materials. While the final version of the SIR was only available shortly before the certificate was signed, Mr. Day’s testimony indicates that he received an advance copy, and on the day of the signing he required his officials to point out the changes to him (6 September 2012, p.180). I am satisfied that the Service followed this process with Ms. Finley as well, providing both Ministers with advance copies without reference indices or facting sometime around the 12th or 14th of February, 2008 (R. Fadden testimony, 20 June 2011, pp.34-35; T. Flanigan testimony, 21 June 2011, p.21). 118 In these circumstances, the content of the legislative duty was limited to the requirement that the Ministers personally decide whether or not a security certificate should be signed against Mr. Mahjoub. This in turn required them to have access to all of the facting and to the advice and recommendations of their officials in order to decide what they needed to read and hear to be satisfied as to the grounds of the certificate, and to question their officials on the recommendations those officials provided. I am satisfied that the process by which the Ministers signed the certificate satisfied these criteria and neither infringed Mr. Mahjoub’s section 7 Charter rights nor contravened subsection 6(3) of the IRPA. 119 To conclude, I find that the Ministers were not required to read all of the facting material, that they were entitled to rely on the advice, expertise and recommendations of officials, and that they conducted their own review of the SIR and the recommendations of their officials prior to signing the certificate. I am satisfied that the Ministers personally decided whether or not to sign the security certificate. The Ministers did not delegate their decision-making authority and therefore complied with subsection 6(3) of the IRPA. Their review of the material presented to 230 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

them and their meetings with officials at which they questioned the officials’ recommendations also demonstrates that the Ministers did not merely “rubber stamp” those recommendations. Consequently, I find that the decision-making process followed by the Ministers in signing the February 22, 2008 security certificate did not amount to unlawful delegation of the Ministers’ authority.

(f) Was the Ministers’ use of information that the Court found to be derived from torture or cruel, inhuman and degrading treatment to support the issuance of the security certificate an abuse? 120 In a decision rendered on June 9, 2010 on a motion for the exclusion of evidence brought by the Special Advocates, the Court concluded that certain evidence supporting the allegations in the SIR was inadmissible in these proceedings on the basis that there were reasonable grounds to believe it had been “obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or punishment within the meaning of the Conven- tion Against Torture” (Mahjoub, Re, 2010 FC 787 (F.C.)). Mr. Mahjoub had established a plausible connection between the impugned evidence and torture or CIDT, and the Ministers had failed to rebut it. The evidence was excluded pursuant to subsection 83(1.1) of the IRPA by way of the Court’s June 9, 2010 and August 31, 2010 Reasons for Order and Orders. In its reasons the Court also ruled that where the Ministers rebutted the presumption in relation to certain evidence, from the same agencies, that evidence was not excluded. Mr. Mahjoub now argues, partly on the basis of the relief obtained on the motion to exclude this evidence, that the Ministers intentionally or through willful blindness relied on information that they knew was obtained as a result of torture or CIDT, an abuse of process that taints the entire proceedings. 121 Mr. Mahjoub submits that the Service collected and used information without an effective mechanism to ensure that the information gathered and presented in order to obtain the CSIS Act section 21 warrants and to support the two security certificates was not obtained by torture or CIDT. He further submits that the Service did not advise the Ministers or the Court that the information was tainted by torture in a “timely” manner and recommended that the Ministers sign the certificates with the knowledge that the Service was relying on information that had been obtained or derived from torture or CIDT. He contends that the Ministers’ conduct amounts to an abuse of the judicial process. In addition, he submits that the Ministers, CIC and the CBSA committed an abuse of process in fail- Mahjoub, Re Edmond P. Blanchard J. 231

ing to verify the Service’s information to ensure that none of it was obtained or derived from torture or CIDT. 122 By adducing evidence for which there were reasonable grounds to believe had been obtained from torture or CIDT, the Ministers violated Mr. Mahjoub’s section 7 Charter right to a fair trial. His right to a fair trial is violated because such evidence is the quintessential example of unreliable evidence, and it is unfair for him to have to meet it as part of the case against him. Mr. Mahjoub sought and obtained a remedy for this violation of his Charter rights. By succeeding in having the evidence excluded, Mr. Mahjoub was no longer required to meet it. He has been granted a full remedy for this violation of his right to a fair trial. It was open to Mr. Mahjoub to challenge any evidence on the ground that it is unfair for the evidence to form part of the case against him. 123 The Court’s findings that some evidence was inadmissible pursuant to subsection 83(1.1) of the IRPA in the June 9, 2010 Reasons cannot be the sole foundation for an abuse of process. As discussed earlier in these Reasons at paragraph 85 in relation to the exclusion of the summaries of certain intercepts, the Ministers did not commit an abuse of process merely by tendering evidence later ruled inadmissible by the Court. In addition, while the Court in its June 9, 2010 Reasons for Order found that there were reasonable grounds to believe that some evidence was obtained by torture or CIDT, it did not make a finding that Mr. Mahjoub had proven on a balance of probabilities that the evidence was so obtained. The issue before the Court concerned the “admissibility in evidence of information collected by the Service and relied upon by the Ministers for the purposes of a Court proceeding.” At paragraph 74 of its reasons, the Court observed that: “[a]t issue is whether the Service’s policies and practices are sufficient to ensure that information that is obtained by it meets the admissibility criteria of paragraph 83(1)(h) and subsection 83(1.1) of the IRPA.” 124 The Court found that the Service’s assessments of the foreign agencies’ human rights records were sometimes at odds with the Amnesty International human rights reports (at paragraph 91). Although the assessments of whether information was obtained from torture were largely based on the experience of Service employees, the Court found that the employees had no “specific expertise in assessing whether information comes from torture or not” (at paragraph 92), and the Service had no means of independently investigating the provenance of information from foreign agencies (at paragraph 93). The “filtering” exercise, in the 232 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Court’s view, “is still essentially an exercise of corroboration for the purpose of ensuring the reliability of the information being collected” (at paragraph 94). 125 The Court concluded as follows at paragraph 95 of its reasons: the approach adopted by the Service in filtering information collected in compliance with its mandate, is insufficient to ensure that all the information obtained from countries with a poor human rights record meets the admissibility criteria of paragraph 83(1)(h) and subsection 83(1.1). 126 Mr. Mahjoub contends that the filtering mechanism employed by the Service in collecting information for the purposes of the SIR was insufficient to ensure that its information was not obtained from torture or CIDT. As determined in my Reasons for Order and summarized above, it is clear that for the purposes of section 83(1.1) of the IRPA, the mecha- nisms employed by the Service to screen information in the context of the Special Advocates’ motion discussed above were inadequate. I ultimately granted the remedy of excluding the impugned evidence on reasonable grounds to believe that it was obtained from torture of CIDT. 127 However, the question in this motion does not concern the admissibility of evidence, but rather whether the actions of the Service in applying their screening policies and relying on information so screened in the SIR committed an abuse of process. I am now asked by Mr. Mahjoub to find the application of these same practices by the Service in collecting information in support of the SIR to be an abuse of process. For the reasons that follow, I am satisfied that the Service did not engage in conduct that amounted to an abuse of process in screening information as it did in preparing for the issuance of the SIR. 128 Evidence adduced by the Service through the testimony of Mr. Guay, Mr. Vrbanac and CSIS Witness #3 (18 October 2010, p.40; 24 March 2010, pp.143-144, 197; 25 March 2010, pp.17-19, 37-41; 24 July 2012, p.19) indicates that the Service is aware of both the practice of torture or CIDT and other intelligence-gathering practices used by the foreign agencies. Further, the record indicates that the Service used corroboration and developed certain indicia, such as the level of detail of the information, to assess whether a particular piece of intelligence came from torture or not. The Service relied on its own internal expertise to test the reliability of the information. As discussed in my reasons on the Special Advocates’ motion to exclude evidence, the Service’s expertise was fo- cused on screening intelligence for its reliability in pursuing its mandate Mahjoub, Re Edmond P. Blanchard J. 233

under the CSIS Act and not necessarily for purpose of gathering evidence for Court proceedings. 129 Notwithstanding these deficiencies, there is no evidence that the Ser- vice acted in bad faith in the application of its practices and screening protocols. The evidence indicates that the Service’s approach was intended to exclude information that was obtained by foreign agencies from the use of torture or CIDT (see T. Flanigan testimony, 6 December 2010, p.90; CSIS Witness #3 testimony, 24 July 2012, p.20). There is evidence that the service attempted to filter out such information and use only information that it considered reliable because it was corroborated and bore no indicia of torture, including withdrawing some information known to have been obtained through mistreatment of a detainee from other security certificates (J. Judd testimony, 13 July 2011, pp. 25-26). This is not a situation where the Service was acting in “ignorance of Charter standards” or in “[w]ilful or flagrant disregard of the Charter” (Grant at paragraph 75). The Service’s process was found to be deficient in screening information for the purpose of its admissibility pursuant to section 83(1.1). However, this does not lead to a determination that the Service was wilfully unaware of the systematic torture practiced by the foreign agencies at issue or that the Service undermined the judicial process. 130 On its face, the record does not support a finding that the Ministers’ entire case was derived from a “lead” obtained through torture or CIDT. Neither Mr. Mahjoub nor the Special Advocates have demonstrated this causal connection. 131 In addition, I find that the evidence does not support a finding that the Service acted intentionally or recklessly so as to undermine the integrity of the Court or public confidence in the administration of justice (Grant at paragraphs 198-199). There is no evidence to support an analogy with Khadr, in which one of the parties to the proceedings, the United States, paid the Pakistani intelligence agency (the ISI) to abduct Mr. Khadr, which directly led to Mr. Khadr’s detention and torture. The United States encouraged Mr. Khadr’s further detention in Pakistan, even after the ISI had finished with him, so that the United States could conduct a criminal investigation. It was on the basis of charges laid as a result of this criminal investigation that the United States sought Mr. Khadr’s extradition. The “shocking and unjustifiable” human rights violations suffered by one of the parties to the proceedings, coupled with the other party’s direct implication in those human rights violations through its 234 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

conduct, made it necessary “for the court to dissociate itself” from that “gross misconduct” (at paragraph 66). The circumstances of this case do not approach the situation in Khadr. There is no evidence to suggest that either the Ministers or the Service were implicated in the human rights abuses that the foreign agencies at issue may have committed to obtain the evidence at issue. 132 I conclude that the Service’s general approach to the filtering of its information, although flawed for the purposes of section 83(1.1) and insufficient to protect Mr. Mahjoub’s rights does not fall into the residual category of an abuse of the Court’s process. 133 In addition, Mr. Mahjoub argues that it was abusive for the Ministers and the Service to rely on foreign agency evidence that could not be independently investigated and was of unknown provenance. As I have concluded in the Foreign Agency Evidence Decision, such evidence is not inadmissible per se. Further, I found the particular foreign agency evidence that the Ministers adduced in this proceeding to be admissible. 134 To conclude, I find that the Court’s June 9, 2010 Reasons for Order and Order have remedied any violation of Mr. Mahjoub’s rights that the Service committed in relying on information that the court found was obtained from torture or CIDT to support allegations in the SIR. Further, I find that the Service was aware of its Charter obligation not to rely on information from torture or CIDT and did not act in bad faith in its efforts to comply with this obligation. Finally, I find that the Ministers and their officials did not commit an abuse of process in relying on the Ser- vice’s assurances that there was no indication that any of the information supporting the SIR was obtained by torture or CIDT. Finally, it was not abusive for the Ministers to rely on such foreign agency intelligence.

(g) Did the Ministers, their departments or the Service fail to make full, fair and frank disclosure in ex parte proceedings before the Court or in the process leading up to the signing of the security certificates to an extent that constitutes a Charter violation or abuse? 135 In addition to his allegations that the Service failed to make full, fair and frank disclosure in its affidavits supporting its applications for warrants, also raised in his challenge to the CSIS Act warrants, Mr. Mahjoub argues that there were three other instances of breach of the duty of candour. He alleges that the Ministers failed to make full, fair and frank disclosure to the Federal Court of Canada in the in camera portion of the reasonableness hearing before Justice Nadon. Further, he alleges that the Mahjoub, Re Edmond P. Blanchard J. 235

Service failed to make full, fair and frank disclosure in the SIR to the Ministers leading up to the February 22, 2008, signing of the second security certificate. Finally, he argues that the Ministers have omitted material information and misled this Court in the course of these proceedings. He argues that the Ministers’ and the Service’s omission of exculpatory evidence and misleading statements amount to an abuse of process. In closed proceedings, the Special Advocates have pointed to specific examples in the classified SIR of omissions or statements which they argue may have misled the Ministers. 136 The Ministers do not dispute that the Service owed the Ministers a duty of candour in preparing and presenting the SIR in support of its recommendation that the Ministers sign the February 22, 2008 security certificate. Parties bringing ex parte applications are expected to provide the Court with full, fair and frank disclosure (Ruby v. Canada (Solicitor General), 2002 SCC 75 (S.C.C.) [Ruby] at paragraph 47). The Supreme Court in Ruby explains that “[t]he evidence presented [ex parte by government agencies] must be complete and thorough and no relevant information adverse to the interest of that party may be withheld” (at paragraph 27). 137 At the outset, it is useful to understand the respective roles and duties of the Service and the Ministers in security certificate proceedings. In the context of his abuse of process motion, Mr. Mahjoub raises a number of arguments that he contends engage the Ministers’ duty of candour or the duty to make full, fair and frank disclosure to the Court in the underlying proceedings. He also argues that the Service owes a similar duty to the Ministers in investigating and preparing its recommendation on the security certificate. It is Mr. Mahjoub’s position that both the Ministers and the Service breached their respective duties, and in so doing abused the Court’s process. 138 The decision that is subject to review is the Ministers’ decision to sign a certificate stating that the named person is inadmissible pursuant to section 77(1) of the IRPA. According to section 78 of the IRPA, the designated judge must then determine whether the certificate is reasonable. The IRPA provides a process to deal with the evidence adduced before the Court by the Ministers in support of the certificate as well as other evidence. The IRPA does not provide for a particular process to be followed by the Service in investigating the case and making its recommendation to the Ministers. The Service is not making an application for 236 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

a certificate which the Ministers adjudicate; it recommends (or does not recommend) that the Ministers issue one. 139 In my view, this accords with the distinct roles of the Service and the Ministers in the circumstances. The Service is mandated to “collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada” (CSIS Act, section 12). Concerning the issuance of a security certificate, the Ministers alone must decide whether to sign the certificate in order to respect subsection 6(3) of the IRPA, and in so doing they may rely on the advice and expertise of the Service. It is for the Ministers to ensure that the process they use to decide is adequate in that it serves to provide the Ministers with the necessary information to make the decision. Should the Ministers, because of an inadequate process, render an unsubstantiated decision, this may be raised on the reasonableness review before the Court. The responsibility for any deficiencies in the process in place for the preparation of the SIR, in the SIR itself, or for any shortcomings in the implementation of that process by the Service must lie with the Ministers. 140 If in their decision to sign the certificate, the Ministers rely on advice or information that is subsequently shown to be misleading, incomplete or inaccurate in a material way, then this may provide a basis for the Court to find the certificate unreasonable in the course of the reasonableness proceeding. It may even be open to the Court to find that reliance on such information by the Ministers constitutes an abuse of process. Such findings would depend on the circumstances of the particular case. When we speak of the duty of candour owed in such circumstances, it is the duty owed by the Ministers to the Court. The Federal Court of Appeal stated expressly that the duty of candour was that of the Ministers and their counsel in Charkaoui, Re, 2004 FCA 421 (F.C.A.) at paragraphs 153-154. 141 Unlike in Charkaoui II, in which the Supreme Court found that the CSIS Act imposed a particular duty on the Service, the duty to retain relevant information found in section 12, in this case Mr. Mahjoub has raised no legal basis upon which to impose a duty of candour on the Service owed to the Ministers. In my view no such duty arises. 142 For the Court to reach behind the Ministers without clear legal basis and enforce a duty to them by their subordinate agencies would be an Mahjoub, Re Edmond P. Blanchard J. 237

unacceptable encroachment on the separation of powers. Consequently, since the duty owed is that of the Ministers and not the Service, any allegation relating to a breach of a duty owed by the Service or other departments or agencies to the Ministers will only be considered to the extent that the alleged breach impacts upon the Ministers’ duty of candour owed to the Court. In this respect, I do not believe that I diverge from my colleagues in Almrei, Re, 2009 FC 1263 (F.C.) [Almrei] and Harkat who expressed this duty as a duty of candour “owed to the Court by the Ser- vice and the Ministers” in recognition of the reality that the Ministers were allowing the Service to have a significant impact on how they presented their case to the Court.

i. The content of the Ministers’ duty 143 I now turn to consider the content of the Ministers’ duty. It is well established that a party before the court in an ex parte proceeding “is under a duty of utmost good faith in the representations that it makes to the court” (Ruby at paragraph 27). The onerous duty is required because, as the Supreme Court explains at paragraph 40 of its reasons in Ruby, ex parte proceedings depart from the general rule that “a fair hearing must include an opportunity for the parties to know the opposing party’s case so that they may address evidence prejudicial to their case and bring evidence to prove their position”. At paragraph 25, the Supreme Court defined an ex parte proceeding as follows: Ex parte, in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party... 144 The in camera portion of security certificate proceedings are ex parte in the sense that the named person and their counsel are not present. The proceedings are nevertheless distinguishable from ex parte proceedings contemplated in Ruby. Since the passage of Bill C-3 into law, special advocates now protect the interest of the named person in closed proceedings. They have notice of the in camera proceeding and have access to all of the classified material on the record that is not available to the named person; consequently, they are in a position to challenge the classified information sought to be adduced by the Ministers. Further, the IRPA requires that a summary of information and other evidence be provided to reasonably inform the named person of the case made by the Ministers in the proceeding. By reason of the amendments brought about by Bill C-3 providing for the above-discussed procedural safeguards, it cannot be said that the ex parte proceeding in security certificate matters 238 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

are the same as those contemplated in Ruby. In security certificate proceedings, the interests of the named person are represented and defended before the Court by the special advocates. This is not the case in true ex parte proceedings. The question is how the provision of the procedural safeguards affects the content of the Ministers’ duty of candour owed to the Court. 145 In Almrei at paragraph 499, my colleague Justice Mosley made the following observations concerning the duty of candour owed to the Court: [499] The application of this duty in security certificate proceedings prior to Bill C-3 was recognized by the Federal Court of Appeal in Charkaoui v. Minister of Citizenship and Immigration et al., 2006 FCA 206, [2006] F.C.J. No. 868, at para. 18. In my view, the enactment of Bill C-3 has not altered the duty owed to the Court by the Service and the Ministers. Proceedings continued to be conducted in closed sessions and they remain ex parte in the sense that the respondent and his counsel are not present. The presence of the Special Ad- vocates and their ability to receive the same information that is now disclosed to the Court, pursuant to Charkaoui II, does not alter that fact. [Emphasis added] 146 I agree with my colleague Justice No¨el that the presence of the special advocates and their ability to receive the same information that is now disclosed to the Court does not change the content of the duty of candour owed to the Court in certificate proceedings although in some circumstances, it may affect the consequences of a breach of this duty (Harkat, Re, 2010 FC 1243 (F.C.) at paragraphs 117-118). This may in turn influence which remedy is appropriate in the circumstances. 147 Finally, I reject the Ministers’ argument that the duty of candour is somehow diminished by reason of the Ministers’ ongoing disclosure obligation. I disagree with the Ministers’ interpretation of the Supreme Court’s observations at paragraphs 70 and 71 of Charkaoui II. In my view, the Supreme Court is simply acknowledging the reality in security certificate cases that information is continually being collected and retained even after the Ministers have issued the security certificate and the named person has been arrested. While the Ministers cannot disclose information that is not in their possession, this in no way affects their duty to fairly present what is in their possession. For example, in Almrei, simply because exculpatory evidence was revealed in the disclosure process Mahjoub, Re Edmond P. Blanchard J. 239

did not mean that the Ministers had no duty to bring it to the Court’s attention at the outset of the proceedings.

ii. Failure to make full, fair and frank disclosure to the Court in the first security certificate proceeding 148 I will now turn to the first security certificate proceeding before Jus- tice Nadon, which resulted in a decision upholding the reasonableness of the certificate. The Supreme Court in Charkaoui I declared the IRPA regime pursuant to which the first certificate was issued to be unconstitutional. As of February 23, 2008, the Supreme Court held that the law was of no force and effect and that Mr. Mahjoub could apply to have the security certificate quashed (at paragraph 140). 149 Mr. Mahjoub’s allegation that the Ministers failed to make full, fair and frank disclosure to the Court in the course of the first reasonableness hearing would only be relevant to this proceeding if it had a discernable impact on the signing of the second security certificate on February 22, 2008, or on the subsequent proceedings before this Court. The record indicates that a new process was engaged by the Service for the preparation of a new SIR before the issuance of the second security certificate against Mr. Mahjoub. The Ministers issued the certificate afresh. In my opinion, any breach of the duty of candour relating to the earlier certificate would have no discernable impact on these proceedings. Since the earlier certificate was quashed, there is no need for further remedy.

iii. Alleged omissions and misleading statements by the Service in the preparation of the SIR 150 Mr. Mahjoub argues that in recommending the signing of the security certificate, the Service made the following material omissions in their submissions to the Ministers. I respond to each as follows, to the extent that they have impacted the Ministers’ duty of candour to the Court. a. “Mr. Jaballah’s testimony under oath declaring that he does not know Mr. Mahjoub” was not included in the SIR. The Ministers contend that the Service elected not to include this information because the evidence was found not to be credible by the Federal Court in Jaballah, Re, 2006 FC 1230 (F.C.) at paragraph 50. Mr. Jaballah’s denial was before the Court in a summary of his interview with the Service that the Ministers adduced as one of the SIR Reference Indices (Exhibit A2, Tab 15). In my view, there was no omission. 240 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th) b. The SIR does not reference Justice Cullen’s November 2, 1999 decision to quash one of the certificates signed against Mr. Jabal- lah. In the meantime, a new certificate had been signed against Mr. Jaballah which Justice MacKay found reasonable on the basis of new evidence on May 23, 2003. The Court is entitled to take judicial notice of jurisprudence, and this fact is to be found in Canada (Minister of Citizenship & Immigration) v. Jaballah, [1999] F.C.J. No. 1681 (Fed. T.D.) (Lexis). Consequently this fact was not omitted. c. Mr. Mahjoub alleges that “CSIS knew that there was an issue about the VOC’s existence and she [Ms. Campion] had discussions about this with the lead analyst” and yet failed to disclose this in the SIR. In my view, this assertion takes Ms. Campion’s testimony out of context. Ms. Campion attested that “[t]here is un- certainty about the current status of the VOC” (8 July 2011, pp.24-25). This statement was not about conveying doubt as to the VOC’s existence when Mr. Mahjoub was allegedly a member, but doubt as to its status at the time of her testimony. In response to Public Counsel’s next question, Ms Campion directly rejects the “notion that the group never existed...” I am not persuaded that the Ministers were in any doubt that the VOC existed when they referred the certificate to the Court. In the circumstances, there is no omission. d. Late in these proceedings, Mr. Mahjoub obtained evidence that the Royal Canadian Mounted Police (RCMP) had not conducted a criminal investigation on Mr. Mahjoub, and he argues that this was a material omission from the SIR. The record reveals through the testimony of CSIS Witness #3, who prepared the SIR, that the Service had no information to this effect (26 July 2012, pp.36-37). The Ministers cannot be expected to present information that they do not have. In addition, the Ministers do not allege that Mr. Mahjoub was under criminal investigation, nor does the absence of criminal investigation undermine their allegations of Mr. Mahjoub’s inadmissibility. There is no omission. e. Mr. Mahjoub alleges, on the basis of Professor Wark’s report at page 120, that the Service could have been “cherry-picking the evidence from open source information to affirm their case against Mr. Mahjoub” because it chose to rely mostly on media reports and not relevant scholarly literature on terrorism. The assertion is Mahjoub, Re Edmond P. Blanchard J. 241

speculative. There is no specific evidence before the Court to suggest that the Service engaged in “cherry picking” or that it had researched the open source information referred to by Professor Wark in preparing the SIR and chosen to omit those sources. Moreover, Mr. Mahjoub has pointed to no specific material omission in the open source documents that the Ministers have since presented to the Court. 151 The Special Advocates also raise a particular omission of classified information from the SIR. While disclosure of the details of that alleged omission would be injurious to national security or the safety of any person, I may publicly conclude that the omitted information had no bearing on whether Mr. Mahjoub was inadmissible on the grounds of national security and therefore was not a material omission. 152 I find no merit to the above allegations of material omissions by the Service and, by necessary implication, the Ministers. 153 Mr. Mahjoub also includes a list of alleged omissions by the Service, which he identifies as having arisen in the Charkaoui proceedings. These include allegations concerning human sources, Pre-Removal Risk As- sessment, and polygraph test results which all relate to that case. Mr. Mahjoub has failed to explain how any of these allegations are relevant to this proceeding. 154 The remaining alleged omissions raised by Mr. Mahjoub are more appropriately addressed elsewhere in these Reasons, particularly paragraphs 50-55 relating to the Service’s alleged duty to investigate and paragraphs 75-94 concerning the alleged unreliability of the evidence adduced in these proceedings. 155 The Special Advocates point to many examples of what they argue are misleading statements in the SIR, namely statements that do not pre- cisely reflect the supporting, or “facting”, documentation. While disclosure of the specific examples would be injurious to national security or the safety of any person, I can conclude publicly that these statements are not materially misleading, particularly given the availability of the “facting” documents to the Ministers prior to making their decision, and more importantly the availability of these documents to the Court.

