Case information

Constitutional law — Charter of Rights — Fundamental justice — Immigration — Security certificate — Whether the certificate proceeding was unfair — Whether the state’s conduct undermined the integrity of the judicial system requiring a stay of proceedings or quashing of the security certificate — Whether the CSIS’s treatment of solicitor-client communications was so abhorrent to our system of justice or unfair that the security certificate proceedings should have been stayed — Whether the lower courts erred in law in interpreting and applying Atwal v. Canada, [1988] 1 F.C. 107, ruling and Solosky v. The Queen, [1980] 1 S.C.R. 821, ruling — Whether the warrants issued and executed under CSIS policy OPS 211 and the underlying investigation and security certificate was unlawful and unconstitutional — Whether the conclusion that the prejudice based on hearsay evidence had been rebutted was lawful — Whether the order requiring the separation of the documents seized was lawful — Whether the lower courts erred in law regarding the prejudice created by various other breaches — Whether the lower courts erred in law regarding the Ministers’ failure to read the supporting documents of the Security Intelligence Report — Whether the lower courts erred in law regarding CSIS’s breach of the duty of candor — Whether the lower courts erred in law in inferring membership in a terrorist group and danger to national security, by adopting overbroad definition of membership and past danger to national security, or by applying the reasonable grounds to believe standard to determine underlying facts not captured by s. 33 from which inferences can be drawn — Whether ss. 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, violate ss. 7 and 8 of the Charter — Whether the Immigration and Refugee Protection Act, S.C. 2001, c. 27, violates s. 7 of the Charter either by denying the right to public counsel of choice to act in the ex parte proceedings as special advocate or by its effect — Whether the standard at s. 33 of the Immigration and Refugee Protection Act unconstitutional in its combined effect with s. 77 of the Immigration and Refugee Protection Act.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In February 2008, after an earlier security certificate issued in relation to Mr. Mahjoub had been declared invalid by Charkaoui v. Canada, 2007 SCC 9, and before the suspension of that declaration expired, the Ministers of Public Safety and Emergency Preparedness and Citizenship and Immigration signed a new security certificate in relation to Mr. Mahjoub under s. 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). It stated that Mr. Mahjoub, an Egyptian national who had been granted refugee status in Canada, is not admissible to Canada on grounds of security for the reasons described in section 34(1)(b), (c), (d) and (f) of the Immigration and Refugee Protection Act. Shortly after the new security certificate was issued, Charkaoui v. Canada, 2008 SCC 38, was released. Mr. Mahjoub was arrested and detained, and, as required by s. 77 of the IRPA, the Ministers referred the security certificate to the Federal Court for determination of its reasonableness. After Mr. Mahjoub’s arrest, certain communications between himself and his solicitor had been intercepted under national security warrants authorized by s. 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23. In addition, some of Mr. Mahjoub’s privileged materials were inadvertently commingled with the Ministers’ materials. When the commingling was discovered the assistants stopped.

Before ruling on Mr. Mahjoub’s motion for a stay, the Federal Court established a process for separating the documents. The Federal Court found that there were reasonable grounds to believe that two grounds of inadmissibility were present: danger to the security of Canada, under s. 34(1)(d), and membership in two organizations that engaged in subversion by force and terrorism, under s. 34(1)(f). The appeal was dismissed.