Mahjoub, Re, (2013) 457 F.T.R. 1 (FC)

• Judge: Blanchard, J.
• Court: Federal Court (Canada)
• Case Date: December 10, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 457 F.T.R. 1 (FC);2013 FC 1096

Mahjoub, Re (2013), 457 F.T.R. 1 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. AU.045

In The Matter of a Certificate signed pursuant to Subsection 77(1) of the Immigration and Refugee Protection Act (IRPA);

And In The Matter of the referral of a Certificate to the Federal Court pursuant to Subsection 77(1) of the IRPA;

And In The Matter of Mohamed Zeki Mahjoub (DES-7-08; 2013 FC 1096; 2013 CF 1096)

Indexed As: Mahjoub, Re

Federal Court

Blanchard, J.

October 25, 2013.

Summary:

Mahjoub was named in security certificate proceedings initiated pursuant to s. 77(1) of the Immigration and Refugee Protection Act. In the course of those proceedings, the Ministers adduced evidence obtained from several warrants issued under s. 21 of the Canadian Security Intelligence Service Act (CSIS Act). Mahjoub applied to exclude the evidence on the basis that it was obtained in violation of his Charter rights and that its admission would bring the administration of justice into disrepute.

The Federal Court dismissed the application. The impugned provisions of the CSIS Act infringed neither s. 7, s. 8 nor any other section of the Charter. The warrants obtained by the Service during its investigation of Mahjoub prior to his arrest were lawful. Although certain powers in the warrants obtained by the Service after Mahjoub's arrest were unlawful, the evidence that he challenged was obtained lawfully.

Aliens - Topic 15

Definitions and general principles - Right to counsel (incl. right to be advised of) - [See twelfth Civil Rights - Topic 1325 ].

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - Mahjoub was the named person in security certificate proceedings initiated pursuant to s. 77(1) of the Immigration and Refugee Protection Act - In the course of those proceedings, the Ministers adduced evidence in support of their case that was obtained or derived from several warrants issued under s. 21 of the Canadian Security Intelligence Service Act - Mahjoub applied to exclude the evidence on the basis that it was obtained in violation of his Charter rights and that its admission would bring the administration of justice into disrepute - The Federal Court dismissed the application - The impugned provisions of the CSIS Act were not unconstitutional on the grounds alleged by Mahjoub - The warrants obtained by the Service pursuant to s. 21 of the CSIS Act during its investigation of Mahjoub prior to his arrest were lawful - Although certain powers in the warrants obtained by the Service after Mahjoub's arrest were unlawful, the evidence that Mahjoub challenged was obtained lawfully - See paragraph 185.

Aliens - Topic 1561.3

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Special advocates - [See ninth and tenth Civil Rights - Topic 1325 ].

Aliens - Topic 1562

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summary of information - [See ninth and tenth Civil Rights - Topic 1325 ].

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Disclosure - [See ninth and tenth Civil Rights - Topic 1325 ].

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration (incl. citizenship) - [See first Civil Rights - Topic 1325 ].