iv. Allegations of fraudulent intent by the Service in preparing the SIR 156 Mr. Mahjoub further alleges that the Service approached the preparation of the SIR with what he terms a “fraudulent intent” to present its findings in a one-sided fashion. He contends that the Court may vitiate 242 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

the proceedings on this basis alone. In support of this argument, he relies on R. v. Araujo, 2000 SCC 65 (S.C.C.). He cites considerable Service testimony about the approach used by the Service in preparing the SIR, specifically that the Service failed to take into account Stinchcombe principles (R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.), [Stinchcombe]). In so doing, he submits that the Service deliberately omitted information and misled the Ministers. Mr. Mahjoub then proceeds to set out the following examples of this allegedly “fraudulent” intent. 157 Mr. Mahjoub contends that the Service mistakenly viewed its role in preparing the SIR for the Ministers’ consideration. He points to the evidence of CSIS Witness #3 who adopted Public Counsel’s statement on cross-examination that his “task was not to determine whether there was a case to be made against Mr. Mahjoub, but rather to make the best case possible for the government to advance a security certificate that could be signed by the Minister” (26 July 2012, p.92) 158 Mr. Mahjoub also relies on the evidence of Ms. Campion, a Service operational supervisor who testified that there was no specific “process to find information within the Service’s holdings that may contradict the allegations in the SIR” (8 July 2011, p.69). She further explained that “[t]he security certificate is meant to present the government’s case, the Minister’s [sic] case, for having someone removed from Canada or having someone declared inadmissible to Canada. It was not our job at the time to present, I guess, contradictory evidence. We were presenting a case” (ibid. pp.69-70). She then proceeded to expound her understanding of her role concerning evidence that directly contradicted the allegations in the SIR (ibid. p.70): Q. I understand. So in your estimation it was not your job to cast doubt or to contradict allegations by virtue of other information within The Service’s holdings? A. Well, if the lead analyst came across information that directly contradicted an assertion we were making in the SIR he would come to me and say Barb, we’re saying this but five other people are saying that and that would be part of the challenge process. If we felt strongly or felt strongly enough that some information shouldn’t be included because there was other information that directly went against it, we might not include it. It would depend on a review of all the information. 159 In support of his argument that the Service adopted a “one-sided” approach in preparing the SIR, Mr. Mahjoub takes issue with elements of Mahjoub, Re Edmond P. Blanchard J. 243

its investigation brought to light by the evidence of certain CSIS witnesses. He alleges that Mr. Flanigan testified that in preparing the SIR for the Ministers’ consideration, the Service did not consider disclosure issues prior to December 2007 and January 2008, did not review Mr. Mahjoub’s entire file within the Service’s holdings, did not review all of its operational holdings in relation to Mr. Mahjoub, did not review open sources or audio recordings, and did not notice any arrest warrant in the file. This argument is without merit because Mr. Flanigan in fact testified that the Service considered disclosure issues in preparing the SIR and had the responsibility to review all of its holdings in order to advise the Ministers as to the admissibility of the named persons (6 December 2010, pp.11-12). 160 As stated above, the Service’s role in security certificate proceedings is to provide its expert recommendation to the Ministers so that the Min- isters can decide, based on the information available to the Service, whether the threat to national security posed by an individual requires the detention and deportation of that individual despite his or her statutory entitlement to remain in Canada. The role of the Service is not to be an advocate for the government or “present the government’s case”. Nor is it the role of the Service to make the best case possible for the Ministers at the expense of excluding exculpatory evidence. Certain aspects of the statements by Service witnesses, discussed above, are unfortunate and do not accurately reflect the Service’s role in the preparation of the SIR. 161 Nevertheless, much of the testimony provided by the Service indicates that the Service did, in fact, take into account exculpatory information in the preparation of the SIR. Mr. Vrbanac testified that exculpatory information is reported within the Service and that while the Service’s holdings only contain threat-related information, “anything that the service collects that will speak to the threat one way or the other” is included in the Service’s assessment. Mr. Mahjoub interprets Mr. Vrbanac’s evidence to mean that exculpatory information about him existed in the Service’s holdings and that it was excluded from the SIR. I disagree with this interpretation of Mr. Vrbanac’s evidence. In his testimony, he clearly stated that exculpatory information would be “threat- related” and would have been retained in the Service’s holdings if it had been collected. There is no suggestion that exculpatory evidence would be excluded from consideration in preparing the SIR. For ease of reference, I reproduce below the transcripts of the pertinent parts of Mr. 244 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Vrbanac’s testimony given on his examination-in-chief (1 August 2012, pp. 146-147): Q. The question is: Has CSIS ever considered the fairness or reasonableness of only including - aside from the context information - only including in the CSIS holdings threat related information? A. Again, we will consider - if the point of your question is: If there’s exculpatory information, does that information get reported as well? Q. Yes. A. It does. Again, anything that the service collects that will speak to the threat one way or the other - because sometimes if we’re downgrading the investigation or the investigation is no longer necessary, leads to the information that justifies that, so that information would be used in making the final assessment. So again, all the information that comes in, that is examined, and an intelligence report is then prepared, based on positive and negative information, if you want to call it that. Q. So the approach or the test in section 12 of the CSIS Act that triggers investigations and triggers reports, where the information - reasonable grounds to suspect that the information indicates that there’s a threat to the security of Canada, that’s not one sided? You’re saying that’s two sided? A. Again, we look at all the information that’s available, forms part of the overall assessment available to the service at the time or available to the investigator at the time. They will do research, as the policy points out, open information research as well. And again, whether or not the preponderance of the information is threat related or if there’s some information that may speak contrary to that, I think we weigh all that information and make the assessment, and that’s why there’s the grounds to suspect. Q. Summaries of intercepted communications are not done for every communication; right? A. That’s correct. Q. They’re only done for ones that are threat related? A. That’s correct. 162 The process described by Mr. Vrbanac is one that contemplates the Service weighing of all “threat-related” information in making its assess- Mahjoub, Re Edmond P. Blanchard J. 245

ment. Ms. Campion confirms this approach, despite her unfortunate statements, that information contradicting an allegation in the SIR would be considered even if it was not included (8 July 2011, p.70). This evidence does not support Mr. Mahjoub’s contention that exculpatory evidence would be excluded from consideration in the preparation of the SIR. This finding is bolstered by the fact that no exculpatory evidence from the Service’s holdings has been adduced by Mr. Mahjoub in support of his argument during the reasonableness proceeding. From the many thousands of documents disclosed to the Special Advocates pursuant to Charkaoui II, some of which were in turn disclosed to Mr. Mahjoub, no such evidence is before the Court. 163 In support of his argument that the Service was motivated by a fraudulent intent, Mr. Mahjoub also points to the June 4, 2009 letter from Mr. Duffy raising concern about deficiencies in a particular fact matrix (Ex- hibit R2). I am not persuaded that the letter from Mr. Duffy to the Min- ister raising the issue of the omission of relevant information from the factual matrix in another case has any direct bearing on this issue. In- deed, the letter raised specific issues relating to certain human source evidence in the Harkat case, and a remedy was awarded by the Court in that case. In addition, the issue was canvassed in this case and the Court decided not to rely on this type of evidence (Communication dated Sep- tember 3, 2009). The circumstances relevant to the omissions in Harkat do not arise in this instance. 164 In preparing its recommendation for the Ministers’ consideration, the Service will rely on the information in its holdings and its internal expertise to interpret that information. The Service is not required to put all of the information in its holdings to the Ministers. Given the volume of information in play, screening by the Service of this information is required. In so doing, the Service will, at times, exercise judgment as to what information is included in the SIR and what information is not. It is also appropriate for the Service to rely on its expertise in exercising that discretion. In the end, the Service must ensure that the information and evidence filed in support of the security certificate is complete, thorough and fairly presented to the Ministers. The testimony from the Service witnesses is, at worst, inconclusive, and at best, shows that the Service fairly considered the materials in their holdings even though the SIR did not present both sides of the case. Most importantly, Mr. Mahjoub has failed to point to any concrete examples of misleading statements or omissions resulting from the Service’s approach that were material to his case. There is simply no evidence of abusive conduct by the Service. I 246 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

therefore conclude that the evidence does not support a finding that the Service was motivated by a fraudulent intent or acted improperly in carrying out its mandate in preparing the SIR. It follows that the record does not support a finding that the Ministers failed in their duty of candour before the Court.

Conclusion 165 In sum, I conclude that the Ministers have not committed an abuse of process by reason of a breach of their duty of full, fair and frank disclosure as alleged by Mr. Mahjoub. Any breach of the duty of candour concerning the conduct of the reasonableness proceeding relating to the first security certificate issued against Mr. Mahjoub has not been shown to have any bearing on this proceeding. Further, Mr. Mahjoub has not established that, in his case, the approach adopted by the Service in preparing the SIR was abusive or resulted in any material omissions or misleading statements in the SIR.

(h) Did the Ministers’ failure to raise the issue of Mr. Mahjoub’s inadmissibility to Canada on the grounds of national security at Mr. Mahjoub’s hearing before the Immigration and Refugee Board constitute a Charter violation or an abuse? 166 Mr. Mahjoub claims that because the Ministers did not raise the issue of Mr. Mahjoub’s inadmissibility during his hearing before the Immigra- tion and Refugee Board, which determined that he was a Convention refugee on October 24, 1996, it is abusive for them to raise the issue subsequent to that hearing. 167 The leading case on this issue is Ratnasingam v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 1096 (F.C.), in which a Tamil claimant from Sri Lanka obtained Convention refugee status from the Board despite admitting that he had served as a police officer. He was also informed by CIC that he was eligible for permanent residence status, but six years after this notification, the CIC subjected him to an admissibility interview to determine whether he had committed crimes against humanity. Justice Kelen declined to find issue estoppel and explained, at paragraph 28, that: Under the IRPA, once a person is found eligible for permanent resident status, the person must meet the admissibility requirements of the law, which include both medical and security screenings. These checks involve investigation and take time. Accordingly, the logistical scheme of the legislation suggests that admissibility would not be Mahjoub, Re Edmond P. Blanchard J. 247

determined until after the applicant has been determined to be a Con- vention refugee in the normal course... 168 Similarly in Al Tayar c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 567 (F.C.) [Tayar], the Lebanese applicant sought judicial review of a decision of the Board to deport him on the basis of crimes against humanity committed abroad as a member of the Christian Phalangist Party. The Board had decided that the applicant was a Convention refugee before the CBSA even submitted a report to the Minister concerning the applicant’s inadmissibility. Justice Lagac´e found, at paragraph 27: The fact that the applicant was determined to be a Convention refugee before the decision under review here was made is not a valid reason for invalidating the decision, since, when the applicant obtained refugee status, his inadmissibility was not in issue, which means that the subject matter of the claim was completely different; the Minister, acting in reliance on the CBSA’s report, was therefore not deprived of his right to raise the issue later (Ratnasingam v. Can- ada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1096). 169 The facts of Mr. Mahjoub’s case are analogous to those of Tayar. Mr. Mahjoub’s refugee status was determined well before the Service submitted the first SIR to the Ministers for consideration and the Ministers signed the first security certificate. The Board, in granting Mr. Mahjoub’s refugee status, did not consider the issue of section 34 inadmissibility. The Ministers were therefore entitled to raise the issue subsequently, and they did not unduly delay in doing so. As Justice Kelen observed, investigations often take time to complete as did the investigation in this case. I therefore find that the Ministers’ failure to raise the issue of Mr. Mahjoub’s inadmissibility at his refugee hearing is not a Charter violation or an abuse of process.

(i) Did the Service intercept Mr. Mahjoub’s solicitor-client communications, and does that interception constitute a Charter violation? 170 Mr. Mahjoub alleges that the Service violated solicitor-client privilege “by the interception, monitoring, analysis” of his solicitor-client communications “during the investigation and during the Court proceedings”, both on its own and as an agent of the CBSA. He argues that it is therefore in breach of sections 7 and 8 of the Charter. He also raises the Ministers’ breach of solicitor-client privilege in the commingling inci- 248 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

dent of summer 2011 to be taken into account in the holistic evaluation of the abuse of process. While the Ministers do not dispute that the Ser- vice and the CBSA intercepted Mr. Mahjoub’s solicitor-client communications between 2000 and 2001, and between 2007 and 2010, they contend that Mr. Mahjoub’s Charter rights were not violated because there was no prejudice to Mr. Mahjoub’s case from the interception.

i. The relevant law of solicitor-client privilege 171 The leading case on the subject of whether there has been a breach of solicitor-client privilege that requires a remedy is Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 (S.C.C.) [Celanese]. Al- though that case examined breaches of solicitor-client privilege in the context of removing counsel from the record, it also provides guidance in proceedings in which a permanent stay is sought. See Jaballah, Re, 2010 FC 1084 (F.C.) at paragraphs 58-68, and R. v. Bruce Power Inc., 2009 ONCA 573 (Ont. C.A.) [Bruce Power] at paragraphs 52-55. 172 Concerning the alleged breaches of sections 7 and 8 of the Charter, I commented at paragraph 69 of my May 31, 2012 Reasons for Order and Order (Mahjoub, Re, 2012 FC 669 (F.C.)) that: Aside from the residual category of an abuse of process, Mr. Mahjoub’s alleged Charter breaches require that privilege in the documents exists. To establish a reasonable expectation of privacy to show that his section 8 rights have been violated, he must demonstrate that his documents were protected by solicitor-client privilege and/or litigation privilege. Similarly, solicitor-client privilege and/or litigation privilege must also be established in order to maintain a section 7 violation. 173 In Solosky v. R. (1979), [1980] 1 S.C.R. 821 (S.C.C.) [Solosky] at page 837, the Supreme Court sets out the required criteria to establish solicitor-client privilege: 1. a communication between solicitor and client; 2. which entails the seeking or giving of legal advice; and 3. which is intended to be confidential by the parties. Recently, the Federal Court of Appeal in Thompson v. Minister of National Revenue, 2013 FCA 197 (F.C.A.), has defined the scope of solicitor-client privilege. While Justice Trudel confirmed that “[s]olicitor- client privilege is one of the most revered doctrines under the common law” at paragraphs 34-37, the learned judge also confirmed the Solosky criteria, stated above, for solicitor-client privilege at paragraph 40. Fur- Mahjoub, Re Edmond P. Blanchard J. 249

ther, the Court of Appeal explained that “privilege is distinct from, and narrower than, the duty of confidentiality” at paragraphs 43-44. 174 I agree with the Ontario Superior Court in Pottruff v. Don Berry Holdings Inc., 2012 ONSC 311 (Ont. S.C.J.) at paragraph 19, that “where a consultant, acting as an agent for the client provides the clients information to a lawyer for the purpose of obtaining legal advice, solicitor-client privilege arises.” By extension, this privilege would extend to anyone that the solicitor and client understood to be the client’s agent. This reasoning is in keeping with the Supreme Court’s comments in R. v. McClure, 2001 SCC 14 (S.C.C.) at paragraph 35, that the privilege “must be as close to absolute as possible.” 175 Mr. Mahjoub does not need to specifically prove privilege over every solicitor-client communication in the Service’s or the Ministers’ possession. As the Supreme Court comments at paragraph 42 of Celanese, there is: no onus on the moving party to adduce any further evidence as to the nature of the confidential information beyond that which was needed to establish that the receiving lawyer had obtained confidential information attributable to a solicitor and client relationship which was relevant to the matter at hand. This, of course, does not preclude the Ministers from adducing evidence that the communications were not solicitor-client privileged in nature. 176 The Supreme Court (Celanese at paragraph 3) adopted the test developed in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (S.C.C.) [MacDonald Estate] to disqualify counsel who have had contact with privileged information. I articulated this test as follows in my May 31, 2012 Reasons for Order: (a) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (b) Is there a risk that it will be used to the prejudice of the client? 177 The Ministers can rebut the presumption of prejudice “on the basis of clear and convincing evidence” demonstrating that “the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur” to prejudice Mr. Mahjoub (MacDonald Estate at pages 1260, 1262; Celanese at paragraph 42; Bruce Power at paragraph 55). 250 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

178 In addition, if the Ministers or the Service fail to rebut the presumption of prejudice and a lesser remedy than a stay of proceedings or removing counsel from the record, would address the prejudice, the Court must consider that remedy (Celanese at paragraph 56). Nevertheless, if the Ministers or the Service were in possession of solicitor-client information relevant to these proceedings and they fail to rebut the presumption of prejudice to Mr. Mahjoub, Bruce Power suggests that a stay of proceedings may be an appropriate remedy (at paragraphs 61-66). 179 At paragraph 59 of Celanese, the Supreme Court outlined the factors to consider in granting a remedy which I articulated at paragraph 81 of my May 31 Reasons for Order as follows: (1) how the documents came into the possession of the plaintiff or its counsel; (2) what the plaintiff and its counsel did upon recognition that the documents were potentially subject to solicitor-client privilege; (3) the extent of review made of the privileged material; (4) the contents of the solicitor-client communications and the degree to which they are prejudicial; (5) the stage of the litigation; and (6) the potential effectiveness of a firewall or other precautionary steps to avoid mischief. 180 In order to find that there is an abuse of process, I must be satisfied on a balance of probabilities that: 1. the Service intercepted solicitor-client communications relevant to these proceedings, which may include communications between Mr. Mahjoub’s solicitors, their staff and his family members who served as Mr. Mahjoub’s agents; 2. the information intercepted was confidential; 3. there was a real risk that the privileged information could be used to the advantage of the Service or the Ministers in proceedings against Mr. Mahjoub, and 4. the Service and the Ministers are unable to refute this risk of prejudice. 181 Should a breach of solicitor-client privilege be established, I must then consider whether the breach alone warrants a permanent stay of the proceedings or whether another remedy would address the presumed prejudice from the breach. I must also turn my mind to whether the Mahjoub, Re Edmond P. Blanchard J. 251

breach of solicitor-client privilege constitutes an abuse of process because it brings the administration of justice into disrepute (Grant at paragraph 71) or undermines society’s expectations of fairness in the justice system (Nixon at paragraph 41). In the May 31, 2012 Reasons for Order at paragraph 144, this Court found: ...The privileges in play on this motion, in particular confidences shared between solicitor and client, are central to the administration of justice in an adversarial system. The public has an interest in maintaining the integrity of the solicitor-client relationship. The physical possession of privileged documents by the opposing party is a serious matter that in some circumstances could have a devastating long-term impact on societal confidence in the administration of justice. Notwithstanding my determination that the Ministers’ conduct did not impact on the fairness of the proceeding or prejudice Mr. Mahjoub, the appearance of fairness in the judicial process is of utmost importance. In my view, the circumstances here lead me to conclude the appearance of fairness has been compromised. Conse- quently, I find there to be an abuse of process in the residual category. [Emphasis added]

ii. Interception of solicitor-client communications 182 There is evidence before the Court that the Service did in fact intercept solicitor-client communications, and it is important in deciding whether or not there was a breach of privilege or an abuse of process, at what stage and in what circumstances the communications were intercepted. For the purposes of my analysis, it is useful to consider events that unfolded in the following time frames: i. that period prior to Mr. Mahjoub’s release from detention on June 14, 2007, including: (a) the Service’s investigation prior to Mr. Mahjoub’s arrest on June 26, 2000; (b) June 26, 2000 to October 5, 2001, Mr. Mahjoub’s arrest to Justice Nadon’s determination that the first certificate was reasonable, and (c) October 5, 2001 to June 14, 2007, Mr. Mahjoub’s post-decision detention. ii. June 14, 2007 to December 19, 2008, Mr. Mahjoub’s release on stringent conditions prior to the Order of this Court clarifying that 252 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

the CBSA or its agent, the Service, was not to listen to entire solicitor-client intercepts, and iii. December 19, 2008 to present, Mr. Mahjoub’s release on stringent conditions and period of detention after the clarification.

i.(a) The Service’s investigation prior to Mr. Mahjoub’s arrest on June 26, 2000 183 Concerning the period prior to his arrest on June 26, 2000, Mr. Mahjoub has failed to prove the most basic element of his allegation. There is no evidence before that Court that, during this period, the Ser- vice in fact intercepted any solicitor-client communications. The evidence suggests the contrary. CSIS Witness #2B, one of the communications analysts who would monitor Mr. Mahjoub’s communications in this period, testified (7 August 2012, p.47) that he or she could not recall intercepting any solicitor-client communications in this period. Q. In the period prior to his [Mr. Mahjoub’s] arrest, as I understand your evidence, it is your best recollection as you can have it today that Mr. Mahjoub had no contact with his solicitors by way of telephone or telecommunications, is that right? A. That is correct. In addition, Mr. Mahjoub has provided no evidence that he contacted any legal professional for advice or assistance prior to his arrest. 184 I therefore conclude that the Service committed no breach of solicitor-client privilege prior to Mr. Mahjoub’s arrest on June 26, 2000.

i.(b) June 26, 2000 to October 5, 2001, Mr. Mahjoub’s arrest to Justice Nadon’s determination that the first certificate was reasonable 185 There is evidence that solicitor-client communications were intercepted between the time of Mr. Mahjoub’s arrest and Justice Nadon’s decision. These intercepts were summarized and disclosed to Mr. Mahjoub as part of the Charkaoui II disclosure (Exhibits R61, R62 and Confidential Exhibit R83). These intercepts included discussions about witnesses and legal assistance for the upcoming proceeding. As such, they were clearly relevant to the security certificate proceedings. 186 This evidence is not disputed. The Ministers concede that the Service intercepted solicitor-client communications in this period. They argue that the interception was carried out under the authority of a warrant pursuant to section 21 of the CSIS Act and, since the communications were intercepted after Mr. Mahjoub’s arrest, they had no bearing on the SIR. Mahjoub, Re Edmond P. Blanchard J. 253

187 The Ministers contend that Atwal v. Canada (1987), [1988] 1 F.C. 107 (Fed. C.A.) [Atwal] governs the interception of solicitor-client communications pursuant to CSIS Act warrants. The Ministers correctly assert that warrants covered this period of solicitor-client interception. Nevertheless, as I have determined in the Warrants Decision at paragraph 86, Atwal does not apply to solicitor-client communications once the target is incarcerated or once state legal proceedings have been initiated against the target. I found that the warrant power permitting the interception of Mr. Mahjoub’s communications insufficiently protected Mr. Mahjoub’s solicitor-client privilege because these warrants did not limit the incidental interception of solicitor-client communications to the extent required by Solosky, the case governing these circumstances. The warrant should only have permitted the Service to listen to the solicitor- client communications to the extent required to identify them as such unless it had reasonable grounds to believe that the communications pertained to a security threat. 188 Further, I disagree with the Ministers that any breaches of solicitor- client privilege or abuse of process that the Service or the Ministers committed between June 26, 2000, and October 5, 2001, when Justice Nadon rendered his decision on the reasonableness of the first certificate (Canada (Minister of Citizenship & Immigration) v. Mahjoub, 2001 FCT 1095 (Fed. T.D.)) were fully remedied by the Supreme Court’s decision in Charkaoui I. This Court has already rejected this argument when Mr. Mahjoub sought disclosure of the Ministers’ privileged materials exchanged during the first certificate proceeding in its May 20, 2011 Order. Solicitor-client privilege endures despite the fact that the previous certificate was quashed and the proceedings were started afresh, for this proceeding consists of litigation with the same parties and from the same “judicial source” (Blank v. Canada (Department of Justice), 2006 SCC 39 (S.C.C.) at paragraph 39). Legal advice and strategy exchanged between Mr. Mahjoub and his solicitors in the first security certificate proceeding could conceivably give the Ministers an advantage in the second security certificate proceeding. 189 The affidavits of Mr. Rodrigues and Mr. Galati indicate that many solicitor-client communications were exchanged between them and Mr. Mahjoub or his wife or stepson during this period (Confidential Exhibit R83 and Exhibit 84). It is reasonable to assume that they were all intercepted and listened to by the Service. I therefore find that the Service breached Mr. Mahjoub’s solicitor-client privilege in this period. To determine whether a remedy is required, I now turn to the evidence indicat- 254 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

ing whether or not the Ministers have rebutted the presumption of prejudice from the breach. 190 The Ministers argue that there is no prejudice to Mr. Mahjoub because they have not adduced any solicitor-client communications as evidence, nor have they relied on solicitor-client communications in preparing the SIR or their case. This argument does not satisfy the requirements of Celanese. 191 More pertinent to the requirements of Celanese, the Ministers have adduced evidence of their policy for dealing with solicitor-client intercepts. They have also adduced evidence that Mr. Mahjoub, Ms. El Fouli and his solicitors at the time, Mr. Rodrigues and Mr. Galati, were aware that Mr. Mahjoub’s calls were being intercepted. 192 Exhibit A5 contains OPS-211, a policy pertaining to the processing of information collected under warrant, which was in place from 1998 to 2006. This covers the period and circumstances under which these solicitor-client interceptions occurred. Article 5.2 states that “[w]here a party to an intercepted communication is a solicitor [redacted] shall make an initial determination as to whether the communication relates to a threat to the security of Canada.” Articles 5.2.1 and 5.2.2 clarify that “[w]here the communication is deemed not related to a threat, it shall be destroyed or erased at the earliest practical opportunity; and, [w]here the [redacted] believes the communication may relate to a threat, the communication shall be forwarded to the Regional Director General.” Finally, Article 5.3 specifies that “[a]n intercepted communication involving a solicitor requiring a determination by the Regional Director General, shall remain in its original format, or in a translated summary version without wider distribution” [Emphasis in original]. 193 I am satisfied that this policy effectively rebuts the presumption of prejudice caused by the interception of solicitor-client communications where one party to the communication was a solicitor. There are adequate restrictions on who is entitled to hear or read the communications: according to Mr. Flanigan, if threat-related, only the person monitoring the interception and the Regional Director General may have access to them (8 December 2010, p.91). If the person does not deem the communication to be threat-related, it is destroyed as soon as possible without being disseminated (ibid. p.102). 194 This policy does not, however, serve to rebut the presumption of prejudice from solicitor-client communications made through Ms. El Fouli to Mr. Mahjoub. Since no lawyer was party to those calls, the Ser- Mahjoub, Re Edmond P. Blanchard J. 255

vice’s usual policy of destroying the original intercepts and retaining no record, if they are not deemed threat-related within 30 days of processing (Exhibit A5, Articles 2.8-2.9), had the potential to leave a large window of time through which such information might be disseminated. The solicitor-client communications that the Service retained in summary form because it deemed them to be threat-related are discussed later in these Reasons. 195 Mr. Mahjoub has adduced evidence from his former counsel that the parties to these conversations did not know that all of Mr. Mahjoub’s conversations were being intercepted. The affidavits of Mr. Rodrigues (Confidential Exhibit R83) and Mr. Galati (Exhibit R84) both say, using the same language: “I was not aware and, to my knowledge, Mr. Mahjoub was not aware that all of our solicitor-client communications were listened to and analyzed to determine whether they were related to a threat to the security of Canada” (Exhibit R83 paragraph 8; Exhibit R84 paragraph 14). 196 The Ministers, on the other hand, point to several pieces of evidence indicating that the parties to these conversations, including Ms. El Fouli and Mr. Mahjoub, knew that all of Mr. Mahjoub’s and Ms. El Fouli’s communications were being intercepted. In a summary of an intercept dated August 2000 (Exhibit R61), Mr. Rodrigues is reported to have told Ms. El Fouli “that the concern was that if El Fouli made these telephone calls [to potential witnesses] from her residence, it would not be confidential.” I note also that in an earlier summary dated July 2000 (Confi- dential Exhibit R83, Tab 53), Mr. Mahjoub is reported to have “notified El Fouli that the [his] lawyer had warned him that the telephone lines were being monitored.” A summary dated January 2001 (Exhibit R83, Tab76) also reports that Mr. Mahjoub “reminded El Fouli how Galati had complained in court that his telephone was being monitored ever since his first case.” 197 These two sets of evidence do not necessarily conflict. Mr. Rodrigues and Mr. Galati may have had suspicions and given warnings without being certain that all communications were being intercepted. On the basis of the warnings given to them by Mr. Mahjoub’s solicitors, I am satisfied that Mr. Mahjoub and Ms. El Fouli would err on the side of caution when communicating information to and from Mr. Mahjoub’s solicitors via Ms. El Fouli. However, in the end, the evidence is inconclusive as to whether the individuals involved knew about the interception of solicitor-client communications or not. Consequently, the Ministers have 256 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

failed to rebut the presumption of prejudice flowing from the Service’s interception of solicitor-client communications between Mr. Mahjoub and his agent Ms. El Fouli that it did not retain in its database. I now turn to those communications that were retained. 198 Mr. Mahjoub has adduced several summaries of intercepted solicitor- client communications from this period on the record. I find that the following summaries are solicitor-client privileged. They were identified as such by the Service and disclosed to Mr. Mahjoub as Appendix “A” of the Court’s December 22, 2010 Order: [text omitted] The following summaries or portions of summaries, attached to Mr. Rod- rigues’s affidavit (Confidential Exhibit R83), are protected by a confidentiality order pursuant to Rule 151 of the Federal Courts Rules, SOR/98-106. I also consider these to be solicitor-client privileged communications because Ms. El Fouli was acting as Mr. Mahjoub’s agent to convey instructions, strategy, and advice that was relevant to the security certificate proceedings and confidential to and from Mr. Mahjoub’s lawyers: [text omitted] 199 Celanese creates a presumption of prejudice where the content of the intercepted solicitor-client information was intercepted is unknown, but the presumption is not needed when what was intercepted is available to the Court. The summaries necessarily do not contain the full content of the solicitor-client communication that was intercepted. However, the concern here is not about those communications or portions of communications that were not retained but rather with what was reported and could therefore be disseminated. To reiterate my earlier conclusion, in terms of communications that were not retained, the Ministers have rebutted the presumption of prejudice when a lawyer was party to the communication but have failed to rebut the presumption of prejudice when the communication was between Mr. Mahjoub and his family member agents. 200 Mr. Mahjoub has not pointed to any particular prejudicial information in the above-cited reports. I fail to see how any of the information contained in the privileged portions of these reports reproduced above could confer on the Ministers any advantage in the litigation and infringe Mr. Mahjoub’s right to a fair trial. I shall not consider the remaining intercepts and portions of intercepts identified as solicitor-client communications by Mr. Mahjoub and attached to Mr. Rodrigues’s affidavit be- Mahjoub, Re Edmond P. Blanchard J. 257

