[2000] 3 F.C. 433
IMM-1919-98
Issam Al Yamani (Applicant)
v.
The Minister of Citizenship and Immigration and The Solicitor General of Canada (Respondents)
Indexed as: Al Yamani v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Gibson J.—Toronto, August 30, 31 and September 1, 1999; Ottawa, March 14, 2000.
Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Judicial review of SIRC investigation, report recommending issuance of certificate in respect of applicant pursuant to Immigration Act, s. 40(1) — Report triggered by Minister of Citizenship, Solicitor General’s opinions applicant person described in s. 19(1)(e) (reasonable grounds to believe will engage in acts of subversion against democratic government, institutions, processes), (g) (reasonable grounds to believe will engage in acts of violence endangering Canadians) based on involvement with Popular Front for the Liberation of Palestine (PFLP) — SIRC concluding reasonable grounds to believe applicant engaged in acts of subversion, likely to participate in unlawful activities of PFLP — SIRC erred in law in relying, without further analysis, on definition of “subversion” in Shandi, Re (any act intended to contribute to process of overthrowing government) — Ignored testimony concept of subversion involving two essential elements: clandestine or deceptive element, element of undermining from within — Applicant not engaged in subversion against Israel — Analysis in support of finding applicant person described in s. 19(1)(g) even less compelling — Citing no evidence supporting conclusion possibility PFLP may commit acts of violence in Canada.
Constitutional law — Charter of Rights — Life, liberty and security — Vagueness — Whether Immigration Act, s. 19(1)(e), (g) unconstitutionally vague — Law unconstitutionally vague if so lacking in precision as not to give sufficient guidance for legal debate — Case law cautioning against use of doctrine of vagueness to impede State action in furtherance of valid social objectives by requiring law to achieve degree of precision to which subject-matter not lending itself — Necessary to balance societal interests against individual rights — Vagueness analysis requiring development of full interpretive context — S. 19(1)(e) very broad — Absence of definition of “subversion” necessitating consideration of underlying objectives, use of similar concepts in CSIS Act, Access to Information Act — Charter provision must be engaged before doctrine of unconstitutional vagueness can be invoked — Security certificate pursuant to Immigration Act, s. 40 issued against applicant without knowledge of applicant, counsel — As result of s. 39 report, applicant will be deported — Deportation necessarily implying interference with liberty of applicant — Breach of fundamental justice requirement in steps following SIRC’s recommendation — Use of “subversion” in Immigration Act, s. 19(1)(e) violating Charter, s. 7 since incapable of framing legal debate in any meaningful manner or structuring discretion in any way.
Constitutional law — Charter of Rights — Limitation clause — Whether use of “subversion” in Immigration Act, s. 19(1)(e) unconstitutionally vague — Against Oakes test, cautionary guidance in case law regarding findings of unconstitutional vagueness, use of “subversion” in context under review reasonably justified in free and democratic society — While vague, “subversion” having some meaning although not enough to provide sufficient guidance for legal debate — But social, security objectives use of term designed to achieve of sufficient importance to warrant overriding constitutionally protected right of persons that is infringed — Use of “subversion” impairing constitutionally protected right of applicant as little as possible; achieving defensible balance between deleterious effects flowing from use of term, social and security objectives to which use directed — While importing vagueness, use of “subversion” in context not resulting in unconstitutional vagueness.
Constitutional law — Charter of Rights — Fundamental freedoms — Whether “subversion” in Immigration Act, s. 19(1)(e) infringing Charter, s. 2 freedoms — Interpreted in manner consistent with terminology of CSIS Act, s. 2(d) definition of “threats to the security of Canada”, “subversion” neither without definitional boundaries nor so overly broad as to infringe s. 2 freedoms.
Constitutional law — Charter of Rights — Equality rights — Whether “subversion” in Immigration Act, s. 19(1)(e) infringing Charter, s. 15 equality rights — Applicant not deprived of hearing in investigation, recommendation by SIRC — If deprivation of right to hearing at later stage, not on basis applicant permanent resident, but on basis reasonable grounds to believe engaged in subversion, or might engage in activity described in s. 19(1)(g).