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See second, fifth, and thirteenth Civil Rights - Topic 1325 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - Mahjoub was the named person in security certificate proceedings initiated pursuant to s. 77(1) of the Immigration and Refugee Protection Act - The Ministers adduced evidence that was obtained from several warrants issued under s. 21 of the Canadian Security Intelligence Service Act (CSIS Act) - Mahjoub applied to exclude that evidence on the basis that it was obtained in violation of his Charter rights - He challenged ss. 2 and 12 of the CSIS Act, arguing that the term "threats to the security of Canada" was vague and overbroad, infringing s. 7 of the Charter - The Federal Court held that the term was adequately defined in s. 2 - "[T]he impugned provisions provide fair notice to the citizen and appropriately limit the Service's investigative discretion." - The investigation of Mahjoub's potential membership in terrorist groups and activities linked with terrorism was also related to a threat of political violence - As such, it also came within the ambit of a restricted definition of "threats to the security of Canada" - Based on the limitations and requirements imposed on the Service, the sections at issue were neither arbitrary nor disproportionate to the state interests that they sought to advance - See paragraphs 18 to 26.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - In the course of security certificate proceedings, the Ministers adduced evidence that was obtained from several warrants issued under s. 21 of the Canadian Security Intelligence Service Act (CSIS Act) - The named person in those proceedings moved to exclude the evidence - He argued that the "reasonable grounds to suspect" standard in s. 12 of the CSIS Act was too low and thereby resulted in an unreasonable search and seizure, violating his s. 8 Charter rights - Section 12 provided for the collection of intelligence on activities that were suspected threats to the security of Canada - The Federal Court examined the legislative constraints on s. 12 as well as the "minimally intrusive" techniques employed by the Service pursuant to that section, and concluded that the evidence was collected lawfully and did not violate s. 8 of the Charter - Parliament did not contemplate that s. 12 would authorize unreasonable searches and seizures when privacy rights were engaged - Instead, intrusive searches and seizures were to be authorized by s. 21 warrants - See paragraphs 27 to 42.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - Section 6 of the Canadian Security Intelligence Service Act (CSIS Act) gave the Director of the Service, under the direction of the Minister, the control and management of the Service and all matters connected therewith - In the context of a motion to exclude evidence, the named person in security certificate proceedings (Mahjoub) alleged that the provision enabled several unconstitutional policies and guidelines - The Federal Court held that s. 6 did not engage Mahjoub's rights and could not be impugned by allegations attacking the constitutionality of the Service's policies developed thereunder - "Even if it were established, as alleged, that executive action performed under an enabling statute is unconstitutional, this does not render the statute itself unconstitutional ... . Mr. Mahjoub has failed to show how the provision at issue falls afoul of the Charter or his Charter rights. Further, while certain policies or executive action enacted pursuant to the section might engage Mr. Mahjoub's individual rights, the provision itself does not." - See paragraph 45.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - Section 17(1)(b) of the Canadian Security Intelligence Service Act (CSIS Act) authorized the Service, with Ministerial approval, to enter into an arrangement or otherwise cooperate with foreign governments or agencies after consultation with the Minister of Foreign Affairs and International Trade - The Federal Court held that the arrangements with foreign agencies established by the authority of s. 17 did not infringe the s. 7 Charter right to privacy in this case - Section 17 had to be understood in the context of other legislative provisions - "The overarching restriction on sharing personal information with foreign agencies, found in both the CSIS Act and the Privacy Act, is that the Minister and the Service must craft arrangements appropriately and determine on a case-by-case basis whether the public interest that will be served in sharing the information outweighs the violation of the individual's privacy." - The information-sharing that took place in this case was compliant with the statute and struck the appropriate balance between the public interest and the "residual" expectation of privacy - See paragraphs 47 to 59.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - The Federal Court concluded that s. 17 of the Canadian Security Intelligence Service Act (CSIS Act), which permitted intelligence-sharing arrangements with foreign agencies regardless of their human rights records, did not violate ss. 7 and 8 of the Charter - "[A]n individual has, at best, a residual privacy interest in information about that individual that is lawfully collected by the Service. Further, sharing of such information with foreign agencies under section 17 arrangements is constrained by the requirement that the Minister consult with DFAIT [Department of Foreign Affairs and International Trade] about a country before entering into such an arrangement. This informs the Service about the country conditions including the human rights record of the country at issue. Paragraph 8(2)(f) of the Privacy Act and section 19 of the CSIS Act also provide parameters to protect the information by requiring a balancing of the interests and a determination that the public interest clearly outweighs any invasion of privacy." - See paragraphs 63 to 65.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - Section 21 of the Canadian Security Intelligence Service Act (CSIS Act) allowed the Service to obtain warrants from the Court in order to investigate threats to the security of Canada - The Federal Court concluded that the warrants provisions, ss. 21 to 24, were not unconstitutional simply because they permitted a warrant to authorize the interception of solicitor-client communications - As long as conditions were in place to prevent dissemination of any privileged information, R. v. Atwal (1988) (Fed. C.A.) indicated that s. 21 warrants could authorize the interception of solicitor-client communications in the circumstances of a prospective investigation into a threat to the security of Canada prior to arrest or the commencement of judicial proceedings - See paragraphs 66 to 87.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - Section 21 of the Canadian Security Intelligence Service Act (CSIS Act) allowed the Service to obtain warrants from the Court in order to investigate threats to the security of Canada - The Ministers argued that the challenge to the lawfulness of warrants in this case was a collateral attack on the issuing judges' decisions pursuant to s. 21 of the CSIS Act - The Federal Court rejected the argument - The challenge to the s. 21 warrants, particularly to the admissibility of the evidence obtained as a result of those warrants, did not fit within the definition of collateral attack - The application was essentially a s. 24(2) Charter application to exclude evidence on the basis that it was obtained in violation of the target's Charter rights and that its admission would bring the administration of justice into disrepute - "To accept the Ministers' position would be to immunize section 21 warrants from review, and it would deprive [the target] of his ability to make use of section 24 of the Charter to exclude evidence that he alleges was unconstitutionally obtained due to the invalidity of the warrants." - See paragraphs 90 to 101.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - In the course of security certificate proceedings, the Ministers adduced evidence in support of their case that was obtained or derived from several warrants issued under s. 21 of the Canadian Security Intelligence Service Act - The person named in the certificate applied to exclude that evidence, on the basis that Charkaoui, Re, (2007) (S.C.C.) ("Charkaoui I") declared the previous Immigration and Refugee Protection Act (IRPA) regime, which was the law at the time the evidence was collected, unconstitutional - The Federal Court rejected the argument - "While in Charkaoui I the Supreme Court dealt with a challenge to the IRPA, the warrants at issue were issued under section 21 of the CSIS Act, different legislation entirely. To date, the CSIS Act has been found to be constitutional by the Federal Court of Appeal in Atwal [R. v. Atwal (1988)]. In Charkaoui I, the Supreme Court makes no comment on the constitutionality of CSIS Act warrants." - The only way to establish a s. 8 violation in the collection of evidence authorized by a warrant was to challenge that warrant - See paragraph 103.