cause I agree with the Ministers that they are not properly solicitor-client privileged communications: they did not involve the exchange of advice or litigation strategy between Mr. Mahjoub and his solicitors (whether via an agent or not). 201 I am therefore satisfied that the Ministers have rebutted the presumption of prejudice from the breaches of solicitor-client privilege arising from the interception of Mr. Mahjoub’s solicitor-client communications during the June 2000 to October 2001 time frame except for the solicitor- client communications or portions of those communications conveyed to and from Mr. Mahjoub through Ms. El Fouli that were not retained and consequently unavailable to the Court. The under-inclusive definition of solicitor-client privilege in the Service’s policy at the time meant that these communications were not kept confidential between the person monitoring them and the Regional Director General alone. As a result, I shall consider which remedy is appropriate for the breach of Mr. Mahjoub’s section 7 Charter right to a fair trial and his section 8 right to be free from unlawful search and seizure. In so doing, I will consider the nature of the prejudice to Mr. Mahjoub that flows from the breach. 202 The Service believed that it was lawfully authorized by warrant to intercept solicitor-client communications. In addition, its under-inclusive definition of solicitor-client communications was a good faith attempt to protect solicitor-client communications. Neither Mr. Mahjoub nor Ms. El Fouli testified to the content of their communications. Consequently, the content of theses communications is unknown. In my view, the prejudice is contained if not neutralized completely in that Mr. Mahjoub began his case afresh in 2008. Mr. Mahjoub retained none of his former counsel from the first security certificate proceedings for the purposes of these proceedings. Comparing the two proceedings, it is clear that Mr. Mahjoub changed strategy. I see no advantage gained by the Ministers in these proceedings from solicitor-client communications relating to the previous proceedings. Further, the evidence that Mr. Mahjoub’s counsel told Mr. Mahjoub and Ms. El Fouli to be careful when communicating because the lines might be monitored also lends support to my finding that there is minimal, if any, prejudice. On its own, the only further remedy required for this breach is a declaration that Mr. Mahjoub’s Charter rights have been violated. This is not the clearest of breaches warranting a stay of proceedings. 258 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

iii. June 14, 2007 to December 19, 2008, Mr. Mahjoub’s release on stringent conditions prior to the Order of this Court clarifying that the CBSA or its agent, the Service, was not to listen to entire solicitor-client intercepts 203 On June 14, 2007, Mr. Mahjoub was released on stringent conditions. Earlier, on February 23, 2007, the Supreme Court released Charkaoui I, wherein the Court declared that all outstanding security certificates may be quashed on constitutional grounds, including the one issued against Mr. Mahjoub. The Supreme Court suspended the effect of its decision for one year to allow Parliament to consider new legislation. Even though the new legislation had not yet passed, and the Ministers had not yet decided on a new security certificate, it is likely that during this period Mr. Mahjoub was consulting his lawyers with the view of discussing future proceedings. Indeed, the testimony of CSIS Witness #2B indicates that between 10 and 30 calls per day were made in this period between Mr. Mahjoub and his solicitors (7 August 2012, pp.75, 77). 204 In paragraph 24 of its April 5, 2011 Reasons for Order, the Court found that there were no interceptions while Mr. Mahjoub was in detention. I see no reason to disturb this finding. It is likely that the Service only began intercepting Mr. Mahjoub’s communications in June 2007, after his release and after the CBSA requested its assistance in monitoring compliance with the conditions of release. The Ministers concede that during this period, Service communications analysts listened to intercepted solicitor-client communications. In September 2007, a Service employee corresponded with the CBSA indicating that the communications analyst, namely CSIS Witness #2B, had picked up a solicitor-client communication on Mahjoub’s line and wanted to know what the protocol was with respect to CBSA intercepts (referred to on 7 August 2012, p. 56). Given the timing, the circumstances, and the individuals involved, I find that these communications are presumptively relevant to these proceedings. 205 Mr. Mahjoub has also established that these communications were confidential. As a condition of his release, Mr. Mahjoub and the members of his household consented to the interception of all of his telecommunications (Exhibits A68, A69 and A70). Mr. Mahjoub’s solicitors ought to have known of this condition of release and could expect that their telecommunications with Mr. Mahjoub would be intercepted. Nev- ertheless, Mr. Mahjoub, the members of his household and his solicitors could expect that the CBSA and its agent the Service would respect the strictures of Solosky, which outlines the extent to which there may be a security exception to solicitor-client privilege in the case of detainees. I Mahjoub, Re Edmond P. Blanchard J. 259

find that Solosky also applies to Mr. Mahjoub’s release on stringent conditions because an individual being monitored in the context of ongoing legal proceedings can reasonably be expected to communicate regularly with counsel. Moreover, in Mr. Mahjoub’s circumstances, the monitoring agency was directly linked to the opposing party. 206 The parameters of Solosky require that the Service may only listen to an intercepted solicitor-client communication long enough to determine whether the intercepted communication was a solicitor-client communication, unless there are reasonable grounds to believe that the particular communication pertained to a security threat, in this case, a breach of conditions or a threat to the security of Canada. As Justice Layden-Ste- venson’s December 19, 2008 Order clarifies, the Court had not intended the CBSA or its agent to listen to entire solicitor-client communications when crafting the conditions of Mr. Mahjoub’s release. 207 Mr. Mahjoub has established the relevance and confidentiality of the solicitor-client communications with his lawyers, which the Ministers have conceded were listened to by the Service. I find that the presumption of prejudice to Mr. Mahjoub’s right to a fair trial from those intercepts applies. 208 Also during this period, June 14, 2007 until December 19, 2008, the Service personnel involved in intercepting Mr. Mahjoub’s communications again had an under-inclusive understanding of what constituted a privileged communication, in that it did not include communications with other personnel at the offices of Mr. Mahjoub’s solicitors besides the solicitors themselves. CSIS Witness #2B testified on August 7, 2012, that communications analysts used the definition of solicitor, a person licensed to practice law in Canada, in determining what counted as a solicitor-client communication (pp. 112-113). However, unlike the 2000- 2001 period, Mr. Mahjoub has adduced no specific evidence that he discussed any solicitor-client information with his lawyers’ staff, or his family members as agents during this period. Absent such evidence, I am not prepared to presume that such communications occurred. Mr. Mahjoub has failed to establish the privileged content of communications with his solicitors’ staff or family members during this period. 209 I am satisfied that the Service intercepted solicitor-client communications with Mr. Mahjoub’s lawyers for the purposes of ascertaining whether or not he was in breach of his conditions of release or planning to breach his conditions of release. I am also satisfied that in so doing the Service was ascertaining whether the interception of this information was 260 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

relevant to a threat to the security of Canada pursuant to its mandate under section 12 of the CSIS Act. I will therefore examine whether or not the Ministers have rebutted the presumption of prejudice. 210 CSIS Witness #2B testified about the procedure followed when a communications analyst identified a communication as solicitor-client, therefore potentially subject to solicitor-client privilege. The analyst would listen to the entire communication to identify whether it was a solicitor-client communication from the content or voice, “[a]nd also listen to the entire call to see if there was information... according to our policy, if there was information that constitutes a threat that someone may be in imminent danger” (7 August 2012, p.79). Mr. Vrbanac similarly described the process in his testimony (3 June 2011, pp.106-107). Mr. Flanigan confirmed that a policy was in place up to February 2008 that all intercepts, including solicitor-client intercepts, were to be assessed for threats to the security of Canada (8 December 2010, pp.96- 97). 211 The CBSA engaged the Service to intercept Mr. Mahjoub’s communications. The reason for this was that the CBSA did not have the capacity to conduct the interceptions (J. Judd testimony, 13 July 2011, pp.38- 40). Mr. Mahjoub argues that the Service had no jurisdiction to act as agent for the CBSA. Further, Mr. Mahjoub alleges that it was improper for the Service to do anything beyond the mandate of the CBSA while functioning as its agent. He therefore impugns the Service’s conduct in listening for information relevant to threats to the security of Canada in addition to listening for breaches or potential breaches of Mr. Mahjoub’s conditions of release. 212 Mr. Mahjoub has not persuaded me that the Service’s practice was improper. In the circumstances, it was appropriate for the Service to collect, analyse and retain information on Mr. Mahjoub’s activities, observed while it was fulfilling its mandate from the CBSA as long as the activities could, on reasonable grounds, be suspected of constituting threats to the security of Canada. Information relating to a breach of conditions of release would constitute the grounds necessary to engage the Service’s section 12 mandate under the CSIS Act. This is so because the conditions of release were imposed, at least in part, to protect against the threat posed by Mr. Mahjoub to Canada’s national security. 213 In acting on its section 12 mandate, the Service was not exceeding the mandate that it received from the CBSA to monitor Mr. Mahjoub for breaches of the conditions of release: the Service was simultaneously Mahjoub, Re Edmond P. Blanchard J. 261

complying with its statutory mandate. There is an inherent overlap between the two mandates of the Service in this instance. In my view, the Service would fail in its statutory duty if, in such circumstances, it did not analyze a threat or advise the Government of Canada based on information it collected that pertained to a threat to the security of Canada. Further, there is no jurisdictional or factual basis raised by Mr. Mahjoub upon which the Court may conclude that the CBSA’s choice of the Ser- vice as its agent in these circumstances was inappropriate. 214 Further, neither Mr. Mahjoub nor the Special Advocates have pointed to any evidence that would suggest that the Service retained any information pertaining to security threats that were unrelated to the threat posed by Mr. Mahjoub. It was open to the CBSA to employ the Service as its agent pursuant to the Court’s February 15, 2007 Order. 215 I am satisfied that the Service honestly believed that the Court order authorized it to listen to the full content of solicitor-client intercepts and did not act in bad faith to intentionally violate the Order. This understanding is supported by correspondence between the Service and CBSA during the fall of 2007 wherein it appears the CBSA understood that the Service was required to listen to the entirety of the solicitor-client conversations to ensure they did not pertain to a violation of conditions (B. Bush testimony, 1 June 2011, p.14). Once again, good faith is not sufficient to disprove a Charter violation, so I turn again to the evidence of the Service’s policies and practices. 216 The record confirms that if the analyst heard no information relevant to a threat, all copies of the communication would be purged as soon as possible, and the analyst would communicate to no one about them. If the analyst heard such information, the analyst would mark the communication as a solicitor-client communication and hand-deliver the original recording and, if necessary for language purposes, a summary in English or French to the Regional Director General for evaluation according to OPS-211 (Exhibits A71, R82). Communications analysts were prohibited by the policy from communicating this information to anyone else. There is no evidence before the Court that any of Mr. Mahjoub’s solicitor-client communications from this period were retained and delivered to the Re- gional Director General. CSIS Witness #2B testified that he or she did not recall reporting any solicitor-client communications to anyone else within the Service, including to the Regional Director General or to the CBSA (7 August 2012, p.65). 262 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

217 Further, Ms. Elizabeth Snow, the CBSA “team lead” in 2008, testified that the Service recorded all intercepts onto a disk for review by the five or six CBSA analysts responsible for monitoring Mr. Mahjoub’s compliance with his conditions of release (14 June 2011, pp.10, 84). These disks would be accompanied by a log with the telephone number, the duration of the call, and sometimes a notation. Sometimes, but not always, the Service communications analyst would note solicitor-client nature of a particular communication, in which case the CBSA analysts did not listen to the communication. If they were not so labelled, the CBSA analysts would listen to solicitor-client communications only long enough to establish that they were solicitor-client communications and then promptly disengage. The team lead would then lock these communications in a safe (E. Snow testimony, 14 June 2011, p.10). Mr. Brett Bush, manager of counter-terrorism and the national security screening division of the CBSA’s intelligence branch in 2007 and 2008, testified to this process as well (1 June 2011, p. 19). Ms. Snow testified that CBSA’s policy concerning solicitor-client communications applied to Mr. Mahjoub’s family members as well as the staff of his solicitors’ law offices (14 June 2011, p.20). 218 I am satisfied that sufficient safeguards were in place to prevent anyone from accessing the content of Mr. Mahjoub’s solicitor-client privileged communications beyond a few personnel within the Service and CBSA dedicated to the task of either monitoring Mr. Mahjoub for compliance with his conditions of release and security threats or storing and deleting recordings of intercepts. 219 This conclusion is further confirmed by the testimony of CSIS Wit- ness #3, the individual who prepared the SIR in support of the February 22, 2008 security certificate. He testified that he was unaware of any solicitor-client intercepted communications (26 July 2012, pp.87-88): Q. And I know you can’t recall the specific summaries that you reviewed but did you consider the lawfulness of the method of procurement of the summaries? A. No, I did not. Q. Did you consider... A. It is not that I didn’t ... it is not that didn’t consider it; it is a service issue. Q. It is a service issue, meaning that you accepted on face value that the procurement of the summaries was lawful? A. Yes. Mahjoub, Re Edmond P. Blanchard J. 263

Q. Did you consider whether solicitor-client privileged information was intercepted? A. Did I consider if it was intercepted? No, I didn’t. I had no idea of solicitor-client information being intercepted. Q. You did not turn your mind to that issue? A. No. Q. Do you recall reading summaries of solicitor-client intercepted conversations? A. Absolutely never. I find CSIS Witness #3’s testimony on this point to be credible, and I am therefore satisfied that solicitor-client communications intercepted prior to the preparation of the SIR did not have any impact on the SIR. 220 I am also satisfied that the CBSA personnel followed the strictures of Solosky, and so the only individuals who unlawfully listened to solicitor- client communications were the Service communications analysts. The Court’s February 15, 2007 Order setting out the terms and conditions of Mr. Mahjoub’s initial release (Mahjoub v. Canada (Minister of Citizenship & Immigration), 2007 FC 171 (F.C.)) was silent on the issue of solicitor-client communications. Mr. Mahjoub did not clearly waive solicitor-client privilege with his consent to the interception of his communications. As such, the Service had no authority to infringe solicitor- client privilege by listening to the entire content of these communications. Nonetheless, the above-discussed safeguards and the fact that no such communications were reported were sufficient to prevent further mischief. Consequently, on the basis of the above evidence, I am satisfied, on a balance of probabilities, that the Ministers have rebutted the presumption of prejudice from this unlawful interception of Mr. Mahjoub’s solicitor-client communications. 221 Although its unauthorized listening to the content of solicitor-client communications constitutes a breach of solicitor-client privilege, since no prejudice to Mr. Mahjoub’s right to a fair trial has resulted, no remedy for the breach is required beyond the Court’s declaration that Mr. Mahjoub’s section 7 Charter right was violated.

iv. December 19, 2008 to present, Mr. Mahjoub’s release on stringent conditions and period of detention after Justice Layden-Stevenson’s clarification 222 Justice Layden-Stevenson issued an order on December 19, 2008, clarifying Mr. Mahjoub’s conditions of release. The Court made clear 264 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

that the CBSA or its agent, the Service, were not to listen to solicitor- client communications by adding condition 12.1, which reads as follows: For greater certainty, when the content of intercepted oral communications associated with the land-based telephone line in the Mahjoub residence involves solicitor-client communications, the analyst, upon identifying the communication as one between solicitor and client, shall cease monitoring the communication and shall delete the interception. 223 The solicitor-client communications at issue in this period continued to be relevant to these proceedings. Particularly in light of the December 19, 2008 Order, Mr. Mahjoub and his solicitors would expect their telephone communications to be confidential. The Ministers again concede that solicitor-client intercepts were in the possession of the Service and the CBSA during this period, giving rise to the presumption of prejudice. 224 Service personnel have testified that they complied with the Court’s December 19, 2008 Order and no Service or CBSA personnel listened to any intercepted solicitor-client communication for longer than it took to identify the communication as such. Both CSIS Witness #2, who started work in January 2009 and the preceding analyst CSIS Witness #2B testified to this effect. CSIS Witness #2 explained as follows (6 July 2012, p.23): Q. Now I want you to explain for the benefit of the Court how you approached solicitor-client calls. A. From the day I started, I was told that solicitor-client calls were not treated like any other calls. Q. What does that mean? A. It means specifically that with these calls we have a zero tol- erance, we have nothing to do with them. What that means is that as soon as you recognize a lawyer’s voice, telephone number, you stop monitoring, you tag it as solicitor-client and you send an email to the technical staff to delete it, to delete or purge the call from the system. Although identifying a call as solicitor-client might on rare occasions en- tail listening to an entire call, CSIS Witness #2 testified that “[i]t is not shared, reported or discussed with anyone else” (ibid., p.87). 225 In addition, in the summer of 2010, the Service installed a filtering system for certain telephone numbers so that communications from these numbers would be automatically identified as solicitor-client, and the analyst would not listen to them. These communications would be identi- Mahjoub, Re Edmond P. Blanchard J. 265

fied by the communications analyst in an email to technical staff at the CSIS who would be instructed to delete the communications. CSIS Wit- ness #2 explained the second and third stages of the screening process when filters were implemented and when audio was disabled (6 July 2012, pp.26, 28): Q. When I stopped you, when I interjected, you were talking about the first stage or the phase. I would like you to move on, if you could and explain what the second phase was. A. So, okay. From summer, I would imagine it was June or July, 2010, we implemented some filters into our computer system. Q. What filters? A. The filter is basically contains all the telephone numbers associated with the lawyers. So it became the practice that after I signed into my system I would apply these filters. What they basically did is they brought up all the calls that were made with these numbers. So even before I put on my headphones I would sort of open them, so click on each one to make sure...so the technical staff would know that I have done, sort of processed everything, and tag them accordingly as solicitor-client calls and the move on to do my normal job of doing the rest of the calls. ... Q. I would like you to move on to...you mentioned a third stage. What was that and how if it all was it any different from the evidence you just gave about stages one and two? A. The stage three was basically everything we did in stage two [...] with the addition of the disablement of the audio. So any call associated with these numbers was from the source some- where in the technical system, it was disabled, meaning it could not be listened to. 226 CSIS Witness #2B explained that this system worked imperfectly (7 August 2012, pp.98-102). Certain communications were not deleted as required by the Court’s Order. Instead, they were included with the communications forwarded to the CBSA. CSIS Witness #2 gave several possible reasons for this, including glitches with the system, the failure of the technologists to purge the communications when requested, and analysts not identifying calls to and from staff members at the law offices as solicitor-client communications. Nonetheless, Ms. Snow and Mr. Bush testified that the CBSA followed its normal procedure of only listening long enough to identify the communications as solicitor-client and then 266 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

disengaging (14 June 2011, p.15; 1 June 2011, pp.30-32). It was CBSA’s policy to delete these communications, which they would have done if Mr. Mahjoub’s counsel had not requested that CBSA retain them (Ms. Edwardh’s letter to Mr. MacIntosh dated February 17, 2009). The intercepts were retained on disks in a safe. 227 I am satisfied that the Ministers have respected the strictures of the December 19, 2008 Order and Solosky in their interception of solicitor- client communications for reasons of security in this period. Although CSIS Witness #2B speaks of numerous departments involved in the process, I am satisfied that no one other than the Service communications analysts and five or six CBSA analysts listened to solicitor-client communications, and then only to the extent necessary to identify them as such. The margin of error was further reduced with the introduction of the filtering system, particularly with the disabling of the audio. Al- though numerous communications were mistakenly forwarded to the CBSA in 2010 (estimated at 84 by Mr. Bush, 1 June 2011, p.27), I am satisfied that the CBSA continued to follow its policy of disengagement upon becoming aware that a communication was solicitor-client in nature. Consequently, no violation of Mr. Mahjoub’s right to a fair trial flows from the Service’s oversight. 228 I conclude that during this period, with respect to the interception of Mr. Mahjoub’s communications, there was no breach of solicitor-client privilege beyond what is permitted for the purposes of security according to Solosky. In the unlikely event that a communication had to be listened through in order to ascertain that it was solicitor-client in nature, expo- sure to the content was limited to the screening personnel involved, and the information disseminated no further. 229 In the May 31, 2012 Reasons for Order and Order (Mahjoub, Re, 2012 FC 669 (F.C.)), the Court has already remedied the abuse of process caused by the Ministers’ commingling of solicitor-client information in the manner contemplated by the Supreme Court in Celanese. While Mr. Mahjoub established that the Ministers had seized some of his solicitor-client privileged and litigation privileged confidential information, the Court concluded the Ministers successfully rebutted the presumption of prejudice (paragraph 136). The Court was satisfied that the Ministers’ litigation team involved did not review the documents at issue (paragraphs 108 and 133), there was no prejudice from the copying of some of the documents (paragraph 134), and the separation process con- Mahjoub, Re Edmond P. Blanchard J. 267

ducted by Prothonotary Aalto pursuant to the Court’s October 4, 2011 Order was not prejudicial to Mr. Mahjoub (paragraph 135). 230 In sum, there was no breach of Mr. Mahjoub’s solicitor-client privilege or related abuse of process from December 19, 2008, to the present that warrants any further remedy.

Conclusion 231 The Service unlawfully intercepted and retained, in the form of summaries, certain of Mr. Mahjoub’s solicitor-client privileged communications between his arrest on June 26, 2000, and the decision on his first security certificate on October 5, 2001. While the Ministers rebutted the presumption of prejudice for most of these communications, such communications or portions of communications conveyed to and from Mr. Mahjoub by his agents, his wife and stepson, which were not retained, were left unprotected by the Service’s policies or the Court’s scrutiny. Nonetheless, I am satisfied that since Mr. Mahjoub has had the opportunity to begin these proceedings afresh since then, and there is evidence indicating that Mr. Mahjoub and his agents had been warned that the telephone lines might be monitored, that the advantage gained by the Ministers in intercepting these solicitor-client communications, if any, would have been negligible. I find that this is not the clearest of cases warranting a stay. 232 Between June 14, 2007 and December 19, 2008, relevant solicitor- client communications were in the Service’s possession and had been unlawfully reviewed by a communications analyst but the Ministers have rebutted the presumption of prejudice. I also find that there is no evidence of bad faith on the part of the Service to justify a remedy beyond a declaration that the review was unlawful. Finally, between December 19, 2008, and the present, although Mr. Mahjoub has established the Ser- vice’s possession of relevant solicitor-client communications, I am satisfied that the Ministers have rebutted the presumption of prejudice in this period as well and that no prejudice to Mr. Mahjoub has resulted from the breach. 233 Lastly, I turn to consider the impact, if any, of the ongoing solicitor- client interception in these proceedings on the appearance of fairness in the judicial process. In my view, the appearance of fairness in the judicial process is not compromised. After December 19, 2008, the Service’s and the CBSA’s practice complied with the Court’s release order and the restrictions that Solosky places on the incidental interception of solicitor- 268 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

client communications when all communications are being monitored for security reasons. Between Mr. Mahjoub’s release on June 14, 2007, and the December 19, 2008 clarification order, the Service believed in good faith that the release order authorized it to listen to entire solicitor-client communications. Finally, between Mr. Mahjoub’s arrest in 2000 and Jus- tice Nadon’s decision on the first certificate in 2001, the Service believed that it was authorized by warrant to incidentally intercept and listen to entire solicitor-client communications, and Mr. Mahjoub had the opportunity to subsequently restart his case. This is not a case of unacceptable negligence as the seizure of solicitor-client privileged material was in the commingling incident, which was remedied. Consequently, I find that the incidental interception of solicitor-client communications on an ongoing basis by the Service and the CBSA in the circumstances does not undermine the appearance of fairness in the judicial process that would warrant a stay of proceedings. 234 I conclude that the Service’s interception of solicitor-client communications is insufficient on its own to justify a permanent stay of proceedings.

(j) Did the Service and the CBSA’s policy of sharing the intercepts of Mr. Mahjoub’s private communications constitute an abuse of process? 235 Mr. Mahjoub takes issue with the CBSA’s delegation of its interception tasks to the Service. In particular, he challenges the CBSA’s policy of sharing the Service’s intercepts and using the information gleaned for purposes other than its “designated purpose.” He alleges that this practice of sharing information between the CBSA and the Service, in addition to increasing the risk of litigation advantage from intercepting privileged information, also violated his section 7 Charter right to privacy as well as his section 8 Charter right against unreasonable search and seizure, and constituted an abuse of process. In support of his argument, Mr. Mahjoub relies on three criminal cases, R. v. Dyment, [1988] 2 S.C.R. 417 (S.C.C.) [Dyment] at 432-435, 438; R. v. Dersch, [1993] 3 S.C.R. 768 (S.C.C.) [Dersch]; and R. v. Colarusso, [1994] 1 S.C.R. 20 (S.C.C.) [Colarusso] at 57-58, 61-64, 72-73. 236 The Ministers defend this allegation with two arguments. First, as a practical matter, they rely on the testimony of Ms. Snow that the CBSA did not have the technical expertise to perform the interceptions as required by the February 15, 2007 and subsequent release orders (14 June Mahjoub, Re Edmond P. Blanchard J. 269

2011, p. 7). Second, the CBSA and the Service were acting within the scope of both the Release Order and their respective statutory mandates. 237 To the extent that the CBSA and the Service properly understood the terms of the Release Order, I agree with the Ministers’ argument. The Service was entitled under the Release Order to intercept Mr. Mahjoub’s communications and share all intercepts with the CBSA except for solicitor-client communications, otherwise CBSA’s authority under the Order to delegate its task of interception would be illusory. In addition, the Ser- vice has a statutory mandate to collect information relevant to a threat to the security of Canada. Since the Service had the lawful authority to intercept Mr. Mahjoub’s communications, section 12 of the CSIS Act compels it to collect and use any information it intercepts that is relevant to a threat to the security of Canada in order to advise the Government of Canada. In addition, the mandates largely overlapped in that, without evidence of a specific instance, it would be difficult to conceive of a threat that was not also relevant to the conditions of release, for the conditions were designed specifically to neutralize the threat posed by Mr. Mahjoub. 238 I now turn to Mr. Mahjoub’s further argument that this arrangement was “mutually convenient” and therefore abusive. He invokes three Su- preme Court cases from the criminal law context in support of his argument. In Dyment, a doctor took a blood sample, solely for medical purposes, from Mr. Dyment, who was unconscious from a traffic accident. The doctor then gave this sample to the police. Since Mr. Dyment’s consent was not obtained, this action offended his reasonable expectation of privacy (Justice LaForest’s concurring reasons at pages 435-436 with which the majority agreed at pages 440-441). In Dersch, the police obtained results of a blood alcohol test from a hospital, performed for medical reasons (at pages 778-779). Similarly, in Colarusso, a hospital gave bodily fluid samples to the coroner, who then gave the samples to the police (at paragraph 87). In both of these situations, the accused persons expected that their medical information would remain confidential, giving rise to a reasonable expectation of privacy. 239 Mr. Mahjoub particularly invokes the comments that the Supreme Court makes in Colarusso to the effect that the police obtained the samples from the coroner through “improper collusion” (at paragraph 87). 270 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

The transfer of information occurred in the following way (ibid. at paragraph 76): (1) the police charged the appellant at the accident scene before taking him to the hospital; (2) at the hospital, a police officer assisted the appellant in urinating into a bottle for subsequent analysis for medical purposes; (3) after seizing the blood and urine samples, the coroner turned the samples over to the police to transport them to the Centre for Forensic Sciences for analysis for the purpose of determining the cause of death as required by the Coroners Act; and (4) the Crown subpoenaed the analyst from the Centre to testify at the appellant’s trial, an analyst also used by the police on previous occasions. 240 Several more recent Supreme Court cases have addressed the issue of information sharing within the government but were not cited by Mr. Mahjoub. In Québec (Procureur général) c. Laroche, 2002 SCC 72 (S.C.C.) [LaRoche], an administrative agency collected information from two individuals with respect to rebuilt vehicles. Review of these documents raised suspicion, and an employee of the administrative agency forwarded the information to the police. The Supreme Court found it significant that the individuals in Laroche were aware of the possibility that the information they provided for regulatory purposes would be audited for compliance with the applicable legislation and regulations. Therefore, such a transfer of information was not a seizure (at paragraphs 82-84). 241 Even where there is a reasonable expectation of privacy, this consideration may be outweighed by the public interest. In Smith v. Canada (Attorney General), 2001 SCC 88 (S.C.C.), customs officials forwarded information that an applicant had left the country for two weeks to employment insurance officials who ordered repayment of benefits for those two weeks. The Supreme Court found that any privacy interest was outweighed by the public interest in ensuring compliance with the employment insurance program (at paragraph 2). Similarly, as I mentioned in the Warrants Decision at paragraphs 56-57, the British Columbia Court of Appeal in United States of America v. Wakeling, 2012 BCCA 397 (B.C. C.A.) [Wakeling] at paragraphs 39-40 insisted that the exchange of lawfully obtained information by a government agency, if done within the confines of the Privacy Act, R.S.C. 1985, c. P-21 [Privacy Act] and the Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code], or by analogy section 19(2) of the CSIS Act if applicable, does not re-engage the individual’s privacy rights. Mahjoub, Re Edmond P. Blanchard J. 271

242 At the outset, Dyment, Dersch and Colarusso may be distinguished from this case in that they presuppose a lack of consent and a lack of legal authority for seizure. Where the subject of the interception consents to the interception, there is no reasonable expectation of privacy, and therefore section 7 and 8 Charter rights are not engaged. In the above cited cases, the three accused only consented, at most, to the collection of their bodily fluids for medical purposes, the police had no legal authority to obtain the samples. In Colarusso, the police actively circumvented the requirement of obtaining legal authority for the seizure. 243 Condition 12 of the February 15, 2007 Release Order requires that, in order to be released from detention, Mr. Mahjoub had to consent to the interception of his telecommunications as follows: ...Mr. Mahjoub may use a conventional land-based telephone line located in the residence (telephone line) other than the separate dedicated land-based telephone line referred to in paragraph 2 above upon the following condition. Prior to his release from incarceration, both Mr. Mahjoub and the subscriber to such telephone line service shall consent in writing to the interception, by or on behalf of the CBSA, of all communications conducted using such service. This shall include allowing the CBSA to intercept the content of oral communication and also to obtain the telecommunication records associated with such telephone line service... [Emphasis added] Not only did Mr. Mahjoub consent to the interception of the content of his communications by the CBSA (Exhibit A68), he was also aware that the CBSA could delegate this authority to another government agency. 244 Leaving aside the fact that government agencies may share lawfully obtained information for the purposes of fulfilling their statutory mandates as in Wakeling, Mr. Mahjoub had notice that if the CBSA chose to delegate its interception authority, his communications apart from his solicitor-client privileged communications would be shared between the delegate and the CBSA, analogous to the situation in Laroche. The Re- lease Order and Mr. Mahjoub’s consent gave the CBSA and its agent the lawful authority to obtain the information. Colarusso can be distinguished on its facts. 245 Even if he had a reasonable expectation of privacy, Mr. Mahjoub’s conditions of release are and always were designed to neutralize the threat he poses to national security. In my view, such a public interest 272 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

consideration overrides any expectation by Mr. Mahjoub that information given to one public agency will not be shared with another. 246 Consequently, I conclude that the Ministers did not violate Mr. Mahjoub’s Charter rights or commit an abuse of process through the sharing of intercepted communications between the CBSA and the Service.

