Al Yamani v. Canada (Solicitor General) et al., (1995) 103 F.T.R. 105 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: November 07, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 103 F.T.R. 105 (TD)

Al Yamani v. Can. (1995), 103 F.T.R. 105 (TD)

MLB headnote and full text

Issam Al Yamani (applicant) v. The Solicitor General for Canada and The Minister of Citizenship and Immigration (respondents) and The Security Intelligence Review Committee, The Canadian Arab Federation, and The Canadian Civil Liberties Association (intervenors)

(IMM-4557-93)

Issam Al Yamani (applicant) v. The Attorney General of Canada (respondent) and The Security Intelligence Review Committee and The Canadian Arab Federation and The Canadian Civil Liberties Association (intervenors)

(IMM-2197-94)

Indexed As: Al Yamani v. Canada (Solicitor General) et al.

Federal Court of Canada

Trial Division

MacKay, J.

November 7, 1995.

Summary:

Al Yamani, who was of Palestinian origin, was granted landing in Canada in 1985. When he applied for citizenship in 1988 he became the subject of security screening by the Canadian Security Intelligence Service. He thereafter was advised that the Minister of Employment and Immigration and the Solicitor General had made a joint report to the Security Intelligence Review Committee (SIRC) that Al Yamani was a security risk within the meaning of s. 19(1)(g) of the Immigration Act. Al Yamani was then the subject of a hearing before a single member of the SIRC. The SIRC issued a report concluding that Al Yamani was a person described in s. 19(1)(g) and recommended that a certificate be issued against him under s. 40(1) of the Act. Thereafter the Governor General-in-Council issued an order based on the report and recommendation, declaring that Al Yamani was a person described in s. 19(1)(g) and directed the Solicitor General to issue a security certificate pursuant to s. 40(1) so designating him. The Solicitor General issued the certificate accordingly. Al Yamani applied for judicial review respecting the SIRC's report and the Governor General-in-Council's order.

The Federal Court of Canada, Trial Division, allowed the application and set aside the report and conclusion of the SIRC respecting s. 19(1)(g) and the determination of the Governor General-in-Council. The court held that the portion of s. 19(1)(g) upon which the SIRC's decision was based was contrary to s. 2(d) of the Charter (i.e., the freedom of association) and of no force and effect. Therefore, the determination by the SIRC that Al Yamani was a person described by s. 19(1)(g) could not stand although other conclusions by the SIRC remained valid. The court left it to the SIRC to determine whether the same panel would continue the investigation. Since the decision by the Governor General-in-Council was based on the grounds set out in the SIRC's report, that decision was also declared invalid. The court certified numerous questions for consideration by the Federal Court of Appeal arising from this case.

Administrative Law - Topic 230

The hearing and decision - Right to be heard - Exceptions - [See ninth Aliens - Topic 1749 ].

Administrative Law - Topic 548

The hearing and decision - Decisions of the tribunal - Reasons for decisions - When not required - [See ninth Aliens - Topic 1749 ].

Administrative Law - Topic 552

The hearing and decision - Decisions of the tribunal - Deliberations - Procedure - [See eighth Aliens - Topic 1749 ].

Administrative Law - Topic 2616

Natural justice - Evidence and proof - Tribunal taking evidence in absence of parties - [See seventh Aliens - Topic 1749 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See seventh Aliens - Topic 1749 ].

Administrative Law - Topic 3351

Judicial review - Practice - Intervenors - General - Al Yamani, a permanent resident of Palestinian origin, commenced two judicial review applications respecting decisions of the Security Intelligence Review Committee and the Governor General-in-Council deciding that he was a security risk (Immigration Act, s. 19(1)(g)) - The Canadian Arab Federation (CAF) intervened and sought to raise a s. 15 Charter argument respecting the constitutionality of s. 19(1)(g) - The Federal Court of Canada, Trial Division, did not consider the merits of CAF's s. 15 argument, where CAF, as intervenor, did not have standing to raise issues not raised by the applicants in their arguments and submissions at the hearing - Further, no adequate evidentiary basis was made out to support a challenge under s. 15 - See paragraphs 34 to 43.