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - The person named (Mahjoub) in security certificate proceedings applied to exclude evidence obtained from warrants issued under s. 21 of the Canadian Security Intelligence Service Act - He argued that the non-disclosure, to him, of the full text of the confidential s. 21 warrants and of the supporting affidavits violated his right to full answer and defence - The Special Advocates were provided disclosure - Mahjoub had been given a detailed summary of the warrants and supporting affidavits - The Federal Court stated that "The Supreme Court of Canada and the Federal Court of Appeal have characterized the right of the named person as a right to know the case to meet and to respond to that case, which exists within the broader context of the right to a fair trial." - Mahjoub's right to know the case to meet and to respond to that case had been satisfied - Given the particular role of the Special Advocates and their involvement in the proceeding, and the summaries of the warrant materials provided to Mahjoub, he was in a position to mount an effective challenge to the s. 21 warrants - "The specifics of the warrants must be kept confidential because their disclosure would be injurious to national security or the safety of any person." - See paragraphs 104 to 115.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - The Federal Court, in the context of a challenge to the warrants issued under s. 21 of the Canadian Security Intelligence Service Act, rejected the submission that the Court restrict its consideration to the disclosed summaries of the warrants and the supporting affidavits, as in criminal proceedings - Such a restriction was not required to protect the fairness of the security certificate proceedings - The differences between criminal and security certificate proceedings justified different approaches to disclosure when warrants were challenged - Since the Special Advocates had access to the classified materials, including the warrants and their supporting affidavits, it would be inconsistent not to allow the Court access to such material - There was no basis for restricting the record to what was disclosed to the named person - The Court was in a better position to decide the lawfulness of the warrants if it considered the classified record and not just the public summary - Given the particular role of the Special Advocates, there was no basis to restrict the record - See paragraphs 116 to 119.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - The Federal Court stated that a judge in an ex parte warrant application "is sensitive to the fact that an interested party is absent and that his or her interests are not being represented. ... I am satisfied, as in extradition cases, that the absence of particular indicia of reliability or availability of evidence in itself does not violate the principles of fundamental justice. It is open to the judge to question the reliability of any information adduced in support of a warrant. In this instance, the judge issuing the warrant was entitled to evaluate the information in the affidavit notwithstanding the lack of any particular indicia of reliability. This is particularly appropriate in the context of determining whether a warrant is needed for further investigation." - In the result, the Court rejected the argument that the warrant should not have issued on the basis that the evidence relied upon by the Service was insufficiently reliable - See paragraphs 144 to 150.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - Mahjoub was named in security certificate proceedings - The Ministers adduced evidence obtained from warrants issued under s. 21 of the Canadian Security Intelligence Service Act - The Federal Court rejected Mahjoub's submission that interviews between him and Service personnel were inadmissible because the Service personnel did not inform him of his right to counsel - Section 10(b) of the Charter was a right that was engage only when an individual was arrested or detained - When Mahjoub voluntarily agreed to answer questions of Service personnel, he was not "detained" in any legal sense - Moreover, there was evidence before the Court that the Service personnel interviewing him asked him whether he wished to consult counsel, and he declined that invitation - See paragraphs 151 to 153.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - Mahjoub was named in security certificate proceedings - The Ministers adduced evidence obtained from warrants issued under s. 21 of the Canadian Security Intelligence Service Act - Concerning the issue of the validity of the warrants, Mahjoub submitted that if the warrants authorized the Service to intercept his solicitor-client privileged communications, they were unlawful because they authorized unreasonable search and seizure, violating s. 8 of the Charter - The Federal Court was satisfied that the warrants issued prior to Mahjoub's arrest, which authorized the interception of communications and therefore the incidental interception of solicitor-client communications, provided adequate safeguards to prevent the dissemination of privileged information - Consequently, in accord with the jurisprudence of the Federal Court of Appeal in R. v. Atwal (1988), the warrants were permissible and did not violate s. 8 of the Charter - See paragraphs 161 to 165.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - Mahjoub was named in security certificate proceedings - The Ministers adduced evidence obtained from warrants issued under s. 21 of the Canadian Security Intelligence Service Act - The Federal Court stated that the warrants that issued subsequent to Mahjoub's detention were governed by the principles set out in Solosky v. Canada (1980) (S.C.C.) - Since the warrants authorized the incidental interception of solicitor-client privileged communications without the appropriate restrictions required to protect Mahjoub's s. 7 and s. 8 Charter rights as defined by Solosky, certain provisions in the warrants issued after Mahjoub's arrest were unlawful - The appropriate remedy would be to exclude any evidence resulting from those warrant provisions - However, no such evidence was adduced in these proceedings - There was therefore no need to decide to what extent the inadequate protection of Mahjoub's Charter rights impacted upon the validity of the warrants - See paragraphs 169 and 170.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - The Federal Court stated that "the Court should not permit the [Canadian Security Intelligence] Service to obtain a warrant on one individual in order to intercept the communications of another who is known to the Service. The Service should be required to seek a warrant for any individual on or from whom it seeks information in the investigation at issue. " - Upon review of the classified materials in this case, the Court was satisfied that no communications of the third persons identified were intercepted without warrant authorization - See paragraphs 175 to 177.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - In the course of security certificate proceedings, the Ministers adduced evidence obtained from several warrants issued under s. 21 of the Canadian Security Intelligence Service Act (CSIS Act) - The person named (Mahjoub) applied to exclude the evidence on the basis that the searches and seizures were not authorized by the warrants and not otherwise lawful - The police had seized Mahjoub's address book and "pocket litter" at the time he was arrested - The Federal Court held that the results of that search could be used in evidence against Mahjoub - As a security certificate was duly signed by the Ministers naming Mahjoub, his arrest pursuant to that certificate was lawful and not arbitrary - Second, the search of Mahjoub's pockets was "incidental" to the arrest - Since the Ministers considered Mahjoub to be a significant security threat, the police were justified in searching Mahjoub's person to ensure their own safety - Searching Mahjoub's pockets was also a reasonable measure to prevent him from disposing of the evidence contained therein - Mahjoub had not alleged that the arresting officers conducted the search in an unreasonable or abusive manner - See paragraphs 179 to 181.