Security Intelligence — Whether “subversion” in Immigration Act, s. 19(1)(e) unconstitutionally vague — Not defined in Immigration Act — Necessary to consider CSIS Act, expressly referred to by Immigration Act — CSIS Act not using term “subversion” — In contrast to s. 19(1)(e), CSIS Act confining concept of “subversion” to covert unlawful acts or overthrow by violence of constitutionally established system of government in Canada — More specific, focussed than concept “subversion” in Immigration Act.
Access to information — In determining whether “subversion” in Immigration Act, s. 19(1)(e) unconstitutionally vague, meaning of Access to Information Act, s. 15(2) definition of “subversive or hostile activities” considered — Appears to contemplate “subversive activities” whether or not involving violence, targeting Canada or any state allied with Canada — Not distinguishing between subversive, hostile activities.
Administrative law — Judicial review — SIRC report recommending issuance of Immigration Act, s. 40(1) certificate in respect of applicant — Standard of review with respect to whether SIRC ignoring, misinterpreting evidence resulting in unreasonable conclusions “reasonableness simpliciter” — With respect to other issues (unconstitutional vagueness, breach of Charter), standard of review correctness.
This was an application for judicial review of a report made by the Security Intelligence Review Committee (SIRC) to the Governor in Council pursuant to Immigration Act, section 39 concluding that a certificate should be issued in accordance with subsection 40(1). The applicant is a stateless Palestinian. He has been a permanent resident of Canada since April 1985. He was a member of the Popular Front for the Liberation of Palestine (PFLP) for many years until 1992, and remains an active supporter of the Palestinian cause. While in Canada, and while still a member of the PFLP, he engaged in the receipt and disbursement of very significant amounts of money on behalf of the PFLP, facilitated communications to PFLP members in North America, facilitated travel of PFLP members and was otherwise active in PFLP affairs in North America. The SIRC’s investigation was triggered by a report of the Minister of Citizenship and Immigration and the Solicitor General of Canada expressing their opinion that the applicant was a person described in paragraphs 19(1)(e) and (g) and 27(1)(c). Paragraph 19(1)(e) prohibits the admission of persons who there are reasonable grounds to believe will engage in acts of subversion against democratic government, institutions or processes. Paragraph 19(1)(g) prohibits the admission of persons who there are reasonable grounds to believe will engage in acts of violence that might endanger the lives or safety of persons in Canada. The Governor in Council accepted the SIRC’s recommendation and the Minister issued a certificate pursuant to section 40. The applicant raised issues regarding the constitutional applicability and validity of paragraphs 19(1)(e) and (g) in light of the Charter which the SIRC declined to deal with. It concluded that the applicant had engaged in acts of subversion and that there were reasonable grounds to believe that the applicant was likely to participate in the unlawful activities of the PFLP, if called upon to do so, and that there were reasonable grounds to believe that the applicant would engage in acts of subversion against democratic government, institutions or processes. In so holding, the SIRC relied on a “definition” of “subversion” as “any act that is intended to contribute to the process of overthrowing a government” as set out by Cullen J. in Shandi, Re.
The issues were: (1) what was the appropriate standard of review; (2) whether the word “subversion”, the phrase “democratic government, institutions or processes … as they are understood in Canada” as used in paragraph 19(1)(e), and the phrase “reasonable grounds to believe” as it is used in both paragraphs 19(1)(e) and (g) are void for vagueness and should be found to be of no force and effect; (3) whether “subversion” in paragraph 19(1)(e) infringes Charter, section 2 freedoms and section 15 equality rights; (4) whether “democratic government, institutions and processes” where it is qualified by the words “as they are understood in Canada” in paragraph 19(1)(e) is vague and inconsistent with Charter, section 7; (5) whether the phrase “reasonable grounds to believe” establishes an illusory standard of defence, inconsistent with the principles of fundamental justice under Charter, section 7; and (6) whether the SIRC ignored or misinterpreted evidence such that it erred in law, and whether these errors led the SIRC to reach unreasonable conclusions.
Held, the application should be allowed.
(1) The standard of review with regard to the issue of ignoring or misinterpreting of evidence resulting in unreasonable conclusions on the part of the Review Committee is “reasonableness simpliciter”. With regard to the other issues, the standard of review is correctness.