(k) Were the Ministers responsible for delays in the proceedings to an extent that constitutes abuse? 247 Mr. Mahjoub contends that his right to be tried within a reasonable time has been violated. He invokes his rights under subsection 11(b) of the Charter, section 7 of the Charter, and paragraph 81(1)(a) of the IRPA. He submits that ten years passed before his hearing commenced due to delays in the Ministers’ disclosure, proceedings taking place under an unconstitutional legal regime, delays in the issuance of a new security certificate against Mr. Mahjoub, and failure to respect the Supreme Court’s decisions in Charkaoui I and Charkaoui II. In particular, he argues that the Ministers caused delays by seizing and commingling Mr. Mahjoub’s litigation materials and solicitor-client privileged documents during the summer of 2011 as found by the Court in its May 31, 2012 Reasons for Order and Order (at paragraph 100). He argues that he is not responsible for these delays. 248 The Ministers concede that there have been delays in these proceedings, but they contend that Mr. Mahjoub has not demonstrated that the delays in this case warrant a stay of proceedings. They point to the factual and legal complexity of the proceedings, the allegedly shared responsibility between the Ministers and Mr. Mahjoub for the delay, and the important public interest involved in the resolution of this case on its merits. They cite Blencoe at paragraphs 101 and 121 for the proposition that delay, without more, is insufficient to stay administrative proceedings; there must be proof of significant prejudice resulting from an unacceptable delay. “Unacceptable,” in Blencoe, means that the delay is so oppressive as to taint the proceedings.

i. The Law 249 As I have discussed in the Constitutional Decision at paragraphs 27- 31, criminal law Charter rights such as the subsection 11(b) right to be tried within a reasonable time do not apply to this case. Nevertheless, they receive residual protection under section 7 of the Charter when the Mahjoub, Re Edmond P. Blanchard J. 273

individual’s liberty is at stake, as it is in this case. It is therefore useful to survey the jurisprudence with respect to subsection 11(b) as well as with respect to residual issues of delay under section 7 in order to inform my analysis of the delay in this case. 250 In Morin at pages 787-788, Justice Sopinka outlined a general framework of four factors for evaluating delay under subsection 11(b) of the Charter as follows. (1) Length of the delay: the length of delay is measured from the time the accused is charged to end of the trial (Morin at page 789). However, delay prior to the time a charge is laid may be relevant in determining the overall reasonableness of the delay. (2) Waiver of time periods: although waiver may be explicit or im- plicit, it “must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights” (Morin at page 790). Con- duct cannot be classified as waiver where the accused or his or her counsel fails to consider waiver at the time action is taken. How- ever, even if conduct falls short of waiver, it may nonetheless ne- gate prejudice (ibid. at page 803). (3) The reasons for the delay: Justice Sopinka articulated a number of different factors to be considered pertaining to the reasons for the delay, set out below: (a) Inherent time requirements of the case: This factor takes into account the complexity of the case as well as the time required for the case to be prepared and heard (Morin at pages 791-793). (b) Actions of the accused: Any voluntary action by the accused that contributed to the delay is relevant. Examples include attacks on search warrants or adjournments that do not amount to waiver (Morin at pages 793-794). (c) Actions of the Crown: Any action by the Crown that contributed to the delay is also relevant. Examples include failure or delay in disclosure of the Crown case or adjournments requested by the Crown (Morin at page 794). (d) Limits on institutional resources: Institutional delay begins to run when the parties are prepared for trial but cannot be accommodated by the system (Morin at pages 794-795). This delay must be viewed in light of the fact that the gov- 274 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

ernment has a constitutional obligation to provide sufficient resources to prevent unreasonable delay. At pages 798-799, Justice Sopinka suggests certain time periods that may be reasonable, but courts have departed from these guidelines when trials are more complex (see, for example, R v. Santhosh, 2012 ONCJ 76at paragraph 27). (e) Other reasons for delay: Justice Sopinka recognized that there are other reasons for delay that may not fit neatly into the categories he outlined; for example, the actions of the trial judge could cause substantial delay (Morin at page 800). (4) Prejudice to the accused: Delay in itself may not always be sufficient to demonstrate prejudice to the accused; however, the longer the delay, the more likely an inference of prejudice may be drawn (Morin at page 801; see also, R v. Godin, 2009 SCC 26[Godin] at paragraphs 29-38, in which the Supreme Court recently ordered a stay simply on the basis of the length of a 30-month delay between the charges and the trial date, without evidence of specific prejudice). 251 Specific types of prejudice recognized in Morin at pages 802-803 include: • Prejudice to the accused person’s liberty interest from pre-trial incarceration or onerous bail conditions; • Ongoing stress or damage to reputation as a result of the delay; or, • An impact on the accused person’s ability to make full answer and defence. 252 Turning to section 7 of the Charter, a violation of procedural fairness amounting to a violation of fair trial rights when an individual’s liberty is engaged may occur through significant prejudice caused by unacceptable delay (Blencoe at paragraph 101). Such prejudice may be established in two ways. First, administrative delay may warrant a remedy where a party’s ability to assert its case is impaired, for example if essential witnesses have died, the memories of witnesses have faded, or evidence is lost (ibid. at paragraph 102). Second, delay may warrant a remedy where the affected individual experiences significant psychological harm or reputation stigma, such that the administrative process suffers disrepute and the delay constitutes an abuse of process. Justice Bastarache empha- sized the rare circumstances under which even a lengthy delay will reach Mahjoub, Re Edmond P. Blanchard J. 275

this threshold (ibid. at paragraph 115). He also highlighted the importance of a direct causal connection between the delay and the harm suffered (ibid. at paragraph 133). 253 The learned judge stated that “inordinate delay” that amounts to an abuse of process is “so oppressive as to taint the proceedings” (Blencoe at paragraph 120). He outlined a number of relevant considerations, a number of which parallel the considerations in Morin, to determine whether delay is inordinate at paragraph 122: The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay. 254 The Federal Court has also considered the factors described by Jus- tice LeBel, who dissented in Blencoe, on the basis that, in his view, administrative law and not Charter principles should decide the case (at paragraph 160). The Federal Court used these factors to determine whether a delay is reasonable (see for example Canada (Minister of Citizenship & Immigration) v. Parekh, 2010 FC 692 (F.C.) at paragraph 28). Justice LeBel stated that three factors must be balanced in evaluating delay: (1) the time taken compared to the inherent time requirements of the matter before the particular administrative body, which would encompass legal complexities (including the presence of any especially complex systemic issues) and factual complexities (including the need to gather large amounts of information or technical data), as well as reasonable periods of time for procedural safeguards that protect parties or the public; (2) the causes of delay beyond the inherent time requirements of the matter, which would include consideration of such elements as whether the affected individual contributed to or waived parts of the delay and whether the administrative body used as efficiently as possible those resources it had available; and (3) the impact of the delay, considered as encompassing both prejudice in an evidentiary sense and other harms to the lives 276 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

of real people impacted by the ongoing delay. This may also include a consideration of the efforts by various parties to minimize negative impacts by providing information or interim solutions. [Emphasis in original] 255 In the final analysis, whether one applies the principles discussed by the majority in Blencoe or the administrative law factors articulated by Justice LeBel, in practical terms, the test is the same. Similar elements must be considered. 256 As a final note, even where the delay amounts to an abuse of process, a stay is not the only possible remedy; the burden to establish that a stay is the appropriate remedy is a heavy one (Blencoe at paragraph 117). 257 I therefore conclude that, pursuant to both Morin and Blencoe, in determining whether the delay in this case was abusive and warrants a stay of proceedings, the following factors need to be considered: a. The purpose and nature of these proceedings; b. The inherent time requirements of this complex case; c. The overall length of the delay beyond these requirements; d. Any waiver of the delay by Mr. Mahjoub; e. The reasons for the delay, including: (i) the actions of all of the parties involved and the Court, and (ii) the institutional limits of the Court; f. Prejudice to Mr. Mahjoub or harm to other persons, and g. Mitigation of the delay and remedies provided throughout the proceedings. 258 In these reasons, I shall not address the time required to dispose of Mr. Mahjoub’s first security certificate proceedings, starting June 26, 2000, and the time between Justice Nadon’s decision that the certificate was reasonable and the signing of the second security certificate on Feb- ruary 22, 2008. Mr. Mahjoub has not identified any delays in those two periods that could have an effect on these proceedings. The only specific delay he raises from the first certificate proceedings is delayed disclosure, alleging that some of the information disclosed in these proceedings should have been disclosed to him in 2000. Even if this is the case, and I am not persuaded that it is, the Supreme Court has provided a complete remedy for the procedural deficiencies of the previous security certificate proceedings. Mahjoub, Re Edmond P. Blanchard J. 277

259 Mr. Mahjoub has not alleged any specific delays arising from his deportation proceedings between October 5, 2001 and February 22, 2008. Thus, in essence, Mr. Mahjoub is only arguing that the Court should measure the delay to include the time it took to hear and decide the first security certificate issued against him. There is no suggestion by Mr. Mahjoub that the time it took to hear and decide the first security certificate extended beyond the time requirements inherent to such a complex proceeding. Further, no cogent arguments were advanced by Mr. Mahjoub explaining how specific delays in the first security certificate proceedings impacted upon this proceeding. I shall therefore only consider delays from the time that the reference for the second certificate was filed with the Court, February 22, 2008. 260 In addition, although detention reviews and reviews of Mr. Mahjoub’s conditions of release were an important part of the proceedings, I shall not address them except where clearly relevant to the issue of delay. Mr. Mahjoub was entitled by statute to request a review every six months, and the Court accommodated and scheduled these reviews, making every effort not to disrupt the flow of the reasonableness hearing. These reviews were conducted at Mr. Mahjoub’s request, and the Court issued decisions as quickly as the circumstances allowed.

ii. Factual Delays in these Proceedings 261 From the time of the second certificate’s signing to June 2008, the Court was occupied with certain necessary preliminary matters. On April 29, 2008, Chief Justice Lutfy and Justice No¨el set the first schedule for the proceedings. The parties were to file a litigation plan by May 20, 2008, which would be a “work in progress.” The roster of special advocates had until August 2008 to review the closed materials, and the public and closed hearings were to occur in the summer and fall of 2008. They would be completed by the end of autumn 2008 subject to detention reviews. On May 6, 2008, Justice Layden-Stevenson was appointed the designated judge for Mr. Mahjoub’s file. 262 On June 13, 2008, the Court released the first comprehensive scheduling order in these proceedings. The hearings were to be conducted as follows: a. The Ministers were to present their closed case in camera on Sep- tember 29-30 and October 1-3, 15-17, 2008. b. The public hearings in the proceeding were to occur from October 27-31, November 3-7, and December 8-12, 2008. 278 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

c. Further closed hearings, if needed, were to be conducted on De- cember 15-17, 2008. d. Final submissions, in closed and in public, were to take place on December 18, 19 and 22, 2008. 263 The Supreme Court issued its Charkaoui II decision on June 26, 2008. The disclosure requirements of that decision were not addressed by the Court for some time as Mr. Mahjoub was involved in litigation concerning the funding of his counsel (mediated and settled on July 9, 2008) and his conditions of release over the remainder of the summer. In addition, during the spring and early summer, the Ministers disputed Mr. Mahjoub’s choice of Mr. John Norris to represent him as a Special Ad- vocate, alleging a conflict of interest pursuant to subsection 83(1.2) of the IRPA since he had formerly been retained by Mr. Mahjoub. The litigation resolved, and the Court appointed Mr. Kapoor and Mr. Cameron as the Special Advocates on this file on July 23, 2008. 264 Mr. Mahjoub sought to join Mr. Almrei’s preliminary constitutional motion, which was filed July 22, 2008 and heard September 26, 2008 and October 1, 2008, on the disclosure requirements of Charkaoui II. 265 On September 29, 2008, the Ministers began to adduce their in camera evidence in support of the reasonableness of the security certificate signed against Mr. Mahjoub and the threat that they alleged justified Mr. Mahjoub’s stringent conditions of release. The Special Advocates dis- continued their cross-examination of in camera witnesses on reasonableness and restricted their questioning to issues of disclosure, pending the Charkaoui II disclosure. The Ministers’ in camera evidence continued until October 20, 2008, addressing among other things reasonableness and the destruction of operational notes and intercepts. As of that date, the initial schedule was delayed.

October 2008 to March 2009 — The Charkaoui II Decision and its Implementation 266 In an order dated October 3, 2008, the Court adopted Justice No¨el’s September 24, 2008 Order interpreting Charkaoui II and required that the Ministers and the Service “file all information and intelligence related to Mohamed Zeki Mahjoub” in the Service’s possession or within the designated section of the Court. The reasonableness hearing effectively could not resume before this was done. The Court ordered on No- vember 5, 2008 that the Charkaoui II disclosure was to be completed in two phases. Phase I would comprise the operational notes and would be Mahjoub, Re Edmond P. Blanchard J. 279

delivered to the Court by December 15, 2008. Phase II would comprise the raw material and would be delivered to the Court by January 15, 2009. On November 25, 2008, Justice Layden-Stevenson acknowledged in a direction that the schedule set by the June 13, 2008 Order would have to be varied as a result of the Charkaoui II disclosure. The Minis- ters and the Service delivered Phase I of the Charkaoui II disclosure to the Court on December 15, 2008 and Phase II on January 15, 2009 in compliance with the November 5 Order. 267 In her detention review decision of March 9, 2009, Justice Layden- Stevenson commented on the delay in the proceedings to that date. At paragraph 62 she concluded: The delay with respect to the determination of the reasonableness of the security certificate is partially due to the Ministers’ failure to move toward Charkaoui 2 disclosure in a timelier manner. However, delay is also precipitated by the fact that Messrs. Mahjoub and Jabal- lah have chosen to be represented by the same counsel. 268 There is no reason for me to disturb the Court’s previous finding that the responsibility for the delay in 2008 and early 2009 was shared between the Ministers and Mr. Mahjoub. It is also noteworthy that the Min- isters and the Service complied with the Court’s November 5, 2008 Or- der to disclose the information required by Charkaoui II by December 15, 2008 and January 15, 2009, as the Reasons for Order indicate at paragraph 14. In my view, the primary reason for the delay in this period was the release of the Charkaoui II decision, which necessitated a halt to the reasonableness proceedings so that the decision could be implemented.

March 2009 to June 2009 — Processing and Technical Problems with Charkaoui II Disclosure 269 The proceedings were again disrupted on March 17, 2009 when Mr. Mahjoub’s supervising sureties, Ms. Mona El Fouli and Mr. Hani El Fouli, decided to withdraw their consent to serve as sureties. The Court had to move quickly to consider Mr. Mahjoub’s decision to return to detention. A Consent Order was issued to this effect on April 30, 2009 (2009 FC 439 (F.C.)). 270 On May 19, 2009, the Court issued a Communication upon the request of Mr. Mahjoub about the status of the Charkaoui II disclosure. The Court confirmed that the two Phases of disclosure had been delivered to the Court, but that the Special Advocates had concerns about redactions in the disclosure that they had received. Some portions of this 280 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

disclosure contained redactions of information over which the Ministers claimed solicitor-client privilege, cabinet confidence, human source privilege, and which the Ministers claimed was outside of the scope of Charkaoui II disclosure. The Ministers were engaged in a process of identifying the basis for each redaction. The Special Advocates requested on March 13, 2009, that the Ministers disclose to Mr. Mahjoub records of intercepted conversations to which he was privy and of the Service’s surveillance of his activities, so the Ministers were also reviewing this request. On April 9, 2009, Mr. Mahjoub filed a motion pursuant to rule 151 of the Federal Courts Rules seeking an order protecting the resulting disclosed information. 271 On May 8, 2009, and again on May 14, 2009, the Ministers provided the Special Advocates with revised Charkaoui II disclosure. Further, on June 8, 2009, the Court ordered the disclosure of certain Charkaoui II materials to Mr. Mahjoub. The order foresaw the need for litigation on the content of the summaries of these materials throughout the early summer of 2009. 272 During the early summer, technical problems arose concerning the compatibility of the electronic format in which the Charkaoui II disclosure was delivered by the Service with systems employed by the Special Advocates to review the material. Given the volume of material involved, it was critical that this issue be resolved. The Special Advocates filed a motion on May 26, 2009, for a Court-appointed administrative support person because of the “degraded” quality of the Charkaoui II disclosure and the Special Advocates’ inability to work on a connected hard disk drive. The Court denied the motion on June 16, 2009, but it observed that subsection 85(3) of the IRPA requires the Department of Justice to provide adequate administrative support and resources to the Special Advocates, which had not been done. The Department of Justice was to provide a progress report by June 26, 2009. 273 Following a case management conference, the Court issued the June 18, 2009 Order scheduling the next steps of these proceedings as follows: a. By July 2, 2009, the Ministers and Mr. Mahjoub were to jointly file a detailed litigation plan “that outlines dates for all preliminary or other interlocutory matters including notification of constitutional motions.” Mahjoub, Re Edmond P. Blanchard J. 281

b. The public hearings on reasonableness were to commence on Feb- ruary 22, 2010. 274 As the above recital of events demonstrates, the rescheduling of the resumption of the reasonableness proceeding from approximately No- vember 2008 to February 2010 represents one of the most significant delays in this proceeding. The delay was to a great extent the impact of the Charkaoui II decision and the need for its practical implementation in these proceedings, including disputes about the Ministers’ privilege claims, redactions, summaries to be disclosed to Mr. Mahjoub, and the technical challenges that the Special Advocates had in processing the massive amount of information disclosed. 275 The Ministers delivered the Charkaoui II disclosure to the Special Advocates in a problematic electronic format. The format made it difficult for the Special Advocates to review the materials. In the end, more time was required to make the system work. However, the evidence is unclear as to whether the nature of the deficiencies in the electronic formatting could have been reasonably anticipated in the circumstances. 276 Further, concerning the privileges claimed by the Ministers which led to the alleged “over redacting” of certain passages of the Charkaoui II materials, it was open to the Ministers to argue that they claimed legitimate privilege over those redactions. Their conduct in doing so is not abusive even though, in the end, the Court disagreed with their position on certain redactions. In my view, to a large extent, the delay at this stage was also attributable to the inherent complexity of dealing with the disclosure of documents over which national security privilege is claimed and to the issues surrounding Mr. Mahjoub’s return to detention due to the actions of third parties beyond his control.

July 2009 to March 2010 — Further Dispute Concerning Summaries and the Third Party Rule 277 On July 8, 2009 and July 17, 2009, the Court issued communications which updated Mr. Mahjoub about the closed hearings. In particular, he was informed about the technical issues relating to the Charkaoui II disclosure and that the litigation of the Ministers’ claims of national security privilege were on track for the end of August 2009. During August and September 2009, the Special Advocates and the Ministers were also obligated to deal with the issue of human sources. The Court concluded on September 3, 2009, that “based on the record before it at present, the Court will place no reliance on information tendered in private from 282 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

human sources in support of the Ministers’ claims.” In closed hearings in late August and early September 2009, the Special Advocates asked the Ministers to seek consent from the foreign agency sources of the Minis- ters’ evidence to disclose the content of that evidence. They also informed the Court that they were not finished their work on Charkaoui II and might request further disclosure to Mr. Mahjoub, but that this process would not interfere with the schedule of the reasonableness hearings. 278 Despite all of these developments, including major developments in the detention review proceedings in the fall of 2009 due to Mr. Mahjoub’s hunger strike and Charter challenge to the Corrections and Conditional Release Act, S.C. 1992, c. 20, the reasonableness hearings were still on track to begin on February 22, 2010 as the Court confirmed on December 8, 2009. 279 In December 2009, the Court found the Ministers’ and the Service’s conduct wanting. During the in camera hearings the week of December 14, 2009, the Court adjourned litigation on national security privilege objections relating to disclosure of the supporting information of the SIR to December 30, 2009. The adjournment was required because of “newly received information” from the Ministers. This prompted the Special Ad- vocates to bring a motion seeking a remedy against the Ministers’ unreasonable conduct. In the Court’s December 22, 2009 Communication to Mr. Mahjoub, the Court explained that in August the Service had gone back on its own proposed summaries of information to disclose to Mr. Mahjoub on the grounds that the proposed summaries contained information that would be injurious to national security. The Ministers were therefore to serve new proposed summaries on the Special Advocates on January 12, 2010. Mr. Mahjoub’s counsel were rightfully concerned about the lateness of this disclosure given that they had received no Charkaoui II disclosure, and the public reasonableness hearings were to commence in February. 280 In the final analysis, the Ministers’ concerns with regard to the initial summaries were proven to be justified, at least in respect of those litigated privilege claims that were subsequently accepted the Court. None- theless, the Ministers’ conduct in failing to have those concerns dealt with at the preparation of the initial summaries caused significant delay in the proceedings. It essentially reopened a settled issue which necessitated five months of litigation. In my view, this constitutes an unreasonable delay. Mahjoub, Re Edmond P. Blanchard J. 283

281 In early January 2010, the Court held closed hearings to consider the proposed summaries of the classified SIR and approved the release of further Charkaoui II disclosure. On January 22, 2010, the Court ordered the release of the Supplementary Public Summary of the SIR, a document containing significant new allegations against Mr. Mahjoub, including much of the detail of his alleged terrorist activities and the activities of his alleged contacts. Prothonotary Aalto, who at that time had been serving as case management judge in the proceeding since July 8, 2009, issued a Direction on February 2, 2010, adjourning the start of the evidence from February 22, 2010 to March 15, 2010 for fairness reasons because both parties agreed that the January 22, 2010 disclosure of the Supplementary Public Summary of the SIR significantly altered Mr. Mahjoub’s understanding of his case to meet. 282 In the Court’s February 12, 2010 Direction following a case management conference, Prothonotary Aalto criticized the Ministers’ “untenable” position that Mr. Mahjoub was required to file his contemplated abuse of process motion record and prove the relevance of the summarized intercepts of solicitor-client communications before the Ministers would release them. The Court directed that these materials should be released immediately subject to national security privilege claims and Mr. Mahjoub’s immigration files should be disclosed, noting that Mr. Mahjoub had been seeking these documents since July 2009. The Minis- ters insisted that they had disclosed all public information to Mr. Mahjoub already. Upon the Ministers insisting that this was a voluminous request, Prothonotary Aalto advised that Mr. Mahjoub was to narrow his request but that there would be no adjournment as the Ministers requested: the evidence was to begin on March 15, 2010. The position of the Ministers caused extra work for Mr. Mahjoub, but it did not delay the overall schedule. 283 The Special Advocates had brought a motion on August 25, 2009, compelling the Ministers to seek consent from foreign agencies to disclose the content of their intelligence. Until November 26, 2009, the Spe- cial Advocates had been under the impression that the Ministers were seeking consent from the foreign agencies, but at that time the Ministers advised that some requests had not been sent to certain of the foreign agencies. They agreed to litigate the issue of seeking consent from foreign agencies without waiting for a response from all foreign agencies. On February 19, 2010, the Court issued its classified Reasons for Order and Order deciding the Special Advocates’ motion seeking an order to oblige the Ministers to either disclose the origin of the information sup- 284 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

porting the SIR coming from foreign agencies that had not yet given their consent to disclose, or to withdraw that information from the record. The Court ruled that disclosure without foreign agency consent would be injurious given the third party rule. Further, the Court reserved on the issue of what impact non-disclosure of the content of intelligence from foreign agencies had on Mr. Mahjoub’s section 7 rights until the close of the Ministers’ case, an issue I have decided at paragraphs 213 to 217 of the Reasonableness Decision. 284 While it would have been helpful for the Ministers to advise the Spe- cial Advocates of their intention not to seek consent from certain foreign agencies earlier, I am not persuaded that the Ministers adopted an unreasonable position. In the end, the Court agreed with the Ministers’ argument that, in certain cases, making the request sought by the Special Ad- vocates had the potential to be injurious to Canada’s national security.