Civil Rights - Topic 1382

Security of the person - National security - Investigative procedures - [See first Civil Rights - Topic 1325 ].

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - [See fourth and fifth Civil Rights - Topic 1325 ].

Civil Rights - Topic 3180

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Fair hearing - [See ninth Civil Rights - Topic 1325 ].

Civil Rights - Topic 3188

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to make full answer and defence - [See ninth Civil Rights - Topic 1325 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See twelfth Civil Rights - Topic 1325 ].

Civil Rights - Topic 8313

Canadian Charter of Rights and Freedoms - General - Application - Solicitor-client relationship - [See thirteenth and fourteenth Civil Rights - Topic 1325 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first and seventh Civil Rights - Topic 1325 ].

Words and Phrases

Threats to the security of Canada - The Federal Court examined the term "threats to the security of Canada" in ss. 2 and 12 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 - See paragraphs 18 to 42.

Cases Noticed:

Charkaoui, Re, [2008] 2 S.C.R. 326; 376 N.R. 154; 2008 SCC 38 (Charkaoui II), refd to. [para. 5].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al. (2003), 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 14].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al. (2011), 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 14].

British Columbia (Workers' Compensation Board) v. Figliola - see Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9 (Charkaoui I), refd to. [para. 15].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 19].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 19].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 24].

R. v. Khawaja (M.M.) (2012), 437 N.R. 42; 2012 SCC 69, refd to. [para. 24].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 27].

R. v. Gomboc (D.J.), [2010] 3 S.C.R. 211; 408 N.R. 1; 490 A.R. 327; 497 W.A.C. 327; 2010 SCC 55, refd to. [para. 28].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13, refd to. [para. 28].