(2) A law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate. One must be wary of using the doctrine of vagueness to prevent or impede State action in furtherance of valid social objectives, by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself. A delicate balance must be maintained between societal interests and individual rights. The doctrine of vagueness imposes a high threshold.
In undertaking a vagueness analysis, a court must first develop the full interpretive context to determine whether a provision provides a sufficient basis for distinguishing between permissible and impermissible conduct. The Court must analyze considerations such as the purpose, subject- matter and nature of the impugned provision, societal values, related legislative provisions and prior judicial interpretations of the provision. The starting point for determining whether a provision provides an adequate basis for legal debate is the statute in which the impugned provision appears. The Immigration Act neither expressly defines nor sets out any criteria by which to gauge the meaning of “subversion”. The language of paragraph 19(1)(e) is very broad; not only does it contemplate activities taking place within Canada but aimed towards the undermining of foreign countries, but it also captures both violent and non-violent acts of espionage and subversion. Paragraph 19(1)(e) employs “espionage” and “subversion” disjunctively. Thus, whatever “subversion” is intended to mean, it is not intended to encompass “espionage”. The absence of statutory definition necessitated a consideration of the underlying objectives of the Immigration Act, particularly the declaration of immigration policy in paragraph 3(j). The policy and purpose behind the exclusion from Canada pursuant to paragraph 19(1)(e) was to promote international order and justice by denying the use of Canada as a base for espionage or subversion or, in the words of paragraph 3(j) for “criminal activity” an expression that is clearly not coextensive with espionage and subversion.
The Immigration Act expressly refers to the CSIS Act, which does not use the term “subversion” but confines the concept of “subversion” to acts directed toward either the undermining by covert unlawful acts or the overthrow by violence of the constitutionally established system of government in Canada. It is therefore much more specific or focussed than the concept “subversion” in the Immigration Act. The uncertainty surrounding any attempt to distinguish between permissible and impermissible conduct in relation to “subversion” is compounded when the definition of “subversive or hostile activities” in Access to Information Act, subsection 15(2) is considered. It appears to contemplate “subversive activities” which may or may not involve violence and that target Canada or any state allied or associated with Canada. It does not distinguish between activities which would be considered subversive as opposed to hostile; rather it lumps together a broad mix of activities ranging from intelligence-gathering to terrorism. Nor does the definition of “subversion” in Shandi, Re and the dictionary definitions thereof clarify its legal parameters. In particular, they do not aid in distinguishing between subversion and lawful dissent, nor do they provide guidance to define the boundary between the two.
For the ground of unconstitutional vagueness to be invoked, a provision of the Charter must first be engaged. Charter, section 7 guarantees the right not to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice. The Court noted that a certificate had already issued, without the knowledge of the applicant or his counsel. As a result of the report, the applicant will be deported. Deportation necessarily implies an interference with the liberty of the applicant. The accoutrements of fundamental justice did not appear to have been present during the steps in this matter that followed the SIRC’s recommendation. The use of “subversion” in paragraph 19(1)(e) violates Charter, section 7 since it is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.
The next question was whether the violation of section 7 was authorized by section 1. Against the The Queen v. Oakes test, and against the cautionary guidance provided by the case law regarding findings of unconstitutional vagueness, the use of the term “subversion” in the context in the Immigration Act that is here under review can be reasonably justified in the free and democratic society that is Canada. In the context, i.e. that Part of the Act entitled “Safety and Security of Canada”, the social and security objectives that the use of the term is designed to achieve are of sufficient importance to warrant overriding the constitutionally protected right of persons such as the applicant, that is infringed. The use of “subversion”, in this context, impairs the constitutionally protected right of the applicant as little as possible and achieves a defensible balance between the deleterious effects flowing from the use of the term and the social and security objectives to which its use is directed. The use of “subversion” in the context, while it imports vagueness, does not result in unconstitutional vagueness.
(3) The applicant did not establish that “subversion” is so lacking in definitional boundaries and overly broad as to result in an infringement of section 2 freedoms. Interpreted in a manner consistent with the terminology of paragraph (d) of the definition “threats to the security of Canada” in section 2 of the CSIS Act, it is neither without definitional boundaries nor overly broad.