March 2010 to June 2010 — Conflicted Expert Witness and Subsection 83(1.1) Motion 285 As the hearings commenced, the Special Advocates advised the Court of another issue that arose: they had been served with an expert report of Dr. Omar Ashour on behalf of the Ministers. The Special Advocates had contacted and retained Dr. Ashour in early October 2008. The Ministers had contacted Dr. Ashour on January 27, 2010, on the eve of the reasonableness hearings, and on January 29, 2010, Dr. Ashour had indicated to the Ministers that he had been approached by “the defence.” The Minis- ters communicated their intent to withdraw Dr. Ashour’s expert report on February 19, 2010, but they argued that additional time was therefore needed to retain another expert and have the expert prepare a report. The Ministers filed a motion to adjourn the proceedings until April 12, 2010 in order to find a new expert, alleging that they were not aware of the true nature of Dr. Ashour’s relationship with the Special Advocates when they retained him. When they had probed further, Dr. Ashour had as- sured them that there was no conflict of interest. 286 In its March 15, 2010 [2010 CarswellNat 2085 (F.C.)] Order, the Court observed that the Ministers may not have been diligent in ascertaining the nature of the relationship and criticized the fact that the Min- isters did not retain Dr. Ashour until February 1, 2010, despite knowing since June 18, 2009 that the reasonableness hearings would start on Feb- ruary 22, 2010. Nevertheless, the Court found that “the granting of the adjournment would not result in the loss of the Court’s time or any unfairness to Mr. Mahjoub by reason of further delay”, and the reasonable- Mahjoub, Re Edmond P. Blanchard J. 285

ness hearing was rescheduled to April 26, 2010. The Ministers were to file a new expert report no later than April 6, 2010, or forfeit their right to rely on expert evidence. It was anticipated, at the urging of the Special Advocates, that a preliminary motion seeking the exclusion of evidence for which there were reasonable grounds to believe it had been obtained from torture could be heard in the meantime. 287 On March 15, 2010, the Court ordered that hearings for the Special Advocates’ motion to exclude evidence for which there was reasonable grounds to believe it was obtained by torture or cruel, inhuman or degrading treatment or punishment, pursuant to subsection 83(1.1) of the IRPA, would commence on March 24, 2010. 288 Meanwhile, the Court disposed of some preliminary constitutional issues such as the exclusion of evidence tendered in proceedings related to the security certificate against Mr. Mahjoub in 2000 and Mr. Mahjoub’s motion for a declaration under subsection 52(1) of the Constitution Act that sections 33, 77 and 78 of the IRPA violate section 7 of the Charter. These issues were canvassed in the Jaballah matter. In both instances, the parties agreed to be bound by Justice Dawson’s findings, so her Feb- ruary 26, 2010 (2010 FC 224 (F.C.)) reasons and her January 22, 2010 (2010 FC 79 (F.C.)) reasons were adopted by the Court in orders dated March 11, 2010, and March 15, 2010, respectively. The Court also disposed of a broad motion for disclosure brought by Mr. Mahjoub on Feb- ruary 24, 2010, in its March 19, 2010 [2010 CarswellNat 1241 (F.C.)] Reasons for Order and Order. 289 In light of the events in March 2010 that occupied the Court, the Spe- cial Advocates and Mr. Mahjoub, there is no reason for the Court to re- visit the finding that the adjournment of the reasonableness hearing to April 26, 2010, though partly caused by the Ministers’ lack of diligence concerning Dr. Ashour, did not cause Mr. Mahjoub any unfairness. Good use was made of April to conduct the hearings relating to the Special Advocates’ motion pursuant to subsection 83(1.1) of the IRPA. The Court reserved on that motion, which did not permit the reasonableness hearing to resume until after the Court’s June 9, 2010 Reasons for Order deciding that motion were issued. Given the complexity and novelty of the issues in the motion, the Court required five weeks to deliberate and draft the decision. In the result, certain evidence was excluded from the record pursuant to subsection 83(1.1) of the IRPA. 286 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

June 2010 to October 2010 — Change of Public Counsel 290 On May 20, 2010, counsel for Mr. Mahjoub advised the Court of their intention to be removed as his solicitors of record. The Court directed that a proper motion be brought for the removal of public counsel. On June 14, 2010, the Court decided to grant the motion by Ms. Edwardh, Ms. Weaver and Ms. Jackman to be removed as counsel for Mr. Mahjoub on the grounds of an irrevocable breakdown in the solicitor- client relationship. 291 After Mr. Mahjoub dealt with Legal Aid Ontario concerning the ap- pointment of new counsel, the Court held a three-way case management conference call with Mr. Mahjoub’s prospective counsel on June 30, 2010. The Court advised Mr. Mahjoub and his prospective counsel that the reasonableness hearing would resume no later than October 12, 2010. The Court was of the view that this would afford Mr. Mahjoub’s new counsel adequate time to prepare. 292 Mr. Mahjoub bears the responsibility for this four-month adjournment. His counsel’s subsequent complaints that the Court did not afford new counsel adequate time to prepare for the reasonableness hearing are without merit. Mr. Mahjoub and his new counsel knew that the Court intended to resume the reasonableness hearing on October 12, 2010, regardless of how they chose to spend the intervening time. The Court reit- erated its intention in a direction dated July 27, 2010, including its view that “preliminary matters are completed” in response to Ms. Joncas’s July 21, 2010 letter indicating she disagreed with the Court’s view that counsel should be prepared to resume on October 12, 2010. 293 During the summer of 2010, the Special Advocates brought three motions, most importantly one to compel the Ministers to comply with the Court’s February 19, 2010 Order requiring the Ministers to identify the allegations that originated from evidence for which the originals had been destroyed or were unavailable. The Special Advocates alleged that the Ministers’ table of information delivered April 1, 2010 and revised table delivered on April 30, 2010 were both non-compliant with the Court’s February 19, 2010 Order. The Special Advocates sought damages in the amount of $10,000 for the Ministers’ delay and non-compliance. While the Court, in its Confidential Reasons for Order and Order dated July 29, 2010, required the Ministers to comply based on the Spe- cial Advocates’ understanding of what the Court had intended and quali- fied the Ministers’ delay as “reprehensible”, the Court declined to award costs. Also notwithstanding the negative finding against the Ministers, Mahjoub, Re Edmond P. Blanchard J. 287

this event had little overall impact on the delay since it occurred during the adjournment following Mr. Mahjoub’s change of counsel. 294 The September 9, 2010 Direction also set deadlines for providing witness lists and revisions to expert reports, challenges to the expertise of any experts proffered, and proposed timelines for the entire case including any motions. Although he had filed a notice of motion for the disclosure of warrants and supporting materials on August 31, 2010, Mr. Mahjoub had not yet provided the Court with a motion record. The Court directed Mr. Mahjoub to file his motion record on the disclosure of warrants and supporting documents by September 15, 2010 in the Court’s September 13, 2010 Communication. In that same communication the Court provided Mr. Mahjoub with a preliminary redacted version of the August 31, 2010 Reasons for Order, implementing the exclusion of evidence pursuant to subsection 83(1.1) of the IRPA. The Court released summaries of the warrants to Mr. Mahjoub on October 5, 2010. 295 In its October 4, 2010 Reasons for Order and Order, the Court dismissed Mr. Mahjoub’s request for further disclosure and to adjourn the reasonableness hearings. The Court found that the table of information the Ministers had released in August 2010, detailing which allegations in the SIR were supported by evidence obtained by warrant, complied on its face with the Court’s July 29, 2010 Order, and any problems with it could be raised during the reasonableness proceedings or on Mr. Mahjoub’s intended abuse of process motion. The Court held that Mr. Mahjoub had not recently received new information as alleged since the disclosure of solicitor-client intercepts was complete, the disclosure relating to warrants had already been decided, the Court had already refused to allow the disclosure of foreign agencies’ identities, and with the narrow exception of the disclosure of Mr. Mahjoub’s alleged connection with Hassan Badiya on August 16, 2010, Mr. Mahjoub had known the case to meet since January 22, 2010. At paragraph 45, the Court noted that the revised SIR provided no additions to the Ministers’ case; it only removed allegations which caused no prejudice as it could only narrow Mr. Mahjoub’s case to meet. At paragraphs 49 and 50, the Court found that neither ongoing disclosure nor communications with the Special Ad- vocates were grounds for adjournment. 296 Despite these preliminary issues, the public reasonableness hearings commenced as scheduled on October 12, 2010. Mr. Mahjoub bore the responsibility for the adjournment from June 2010 to October 2010, exercising his right to change counsel. Although the Court held that Minis- 288 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

ters were responsible for some blameworthy conduct in this period, their conduct had no impact on the overall schedule of the proceedings during this period.

October 2010 to January 2011 — Significant New Motions 297 Mr. Mahjoub continued to signal his intention to the Court to make further motions. On October 14, 2010, the Court required that notice of two such intended motions, his abuse of process motion and his motion to challenge the admissibility of evidence obtained by the warrants, was to be filed by October 18, 2010 and October 25, 2010, respectively. 298 The Ministers closed their public case on November 2, 2010. The parties understood at the outset of the reasonableness hearing that the Minis- ters still had in camera evidence left to adduce after it had been inter- rupted by the need to implement the Charkaoui II decision, and that they would continue their in camera case after the close of Mr. Mahjoub’s case, as the Court explained in its November 3, 2010 Order. The Special Advocates agreed with the Court in the November 2, 2010 case management conference that “the earlier agreement going way back is that we would hear the open session...any objections dealing with whether something should be open or closed to be dealt with, and then proceed with the Respondent’s case, then have your closed session” (transcript at p. 15). This agreement extended back to the time when former public counsel were on the record for Mr. Mahjoub. In its November 3, 2010 Order, the Court also observed that Mr. Mahjoub already knew the case to meet to the extent possible. At that time, the outstanding motions could only result in the exclusion of further evidence. 299 Although a notice of constitutional question had been filed on Febru- ary 19, 2010, the notice was re-filed on December 3, 2010. 300 By reason of Mr. Mahjoub’s late-filed motions, the Ministers consented to Mr. Mahjoub’s request for a two-week adjournment following the close of the Ministers’ public reasonableness case. The Court granted the adjournment so that Mr. Mahjoub’s motions could be argued at the beginning of his case. Unfortunately, he had not yet provided a proposed schedule for filing the two motion records. As Mr. Mahjoub’s witnesses were scheduled to testify on both the reasonableness of the security certificate and abuse of process, in order to prevent further delay, the Court’s November 3, 2010 Scheduling Order mandated that all of the evidence on reasonableness and the outstanding motions would be heard together. After all of the evidence had been heard, the Court would deter- Mahjoub, Re Edmond P. Blanchard J. 289

mine whether or not to decide the motions before hearing final submissions on reasonableness. The schedule set out by the November 3, 2010 Order was as follows: a. Mr. Mahjoub was to file his motion record challenging the warrants by November 8, 2010, and the Ministers were to provide their responding motion record on November 22, 2010. b. Mr. Mahjoub was to file his motion record on abuse of process by November 15, 2010, and the Ministers were to provide their responding motion record by November 29, 2010. c. Mr. Mahjoub was to request the issuance of any subpoenas by No- vember 10, 2010, and the Ministers were to file any motion to quash the subpoenas by November 12, 2010. d. Mr. Mahjoub was to file a table setting out a schedule for his proposed witnesses on November 18, 2010, and his case was to begin on November 22, 2010. 301 The impetus for this schedule came entirely from Mr. Mahjoub’s decision to file his motions alleging abuse of process and challenging the admissibility of evidence obtained by section 21 warrants at a late stage in the proceedings. The Court had indicated to the parties several times that the time for preliminary motions had passed. When Mr. Mahjoub engaged new counsel, it was expected that Mr. Mahjoub would be bound by the decisions that he had made on the advice of his former counsel. 302 To ensure a fair process, the Court accommodated Mr. Mahjoub’s intention to bring his abuse of process motion and his challenge to the evidence obtained by warrants, even though many of the alleged abuses and particularly the fact that evidence was obtained by warrants were known to Mr. Mahjoub since the proceedings commenced in 2008. The Court even had to impose deadlines for Mr. Mahjoub to file his motion records in a timely fashion. It was within the Court’s discretion and its statutory mandate pursuant to paragraph 83(1)(a) of the IRPA to ensure that its accommodation did not unduly delay the reasonableness proceeding. Mr. Mahjoub’s subsequent allegations (found, in particular, in his second motion for a permanent stay of proceedings) that this manner of proceeding was unfair and that the Court should have decided these motions prior to the close of Mr. Mahjoub’s case on reasonableness are therefore without merit. 303 An issue arose in late November 2010 concerning subpoenas that Mr. Mahjoub attempted to subpoena witnesses who had not been identified to 290 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

the Court. He also requested production of certain documents, the production of which had previously been refused by the Court. In its No- vember 26, 2010 [2010 CarswellNat 4584 (F.C.)] Reasons for Order and Order, the Court upheld some of the subpoenas and quashed others. It found Mr. Mahjoub’s request for the production of documents to be “improper”; however, this conduct did not significantly delay the overall schedule. 304 On December 8, 2010, the Court ordered the production of information relating to the delivery of the SIR to Mr. Day, referenced in Mr. Flanigan’s testimony, and summaries of the Service’s logs of intercepted solicitor-client communications. This disclosure was not an oversight by the Ministers but a direct result of the testimony of Mr. Flanigan. As a result, on December 16, 2010, the Court gave Mr. Mahjoub leave to call additional witnesses within seven days of receiving disclosure. In addition, the Court scheduled Mr. Mahjoub’s remaining witnesses from Janu- ary 10 to January 21, 2011. 305 The May 2, 2011 [2011 CarswellNat 2355 (F.C.)] Order dealing with Mr. Mahjoub’s request for interim relief from his conditions of release provides a helpful summary of the delays in scheduling the reasonableness hearing from February 22, 2010 to the end of 2010. The Court identified the following causes for delay: a. Compliance with Charkaoui II disclosure obligations. b. The expert witness who was retained by both parties unbeknownst to either (These two factors caused the rescheduling to June 7, 2010). c. The June 1, 2010 motion for Mr. Mahjoub’s former counsel to be removed as solicitors of record (which caused rescheduling to Oc- tober 12, 2010). d. When the reasonableness hearing began on October 12, 2010, Mr. Mahjoub brought: i. a motion challenging the section 21 warrants and accompanying motion for the disclosure of warrants and supporting documents; ii. a motion for adjournment and further disclosure relating to information destroyed by the Service, information relied on for the SIR, and solicitor-client communications, and Mahjoub, Re Edmond P. Blanchard J. 291

iii. a motion for the release and repeal of Mr. Mahjoub’s conditions of release and an interim variance, which he amended twice. 306 Most of the delay throughout 2010 was therefore attributable to the requirements of this complex procedure, to the decision of the expert to fail to give notice to the Ministers of his conflict of interest, or to the conduct of Mr. Mahjoub. Mr. Mahjoub caused an approximately four- month delay in the proceedings by removing his former counsel. He also delayed the reasonableness hearing by bringing late, significant preliminary motions, despite repeated warnings from the Court that the time for preliminary motions had long passed. As we shall see, these motions resulted in multiple additional motions for disclosure and required additional evidence to be adduced, further prolonging the proceedings.

January 2011 to September 2011 — Requests for Disclosure 307 In its January 4, 2011 Direction, as a result of new disclosure pertaining to solicitor-client intercepts, the Court directed that the Ministers were to explain the nature of the redactions in that disclosure and the Ministers’ own privilege claims by January 7, 2011. The Court did not adjourn the January 10, 2011 date to resume the reasonableness hearing. No delay in the proceeding resulted. When the reasonableness hearing resumed on January 10, 2011, Mr. Mahjoub was permitted to deal with Mr. Vrbanac’s and Mr. Bush’s testimony on solicitor-client intercepts as a discrete issue following the completion of all collateral production to him. 308 On February 4, 2011, an unredacted version of the Court’s January 31, 2011 Reasons for Order and Order relating to disclosure requests made by the Special Advocates was released to Mr. Mahjoub. The Spe- cial Advocates had made a request for production of all the communications of the Director of the Service to the Minister accompanying the SIR delivered in February 2008 including the synopsis, recommendation and all due diligence of the team that had prepared the SIR in the aftermath of Charkaoui I. Additionally, the Special Advocates sought production of all of the preparatory documents upon which the Service relied on for section 21 warrants, including draft affidavits and draft warrants. The Court granted this motion subject to the Ministers’ claims of privilege and agreed with the Special Advocates that this information falls under the scope of Charkaoui II disclosure. The Court disagreed with the Min- isters that the motion was not timely and refused to deal at that time with 292 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

the Ministers’ argument that the challenge to the warrants was a collateral attack. It observed, however, that the named person could challenge the admissibility of information obtained by warrant and in order to do this, the background documents for the warrants were necessary. 309 On March 25, 2011, the Court further adjourned the reasonableness hearing to April 11, 2011 to address disclosure. The December 16, 2010 Order had required Mr. Mahjoub to identify his remaining witnesses within seven days of any disclosure ordered by Justice Mactavish concerning solicitor-client interception. This disclosure was received on February 18, 2011. Mr. Mahjoub submitted his proposed witness list on March 4, 2011, to which the Ministers objected, and Mr. Mahjoub made two further motions for disclosure of the CBSA’s video camera images, the CBSA’s and CIC’s entire files on Mr. Mahjoub, and the Ministers’ day planners, in addition to the entire record of intercepted calls from 1996 to 2000. 310 The Court denied the first disclosure motion in its March 28, 2011 Reasons for Order on the grounds that Mr. Mahjoub had failed to demonstrate the relevance of such broad disclosure. The Court also held that Mr. Mahjoub could have raised the issue much earlier in the proceeding and had not. Further, Mr. Flanigan and Mr. Bush had not, in the Court’s view, raised a likelihood of inappropriate delegation requiring the disclosure of the Ministers’ day planners. The Court concluded that this request was a “fishing expedition” that would, if granted, unduly delay the proceedings. 311 In his April 5, 2011 Reasons for Order, Justice No¨el dismissed Mr. Mahjoub’s request for the CBSA’s entire record of intercepted communications from 1996 to 2010. Mr. Mahjoub alleged that the Ministers had not complied with the November 3, 2010 Order of Prothonotary Aalto and the January 20, 2011 Order of Justice Mactavish, and that their disclosure of solicitor-client intercepts was allegedly incomplete. The Court found that Mr. Vrbanac’s testimony made clear that no interception of Mr. Mahjoub’s communications occurred while he was in detention, the recordings had been produced to the extent possible, and from April to September 2007 intercepts were not retained by the Service nor forwarded to the CBSA. The Court held that Mr. Mahjoub had failed to establish how the Ministers’ previous disclosure was insufficient or did not comply with the two previous orders. Justice No¨el concluded that “the proverbial well has dried up.” Mahjoub, Re Edmond P. Blanchard J. 293

312 Nevertheless, at the request of Mr. Mahjoub, the Court further adjourned the reasonableness hearing to May 24, 2011, by an oral direction of April 11, 2011, so that Mr. Mahjoub could have the benefit of outstanding disclosure. New disclosure was released on April 29, 2011. This disclosure consisted of the information packages provided to the Minis- ters prior to signing the February 22, 2008 security certificates. 313 During the adjournment, Mr. Mahjoub made more late disclosure requests. On May 2, 2011, the Court dismissed “Mr. Mahjoub’s repeated request for the same information” that had been dismissed by the Court’s April 5, 2011 Order. The Court also dismissed the new request for all RCMP interview and investigation notes on Mr. Mahjoub from 2001 to 2002, observing that this “request for disclosure was first made on April 5, 2011. In the context of this proceeding, the request is not timely and will not be entertained.” 314 Meanwhile, in camera litigation of national security privilege resulted in further disclosure to Mr. Mahjoub. On May 6, 2011, the Court released the warrants due diligence materials to Mr. Mahjoub further to the Court’s January 31, 2011 Disclosure Order. Further redacted or summarized documents pursuant to the January 31, 2011 Order were released on May 9 to 11, 2011. 315 Mr. Mahjoub announced his intention to submit a revised witness list for the reasonableness hearing and to challenge the litigation and solicitor-client privilege in the Ministers’ disclosure during a case management conference on May 12, 2011. The Ministers similarly announced their intention to object to certain witnesses. As a result, the May 12, 2011 Order of the Court revised the schedule for the reasonableness hearing. It was to take place between June 1 and July 14, 2011. 316 The Court’s May 20, 2011 Order confirmed that the disclosure required pursuant to the Court’s January 31, 2011 Disclosure Order was complete. 317 On June 8, 2011, the Court issued an order indicating that the reasonableness hearing had to be adjourned to June 9, 2011 so that it could rule on the remaining objections to Mr. Mahjoub’s subpoenas, the balance of which had been decided on June 3, 2011. 318 A number of requests were put to the Court that caused, yet again, certain procedural steps in the proceeding to be rescheduled. The Minis- ters sought leave to file affidavit evidence relating to an upcoming detention review. On July 29, 2011, Mr. Mahjoub sought to amend his motion records relating to the abuse of process and warrant challenge. Mr. 294 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Mahjoub also asked the Court to deal with a request to certify questions for appeal relating to his May 16, 2011 request for an interim detention review, which was refused by the Court in its August 5, 2011 [2011 Car- swellNat 3117 (F.C.)] Reasons for Order. As a result, the Court by Order dated August 5, 2011 provided a revised schedule for certain procedural steps that had to be completed before the remaining witnesses could be scheduled. This further delayed the proceeding. 319 As a result of scheduling difficulties caused in part by procedural issues raised by both parties, the evidence proceeded sporadically throughout the spring and summer of 2011. Disposing of these issues caused additional delay, the responsibility for which is shared by the parties. 320 From January 2011 to September 2011, the delays in the reasonableness proceedings were largely caused by the Ministers’ process of compliance with several disclosure orders including litigation over their privilege claims, Mr. Mahjoub’s additional disclosure motions some of which were late or repetitious, and Mr. Mahjoub’s requests to amend his motion records. It is worth noting that many witnesses were heard from January to July 2011. While the Ministers might have expedited their disclosure, I am satisfied that they did not insist on their privilege and relevance challenges frivolously. While in many instances, Mr. Mahjoub had a right to further disclosure, in several of the Court’s orders, the Court found fault with Mr. Mahjoub for his over-broad disclosure requests and his attempts to re-litigate issues already decided. I see no reason to re-visit those findings now. I must also bear in mind that most of the disclosure issues arose as a result of Mr. Mahjoub’s motions filed in late 2010. I am satisfied that the delay of the reasonableness proceedings from January 21, 2011 to September 2011 was not attributable to abusive conduct on the part of the Ministers.

September 2011 to May 2012 — Commingling 321 On September 8, 2011, the Court received its first notification, a letter from public counsel, concerning the seizure from a Toronto court breakout room and commingling of Mr. Mahjoub’s documents by the Minis- ters over the summer of 2011. Because the Court was unaware of the issue until this date, no delay to the schedule occurring prior to this date can be attributed to the commingling. Public counsel announced their intention to file a motion for a permanent stay of proceedings without filing the motion itself. Unable to respond to this mere indication of intent, the Court directed on September 9, 2011 that the scheduled dates for wit- Mahjoub, Re Edmond P. Blanchard J. 295

nesses’ testimony the week of September 26, 2011 would not be released. Following a case management conference on September 13, 2011, the Court ordered that on consent the parties would proceed with the admission of facts. The schedule for the motion seeking a permanent stay of proceedings was set down as follows: a. Mr. Mahjoub’s motion record for a permanent stay of proceedings was to be provided by September 20, 2011. b. There was to be a public hearing on October 3 and 4, and if necessary October 11, 2011. If cross-examination of the Ministers’ affi- ants was required, it would take place on October 3, 2011. c. Mr. Mahjoub was to provide a motion for adjournment of the reasonableness proceeding by September 20, 2011 (this deadline would be amended to September 16, 2011). d. The hearing on the motion for adjournment was to be held on Sep- tember 20, 2011. 322 Meanwhile, the Ministers and the Special Advocates agreed in a case management conference on September 12, 2011 (communicated to Mr. Mahjoub on September 19, 2011), that subject to the potential permanent stay motion, Mr. Mahjoub’s remaining witnesses would testify the week of September 26, 2011 and the Ministers’ closed case in chief would take place October 24 to November 4, 2011. 323 In response to Mr. Mahjoub’s motion for adjournment heard on Sep- tember 20, 2011, the Court ordered on September 20, 2011, that the remaining witnesses were to be adjourned until further order. 324 On September 22, 2011, Justice No¨el amended the original timelines for the permanent stay of proceedings motion requiring solicitor-client privileged or litigation privileged information to be identified and a separation process proposed by the parties by October 4, 2011. A public hearing was to take place on October 3, 4 and 11, 2011. 325 On October 4, 2011, the Court ruled that in order to determine the proportionate remedy, the commingled documents had to be separated and returned to the parties so that they could make submissions on the nature and extent of the alleged prejudice. The parties agreed that I was not to hear this issue; so on October 5, 2011, the Court ordered that the parties with the assistance of Prothonotary Aalto were to develop a process to separate the documents. Each party would designate a person excluded from the litigation team and prohibited from communicating with anyone concerning the file. Prothonotary Aalto was to report at the end 296 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

of the process. The October 4, 2011 Order was briefly stayed by the Fed- eral Court of Appeal pending determination of the Ministers’ motion to quash Mr. Mahjoub’s appeal. The appeal was quashed by the Court of Appeal on October 24, 2011. As a result, on October 26, 2011, Prothono- tary Aalto ordered Mr. Mahjoub to name his representative for the separation process by October 27, 2011. Mr. Mahjoub sought further clarification on the Court’s requirements for a representative, and the Court ordered on October 28, 2011, that Mr. Mahjoub was to provide the names of his representatives by October 31, 2011. The Court set out a detailed schedule for the separation of commingled documents on No- vember 3, 2011. 326 In the meantime, several developments germane to the reasonableness proceeding occurred. On September 26, 2011, the Court ordered that the parties were to propose how evidence from Mr. Mahjoub’s former counsel would be adduced by September 23, 2011, and that Mr. Mahjoub would bring a formal rule 369 motion by September 30, 2011. The Court noted that this issue had been outstanding since April 4, 2011. On No- vember 2, 2011, the Court granted Mr. Mahjoub leave in the reasonableness proceeding to file ex parte statements of former public counsel, pursuant to rule 369. Mr. Mahjoub was granted leave to adduce this evidence without revealing its privileged content to the Ministers and to later demonstrate how adding the ex parte content would be useful to the Court. 327 At the September 28, 2011 hearing in camera, the Special Advocates brought a motion objecting to the admissibility of the proposed closed evidence from a Service witness because it was neither timely nor did the Ministers provide adequate disclosure. They argued that to allow the Ministers to call evidence at the end of the proceeding would cause irrep- arable prejudice to Mr. Mahjoub. This motion was heard on October 20, 2011. On November 9, 2011, the Court dismissed this motion as speculative, leaving it open to the Special Advocates to object to the admissibility of the Service witness’s evidence as it was adduced. The Court released redacted reasons to Mr. Mahjoub on November 15, 2011. 328 In its November 25, 2011 scheduling Order in the reasonableness proceeding, the Court took under reserve Mr. Mahjoub’s motion for a stay of proceedings pending the separation of the documents. Since final arguments for the stay of proceedings were scheduled to take place on Jan- uary 9 to 10, 2012, in the event that the Court did not grant a stay, the Court directed the parties to be prepared to call reasonableness and abuse Mahjoub, Re Edmond P. Blanchard J. 297

of process witnesses on January 12 to January 31, 2012, February 1 to 3, 2012, and February 27, 2012 onward. They were to submit their final list of witnesses by December 23, 2011. 329 In the interim, Mr. Mahjoub’s hearing for the review of his terms and conditions of release was held in December 2011. A number of witnesses were heard and the hearing ended with final arguments on December 19 and 20, 2011. 330 The process for the separation of the commingled documents took longer than anticipated. Final arguments on the motion for a permanent stay of proceedings were rescheduled numerous times from January 9 and 10, 2012 to January 26 and 27, 2012, then to February 20, 21 and 22, 2012, and finally to April 23, 24 and 25, 2012. Postponement of final arguments was required to allow time for the separation process managed by Prothonotary Aalto to unfold and have a report filed for the Court (May 31, 2012 Reasons for Order at paragraph 82). This delay was caused by institutional limitations of the Court. 331 On January 23, 2012, Mr. Mahjoub received summaries of the Janu- ary 16, 2012 tranche of Charkaoui II disclosure. The dates of the disclosure spanned from April 2011 to November 2011 and included an indication that the Service had received information that Mr. Al Duri may be in Canada. As a result, Mr. Mahjoub brought a motion January 30, 2012, to call further witnesses. On February 2, 2012, the Court granted the motion and scheduled the remaining witnesses with the exception of Ms. Finley. The Court observed that a subpoena for her testimony had been quashed by the Court on November 26, 2010. At this time, the remaining witnesses to be heard on reasonableness were: a. February 23, 2012, the motion for subpoenas. b. February 27, 2012, CSIS Witness #2 in camera. c. February 28, 2012, Mr. Woods. d. February 29, 2012, Mr. Day. e. March 1, 2012, Mr. Norris and Ms. Jackman. f. March 2, 2012, Ms Weaver and Ms. Edwardh. g. March 5, 2012, Mr. Galati. h. March 6, 2012, CSIS Witness #3, the Lead Analyst, by videoconference. 298 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

i. March 7, 2012, Mr. Rodrigues. 332 Needless to say, the above schedule was adjourned pending the resolution of the permanent stay of proceedings motion. 333 Further Charkaoui II disclosure was released to the Special Advo- cates on February 17, 2012. Summaries of this disclosure were released to Mr. Mahjoub on March 6, 2011. The tranche contained documents from September 2011 to January 2012. On March 6, 2011, the Court also released responses to the national security privilege objections made in Mr. Vrbanac and Mr. Flanigan’s testimony, including the OPS policies and guidelines. 334 On May 31, 2012, the Court granted Mr. Mahjoub leave to adduce the viva voce evidence of three Egyptian lawyers. His motion for leave to adduce the evidence of an unnamed witness to testify in camera and ex parte without notice was denied. The Court expressed concern at paragraph 13 that Mr. Mahjoub had not informed the Court of his intention to call additional witnesses who had been providing Mr. Mahjoub with information since March 2011. At paragraph 14, the Court characterized this as a “lack of cooperation”. Nonetheless, the Court accepted that the detail or the nature of the evidence to be adduced might not have been available until December 2011 and could not have been called earlier. 335 The Court resolved the commingling issue in its May 31, 2012 Rea- sons for Order. Eleven members of the Ministers’ litigation team, including several of their lawyers who had the significant involvement on the team, were dismissed from the case. The Court noted, at paragraph 100, that “[a]t a minimum, the negligent actions of the Ministers’ litigation team resulted in a further significant delay in proceedings already plagued by numerous procedural delays. The Ministers alone bear responsibility for this delay.” [Emphasis added]. The Court was also of the view that “it will be appropriate for the Court to consider the violation of Mr. Mahjoub’s section 8 Charter rights and the significant delay caused thereby as factors in Mr. Mahjoub’s underlying motion for abuse of process.” 336 The May 31, 2012 Reasons for Order examined the commingling issue comprehensively and provided a remedy for the violation of Mr. Mahjoub’s Charter rights. The Court found that the Ministers’ actions were negligent and an abuse of process. There is no reason to revisit these findings. Mahjoub, Re Edmond P. Blanchard J. 299