R. v. Buhay (M.A.) (2003), 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 28].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 28].

R. v. Krist (J.) (1995), 62 B.C.A.C. 133; 103 W.A.C. 133; 100 C.C.C.(3d) 58 (C.A.), refd to. [para. 28].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 29].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 30].

R. v. Chehil (M.S.), [2013] 3 S.C.R. 220; 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 30].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 2013 SCC 50, refd to. [para. 30].

Human Rights Commission v. Canada (Attorney General) et al., [1982] 1 S.C.R. 215; 41 N.R. 318, refd to. [para. 45].

United States of America v. Lucero-Echegoyen, [2011] B.C.T.C. Uned. 1028; 2011 BCSC 1028, refd to. [para. 54].

United States of America et al. v. Wakeling, [2011] B.C.T.C. Uned. 165; 2011 BCSC 165, refd to. [para. 54].

United States of America et al. v. Wakeling (2012), 328 B.C.A.C. 174; 558 W.A.C. 174; 2012 BCCA 397, refd to. [para. 56].

R. v. Atwal et al., [1988] 1 F.C. 107; 79 N.R. 91, appld. [para. 67].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 2002 SCC 61, refd to. [para. 69].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 70].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 70].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., [2008] 2 S.C.R. 574; 376 N.R. 327; 2008 SCC 44, refd to. [para. 83].

Almrei, Re (2008), 331 F.T.R. 301; 2008 FC 1216, refd to. [para. 84].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, consd. [para. 92].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 98].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 100].

R. v. Ahmad (F.) et al., [2011] 1 S.C.R. 110; 411 N.R. 320; 2011 SCC 6, refd to. [para. 100].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 100].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 105].

Blencoe v. Human Rights Commission (B.C.), [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 106].

Harkat, Re, [2012] 3 F.C.R. 635; 429 N.R. 1; 2012 FCA 122, refd to. [para. 109].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 124].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 124].

R. v. Morelli - see R. v. U.P.M.

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 136].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 136].

R. v. Hosie (G.) (1996), 91 O.A.C. 281; 107 C.C.C.(3d) 385 (C.A.), refd to. [para. 139].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 142].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 152].

Dehghani v. Minister of Employment and Immigration, [1993] 1 S.C.R. 1053; 150 N.R. 241, refd to. [para. 152].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 152].

R. v. Chesson and Vanweenan, [1988] 2 S.C.R. 148; 87 N.R. 115; 90 A.R. 347, refd to. [para. 174].

Statutes Noticed:

Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, sect. 6 [para. 44]; sect. 12 [para. 18]; sect. 17(1)(b) [para. 48]; sect. 19(2) [para. 55]; sect. 21, sect. 22, sect. 23(1), sect. 24 [para. 68].

Criminal Code, R.S.C. 1985, c. C-46, sect. 193(1)(e) [para. 55].

Privacy Act, R.S.C. 1985, c. P-21, sect. 8(2)(f), sect. 8(2)(m) [para. 52].

Counsel:

Donald Macintosh, David Tyndale, Bernard Assan, Peter Southey, Marianne Zoric, Mahan Keramati, Christopher Ezrin, Balqees Mihirig, Judy Michaely, Rhonda Marquis, James Mathieson, Marcel Larouche, Toby Hoffmann, Proja Filipovich, Philippe Lacasse, Erin Bobkin, Dominique Castagne, for the applicants, Minister of Citizenship and Immigration and Minister of Public Safety;

Johanne Doyon, Paul Slansky, Yavar Hameed, David Kolinsky, Khalid Elgazzar and Lucie Joncas, for the respondent, Mohamed Zeki Mahjoub;

Gordon Cameron and Anil Kapoor, Special Advocates.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicants;

Johanne Doyon, Doyon & Associés, Montreal, Quebec, for the respondent;

Paul B. Slansky, Slansky Law Professional Corp., Toronto, Ontario, for the respondent;

Yavar Hameed, Hameed & Farrokhzad, Ottawa, Ontario, for the respondent;

David Kolinsky, Edmonton, Alberta, for the respondent;

Gordon Cameron, Ottawa, Ontario, Special Advocate;

Anil Kapoor, Toronto, Ontario, Special Advocate.

This application was heard at Toronto and Ottawa, Ontario, on various dates from October 2010, to and including December 10, 2012, before Blanchard, J., of the Federal Court, who delivered the following reasons for order and order, dated October 25, 2013, at Ottawa, Ontario.