The same is true of section 15 equality rights. The applicant was not deprived of a hearing in the portion of the certificate process that was under review, i.e. the investigation and recommendation by the SIRC. If at a later stage there could be said to be a deprivation of a right to a hearing, it would not be on the basis that the applicant was a permanent resident, but on the basis that, on reasonable grounds, he was believed to be engaged in subversion or might engage in activity described in paragraph 19(1)(g) of the Act.
(4) The expression “democratic government, institutions and processes as they are understood in Canada”, is not so vague as to be incapable of being given a consistent and settled meaning or to be lacking in definitional boundaries, or to be overly broad.
(5) “Reasonable grounds to believe” is an expression well known in Canadian law, adopted in many contexts as a standard of proof or defence. The applicant failed to establish that its use in paragraphs 19(1)(e) and (g) was inconsistent with the principles of fundamental justice under Charter, section 7.
(6) The Review Committee’s concerns regarding the applicant’s credibility were justified. Excerpts from the applicant’s testimony demonstrated evasiveness and a willingness to lie. The applicant urged that the SIRC should have adopted a contextual approach in considering the applicant’s credibility. Given the applicant’s life experiences, it is perhaps unfair to demand a standard of forthrightness such as one would expect of a native-born Canadian citizen with an unqualified right to remain in Canada. But it cannot be extrapolated from Baker v. Canada (Minister of Citizenship and Immigration) that a lack of contextual analysis is a reviewable error.
Against a standard of correctness, the SIRC erred in law in relying, without further analysis, on the definition or description of “subversion” provided in Shandi, Re. The SIRC appears to have essentially ignored the compelling testimony before it that the concept of subversion involved two essential elements: a clandestine or deceptive element and, more importantly, an element of undermining from within. Accepting that these elements are fundamental to any definition of subversion, the applicant could not have been engaged in subversion against Israel, either directly or through his support of, and membership in, the PFLP.
The SIRC analysis in support of its finding that the applicant is a person described in paragraph 19(1)(g) was even less compelling. It did not mention the evidence that the PFLP was a “spent force”. It did not reject the evidence from the applicant that the PFLP had no interest in Canada. It cited no evidence that would make its conclusion that there was still a possibility that the PFLP may commit acts of violence in Canada anything more than sheer speculation. While its conclusion that the applicant was a person described in paragraph 19(1)(e) and (g) might have been open to it on a more thorough and reasoned analysis of the evidence against a standard of correctness, it could not stand on the basis of the analysis provided.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, s. 15(2).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2, 11(e), 15.
Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, s. 2 “threats to the security of Canada”.
Criminal Code, R.S.C., 1985, c. C-46, s. 515(10)(b).
Immigration Act, R.S.C., 1985, c. I-2, s. 3(j), 19(1)(e),(g), 27(1), 38.1 (as enacted by S.C. 1992, c. 49, s. 28), 39(2),(5),(9), 39.1 (as enacted by S.C. 1997, c. 22, s. 5), 39.2 (as enacted idem), 39.3 (as enacted idem), 40(1) (as am. idem, s. 6), 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31), 40.2 (as enacted idem, s. 32).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; (1992), 114 N.S.R. (2d) 91; 93 D.L.R. (4th) 36; 313 A.P.R. 91; 74 C.C.C. (3d) 289; 43 C.P.R. (3d) 1; 15 C.R. (4th) 1; 10 C.R.R. (2d) 34; 139 N.R. 241; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; (1995), 125 D.L.R. (4th) 385; 99 C.C.C. (3d) 97; 17 C.E.L.R. (N.S.) 129; 183 N.R. 325; Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299 (1990), 67 D.L.R. (4th) 697; 42 Admin. L.R. 189; 10 Imm. L.R. (2d) 137; 107 N.R. 107 (C.A.); Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; (1995), 127 D.L.R. (4th) 1; 100 C.C.C. (3d) 449; 62 C.P.R. (3d) 417; 31 C.R.R. (2d) 189; 187 N.R. 1; The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; (1998), 161 D.L.R. (4th) 385; 228 N.R. 203.