May 2012 to January 2013 — Increased Number of Witnesses and Further Motions 337 Almost as soon as the Court had released its decision disposing of Mr. Mahjoub’s motion for a permanent stay of proceedings, Mr. Mahjoub requested an adjournment for the entire summer in order to prepare for the reasonableness hearings. On June 7, 2012, the Court agreed to rule out dates in June for continuing the reasonableness proceeding and instead agreed to schedule the exchange of materials and arguments on questions for certification, relating to the Court’s May 31, 2012 decision, for the month of June. The Court ordered the parties to provide their proposed schedule for the remainder of the proceeding by June 8, 2012. 338 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, heard in camera on May 18, 2012. A redacted version of the decision was released to Mr. Mahjoub on June 22, 2012. The Court released a “Further Revised Consolidated Summary of the SIR” and “Com- pare Copy” to Mr. Mahjoub on June 27, 2012, which had been prepared as a result of the June 19, 2012 Order. 339 Following case management conferences on June 12, June 20, and June 27, 2012, the Court prepared a scheduling order on the basis of public counsel’s concerns over legal aid funding and their appeal of the May 31, 2012 Reasons for Order. The Court further considered Mr. Mahjoub’s recent receipt of documents from Egypt that needed to be translated from Arabic. 340 The Court weighed these factors against the past rescheduling of the reasonableness hearing from February 22, 2010 to March 15, April 26, May 10, June 1, then October 12, 2010, due to the change in public counsel. On July 14, 2011, the Court had noted there were four remaining witnesses. This number had grown to 13, although with the Ministers’ consent, Mr. Mahjoub was permitted to adduce his former counsel’s evidence by affidavit. Mr. Mahjoub requested an adjournment until October 2012 on the basis of his motion challenging the admissibility of the evidence obtained by warrant, but as the Court noted, the November 3, 2010 Order already decided that the outstanding motions brought in the fall of 2010 would not be heard until after all of the evidence had been adduced. 341 Consequently, the Court’s June 28, 2012 Order scheduled the remainder of the proceedings as follows: a. July 6, 2012, CSIS Witness #2 in camera. 300 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

b. July 24, 2012, CSIS Witness #3 and Mr. Woods; July 26, 2012 CSIS Witness #3 continued. c. July 27, 2012, Ms. Jackman and Mr. Rodrigues. d. July 30, 2012, Mr. Norris and Ms. Edwardh. e. July 31, 2012, Ms. Weaver. f. August 7, 2012, Mr. Day. g. August 8, 2012, Mr. Galati. h. September 10 to 14, 2012, the three Egyptian lawyers. i. September 24 to 28, 2012, Mr. Mahjoub’s testimony, should he choose to testify. j. October 9 to 12, 2012, the in camera evidence supporting the Ministers’ case. k. October 15 and 16, 2012, if any further public litigation was required on the basis of the closed evidence. l. November 7 to 21, 2012, final public argument on the outstanding motions and reasonableness. m. November 26 to 30, 2012, final closed argument on the outstanding motions and reasonableness. 342 This schedule was to be revisited many times due to a series of delays, mostly caused by Mr. Mahjoub’s decision to recall witnesses and to call an additional witness. Mr. Mahjoub requested that Mr. Vrbanac and Mr. Flanigan be recalled, and the Court granted this request on July 20, 2012. On July 17, 2012, in accordance with the Court’s July 4, 2012 Confidential Direction, Mr. Mahjoub was provided with a redacted transcript of CSIS Witness #2’s testimony, prompting Mr. Mahjoub to call CSIS Witness #2B. The Court denied Mr. Mahjoub’s request for a further adjournment on July 24, 2012. While Mr. Mahjoub has a right to adduce evidence, the Ministers cannot be held responsible for this delay. 343 By July 31, 2012, as ordered, the Ministers reported that the Canadian Embassy in Cairo would accommodate the testimony of the three Egyp- tian lawyers on the week of September 10, 2012, subject to security checks. The time zone differences and the requirement that the Embassy close on Friday meant that the testimony of the witnesses began at 7:00 a.m. on Sunday, September 9 and ran until September 13, 2012. 344 On September 13, 2012, Mr. Mahjoub advised the Court, without prior notice, that he was preparing a motion that would have the effect of postponing his own testimony until all of the outstanding constitutional Mahjoub, Re Edmond P. Blanchard J. 301

motions were decided. If successful, this motion would have had the effect of undermining the June 28, 2012 Order scheduling all of the evidence to be heard before the motions would be decided. The Court directed Mr. Mahjoub to file a motion by September 17, 2012, limited strictly to why the confirmed schedule for Mr. Mahjoub’s testimony should be changed at this late stage. 345 In accordance with the scheduling Order, Mr. Mahjoub was to indicate whether he would testify or not by September 19, 2012, due to the logistical constraints of the Court. On September 17, 2012, the Court directed that should he be successful in having the June 28, 2012 Schedul- ing Order amended, he could re-visit his decision to testify or not. On September 19, 2012, Mr. Mahjoub informed the Court that due to the “ongoing unfairness” of the proceeding, he would not testify. 346 The Court issued its Reasons for Order on October 2, 2012, dis- missing Mr. Mahjoub’s motion and confirming its prior scheduling order indicating that the issue had been raised on more than one occasion, the parties were heard, and the matter was decided. 347 On September 14, 2012, the Ministers provided the Special Advo- cates with another tranche of Charkaoui II disclosure. The Court con- vened in camera hearings on September 17, 2012 and September 24, 2012 to address its concerns relating to the content of the disclosure and its timeliness. In the result, the Service undertook to provide disclosure on a more frequent basis, and the Ministers admitted that there was a misunderstanding of the Service’s disclosure obligations that impacted on the timeliness of this tranche. However, this late disclosure had no impact on the overall schedule. 348 On October 1, 2012, Mr. Mahjoub brought two new motions. The first sought a rule 151 confidentiality order to file evidence relating to earlier Charkaoui II disclosure, and the second motion sought a permanent stay of proceedings based on the grounds of abuse of process, which essentially repeated the allegations contained in Mr. Mahjoub’s motion for a permanent stay of proceedings already before the Court with a few additions. As a result, the schedule once again had to be revisited on October 4 and 5, 2012 to allow time for the Ministers to respond to the motions. Mr. Mahjoub revealed at the October 17, 2012 case management conference that it essentially provided more grounds for the first stay of proceedings motion. The second stay of proceedings motion was essentially absorbed into this motion at the Court’s direction on October 30, 2012. 302 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

349 The Court directed that the Ministers’ in camera evidence relating to reasonableness would proceed from October 9 to 12, 2012 as scheduled and that the Ministers would have until October 19, 2012 to address the recently filed motions by Mr. Mahjoub. 350 In closed proceedings on reasonableness, the Special Advocates argued that there had been incomplete disclosure, that the Ministers were adducing fresh evidence and therefore were engaged in case-splitting, and that the testimony did not conform to the Court’s November 9, 2011 Order and consequently, ought not to be received in evidence. The Court ruled from the bench on October 11, 2012, finding that the testimony at issue was admissible. A CSIS witness testified to the classified aspects of the reasonableness of the certificate in camera on October 9 to 12, 2012, and the Ministers and Special Advocates prepared a summary of the testimony which was released to Mr. Mahjoub and public counsel on Octo- ber 25, 2012. A redacted transcript of the Court’s ruling was provided to Mr. Mahjoub on November 2, 2012. 351 The Ministers revealed on October 12, 2012 that lead counsel for the Ministers, Mr. David Tyndale, could not continue the case due to reasons beyond his control and would be replaced by Mr. Peter Southey. The Court confirmed that there would be no revision to the June 28, 2012 Scheduling Order. 352 As a result of the above-discussed developments, the June 28, 2012 Scheduling Order was varied on consent on October 18, 2012 as follows: a. November 19 to 23 and 26 to 30, 2012 were set aside for public argument. b. January 14 to 18, 2012 were set aside for the Special Advocates’ and Ministers’ closed argument. c. The rule 151 motion was to be dealt with in writing on consent. d. The second stay of proceedings motion was to be scheduled after receiving the Ministers’ responding submissions. 353 On July 6, 2012, CSIS Witness #2 had undertaken to provide the Ministers’ reply submissions in the Jaballah matter to Mr. Mahjoub. The Ministers complied with their undertaking on October 5, 2012, and the submissions were released to Mr. Mahjoub on October 17, 2012. Further, on October 19, 2012 the Court released summaries of the responses to the national security privilege objections raised during the testimony of CSIS Witness #3 on July 24, 2012. Similarly, on October 22, 2012, the Court released summaries of the responses to the national security privi- Mahjoub, Re Edmond P. Blanchard J. 303

lege objections that the Ministers raised during the testimony of Mr. Vrbanac on August 1 and 2, 2012. 354 After the Court reviewed the material over which Mr. Mahjoub claimed the protection of rule 151, the Court directed on October 22, 2012 that Mr. Mahjoub had to clarify which documents he sought to seal. On October 31, 2012, the Court allowed the motion in part, granting confidentiality for those documents revealing family issues, information that might damage an individual’s reputation, private information of identifi- able third parties or information relating to the preparation of Mr. Mahjoub’s case including discussions with solicitors. The Court was required to spend significant time to consider the large volume of evidence that Mr. Mahjoub sought to protect in order to prepare reasons. Although Mr. Mahjoub was mostly successful on his motion, he ultimately declined to file any of this confidential material in evidence. 355 On September 28, 2012, two years after the Court identified “unsourced intelligence” (evidence from foreign agencies for which provenance is unknown) upon which the Ministers relied in its June 9, 2010 Reasons for Order, the Special Advocates brought a motion to exclude such evidence in this proceeding. On October 24, 2012, Mr. Brooks was called to testify on behalf of the Service concerning “unsourced intelligence.” 356 On October 25, 2012, the Ministers delivered disclosure in response to CSIS Witness #2B’s undertaking to the Special Advocates. These documents dated from 2009 to September 2012 consisted of emails to Ser- vice technical staff calling for the destruction of solicitor-client intercepts. The redacted version of these documents was released to Mr. Mahjoub on November 6, 2012. 357 In addition, Mr. Mahjoub submitted a lengthy email “request for clarification” on October 30, 2012, re-visiting the responses to national security privilege objections disclosed to him in the previous months. After an in camera hearing on the issue November 1, 2012, the Court in Rea- sons for Order dated November 6, 2012 denied Mr. Mahjoub’s request for redacted transcripts of evidence, his request to compel answers from CSIS Witness #3 and Mr. Vrbanac concerning his “request for clarification”, and his request for further information on the recent Charkaoui II disclosure with the exception of one Tab. On the same day, the Court released the Service’s standard lexicon to supplement the summary of the Tab. 304 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

358 On November 7, 2012, the Court ordered the release of the Ministers’ responses to the October 30, 2012 “request for clarification” email. The Court also dismissed Mr. Mahjoub’s request for further adjournment upon receipt of the new information. On November 9, 2012, Mr. Mahjoub renewed his request for further adjournment as a result of the disclosure of the emails. In light of the lateness of the disclosure, the Court acquiesced and granted an adjournment of one week. 359 Mr. Mahjoub continued to adduce evidence in his case on the eve of final argument. On November 13, 2012, Mr. Mahjoub sent several documents to the Court by email to be adduced as evidence, including some documents related to Mr. Salem’s testimony back in September and some documents related to the Swedish case of Mr. Agiza. The Court ordered on November 15, 2012 that Mr. Mahjoub had leave to re-open his case with respect to the Egyptian documents but not the Swedish documents. 360 The Ministers disclosed some additional Charkaoui II materials, upon which neither party would rely, on November 23, 2012. The Court released a summary on December 21, 2012. 361 The final hearings of these proceedings took place as scheduled in the November 14, 2012 Order and ended on January 22, 2013. The Special Advocates agreed that no further public litigation was required as a result of the in camera submissions. 362 Responsibility for delay in this final period was mixed, with much of the delay attributable to Mr. Mahjoub. While the Ministers were responsible for some late disclosure, the multiplication of Mr. Mahjoub’s witnesses and some of his unfocused, late-filed and repetitious motions also caused significant delay at the conclusion of these proceedings.

Analysis 363 Having made findings on the factual delays and determined the responsibility for the delays that occurred in these proceedings, I now turn to the factors that must be considered in deciding whether the delay was abusive and justifies the remedy of a stay of proceedings.

The purpose and nature of these proceedings 364 Keeping in mind the admonition of the Supreme Court in Chiarelli v. Canada (Minister of Employment & Immigration) [1992 CarswellNat 18 (S.C.C.)] that no foreign national has a right to enter and remain in Can- ada, the purpose of proceedings under subsection 77(1) of the IRPA is for Mahjoub, Re Edmond P. Blanchard J. 305

the Federal Court to determine whether there are reasonable grounds for the Ministers to exclude a foreign national on the grounds of national security. In this proceeding, the Court is asked to determine whether the Ministers had reasonable grounds to believe that Mr. Mahjoub was inadmissible as a threat to the security of Canada or other states, in particular by way of his alleged membership the AJ or the VOC, his alleged participation in subversion and terrorism, and his alleged danger to the security of Canada. The important public interest of national security and the sov- ereign right of states to control who remains in their territory weighs in favour of deciding the case on its merits. 365 Paragraph 83(1)(a) of the IRPA requires the Court to proceed in as expeditious a manner as the requirements of fairness and natural justice permit. As explained earlier, while Parliament expressed an intention that the proceedings would unfold expeditiously, it also anticipated that exigencies of fairness and natural justice could make this objective difficult to achieve. In particular, as explained earlier in these reasons, the Ministers’ Charkaoui II disclosure obligations were voluminous and required national security vetting. Time was also required to hear procedural motions for the protection of Mr. Mahjoub’s rights. Compliance with this fairness requirement took time. Consequently, in the circumstances, I assess this factor to be neutral. 366 On the whole, I find the purpose and nature of the proceedings to weigh against the grant of a permanent stay of proceedings.

The inherent time requirements of this complex case 367 Since the Supreme Court’s decision in Charkaoui II, the inherent time requirements of security certificate proceedings are great from the outset. In this instance, the reasonableness hearing was adjourned for more than a year from the end of 2008 to the beginning of 2010 to allow for this disclosure and to give the parties a chance to litigate related preliminary motions. In this case, the time required to deal with the significant volume of material in play was further affected by the complexity of the underlying allegations in the SIR. In my view, this initial delay was required to complete this work, inherent to the process. 368 Depending on the nature and volume of information and intelligence in the Service’s holdings “related to” a particular named person, the Min- isters may require several months to scour the Service’s holdings. Infor- mation and intelligence must be sorted and organized for production to the Special Advocates, a process that could also take several months. The 306 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Special Advocates must then also process the disclosure for their own use protecting the interests of the named person. Once the Special Advo- cates have assessed the materials and identified the useful material, summaries of the materials must be prepared to inform the named person. The Ministers and the Special Advocates must then either consent to or litigate the summaries to be disclosed to the named person. In certain cases, expurgated versions of documents may be released. The process of litigating national security privilege claims may also take significant time. 369 Factors, such as the volume of relevant or potentially relevant documents that the Service has in its holdings and the difference in opinion between the Ministers and the Special Advocates about what can be disclosed to the named person, will dictate on a case-by-case basis how long the Charkaoui II disclosure takes. In this case, the Ministers and Special Advocates had to process many thousands of documents, and they did not frequently agree on what could be summarized for Mr. Mahjoub’s use. As a result, significant time was required to resolve these differences. 370 Charkaoui II disclosure is not the only requirement of procedural fairness that can considerably lengthen the proceedings. Preliminary motions from the named person challenging everything from the admissibility of evidence pursuant to paragraph 83(1)(h) or subsection 83(1.1) of the IRPA to the constitutionality of the statutory scheme itself are appropriate considering the liberty interest at stake for the named person. The named person is also, by law, entitled to the commencement of a detention review or review of conditions of release every six months. 371 In the triage of what was initially disclosed to the named person pursuant to Charkaoui II, given the volume of material in play, some items of information relevant to these motions and detention reviews may be missed, so additional motions for disclosure may be warranted. The named person and the Ministers must also be allowed to adduce new evidence in support of or in response to these motions or detention reviews. In this case, Mr. Mahjoub brought several complex motions that had the potential to change the course of the proceedings. In most instances, he sought further disclosure and brought additional evidence in support of his submissions. 372 The Ministers are also entitled by paragraph 83(1)(d) of the IRPA to ask for an in camera hearing at any time that they invoke national security privilege. In addition to making submissions on the matter at hand, Mahjoub, Re Edmond P. Blanchard J. 307

the Ministers and the Special Advocates may make submissions on the appropriateness of conducting the matter in camera. Further, in the interest of fairness to the named person, each in camera hearing and any resulting evidence or Court order must be summarized for the named person. More often than not, this results in litigation. Finally, the Court must, in its role pursuant to paragraph 83(1)(e) of the IRPA, ensure that disclosure of any summary to the named person would not, in its opinion, be injurious to national security or the safety of any person. In this proceeding, a great deal of time was spent on litigating national security privilege in this way. 373 In summary, the time required to conduct a security certificate proceeding will vary from case to case. Many factors will impact on the time required to litigate and decide the reasonableness of the security certificate. These include: a. the number of allegations raised by the Ministers against the named person and the nature of those allegations; b. the complexity of the evidence adduced by the parties; c. the volume of materials involved in Charkaoui II disclosure; d. the extent to which the named person chooses to exercise his or her procedural rights; and e. the inherent complexity of having to conduct part of the proceedings in camera. In this case, the allegations raised against Mr. Mahjoub were numerous, many witnesses were called, and much evidence was adduced by the parties. The volume of Charkaoui II disclosure was great. Many of the issues had to be dealt with in closed proceedings. Mr. Mahjoub raised many procedural and constitutional issues that required time to address, in particular, his motion to exclude evidence pursuant to section 83(1.1) of the IRPA, his motion to challenge the constitutionality of the IRPA and the CSIS Act, his motion to exclude evidence obtained by CSIS Act warrants, and this motion. 374 Consequently, even in the best of circumstances, with the best intentions of all involved to have the proceeding proceed as informally and as expeditiously as possible, inherent in the process mandated by the IRPA for the conduct and disposition of security certificate proceedings are significant time requirements. Such time is needed to ensure that the proceeding is respectful of the rights of the named person and in full compliance with considerations of fairness and natural justice. 308 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

375 Had this instance proceeded without delay caused by the conduct of the parties, which will be dealt with later in these Reasons, the procedural requirements necessitated by the inherent nature of the proceedings would still have required significant time to complete. In my view, absent such delay, these proceedings would have concluded as initially scheduled after the requirements of Charkaoui II were assessed, sometime in the spring or summer of 2010. 376 Evidently, these proceedings exceeded those requirements. These proceedings concluded in January 2013, more than two years beyond the requirements of the proceedings. This delay comprised more than half of the entire length of the proceeding, a magnitude that weighs in favour of a stay of the proceedings.

Any waiver of the delay by Mr. Mahjoub 377 In most instances, the actions of Mr. Mahjoub did not amount to an unequivocal waiver of prejudice from delays in the proceedings. I shall identify his actions as waiver only when he deliberately caused or requested the delay. 378 Most notably, Mr. Mahjoub’s decision to change his public counsel in June 2010 constitutes a waiver of delay, in that instance more than four months of delay. I am satisfied that Mr. Mahjoub was aware of the consequences of this change in counsel to the course of these proceedings before he made the decision. To be clear, Mr. Mahjoub had a right to change counsel but, in so doing, he cannot claim that he was prejudiced by the delay caused by his decision to change counsel just as the reasonableness hearing was set to resume. 379 In filing his further late motions beginning in the fall of 2010, largely challenging or raising issues that Mr. Mahjoub could have raised at the outset of the proceedings, Mr. Mahjoub accepted responsibility for the delays that inherently flowed from these motions. 380 Mr. Mahjoub also waived the delay caused by his decision to re-litigate a number of questions already decided by the Court or to raise questions that should have been raised far earlier in the proceedings. The clearest example is his attempt to obtain disclosure that the Court had denied to him in its April 5, 2011 Order, and his attempt to obtain records that he could have requested at the beginning of the proceeding. I commented on these requests in my order dated May 2, 2011. I also denied a disclosure request and a request to amend motion records on this ground on March 28, 2011 and September 13, 2011 respectively. Mr. Mahjoub, Re Edmond P. Blanchard J. 309

Mahjoub knew or ought to have known that these repetitious requests would cause additional delay.

The reasons for the delay including the actions of all of the parties involved and the Court and the institutional limits of the Court 381 As I have already considered the delay and assessed responsibility for the delay above, the following list summarizes my findings on this issue: a. I find that there were no substantial delays in these proceedings between March 2008 and October 2008 when the original schedule for the proceedings was revisited and the Court began to implement the Supreme Court’s Charkaoui II decision. b. I find that most of the delay between October 2008 and March 2009 was a result of the recently defined Charkaoui II disclosure requirements, for which neither party bears responsibility. While the Ministers were somewhat slow in making the Charkaoui II disclosure, Mr. Mahjoub also delayed the proceedings with his choice to retain the same counsel as Mr. Jaballah. The responsibility for the delay during this period was therefore mixed and will be assessed as neutral. c. I find that the delay between March 2009 and June 2009 was attributable to both Mr. Mahjoub’s return to detention and the Min- isters’ challenge to disclosure of redacted Charkaoui II materials. Mr. Mahjoub was not at fault for his detention, and the Ministers were entitled to litigate the issue of disclosure although the Court ultimately disagreed with them in many instances. The responsibility for the delay during this period was therefore neutral. d. I find that the delay between July 2009 and March 2010 was caused by several incidents. First, the technical problems with the Charkaoui II disclosure caused delays over the summer. While the Ministers are responsible for this delay, I am unable to conclude that they were at fault for this delay. Second, the Ministers caused delay by reversing their position on summaries of Charkaoui II disclosure, and I find that this reversal was unreasonable. This caused a month of delay for which the Ministers were responsible, as the delay in disclosure resulted in the adjournment of the reasonableness hearing for one month. Third, the Ministers caused delay by litigating the issue of whether they should seek consent from foreign agencies to disclose the intelligence received from them. I find that the Ministers were entitled to litigate this issue. 310 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th) e. I find that the delay between March 2010 and June 2010 was caused primarily by the Ministers’ attempt to retain Dr. Ashour as an expert witness. While the Ministers were not diligent, the responsibility was ultimately Dr. Ashour’s for failing to notify the Ministers or the Special Advocates of the potential conflict of interest before agreeing to act for the Ministers. In addition, this delay caused no prejudice to Mr. Mahjoub since the subsection 83(1.1) motion was adjudicated during this time. f. I find that the delay between June 2010 and October 2010 was caused by Mr. Mahjoub’s change of counsel. While I found that the Ministers’ delay in providing a compliant table of allegations was “reprehensible”, Mr. Mahjoub waived this delay by reason of his decision to change counsel. g. I find that the delay between October 2010 and January 2011 was caused by the late filing of Mr. Mahjoub’s motions and the disclosure litigation that flowed from them. I find that the Ministers were not at fault for omitting these disclosure items from the Charkaoui II disclosure, nor was their position contesting disclosure of certain items unreasonable. h. I find that Mr. Mahjoub, in making disclosure requests, was largely responsible for the delay between January 2011 and Sep- tember 2011. While in many cases Mr. Mahjoub was entitled to make those disclosure requests, the Ministers were equally entitled to oppose them. In addition, many of Mr. Mahjoub’s disclosure requests were repetitious. When he decided to re-litigate issues of disclosure, Mr. Mahjoub waived all prejudice from delay. Further, Mr. Mahjoub decided to call numerous other witnesses, and since it was not obvious what relevant evidence they could give, the Ministers were entitled to challenge his decision to call those witnesses. i. I find that the delay between September 2011 and May 2012 is entirely attributable to the negligent commingling of litigation materials by the Ministers. j. I find that the delay between May 2012 and January 2013 was caused by a number of events. An adjournment requested by Mr. Mahjoub for the preparation of the remainder of the reasonableness proceedings, unrelated to the commingling issue, delayed the proceedings over the summer, as did the litigation required to implement the Harkat decision and recall of witnesses due the out- Mahjoub, Re Edmond P. Blanchard J. 311

come of in camera testimony. Neither party is at fault for these delays. While the Ministers contributed to delay with late disclosure, Mr. Mahjoub and the Special Advocates also contributed to delay by bringing late motions. Responsibility for delay in this period was mixed except for the one-week adjournment in final argument due to the Ministers’ unacceptably late disclosure pursuant to an undertaking.

Conclusion 382 The specific unreasonable delays attributable to the Ministers are as follows: a. August 2009 to February 2010: the Ministers reversing their position on the summaries of Charkaoui II disclosure to be released to Mr. Mahjoub, and requiring a motion by the Special Advocates and a Court order to force them to prepare and serve new summaries. b. July 2009 to February 2010: the Ministers’ position that Mr. Mahjoub had to file an abuse of process motion and demonstrate the relevance of solicitor-client intercepts before they would disclose summaries of the intercepted solicitor-client communications. c. February 2010 to June 2010: the Ministers’ repeatedly failed to file a compliant table of allegations supported by evidence, the originals of which were destroyed or unavailable. The table was eventually filed following the February 2010 Order. d. September 2011 to May 2012: the Ministers’ commingling of privileged documents.