Aliens - Topic 1749

Exclusion and expulsion - Persons or organization members likely to commit violence - The Security Intelligence Review Committee (SIRC) conducted a hearing and determined that Al Yamani, a permanent resident, was a security risk (Immigration Act, s. 19(1)(g)) - Al Yamani applied for judicial review of the SIRC's decision, arguing that the SIRC erred in its conclusions because of errors in its consideration of the evidence - The Federal Court of Canada, Trial Division, rejected Al Yamani's argument where the SIRC's findings were not perverse, capricious or without support in the evidence - See paragraphs 44 to 61.

Aliens - Topic 1749

Exclusion and expulsion - Persons or organization members likely to commit violence - The Security Intelligence Review Committee (SIRC) conducted a hearing and determined that Al Yamani, a permanent resident, was a security risk (Immigration Act, s. 19(1)(g)) - Al Yamani applied for judicial review of the SIRC's decision, arguing that the SIRC erred in law in its interpretation of s. 19(1)(g) by applying an erroneous standard of proof - The Federal Court of Canada, Trial Division, held that the SIRC correctly applied the ordinary standard of proof in civil cases (i.e., its findings were based on a balance of probabilities) - See paragraphs 62 to 65.

Aliens - Topic 1749

Exclusion and expulsion - Persons or organization members likely to commit violence - The Security Intelligence Review Committee (SIRC) conducted a hearing and determined that Al Yamani, a permanent resident, was a security risk (Immigration Act, s. 19(1)(g)) - Section 19(1)(g) provided that persons who were members of or likely to participate in the unlawful activities of an organization that was likely to engage in acts of violence that would endanger persons in Canada were inadmissible and, therefore, subject to deportation - Al Yamani applied for judicial review, arguing that the SIRC erred in law in its interpretation of the words "likely" and "member" in s. 19(1)(g) - The Federal Court of Canada, Trial Division, held that the SIRC's interpretation of these words was not in error - See paragraphs 62 to 76.

Aliens - Topic 1749

Exclusion and expulsion - Persons or organization members likely to commit violence - Al Yamani, a permanent resident, was determined to be a security risk (Immigration Act, s. 19(1)(g)), because of his association with the Popular Front for the Liberation of Palestine - Section 19(1)(g) provided, inter alia, that persons for whom there are reasonable grounds to believe are members of an organization that is likely to engage in acts of violence that might endanger persons in Canada are inadmissible - Al Yamani argued that s. 19(1)(g) violated his right to freedom of expression (Charter, s. 2(b)) - The Federal Court of Canada, Trial Division, held that s. 19(1)(g) did not raise considerations relating to contravention of s. 2(b) - See paragraphs 84 to 88.

Aliens - Topic 1749

Exclusion and expulsion - Persons or organization members likely to commit violence - Al Yamani was determined to be a security risk (Immigration Act, s. 19(1)(g)), because of his association with the Popular Front for the Liberation of Palestine and could therefore be deported - Al Yamani argued that s. 19(1)(g) violated his right, as a permanent resident, to freedom of association (Charter, s. 2(d)) - The Federal Court of Canada, Trial Division, held that s. 19(1)(g), insofar as it related to persons for whom there are reasonable grounds to believe are members of an organization that is likely to commit acts of violence that might endanger the safety of persons in Canada, restricted freedom of association and could not be justified under s. 1 of the Charter - See paragraphs 89 to 105.

Aliens - Topic 1749

Exclusion and expulsion - Persons or organization members likely to commit violence - The Security Intelligence Review Committee (SIRC) conducted a hearing and reported to the Governor General-in-Council that Al Yamani, a permanent resident, was a person who was a security risk (Immigration Act, s. 19(1)(g)) - Al Yamani applied for judicial review, arguing that the process followed by SIRC was contrary to the principles of fundamental justice under s. 7 of the Charter - The Federal Court of Canada, Trial Division, held that based on jurisprudence from the Supreme Court of Canada and the Federal Court of Appeal, the argument that the SIRC process contravened s. 7 of the Charter was not open to consideration - See paragraphs 106 to 109.