CONSIDERED:
Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (1995), 129 D.L.R. (4th) 226; 32 C.R.R. (2d) 295; 103 F.T.R. 105; 31 Imm. L.R. (2d) 191 (T.D.); Shandi, Re (1992), 51 F.T.R. 252; 7 Imm. L.R. (2d) 54 (F.C.T.D.); Suresh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 5 (C.A.) (QL); Moumdjian v. Canada (Security Intelligence Review Committee), [1999] 4 F.C. 624 (1999), 177 D.L.R. (4th) 192; 246 N.R. 287 (C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 1 Imm. L.R. (3d) 1; 243 N.R. 22; R. v. Morales, [1992] 3 S.C.R. 711; (1992), 77 C.C.C. (3d) 91; 17 C.R. (4th) 74; 12 C.R.R. (2d) 31; 144 N.R. 176; 51 Q.A.C. 161; Baroud, Re (1995), 98 F.T.R. 99 (F.C.T.D.); Ahani v. Canada (1996), 37 C.R.R. (2d) 181; 201 N.R. 233 (F.C.A.).
REFERRED TO:
Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (1999), 3 Imm. L.R. (3d) 26; 242 N.R. 173 (C.A.).
AUTHORS CITED
Black’s Law Dictionary, 7th ed. St. Paul, Minn.: West Publishing, 1999. “subversion”, “subversive activity”.
Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report: Freedom and Security under the Law, Vol. 1. Ottawa: Supply and Services Canada, 1981.
Canada. Report of the House of Commons Special Committee on the Review of the Canadian Security Intelligence Service Act and the Security Offences Act. In Flux but Not in Crisis. Ottawa: Supply and Services Canada, 1990.
ITP Nelson Canadian Dictionary of the English Language. Toronto: ITP Nelson, 1997. “subversion”, “subversive”, “subvert”.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989. “subversion”.
APPLICATION for judicial review of a report to the Governor in Council, pursuant to Immigration Act, section 39 wherein the Security Intelligence Review Committee concluded that a certificate should be issued in respect of the applicant in accordance with subsection 40(1) of the Act. Application allowed on the ground that the SIRC erred in law in finding that the applicant was a person described in Immigration Act, s. 19(1)(e) and (g) in reliance, without further analysis, upon the definition of “subversion” in Shandi, Re.
APPEARANCES:
Barbara L. Jackman for applicant.
Donald A. MacIntosh and Neeta Logsetty for respondents.
SOLICITORS OF RECORD:
Jackman, Waldman & Associates for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a report (the Report) made by the Security Intelligence Review Committee (the Review Committee) to the Governor in Council, pursuant to section 39 of the Immigration Act[1] (the Act), wherein the Review Committee concluded that a certificate should be issued in respect of Mr. Al Yamani (the applicant) in accordance with subsection 40(1) [as am. by S.C. 1997, c. 22, s. 6] of the Act. The Report is dated April 17, 1998. The investigation conducted by the Review Committee and giving rise to the Report was triggered by a report to the Review Committee by the Minister of Citizenship and Immigration and the Solicitor General of Canada expressing their opinion, based on security or criminal intelligence reports received and considered by them, that the applicant is a person described in paragraphs 19(1)(e) and (g) and paragraph 27(1)(c) of the Act. The relevant portions of subsections 19(1) and 27(1), and sections 38.1 [as enacted by S.C. 1992, c. 49, s. 28] and 39 of the Act, as they read at the relevant time for the purposes of this judicial review, are set out in the Schedule to these reasons.
[2] The Report has significant implications for the applicant and the members of his family. The Governor in Council accepted the recommendation of the Review Committee and directed the Minister of Citizenship and Immigration to issue a certificate. The Minister has acted in accordance with that direction. In the result, the applicant is at risk of losing, the qualified right he had to remain in Canada.
[3] The Report is the second such report by the Review Committee to the Governor in Council in respect of the applicant. The first such report was set aside and referred back to the Review Committee by decision of this Court[2] on the grounds that:
…paragraph 19(1)(g), in so far as it relates to “persons who there are reasonable grounds to believe… are members of … an organization that is likely to engage in … acts” (“of violence that would or might endanger the lives or safety of persons in Canada”), contravenes paragraph 2(d) of the Charter which ensures, to everyone, freedom of association. I find it is not established that this limitation of that freedom under the impugned portion of the paragraph in issue is a reasonable limit demonstrably justified in a free and democratic society. I note that this determination does not relate to other classes of persons described in paragraph 19(1)(g) of the Act.