Prejudice to Mr. Mahjoub or harm to other persons. 383 Once he has established that the delays were unreasonable and caused by the Ministers, Mr. Mahjoub must establish prejudice to himself or to third persons. At the forefront of the prejudice was the continuation of Mr. Mahjoub’s stringent conditions of release during the periods of delay. I accept that these conditions have had a significant impact on Mr. Mahjoub’s liberty and his psychological well-being. Since the conditions have been relaxed over time, the prejudice has lessened but is still significant. I now turn to the prejudice caused by the specific delays. 384 The first two unreasonable delays caused by the Ministers, their position on the Charkaoui II summaries and their “untenable” position on 312 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

solicitor-client intercepts, were concurrent and should not be double- counted. In addition, between July 2009 and February 2010, Mr. Mahjoub’s primary concern was his detention review, with which the Court was primarily occupied. Nevertheless, one element of prejudice to Mr. Mahjoub concerned the additional legal resources spent trying to obtain disclosure of the solicitor-client intercepts and the resources spent by the Special Advocates, a third party, attempting to move the Charkaoui II disclosure process along. A second element of prejudice was that the reasonableness proceeding had to be adjourned by a month to March 2010. Finally, and most importantly, Mr. Mahjoub did not have disclosure of certain details of the case he had to meet (January 22, 2010 Sup- plemental Public Summary of the SIR) until less than two months before the adjourned start date of the reasonableness proceeding. 385 The third delay prejudiced the Special Advocates in having to waste resources and time in trying to incite the Ministers to comply with the Court’s February 19, 2010 Order. The Court’s time was also wasted ad- judicating the issue and re-ordering the table of information. The Minis- ters’ failure to provide this table in a timely fashion had no direct impact on the schedule but it was useful information that Mr. Mahjoub should have obtained earlier. 386 The fourth delay caused significant prejudice to Mr. Mahjoub; this delay has been described in greater detail in the May 31, 2012 Reasons for Order. It took many hours of work from the Court and from the parties’ designates to separate the commingled documents, and for the preparation of Prothonotary Aalto’s report. Mr. Mahjoub had to expend time and public resources preparing his motion for a permanent stay of proceedings and his motion to adjourn the reasonableness proceedings. The Court also spent a great deal of time and effort to adjudicate the commingling issue. As previously mentioned, the Ministers’ abusive conduct relating to the commingling of documents was also responsible for approximately seven and a half months’ delay in the reasonableness proceeding. 387 I find that all of the unreasonable delays caused by the Ministers were prejudicial.

Mitigation of the delay and remedies provided throughout the proceedings 388 While the prejudice to Mr. Mahjoub caused by his stringent conditions of release has not been remedied, it has been mitigated by periodic detention review and relaxation of those conditions over time. Mahjoub, Re Edmond P. Blanchard J. 313

389 The first two delays were largely mitigated by the summer adjournment granted to Mr. Mahjoub when he changed counsel. Serendipitously, new counsel had the opportunity to build Mr. Mahjoub’s case on the basis of the critical January 22, 2010 to August 16, 2010 disclosure. 390 The third delay was largely mitigated by the Court’s decision to deal with the Special Advocates’ motion to exclude evidence pursuant to subsection 83(1.1) of the IRPA in the spring of 2010. The Court also granted the Special Advocates the remedy of ordering the Ministers to deliver a compliant table, ending the abusive conduct if not eliminating its effects. 391 Even the fourth delay was to some extent mitigated. While it would certainly have been preferable for the Court to proceed as scheduled, the Court was not idle while Prothonotary Aalto, the court staff, and the designates separated the commingled documents, and while Prothonotary Aalto prepared his report. From September 2011 to May 2012, the Court dealt with the issues pertaining to the remaining and additional witnesses that Mr. Mahjoub wished to call, including how former counsel’s evidence was to be adduced and whether Mr. Mahjoub would be granted leave to call the viva voce evidence of the three Egyptian lawyers and the unnamed witness. Two additional tranches of ongoing Charkaoui II disclosure were released to Mr. Mahjoub which might have caused adjournments to the reasonableness proceeding, in any event, without fault by the Ministers. Further, the Court dealt with a complicated detention review involving multiple witnesses including a protected witness whom public counsel were allowed to cross-examine over the month of Decem- ber 2011. Also, Mr. Mahjoub obtained a laptop that had to be examined for compliance with the conditions of his release. 392 In addition, the Court granted Mr. Mahjoub significant remedies for the Ministers’ abusive conduct. Eleven members of the Ministers’ litigation team were barred from the case. The Court granted Mr. Mahjoub a two-month adjournment to the reasonableness proceeding, largely for the purposes of preparation for that proceeding.

Conclusion 393 The purpose of these proceedings is such that there is a strong public interest in the adjudication of Mr. Mahjoub’s case on the merits, and the nature of these proceedings is such that the parties must be granted significant latitude in their conduct of the proceedings. While the proceedings cannot be said to have been conducted expeditiously, significant time was needed to deal with numerous procedural matters in order to 314 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

ensure the considerations of fairness and natural justice were respected. Consequently, there are numerous reasons that explain the length of these proceedings beyond the unreasonable delays caused by the Minis- ters. Much of the time taken for these proceedings was spent ensuring the fulfillment of procedural rights for both parties, primarily for Mr. Mahjoub. These items included ongoing disclosure, the adjudication of reasonableness, his constitutional motions and his detention review motions (often simultaneously), his late-filed motions, and his right to counsel of choice. Ongoing disclosure also meant ongoing changes to Mr. Mahjoub’s litigation plan. 394 The conduct of the parties also contributed to the delay. Most of it was without fault, for the parties had to adapt to changing circumstances and were entitled to pursue and defend their rights. Where there was fault, the responsibility was often shared between the parties. Finally, where the delay was caused by the Ministers’ conduct that I have determined was abusive, it was largely mitigated or remedied by the Court. 395 This is not one of the clearest of cases requiring the remedy of a stay, despite the disproportional length of the delay compared with the time requirements of the reasonableness proceeding. To conclude, I do not find that the unreasonable delay in these proceedings caused by the Min- isters, alone, warrants a stay of these proceedings.

(l) Did the Ministers fail to make timely and complete disclosure to Mr. Mahjoub to an extent that constitutes abuse? 396 Mr. Mahjoub argues that the Ministers delayed in disclosing the allegations and evidence against Mr. Mahjoub to such an extent that it constitutes abuse. He also argues that the Ministers failed to disclose all of the evidence that they were required to disclose. He argues that the delays and omissions have prejudiced his “right to a full and fair defence” and his “rights to receive disclosure in a timely manner and to be tried within a reasonable delay.” 397 The Ministers contend that there were no unreasonable delays in disclosure to Mr. Mahjoub, and they maintain that their disclosure to Mr. Mahjoub was complete. They submit, relying on Justice Dawson’s findings in Jaballah, Re, 2010 FC 507 (F.C.) at paragraph 148, that the demands of Charkaoui II disclosure take up a great deal of time although the Ministers and Special Advocates may be working diligently. They also point to several adjournments that the Court has granted to remedy delayed disclosure, such as the November 9, 2012 adjournment granted Mahjoub, Re Edmond P. Blanchard J. 315

on the eve of final argument for Mr. Mahjoub to consider delayed disclosure. 398 As I have already addressed the issue of delay above, I will confine my analysis in this section to the specific issue of delayed and incomplete disclosure.

The Law 399 Charkaoui II governs the issue of disclosure in security certificate proceedings. In that decision, the Supreme Court outlines the Ministers’ disclosure obligations within the particular context of this case (at paragraphs 47-64). It also addresses a specific instance of late disclosure of Service interviews relevant to Mr. Charkaoui’s case to the designated judge (at paragraphs 65-67). Charkaoui II governs the case to the extent that it modifies the disclosure obligations in Stinchcombe and other criminal jurisprudence, and it focuses on prejudice when the Ministers’ disclosure of information relevant to the case to meet is delayed. I nevertheless find it useful to canvass the criminal jurisprudence on this issue as it provides further guidance on abuse of process relating to delay and incomplete disclosure. 400 O’Connor specifically addresses the issue of delayed disclosure and incomplete, or non-disclosure. Justice L’Heureux-Dub´e, writing for the majority on this issue, explains that ...a challenge based on non-disclosure will generally require a showing of actual prejudice to the accused’s ability to make full answer and defence. In this connection, I am in full agreement with the Court of Appeal that there is no autonomous ‘right’ to disclosure in the Charter” (at pages 463-464) The learned judge further states: It goes without saying that such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found to be immaterial to the accused’s ability to make full answer and defence, there cannot possibly be a violation of the Charter in this respect. I would note, moreover, that inferences or conclusions about the propriety of the Crown’s conduct or intention are not necessarily relevant to whether or not the accused’s right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused’s trial. Once a violation is made out, a just and appropriate remedy must be found. (at pages 464-465) [Emphasis in original] 316 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

401 In R. v. Godin [2009 CarswellOnt 3100 (S.C.C.)], the Supreme Court held that a significant delay in disclosure where no explanation is advanced is an unreasonable delay (see paragraph 20). In that case, a forensic analysis took nine months and disclosure was made four days before the trial. 402 As I have concluded as a result of my Charter analysis in the War- rants Decision at paragraphs 105-111, there is no right to full answer and defence in these proceedings, but Mr. Mahjoub does have an analogous right to know the case to meet and to be able to meet it, as the Supreme Court indicated in Charkaoui I. I have already examined delays in disclosure in terms of how they have created delays in the proceedings prejudicial to Mr. Mahjoub’s residual right to a fair trial within a reasonable time pursuant to section 7 of the Charter. In this section, I shall deal with the impact of delayed disclosure on Mr. Mahjoub’s right to know the case to meet and to respond to that case. None of the irrevocable steps that determine the defence strategy in a criminal case, such as entering a plea or deciding the mode of trial, are relevant in the security certificate context as innocence is not at stake, nor does the named person have the right to a jury. Consequently, absent these pre-trial exigencies, it is more difficult for Mr. Mahjoub to establish that delays in disclosure warrant a permanent stay rather than a lesser remedy. 403 In O’Connor, Justice L’Heureux-Dub´e further states at page 465: ...a disclosure order can be a remedy under s. 24(1) of the Charter. Thus, where the adverse impact upon the accused’s ability to make full answer and defence is curable by a disclosure order, then such a remedy, combined with an adjournment where necessary to enable defence counsel to review the disclosed information, will generally be appropriate. [Emphasis in original] 404 This comment in O’Connor segues back to Charkaoui II, which focuses on remedying prejudice in the security certificate process. In that case, the Supreme Court noted that summaries of Service interviews conducted with Mr. Charkaoui in 2002 should have been disclosed at the outset of the proceedings in 2003 (at paragraph 65). These interviews were not disclosed to the designated judge until January 2005. The designated judge ordered that summaries be disclosed to Mr. Charkaoui forth- with. The designated judge also received new allegations from the Minis- ters a few days before Mr. Charkaoui’s January 2005 detention review. The Supreme Court determined at paragraph 67 that “[b]y adjourning the Mahjoub, Re Edmond P. Blanchard J. 317

January 10, 2005 hearing and granting a postponement of Mr. Charkaoui’s detention review [to February 7, 2005] to enable him to prepare his testimony and defence, the judge averted any prejudice that might have resulted from the delay in disclosing the new evidence.” 405 I shall therefore examine whether the particular non-disclosure has been cured during the proceedings by a disclosure order and, if necessary, an adjournment, leave to recall witnesses, or leave to call further witnesses (O’Connor at page 466). I will also examine whether the disclosure was remedied at such a late stage in the proceedings that its prejudice to Mr. Mahjoub’s case could not be removed by disclosure and adjournment or the recalling or calling of additional witnesses (ibid. at page 465), keeping in mind that in security certificate proceedings, disclosure is meant to be ongoing and therefore may occur at very late stages of the proceedings. I shall focus on Mr. Mahjoub’s right to know the case to meet. 406 Finally, even if the non-disclosure has been remedied, Justice L’Heureux-Dub´e instructs in O’Connor at page 466 that: ...the court should also consider whether the Crown’s breach of its disclosure obligations has also violated fundamental principles underlying the community’s sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable. Consideration must be given to the seriousness of the violation and to the societal and individual interests in obtaining a determination of guilt or innocence.... 407 Relevant to this analysis are the intentions of the Ministers. As the Supreme Court establishes at page 466, “non-disclosure due to a refusal to comply with a court order will be regarded more seriously than non- disclosure attributable to inefficiency or oversight.” In O’Connor, it is noteworthy that the Supreme Court did not endorse a stay of proceedings although it found that the Crown’s conduct in failing to disclose information was “shoddy and inappropriate” (at page 472). Consequently, misconduct must be egregious to warrant a permanent stay of proceedings. 408 While it determined that the Crown’s attempts to do so were “clumsy” in O’Connor, the Supreme Court acknowledged that in refusing to disclose medical records, the Crown was attempting to legiti- mately protect the complainants’ privacy interests. The Court observed that the law on disclosure of third party information to the defence was not yet settled (at page 473). This provides guidance in considering 318 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

whether or not the Ministers in this case were attempting to protect legitimate interests. In these proceedings, unlike in O’Connor, the Ministers did not intentionally refuse to comply with any of the Court’s disclosure orders. There is simply no evidence of intentional misconduct in this case relating to disclosure. 409 Of course, I shall also examine whether the Ministers have established that they did not disclose information because it was not in their possession, clearly irrelevant, or privileged (R. v. Chaplin (1994), [1995] 1 S.C.R. 727 (S.C.C.) [Chaplin] at page 739).

Late Disclosure 410 In his “Updated Summary of Evidence”, Mr. Mahjoub sets out what he considers to be the worst examples of delayed disclosure. I will address each in turn.

Summaries of the Charkaoui II materials produced on March 25, 2009, De- cember 23, 2009, and January 22, 2010 411 The delays in the disclosure of these summaries were largely due to the Ministers’ unreasonable reversal of position on the suitability of the summaries they had initially proposed to be released to Mr. Mahjoub. I have found this to be an unreasonable delay at paragraph 280 above. 412 Since I have already found this delay to be an abuse of process that nevertheless did not merit a stay of proceedings on its own, there is no need for further analysis here except to reiterate that there was no prejudice to Mr. Mahjoub’s right to know the case to meet and to meet it, since the Ministers’ case would not open until nine months later. Unlike a criminal proceeding, there is no irrevocable procedural decision that the named person must make prior to the start of the trial. Here, Mr. Mahjoub has failed to indicate how the delay would have impacted on his defence, including any indication as to how the delay in disclosure would have affected, from a strategic standpoint, any prior procedural decision made. At this time, all of the witnesses had yet to be called.

The production of the Supplementary Public Summary of the SIR on January 22, 2010, containing new allegations which were known to the Ministers prior to the June 2000 security certificate. 413 Mr. Mahjoub submits that the Ministers did not allow him to know certain allegations against him, therefore not knowing the case to meet, because the Ministers had not asked the foreign agency sources for these allegations for permission to disclose the allegations in these proceed- Mahjoub, Re Edmond P. Blanchard J. 319

ings. At paragraphs 36, 41 and 53 of my February 19, 2010 Reasons for Order, I ruled that the Service was not required to seek further clarification for foreign agencies on intelligence that may have been provided. I held that it would be injurious to impose such an obligation on the Ser- vice. In any event, there is no prejudice to Mr. Mahjoub’s fair trial rights from this late disclosure either, for it occurred prior to the opening of Mr. Mahjoub’s case.

The production of the table indicating which allegations in the Consolidated Public Summary of the SIR rely on evidence that has been destroyed or is otherwise unavailable on August 16 and September 9, 2010. 414 Preparation of a useful table indicating the status of the supporting evidence was a simple task, and the Ministers’ repeated non-compliance with the February 19, 2010 Direction requiring its production is unex- plained although I am satisfied that it was not intentional. 415 I have already found this delay to be an abuse of process that nevertheless did not merit a stay of proceedings. Again, as explained earlier, Mr. Mahjoub has failed to establish any prejudice to his right to know the case to meet and to meet it since the Ministers’ case would not open for another month.

Several revised summaries of the SIR released after the Court’s June 9, 2010 decision to exclude evidence pursuant to subsection 83(1.1) of the IRPA. 416 Evidently, the June 9, 2010 decision to exclude evidence explains the late disclosure of the revised summaries of the SIR. The Special Advo- cates and the Ministers subsequently litigated which precise elements of the evidence should be excluded, and the Court released its decision on the matter on August 31, 2010. 417 Once the decision was made, the Ministers were required to make revisions to the classified SIR, and then summaries had to be prepared for release to Mr. Mahjoub. The revised public summary of the SIR was then released to Mr. Mahjoub on September 23, 2010. 418 There was a further revision to the public summary of the SIR in June 2012 after the Special Advocates’ motion to exclude evidence pursuant to the Federal Court of Appeal in Harkat. The Ministers had to repeat the same process before releasing the public summary. The revised public summary of the SIR was released to Mr. Mahjoub on June 27, 2012. 419 I find that the above-noted events satisfactorily explain the delay, which in the circumstances is reasonable. The Ministers were required to 320 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

determine how the SIR would change as a result of the August 31, 2010 Order and to prepare summaries suitable for disclosure to Mr. Mahjoub. Moreover, there can be no prejudice to Mr. Mahjoub from the reasonable consequences of a motion decided in his favour to exclude prejudicial evidence. This was explained at length in the Court’s October 4, 2010 Reasons for Order. The same analysis applies to disclosure of the June 27, 2012 revised public summary of the SIR.

Summaries of the warrants and affidavits on October 5, 2010, and February 4, 2011. 420 In Chaplin at pages 742 and 743, Justice Sopinka gives examples of wiretap cases, Dersch and Durette, in which the accused requested access to the wiretap authorization packet and obtained it by court order. Accused in criminal cases must make Garofoli or Wilson applications to obtain disclosure of information surrounding warrants. This is the normal process in criminal law. There is no justification for imposing a higher disclosure standard on the Ministers in security certificate proceedings than there is on the Crown in criminal proceedings. In my view, the Min- isters have no duty to disclose warrant affidavits and warrant material as a matter of course pursuant to Charkaoui II. When, as in this case, the warrants are specifically challenged, it is open to the special advocates to seek disclosure of these materials, which may then be summarized for the named person. 421 Mr. Mahjoub filed his notice of motion for disclosure of these materials on August 31, 2010. He did not file a motion record until the fall. It was not long before he received summaries of the warrants and affidavits on October 5, 2010. 422 Disclosure of summaries of the supporting materials took until Febru- ary 4, 2011, due to litigation. Nonetheless, as in a Garofoli application, the Ministers were entitled to litigate the question of whether the supporting materials for the warrants at issue should be disclosed. Also, the Ministers maintained the position that the warrants could not be challenged because a challenge in these proceedings would amount to a collateral attack on the decision of the issuing judge. Although the Court ultimately found otherwise at paragraph 101 of the Warrants Decision, and the basis for the Ministers’ argument was tenuous, I do not find that the Ministers’ position was abusive. Mahjoub, Re Edmond P. Blanchard J. 321

Logs of the intercepted solicitor-client communications disclosed on December 22, 2010. 423 Mr. Mahjoub’s former public counsel brought a motion on May 25, 2010, before Prothonotary Aalto for “secondary documents” relating to the interception of solicitor-client communications. This motion was abandoned due to Mr. Mahjoub’s change of counsel. The Court found in its October 4, 2010 Reasons for Order that the solicitor-client intercepts had already been disclosed by April 21, 2010. 424 Nevertheless, as a result of Mr. Flanigan’s testimony referring to logs of intercepted solicitor-client communications, Mr. Mahjoub sought disclosure of these logs. The Court ordered their disclosure on December 8, 2010. Mr. Mahjoub received disclosure in short order on December 22, 2010. 425 Although Mr. Mahjoub submits that this amounted to late disclosure of the logs, I am satisfied that this was a reasonable delay in the circumstances. The motion relating to secondary information pertaining to solicitor-client interception was abandoned. The Ministers did not fail to disclose this information earlier as it was only re-raised as a result of Mr. Flanigan’s testimony. 426 Moreover, the disclosed logs did not affect Mr. Mahjoub’s case to meet, and they only affected his defence insofar as they confirmed which calls were intercepted. In its December 16, 2010 Order, the Court fully remedied any prejudice that Mr. Mahjoub suffered by granting him leave to call additional witnesses within seven days of the disclosure. Again, Mr. Mahjoub has not indicated how the delay has irremediably impacted the conduct of his case.

Summaries of intercepted solicitor-client communications from 2007 to 2010 disclosed on January 14, 2011, and February 18, 2011. 427 On February 12, 2010, the Court directed that summaries of some intercepted solicitor-client communications should be released to Mr. Mahjoub. These summaries were not released as part of the initial solicitor-client intercept disclosure. As mentioned above at paragraph 282, the Court found that the Ministers’ position that Mr. Mahjoub had to file his motion record and justify the information’s relevance prior to receiving this disclosure was untenable. 428 Nonetheless, the Court provided a remedy. A protocol for disclosing this information was developed in the Jaballah matter on August 24, 2010. Part of the cause for the delay in the disclosure subsequent to Feb- 322 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

ruary 12, 2010 was due to the Ministers negotiating this process, believ- ing that it would be applied in these proceedings. Prothonotary Aalto ordered that this protocol should be followed in this case as well on November 3, 2010. It consisted of preparing summaries of the intercepts for disclosure to Mr. Mahjoub. The majority of these summaries were disclosed to Mr. Mahjoub on January 14, 2011. Given the volume of disclosure involved, this was not an unreasonable delay. Disclosure of the February 18, 2011 documents was late because the Ministers claimed solicitor-client privilege over these documents, which had to be litigated. 429 Although the Ministers’ position that Mr. Mahjoub had to bring his motion before they would disclose these materials was untenable, the Court provided a remedy by ordering disclosure. The delay after the order was disclosed was a result of the Ministers developing a protocol for the disclosure, which was not abusive; in fact, the Court adopted this protocol. In addition, there was no prejudice to Mr. Mahjoub’s fair trial rights from the delayed disclosure because at that stage of the proceedings, he had the opportunity to call additional witnesses on the issue of solicitor-client interception, which he did.

The recommendations made by the CBSA and CIC to the Ministers in support of the 2008 security certificate disclosed on February 3, 2011 430 The Special Advocates made a motion for this disclosure on Decem- ber 8, 2010 as a result of Mr. Flanigan’s testimony. They argued that this information should have been produced as part of the initial Charkaoui II disclosure. The Ministers claimed at the time that Mr. Mahjoub’s abuse of process motion could already be decided on the basis of existing evidence, and case law subsequent to Charkaoui II and Justice Layden-Ste- venson’s order for the disclosure of Charkaoui II materials indicated to them that only operational material had to be disclosed. As such, to them this material did not come within the scope of Charkaoui II. 431 At paragraph 14 of the January 31, 2011 Confidential Reasons for Order, the Court agreed with the Special Advocates that the information was required to determine the abuse of process issue and was to be disclosed. Nevertheless, in my view, it was not abusive for the Ministers to litigate these matters.

“[A]ll the documents disclosed from January 2011 to July 2011 all relevant to the defence (including material/ information on torture).” 432 The Court ordered the SIR due diligence materials to be disclosed on January 31, 2011. In addition to closed proceedings, the Court decided Mahjoub, Re Edmond P. Blanchard J. 323

that the Ministers’ claims of litigation privilege should be litigated in public. These claims were litigated for national security privilege in April. Much of the material was disclosed to Mr. Mahjoub on April 29, 2011. Presumably, this is the information to which Mr. Mahjoub refers when he claims the Ministers disclosed information relating to torture in this period, for it contained some correspondence concerning the Ser- vice’s reaction to the enactment of subsection 83(1.1) of the IRPA. 433 The remainder of the documents disclosed in this period were disclosed in May 2011. On May 6, 2011 the Court released the warrants due diligence materials to Mr. Mahjoub, also further to the January 31, 2011 disclosure order, and further documents, the SIR due diligence, and a disputed document, on May 9, 10 and 11, 2011. 434 Mr. Mahjoub challenged the claims of solicitor-client and litigation privilege on the released documents on May 17, 2011. The Court dismissed these challenges in its Order dated May 20, 2011. 435 I am satisfied that, in the case of all of these documents, the reason for the Ministers’ delay in disclosing from the time of the disclosure orders to the time that the documents were ultimately released to Mr. Mahjoub was a concern for protecting national security privilege, litigation privilege and solicitor-client privilege. In delaying disclosure, the Ministers were seeking to protect legitimate interests, and the length of the delay was not undue in the circumstances. 436 The documents at issue relate to the motions on abuse of process and warrants challenge, which were only filed in the late fall of 2010. None of these documents added to the Ministers’ case. Consequently, even though these items were disclosed after Mr. Mahjoub’s case opened, the late disclosure was not prejudicial to Mr. Mahjoub. In any event, to the extent that this late disclosure could have prejudiced Mr. Mahjoub’s ability to meet the case, the Court remedied the late disclosure. As a result of the February 18, 2011 disclosure, the Court gave Mr. Mahjoub an extension to March 4, 2011, to identify witnesses that he would call. Due to outstanding disclosure, which would be released in May, the Court directed on April 11, 2011 that the reasonableness proceedings would adjourn until May 24, 2011.

Summaries of two intercepted communications disclosed on December 8, 2011. 437 On December 8, 2011, the Court released two summaries of solicitor- client communications, one between Mr. Mahjoub and a woman saying 324 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

“this is a solicitor-client call” and one described as a call between Mr. Mahjoub and Legal Aid. The CBSA had discovered these communications in the course of its review of intercepted communications. These calls were among those erroneously forwarded to the CBSA because they were not purged by the Service. The Ministers would not have reasonably expected to find such calls in the CBSA’s holdings ahead of time because, to their knowledge, the calls should have been tagged by the Service as solicitor-client and purged. Given the volume of intercepts, it was also reasonable to expect that review of the CBSA’s holdings and queries to staff would take significant time. 438 This late disclosure occurred after Mr. Mahjoub’s case opened and during the adjournment of the proceedings in which the Court was dealing with the commingling issue. Mr. Mahjoub did not point to any substantive aspect of this disclosure that would cause prejudice by reason of its tardiness. Further, Mr. Mahjoub had the benefit of the adjournment after that issue was decided in order to consider the new disclosure. This adequately remedied any prejudice to Mr. Mahjoub’s ability to meet the case against him.