Aliens - Topic 1749

Exclusion and expulsion - Persons or organization members likely to commit violence - The Security Intelligence Review Committee (SIRC) conducted a hearing and reported to the Governor General-in-Council that Al Yamani, a permanent resident, was a person who was a security risk (Immigration Act, s. 19(1)(g)) - Al Yamani applied for judicial review, arguing that the process followed by SIRC was contrary to the common law principles of fundamental justice because the SIRC did not disclose to Al Yamani all the evidence which was before the committee, and because counsel was denied a security clearance to attend sessions where evidence was given by intelligence officers in camera and ex parte - The Federal Court of Canada, Trial Division, held that there was no violation of the principles of fundamental justice - See paragraphs 110 to 117.

Aliens - Topic 1749

Exclusion and expulsion - Persons or organization members likely to commit violence - The Security Intelligence Review Committee (SIRC) conducted a hearing and reported to the Governor General-in-Council that Al Yamani, a permanent resident, was a person who was a security risk (Immigration Act, s. 19(1)(g)) - Al Yamani applied for judicial review, arguing that the process followed by SIRC was contrary to the common law principles of fundamental justice because the SIRC's draft report was circulated to committee members who did not participate in the investigation or hearing to elicit editorial or legal comments or suggestions about what further investigation might be conducted - The Federal Court of Canada, Trial Division, held that this process did not violate the principles of fundamental justice - See paragraphs 118 to 122.

Aliens - Topic 1749

Exclusion and expulsion - Persons or organization members likely to commit violence - The Security Intelligence Review Committee (SIRC) conducted a hearing and determined that Al Yamani, a permanent resident, was a security risk (Immigration Act, s. 19(1)(g)) - The SIRC reported its findings to the Governor General-in-Council and recommended that Al Yamani be declared to be a person described in s. 19(1)(g) - Thereafter the Governor General-in-Council issued the recommended order and directed that a certificate be issued under s. 40(1) of the Act - Al Yamani applied for judicial review, arguing that the duty of fairness required a further hearing by the Governor General-in-Council and required the Governor General-in-Council to give reasons - The Federal Court of Canada, Trial Division, rejected these arguments - See paragraphs 77 to 83.

Aliens - Topic 4066

Practice - Judicial review - When available - [See Courts - Topic 4021.1 ].

Civil Rights - Topic 1803

Freedom of speech or expression - Freedom of expression - Scope of - [See fourth Aliens - Topic 1749 ].

Civil Rights - Topic 2204

Freedom of association - Denial of right - What constitutes - [See fifth Aliens - Topic 1749 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See sixth Aliens - Topic 1749 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - [See fifth Aliens - Topic 1749 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues - [See Administrative Law - Topic 3351 ].

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Trial Division - Decisions of federal boards, commissions or tribunals - Al Yamani, a permanent resident, was advised that the Minister of Employment and Immigration and the Solicitor General jointly reported to the Security Intelligence Review Committee (SIRC) that he was a security risk (Immigration Act, s. 19(1)(g)) - The SIRC conducted a hearing, reported to the Governor General-in-Council that Al Yamani was a person described in s. 19(1)(g) and recommended that a certificate be issued against him under s. 40(1) of the Act - Al Yamani applied for judicial review - The Crown argued that the court lacked jurisdiction to review the SIRC's report and recommendation because the SIRC's decision was not a final decision - The Federal Court of Canada, Trial Division, held that it had jurisdiction - See paragraphs 27 to 33.

National Security - Topic 1108

Canadian Security Intelligence Service - Security Intelligence Review Committee - Investigation of security threats - Aliens - [See all Aliens - Topic 1749 and Courts - Topic 4021.1 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - The Federal Court of Canada, Trial Division, looked to the French text of s. 19(1)(g) of the Immigration Act in interpreting the English version of s. 19(1)(g) - See paragraph 67.

Words and Phrases

Likely - The Federal Court of Canada, Trial Division, discussed the meaning of the word "likely" as it appeared in s. 19(1)(g) of the Immigration Act, R.S.C. 1985, c. I-2 - See paragraphs 62 to 76.

Words and Phrases

Member - The Federal Court of Canada, Trial Division, discussed the meaning of the word "member" as it appeared in s. 19(1)(g) of the Immigration Act, R.S.C. 1985, c. I-2 - See paragraphs 62 to 76.

Cases Noticed:

Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385; 133 N.R. 345; 89 D.L.R.(4th) 218; 3 Admin. L.R.(2d) 242, refd to. [para. 29].