The October 6, 2011, January 23, 2012, March 6, 2012, and September 18, 2012 summaries of Charkaoui II disclosure. 439 Charkaoui II disclosure is, by its nature, ongoing disclosure. The Ministers did not always have this information in their possession much before it was disclosed to Mr. Mahjoub. The ongoing disclosure required a periodic review of the Service’s holdings pertaining to Mr. Mahjoub. While the Court expressed its displeasure in its October 2, 2012 Commu- nication at how infrequent these reviews were and the Service undertook to conduct the reviews more frequently, I am satisfied that the process was labour-intensive and the infrequency of the Ministers’ review does not amount to an abuse. 440 Mr. Mahjoub alleges that he received late disclosure of critical allegations in the October 6, 2011 tranche of Charkaoui II disclosure. In fact, he had received all of this disclosure in the January 22, 2010 Supplemen- tary Public Summary of the SIR, the March 10, 2010 Consolidated Sum- mary of the SIR, and the August 16, 2010 Public Summary of the SIR. 441 While the allegations were known to the Ministers from the outset of the proceedings, the delay in disclosure was caused by the need to seek permission for disclosure from foreign agency sources. This permission was not forthcoming until November 2009 and February 2010. Mahjoub, Re Edmond P. Blanchard J. 325

442 As I have determined at paragraph 413 above, it was not abusive for the Ministers to litigate the issue of whether they were required to seek such permission. In any event, Mr. Mahjoub received this disclosure prior to the commencement of the Ministers’ public case. Consequently, there was no prejudice to Mr. Mahjoub’s right to a fair trial. 443 I am satisfied that the Ministers did not unduly delay the disclosure of the January 23, 2012 tranche of Charkaoui II. The documents spanned April to November 2011, an anomaly that was caused by the Service’s infrequent review of its holdings. Once disclosed to the Special Advo- cates on January 16, 2012, the release of the summaries was expeditious. The January 23, 2012 disclosure did not impact on Mr. Mahjoub’s case to meet. The Court remedied any prejudice that the late disclosure caused by granting an adjournment and leave to call further witnesses on May 31, 2012. 444 The March 6, 2012 tranche was disclosed in a more timely fashion, containing documents dated from September 2011 to January 2012. The documents were disclosed to the Special Advocates on February 17, 2012, and summaries were released on consent a few weeks later. Again, this disclosure did not impact on Mr. Mahjoub’s case to meet. Any prejudice to Mr. Mahjoub was remedied by the adjournment. It is difficult to see how this disclosure could have been useful to Mr. Mahjoub’s case but, in any event, Mr. Mahjoub had the requisite time to consider it. 445 The Court noted the delay in disclosure of the final tranche on Sep- tember 18, 2012 since some of the original documents dated back to Oc- tober 2011. I am satisfied that the delay was caused by the Service’s misunderstanding of its Charkaoui II disclosure obligations. I am also satisfied that the Service’s understanding of its Charkaoui II obligations, although incorrect, was not abusive. The Ministers undertook to remedy the defects in its disclosure process for future disclosure. 446 Although this disclosure occurred at the very end of the proceedings, on the day that was ultimately the close of Mr. Mahjoub’s case since he decided not to testify, it is difficult to see how this information could have been useful to Mr. Mahjoub’s defence. Mr. Mahjoub has not indicated how it would have been helpful to him to receive this disclosure earlier. It is primarily information relating to the Service’s lexicon defin- ing Mr. Mahjoub’s classification as a terrorist. It did not affect his case to meet, and it did not consist of exculpatory information or substantive information that would have added to his motions. I am satisfied that this 326 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

delayed disclosure required no remedy in addition to the corrective mea- sures that the Court required the Ministers to take. 447 The matter was further addressed in closed proceedings where it was considered and not pursued by the Special Advocates.

Omitted Disclosure 448 In his “Updated Summary of Evidence”, Mr. Mahjoub also lists what he considers to be the worst examples of omitted disclosure. I shall address each in turn.

Recordings of solicitor-client communications from Mr. Mahjoub’s release in 2007 to 2010. 449 The Ministers deny the existence of any undisclosed recordings of solicitor-client communications from Mr. Mahjoub’s release in 2007 to 2010. The Court accepted this denial in its April 5, 2011 Reasons for Order. 450 The Supreme Court instructs in Chaplin at page 743 that Once the Crown alleges that it has fulfilled its obligation to produce it cannot be required to justify the non-disclosure of material the existence of which it is unaware or denies. Before anything further is required of the Crown, therefore, the defence must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant. 451 As the Court already determined on April 5, 2011, Mr. Mahjoub has failed to establish this basis. Mr. Mahjoub has not established it since. I see no reason to re-visit this determination.

The SIR in the Jaballah proceedings. 452 The Ministers argue that the SIR in the Jaballah proceedings is not relevant to this case. I agree. From what was disclosed to Mr. Mahjoub in his own SIR, Mr. Mahjoub was aware of the allegations against Mr. Jaballah. These, certainly, are pertinent to his alleged contact with Mr. Jaballah that the Ministers claim supports their allegation that he was a member of a terrorist group. To the extent that Mr. Mahjoub wishes to know more about the allegations against Mr. Jaballah as they have evolved and the evidence adduced, he had access to the Court’s published decisions in the Jaballah matter or could have requested specific disclosure from the Ministers. Mahjoub, Re Edmond P. Blanchard J. 327

453 In addition, Mr. Mahjoub and Mr. Jaballah shared counsel from the beginning of these proceedings until June 2010. The February 22, 2008 public summary of Mr. Jaballah’s SIR was in public counsel’s possession before they were removed from the record in June 2010. If it were in Mr. Mahjoub’s interest to use this document as part of his defence, former public counsel had a duty to share it with him.

Interview notes from the RCMP demonstrating that Mr. Mahjoub was not being investigated for criminal activity in Canada. 454 As a result of an “Access to Information” request, Mr. Mahjoub obtained some interview notes from the RCMP in which an RCMP officer seems to confirm that there was no criminal investigation of Mr. Mahjoub in Canada. Mr. Mahjoub claims that this is a “glaring omission” in the Ministers’ disclosure. 455 First, the record is unclear as to whether these RCMP notes were even in the possession of the Service. Second, I agree with the Ministers that the relevance of these documents is not apparent. The Ministers have not alleged that Mr. Mahjoub was being criminally investigated. The asser- tions of the RCMP officer, even if I were to accept them as fact, would not undermine the Ministers’ case as an absence of criminal investigation does nothing to undermine the Ministers’ evidence of Mr. Mahjoub’s alleged participation in a terrorist group and terrorist activities which the Ministers need only establish on a lower evidentiary standard. 456 Moreover, Mr. Mahjoub made a disclosure request for all RCMP interview notes between 2001 and 2002 that the Court dismissed on May 2, 2011 because the request was not timely. I see no reason to re-visit this determination. Mr. Mahjoub was present at those interviews and therefore knew of their existence for a decade before requesting this disclosure. 457 Consequently, I find that the Ministers’ failure to disclose these interview notes was not a material omission.

Conclusion 458 To conclude, Mr. Mahjoub has raised no delay or omission in disclosure that caused prejudice to his section 7 Charter right to know the case to meet and to meet it that was not adequately remedied by the Court. While some of the delays were unreasonable, I am satisfied that they were not ultimately prejudicial to Mr. Mahjoub’s right to know the case to meet to the extent that requires a stay of proceedings. I am mindful 328 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

that the disclosure duties on the Ministers and the procedural rights of Mr. Mahjoub should not be as stringent as they are in the criminal context, particularly since security certificate proceedings do not require the named person to take irrevocable strategic steps at the outset of the case such as entering a plea or selecting the mode of trial. I am also mindful that the Ministers were implementing the Charkaoui II decision for the first time in the five concurrent security certificate proceedings. Mistakes and misunderstandings can occur. In the circumstances, the delayed disclosure does not require a further remedy.

(m) Did the Ministers split their case by presenting evidence in camera after the close of Mr. Mahjoub’s case? 459 In his second motion requesting a permanent stay of proceedings, Mr. Mahjoub expressly reprises the Special Advocates’ motion brought on September 23, 2011, objecting to the evidence that the Ministers intended to adduce in camera after the close of Mr. Mahjoub’s case, as described in the Ministers’ September 9, 2011 will-say statement. He complains that the motion was heard on October 20, 2011 “without any notice to the Applicant” and then denied by the Court in its November 9, 2011 Order (released to Mr. Mahjoub on November 15, 2011). He then states the same grounds for excluding the evidence that were raised by the Special Advocates a year earlier namely, that the Ministers “tried to enhance or improve their case by a [sic] proposed opinion evidence that could have and should have been disclosed prior to the commencement of the open proceedings.” He argues that the Ministers split their case. 460 In my November 9, 2011 Order, I dismissed the Special Advocates’ motion for the following reasons: [12] In my view, it is speculative to assert that the proposed evidence will introduce fresh evidence that could have been led earlier in the public forum, or will impact the case to be met by Mr. Mahjoub. The Ministers maintain that the evidence to be led is not fresh evidence but rather evidence that is tied to the closed proceeding that could not be dealt with in public. Pursuant to section 83(1)(c) of the Immigra- tion and Refugee Protection Act, the judge “shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person.” In my view, a determination on injury to national security can only be made after the evidence is heard. There is simply no evidentiary basis upon Mahjoub, Re Edmond P. Blanchard J. 329

which admissibility of the proposed evidence can be determined at this time. Should the Ministers’ contention bear out, then the evidence is proper and will be received. Should some or all of the proposed evidence prove to be fresh evidence or new production, as alleged by the SAs, then the SAs may object and the Court will decide on admissibility as the evidence is tendered. ... [14] I am also satisfied that [redacted] evidence heard by the Court in September 2008 was not intended to be exhaustive of [redacted] evidence on the reasonableness of the security certificate. The record establishes that at that time, the parties agreed that pertinent evidence on the review of conditions of detention would not be re-tendered but read in on consent. Nothing on the record relating to [redacted] previous testimony precludes the Ministers from adducing further evidence in camera on reasonableness. [15] In the circumstances, I am satisfied that Mr. Mahjoub’s rights to a fair trial will not be infringed by the proposed testimony of [redacted]. [Redacted] evidence will be tested on cross-examination. Further, the SAs retain the right to object to its admissibility, and determinations on its reliability and appropriateness will be made as the evidence is adduced. As agreed between the Ministers and the SAs, should the viva voce evidence of [redacted] give rise to further production, such production will be disclosed to Mr. Mahjoub as required, subject to national security privilege claims. 461 This issue had been litigated and decided prior to Mr. Mahjoub’s second motion for a stay of proceedings. Expurgated Reasons for the No- vember 9, 2011 Order were provided to Mr. Mahjoub and his counsel prior to the motion on November 15, 2011. 462 The in camera evidence at issue was heard on October 9-12, 2012. On October 10, 2012, the Special Advocates brought a motion on the issue of the admissibility of the Ministers’ in camera evidence, in particular making the argument that: a. the in camera witness was repeating public evidence, and 330 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

b. that it was unfair to Mr. Mahjoub for the Ministers to adduce the witness’s evidence with the benefit of having heard Mr. Mahjoub’s evidence. 463 The Court reserved on this issue and ruled on this motion on October 11, 2012. The redacted transcript of this decision was released to Mr. Mahjoub on November 2, 2012. I ruled that: the remaining evidence led in this proceeding is admissible for the following reasons. It is not fresh evidence. It is evidence that is tied to the closed proceeding and could not be dealt with in public, which included evidence of classified sources. To the extent that the evidence overlaps with evidence in the public domain, it does so to provide context for the closed evidence, and it is appropriate evidence explaining the relationships between different elements of the closed evidence. I excluded one piece of evidence that the Ministers led on the basis of my June 19, 2012 Order following the Federal Court of Appeal decision in Harkat. 464 Moreover, Mr. Mahjoub, the Special Advocates and the Ministers had all agreed at an early stage in the proceedings that the Ministers would bring their in camera case after the entire public case was closed. The Special Advocates agreed with the Court’s recollection of this agreement at a case management conference dated November 2, 2010. It was understood that the proceedings would then unfold in accordance with this agreement. The agreement was confirmed in the June 28, 2012 Order and only objected to by Mr. Mahjoub in October 2012 immediately before the Ministers’ evidence was called. 465 Mr. Mahjoub raises no new issues that were not raised by the Special Advocates in their September 23, 2011 motion. This issue has been decided.

(n) Is the impartiality of the Court impacted by any of the Charter violations or abuses found above? 480 Finally, Mr. Mahjoub submits that the Charter violations and abuses of process he has alleged taint the Court to an extent that impacts his section 11(d) Charter right to be tried by an independent and impartial tribunal. The allegation is without merit. Mr. Mahjoub has failed to establish how the Court would be tainted as alleged. There is a strong presumption that the Court is an independent and impartial tribunal. No evidence has been adduced to displace this presumption in this instance. Mahjoub, Re Edmond P. Blanchard J. 331

481 The Court had no involvement relating to certain specific instances of Charter violations or abuse of process by the Ministers as alleged by Mr. Mahjoub. I list below certain noted circumstances at issue: • The Court had no role in the Service’s decision to destroy original recordings and transcripts of intercepted communications. • The Court had no involvement in the Ministers’ decision to tender certain evidence, be it evidence that would be excluded pursuant to subsection 83(1.1) of the IRPA or evidence of which the originals were destroyed. • In issuing warrants under section 21 of the CSIS Act and by au- thorizing incidental interceptions of solicitor-client communications, the Court is not implicated in an abuse of process. A subsequent finding in a different proceeding 10 years after the issuance of the warrants that certain conditions were inadequate to protect Mr. Mahjoub’s Charter rights does not mean that the Court’s independence or impartiality was compromised. • The Court did not authorize the interception of solicitor-client communications between Mr. Mahjoub’s release in 2007 and the Court’s clarification in December 2008. The Charter violation was a result of the Ministers’ misinterpretation of the Court’s release order. • The Court did not influence the Ministers’ decisions and actions that resulted in the unreasonable delays in this case. • The Court has no duty to obtain disclosure from the Ministers on behalf of Mr. Mahjoub. If it had attempted to do so, it would have compromised its independence and impartiality. In addition, the Court’s rulings on Mr. Mahjoub’s requests for disclosure stand and cannot be re-litigated by Mr. Mahjoub in this forum. Further, I am satisfied that the Court complied with its statutory mandate under paragraph 83(1)(e) to ensure that summaries of the in camera evidence and proceedings that were before it were provided to Mr. Mahjoub so that he was reasonably informed of the case to meet and had an opportunity to meet it. 482 Consequently, I conclude that the Charter violations and abuse of process found by the Court do not implicate the Court. Mr. Mahjoub has not demonstrated that the Court’s independence or impartiality was compromised. 332 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

Summary of the Charter violations and abuse of process found 483 To conclude, I find that the Ministers committed several violations of Mr. Mahjoub’s Charter rights and abuses of the Court’s process. 484 The Ministers failed to produce the original notes, recordings and transcripts of intercepted communications because these had been deliberately destroyed by the Service in accordance with its misunderstanding of its obligations under section 12 of the CSIS Act. This violated Mr. Mahjoub’s section 7 Charter right to know the case to meet and to meet it. 485 The Ministers relied on information from the interrogation of detainees involving foreign agencies that they knew or ought to have known routinely practiced torture on detainees because the Service had failed to consider interrogation to be an indication of torture. This violated Mr. Mahjoub’s section 7 Charter right to be deprived of his liberty on the basis of only fair and reliable evidence. 486 The Service listened to the entire content of intercepted solicitor-client communications while Mr. Mahjoub was in detention and involved with the first security certificate proceedings under the authority of section 21 warrant powers that did not adequately protect Mr. Mahjoub’s rights pursuant to Solosky. This violated Mr. Mahjoub’s section 8 Char- ter right against unreasonable search and seizure, compromising his section 7 fair trial rights. 487 As agent of the CBSA, the Service listened to the entire content of intercepted solicitor-client communications between September 2007 and December 2008 due to its misunderstanding of the Court’s initial Release Order. This violated Mr. Mahjoub’s section 8 Charter right against unreasonable search and seizure and compromised his fair trial rights pursuant to section 7 of the Charter. 488 The Ministers negligently seized solicitor-client and litigation privileged material from Mr. Mahjoub’s breakout room at the Court and commingled it with their own, which caused several months of undue delay in these proceedings. This commingling violated Mr. Mahjoub’s section 8 Charter right against unreasonable search and seizure and his section 7 Charter right to a fair trial, including his right to a fair trial within a reasonable time. 489 The Ministers caused undue delay in the proceedings and delayed disclosure to Mr. Mahjoub by: Mahjoub, Re Edmond P. Blanchard J. 333

(a) failing to prepare their initial proposed summaries of the Charkaoui II disclosure with all of their national security privilege claims in mind, causing five months’ delay in this disclosure and one month’s delay in the proceedings; and (b) failing to file a table in a timely fashion setting out which allegations were based on information the originals of which were destroyed, partly destroyed, or unavailable, causing five months’ delay in this disclosure. This violated Mr. Mahjoub’s section 7 Charter rights to a fair trial within a reasonable time and to know and respond to the case to meet. 490 Upon considering Mr. Mahjoub’s allegations, I conclude that the above list constitutes the sum total of the Charter rights violations and abuse of process in these proceedings.

2. Will the prejudice to the administration of justice or to Mr. Mahjoub caused by the Charter violation or abuse in question be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome? 491 In order to determine whether a permanent stay of proceedings is required to remedy the prejudice from the cumulative abuse of process and Charter rights violations, my above findings of the Ministers’ Charter rights violations and abuses of the Court’s process must be evaluated in light of the considerations outlined in the Supreme Court’s abuse of process jurisprudence, including: (a) Power: the process is tainted such that it amounts to one of the “clearest of cases,” and “cases of this nature will be extremely rare” (page 616). (b) Conway: “unfair or oppressive treatment” is such that the proceedings are “tainted to such a degree that to allow [them] to proceed would tarnish the integrity of the court” (page 1667). (c) Blencoe: the court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding continue would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” (paragraph 120). (d) Tobiass: “[m]ost often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from state misconduct” (paragraph 89). 334 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

(e) Nixon: “[i]n most cases, the accused will need to demonstrate that he or she was prejudiced...in some significant way to successfully make out an abuse of process claim. But prejudice under the residual category... [is] an act tending to undermine society’s expectations of fairness in the administration of justice” (paragraph 41) and “[a] stay of proceedings will only be appropriate when: ‘(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice’” (at paragraph 42).

(a) What is the prejudice to the administration of justice or to Mr. Mahjoub caused by the Charter violation or abuse in question? 492 A preliminary step in the analysis of prejudice is to decide whether this is one of those “very rare” cases mentioned in Tobiass in which Mr. Mahjoub need not prove that prejudice to the administration of justice will be perpetuated or aggravated by the determination of these proceedings on their merits. The quintessential example of such a case is Khadr, in which the responding party, the United States, engaged in the ex- traordinary rendition of the moving party, Mr. Khadr, to torture and provided financial incentives for that torture to continue. Tobiass also raises the hypothetical of the fabrication and planting of evidence by police. In the first instance, the offending party was actively participating in torture, which is among the most shocking violations of the opposing party’s human rights recognized in Canadian and international law. In the second example, the offending party would be actively seeking to thwart the administration of justice by abusing its law enforcement power. 493 These examples of misconduct are both egregious and intentional on the part of the offending party. The courts, as institutions responsible for upholding justice, could not continue with proceedings in those circumstances without being tainted with those injustices: condemnation and a swift end to the proceedings would be the only remedy. 494 In this case, the cumulative Charter rights violations and abuse of process found by this Court do not approach this level of severity. Con- sequently, I find that this is not one of those rare cases described in the jurisprudence that calls for an immediate and permanent stay of proceedings without further consideration. Mahjoub, Re Edmond P. Blanchard J. 335

495 Guided by the above-cited Supreme Court jurisprudence, the next step in the analysis is to consider whether deciding this case on the merits would manifest, perpetuate or aggravate the prejudice to Mr. Mahjoub or to the administration of justice.

(b) Are the remedies that have been afforded on an ongoing basis sufficient to address the cumulative prejudice? 496 Remedies have been provided for prejudice caused by or circumstances have mitigated every one of the violations of Mr. Mahjoub’s Charter rights that make up the cumulative abuse of process. I shall now turn to consider the sufficiency of the remedy afforded for each violation. 497 The Ministers’ failure to produce the original notes, recordings and transcripts of intercepted communications was remedied by the Court’s June 19, 2012 Order in accordance with the Federal Court of Appeal’s guidance in Harkat at paragraph 142. All summaries of intercepted communications to which Mr. Mahjoub was not privy were excluded from the Ministers’ case. Exclusion fully remedies the prejudice caused by these intercepts since they can no longer form part of Mr. Mahjoub’s case to meet. There is no evidence before the Court of prejudice from the summaries of communications to which Mr. Mahjoub was privy. Con- cerning these summaries for which the original materials have been destroyed, I find, as did the Court of Appeal in Harkat, that Mr. Mahjoub could have responded to those summaries “by his testimony and other specific evidence” (paragraph 143). Consequently, any prejudice to Mr. Mahjoub resulting from the destruction of the original materials warrants no further remedy in this instance but to acknowledge the Charter violation. 498 The Court remedied the Ministers’ reliance on information that they knew or ought to have known presented indicia of torture by excluding it from evidence in its June 9, 2010 and August 31, 2010 Reasons for Or- der and Orders. The violation of Mr. Mahjoub’s rights because of the Ministers’ reliance was limited to his right not to face unfair or unreliable evidence. As a result of the exclusion, this evidence no longer formed part of Mr. Mahjoub’s case to meet, and the prejudice was fully remedied. There is no evidence before the Court that this information further tainted the proceedings. 499 The Ministers have successfully rebutted the presumption of prejudice from most of the Service’s interception of Mr. Mahjoub’s solicitor-client privileged communications after his arrest and during the 336 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

first security certificate proceedings. The remaining solicitor-client communications intercepted have not been specifically remedied by the Court. Nonetheless, as it happens, Mr. Mahjoub was given the opportunity to start proceedings afresh and had new counsel. Moreover, he and his agents were aware that the telephone lines were likely being intercepted, and it is therefore likely that Mr. Mahjoub and his agents did not discuss particularly sensitive solicitor-client privileged information over the telephone. Given the negligible prejudice to Mr. Mahjoub in these proceedings and the fact that the first proceedings were quashed, no further remedy is required. 500 The Ministers have successfully rebutted the presumption of prejudice from all other solicitor-client intercepts, and no other remedy beyond a declaration that Mr. Mahjoub’s Charter rights have been violated is needed. There is no evidence before the Court that the seizure of the communications was committed in bad faith, negligently or with intent to secure litigation advantage. The evidence before the Court only establishes that the Service and the CBSA both misunderstood the Court’s Release Order, which led to the violation. 501 The Court has also remedied the Ministers’ negligent seizure of solicitor-client and litigation privileged material from Mr. Mahjoub’s breakout room at the Court and commingled it with their own in its May 31, 2012 Reasons for Order and Order. The Court chose the second most drastic remedy available in the circumstances: to remove 11 members of the Ministers’ litigation team, including solicitors, from the proceedings. This remedy was designed to remedy any appearance of injustice in the proceedings, for the Court found at paragraph 136 that the Ministers had successfully rebutted the presumption of prejudice. 502 I have determined at paragraph 233 above that the ongoing solicitor- client interceptions that the Service believed were authorized by warrants and the Court’s release orders do not undermine the appearance of fairness in the judicial process. Solicitor-client communications may be incidentally intercepted when the Service has the legal authority to intercept all of a person’s communications on the grounds of national security, although after detention or the initiation of legal proceedings, the interception must conform to the strictures of Solosky. In addition, the impact on the appearance of fairness in the judicial process caused by the commingling of privileged information was fully remedied by the May 31, 2012 Order. Mahjoub, Re Edmond P. Blanchard J. 337

503 The Court remedied the Ministers’ undue delays in the proceedings and delayed Charkaoui II disclosure as follows: (a) The Court ordered the Ministers to provide summaries of the Charkaoui II disclosure prior to the scheduled commencement of the reasonableness proceedings (December 22, 2009 Communica- tions) and directed an adjournment of one month for Mr. Mahjoub to consider the new disclosure (February 2, 2010 Direction). I find that this fully remedied the prejudice to Mr. Mahjoub’s right to know the case to meet, since the disclosure occurred before the reasonableness hearing resumed and Mr. Mahjoub had adequate time to consider the disclosure due to the adjournment, and subsequent rescheduling to the fall of 2010. (b) The release of tables identifying the allegations in the SIR for which the original supporting evidence was destroyed, partially destroyed or unavailable occurred in September 2010. The Court had ordered the production of these tables on March 19, 2010. The five-month delay in production did not result in a delay of the reasonableness proceeding since the proceeding had already been adjourned at Mr. Mahjoub’s request. He had elected to change his counsel and they needed time to prepare before the case resumed. This adjournment also allowed Mr. Mahjoub to consider the new disclosure. Mr. Mahjoub has failed to establish any prejudice resulting from the undue delay in disclosure of the tables. Conse- quently, compliance with the Court’s March 19, 2010 production Order remedied the violation. 504 The delay caused by the seizure and commingling of documents in the summer of 2011 has been significantly mitigated in the sense that, during the time spent on the commingling process, the parties’ and the Court’s time was otherwise occupied with outstanding issues relating to witnesses that were required for the reasonableness proceedings and the Court heard and decided a lengthy detention review. Notwithstanding this mitigation, the reasonableness proceeding was unduly delayed without accomplishing anything necessary to the proceedings by four to five months. 505 The resulting prejudice from this delay to Mr. Mahjoub remains without a remedy. It is essentially a prejudice that imposed on him a further delay in having the certificate proceedings against him heard and decided. In addition Mr. Mahjoub suffered similar prejudice as a result of the one-month delay from delayed Charkaoui II disclosure as discussed 338 IMMIGRATION LAW REPORTER 26 Imm. L.R. (4th)

at paragraph 381 above. During that time, he was, as he remained since his release on June 14, 2007, subject to stringent conditions or in detention. His liberty interest was impacted. I would add that the Ministers’ abusive conduct here also consumed additional resources and time required to deal with the commingling process.

3. Taking into account all of the Charter violations and abuses holistically and cumulatively, is this the clearest of cases in which no other remedy is reasonably capable of removing that prejudice? 506 In my view, the prejudice from the Ministers’ cumulative Charter violations and abuse of process left without a remedy after the conclusion of the proceedings is relatively minor, in the circumstances of this complex case which required consideration of many novel issues. The proceedings involved public and closed evidence and proceedings, a multi- tude of counsel, exhaustive constitutional and procedural challenges, ongoing disclosure obligations, and periodic detention reviews. With this in mind, I now consider whether a declaration that the Ministers have committed an abuse of process and violated Mr. Mahjoub’s Charter rights at this stage is sufficient to remedy the outstanding prejudice or whether the permanent stay of proceedings sought by Mr. Mahjoub is warranted. 507 Relying on the Ontario Court of Appeal’s remarks in Khadr, Mr. Mahjoub submits that I must only weigh the public interest in a decision on the merits of this case against the public interest in fairness, as outlined in R. v. Regan, 2002 SCC 12 (S.C.C.) at paragraph 57 and Tobiass at paragraph 92, if this is a “close case.” I am satisfied that this case presents the circumstances that justify this balancing. 508 I find the Federal Court of Appeal’s remarks in Al Yamani v. Canada (Minister of Citizenship & Immigration), 2003 FCA 482 (F.C.A.) [Al Yamani], to be particularly germane since the Court of Appeal in that case was also dealing with allegations of membership in a terrorist organization. The Court of Appeal in Al Yamani at paragraph 38 and 39 concluded as follows: ...Terrorist organizations by their nature are unpredictable...an allegation that someone is a former member of a terrorist organization therefore is a very serious one. Therefore, the gravity of the allegations argues in favour of continuing the proceedings. ...I acknowledge that some of the issues raised by the appellant could, in some circumstances, support an abuse of process argument. Mahjoub, Re Edmond P. Blanchard J. 339

However, in the context of proceedings concerning an allegation there are reasonable grounds to believe that the appellant is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism, there is a compelling societal interest in obtaining a decision on the merits... 509 The gravity of the allegations against Mr. Mahjoub, that he was a leading member of terrorist organizations and a danger to the security of Canada, weighs in favour of a determination of the reasonableness of the security certificate on the merits of the case. On the other hand, the above-discussed Charter violations and abuses of the Court’s process by the Ministers have resulted in potential unfairness to Mr. Mahjoub. 510 Balancing these two factors, I conclude that the importance of the adjudication on the merits of these grave allegations that impact on the security of all Canadians outweighs the procedural injustices to Mr. Mahjoub and their cumulative effect caused by the Ministers. This is far from the clearest of cases where justice demands a stay.

Conclusion 511 For the above reasons, I am of the view that a permanent stay of proceedings is not warranted, and there is no basis upon which to quash the security certificate.

Order THIS COURT ORDERS that the motion is granted in part as follows: 1. The Court declares that Mr. Mahjoub’s right to a fair trial pursuant to section 7 of the Charter and right to be free from unreasonable search and seizure have been violated (as explained in the above Reasons for Order). 2. Except for this declaration, no further relief is granted for the above violations. 3. In all other respects the motion is dismissed. Motion granted in part.