Canadian Tobacco Manufacturers' Council et al. v. National Farm Products Marketing Council, [1986] 2 F.C. 247; 65 N.R. 392; 26 D.L.R.(4th) 677 (F.C.A.), refd to. [para. 32].

International Fund for Animal Welfare Inc., Best and Davies v. Canada (Minister of Fisheries and Oceans) et al., [1988] 3 F.C. 590; 83 N.R. 301 (F.C.A.), refd to. [para. 41].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 58].

Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; 55 N.R. 194; 14 D.L.R.(4th) 289; 84 C.C.L.C. 14,070; 14 Admin. L.R. 133, refd to. [para. 58].

Smith (J.) et al. v. Minister of Employment and Immigration (1991), 42 F.T.R. 81 (T.D.), refd to. [para. 63].

R. v. Secretary of State for the Home Department; Ex parte Khawaja, [1984] A.C. 74 (H.L.), refd to. [para. 63].

Farahi-Mahdavieh, Re (1993), 63 F.T.R. 120 (T.D.), refd to. [para. 63].

Smith v. Smith et al., [1952] 2 S.C.R. 312; [1952] 3 D.L.R. 449, refd to. [para. 65].

Irwin Toy Ltd. v. Quebec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 87].

Hurd v. Minister of Employment and Immigration, [1989] 2 F.C. 594; 90 N.R. 31 (F.C.A.), refd to. [para. 91].

Chiarelli v. Minister of Employment and Immigration, [1990] 2 F.C. 299; 107 N.R. 107; 10 Imm. L.R.(2d) 137 (F.C.A.), refd to. [para. 91].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161; 90 D.L.R.(4th) 289, refd to. [para. 91].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1; 38 D.L.R.(4th) 161, refd to. [para. 92].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 98].

Canepa v. Minister of Employment and Immigration, [1992] 3 F.C. 270; 145 N.R. 121; 93 D.L.R.(4th) 589; 10 C.R.R.(2d) 348 (F.C.A.), refd to. [para. 106].

Consolidated Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321; 68 D.L.R.(4th) 524; 90 C.L.L.C. 14,007; 42 Admin. L.R. 1, refd to. [para. 120].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 132].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 96]; sect. 2(b), sect. 2(d) [para. 84]; sect. 7 [para. 106]; sect. 12 [para. 91]; sect. 15 [para. 36].

Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, sect. 37 [para. 113]; sect. 39(1) [para. 19]; sect. 41 [para. 79]; sect. 42 [paras. 19, 79]; sect. 43, sect. 44, sect. 48 [para. 19]; sect. 48(1), sect. 48(2) [para. 111]; sect. 49, sect. 50, sect. 51 [para. 19].

Canadian Security Intelligence Service Act Regulations (Can.), Security Intelligence Review Committee Rules of Procedure, rule 37, rule 43 [para. 118]; rule 46(1), rule 46(2), rule 48(1), rule 48(2), rule 48(3), rule 48(4), rule 48(5) [para. 112].

Constitution Act, 1982, sect. 52 [para. 105].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 2 [para. 29]; sect. 18, sect. 18.1 [para. 27]; sect. 18.1(4)(d) [para. 52]; sect. 28 [para. 27]; sect. 57 [para. 4].

Immigration Act, R.S.C. 1985, c. I-2, sect. 19(1)(e), sect. 19(1)(g) [para. 9]; sect. 27(1), sect. 32(2) [para. 10]; sect. 38.1 [para. 99]; sect. 39(2), sect. 39(3), sect. 39(5), sect. 39(6), sect. 39(9), sect. 39(10), sect. 40(1) [para. 9]; sect. 70(4) [para. 10]; sect. 83(1) [para. 6].

Security Intelligence Review Committee Rules of Procedure - see Canadian Security Intelligence Service Act Regulations (Can.).

Authors and Works Noticed:

Harrap's Standard French and English Dictionary (1987) [para. 67].

Petit Robert 1, Dictionnaire de la Langue Français (1987) [para. 67].

Counsel:

Barbara Jackman and Frank Addario, for the applicant;

Barbara McIsaac, for the respondents.

Solicitors of Record:

Jackman & Associates, Toronto, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

These applications were heard in Ottawa, Ontario, on August 16, 17, 18 and 19, 1994, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on November 7, 1995.