BACKGROUND
[4] The applicant is a stateless Palestinian in his mid-forties. Although he was born in Lebanon and describes Lebanon as his former country of habitual residence, he expresses concern that he might not be able to return there. He has been a permanent resident of Canada since April of 1985 and has lived here since that time. He lives together with his wife and two sons. His wife has no permanent status in Canada pending determination of the status of the applicant. The applicant’s two sons are Canadian citizens.
[5] The applicant attests that he has never been charged with or convicted of any criminal offence.
[6] The applicant graduated from York University in 1995 and has, since that time, been gainfully employed.
[7] The applicant was, for many years until in or about 1992, a member of the Popular Front for the Liberation of Palestine (the PFLP). He remains an active supporter of the Palestinian cause. While in Canada, and while still a member of the PFLP, he engaged in the receipt and disbursement of very significant amounts of money on behalf of the PFLP, facilitated communications to PFLP members in North America, facilitated travel of PFLP members and was otherwise active in PFLP affairs in North America.
THE REVIEW COMMITTEE REPORT
[8] Before the Review Committee, counsel for the applicant raised issues regarding the constitutional applicability and validity of paragraphs 19(1)(e) and (g) of the Act in the light of provisions of the Canadian Charter of Rights and Freedoms[3] (the Charter). The Review Committee declined to deal with the constitutional issues. It wrote:
After carefully reviewing the composition of the Committee and its functions, I come to the conclusion that the Committee is not a court of competent jurisdiction within the meaning of section 24 of the Charter and that it does not have the jurisdiction to decide the constitutional issues raised by Mr. Yamani. Although the Committee clearly has jurisdiction over the parties and over the subject matter, it does not have jurisdiction over the remedy. The Committee has no decisive authority in relation to the issuance of the certificate sought. The decision to issue the certificate lies only with the Governor in Council. Therefore, I will not decide on the matters brought up by the constitutional issues.
[9] The same constitutional issues were raised before me and it was not in dispute that this Court has the jurisdiction to deal with them.[4]
[10] Under the heading “Grounds on which the Committee’s conclusion is based”, the Committee wrote:
Without oversimplifying the mandate of the Committee in this investigation, I did ask Mr. Yamani what he saw as the most difficult task presented to me as the Chair of the investigation into the Ministerial report concerning him. I find his answer very interesting. His answer was: “to believe me or not to believe me.”
In the midst of the hearing part of the investigation, when examined by the Committee’s Counsel, Mr. Yamani explained how, at the time of the first Committee hearing, he had been afraid to admit his membership in the PFLP.
He now admitted to being active “in and out”; qualifying that he was the weakest person in North America because he was in Canada, and Canada was irrelevant to the PFLP. Mr. Yamani detailed how he was born and raised to a nationalistic Palestinian family [his father was one of the founders of the PFLP] who did not do politics but were politics.
At the last [first] hearing, Committee Counsel had questioned Mr. Yamani as to whether he (Mr. Yamani) would describe himself as the closest person in Canada to the leadership of the PFLP. Mr. Yamani had answered yes…
…
According to Mr. Yamani, he would no longer consider himself the closest person to the PFLP leadership and to Dr. Habash in Canada. He says that, since 1991, he is no longer in contact with any of the PFLP leaders. The last social or political “PFLP related event” he attended was in February 1993 in Damascus for the resignation of his father.
[11] The Review Committee made the following findings: the applicant was tasked with handling the transfer of large sums of money for the PFLP into the Israeli occupied territories. This tasking is strongly suggestive of his being a person in a position of trust and particular importance to the PFLP; the applicant facilitated the travel of persons for military training; the applicant agreed to deliver PFLP documents, believed to have been applications for membership in the PFLP, to the Middle East; the applicant, up until 1990, assisted with the accumulation of materials and documents which would facilitate the production of false travel documents for members of the PFLP; in 1977, while he was head of the PFLP in Abu Dhabi, the applicant was “involved” in a bomb attack on an Air Egypt office in the United Arab Emirates; the PFLP is a long-standing member of the Palestine Liberation Organization and itself has “an international reputation as a particularly ruthless terrorist group”; despite the peace process that is unfolding between Israel and the Palestine Authority, the objective of the PFLP has not changed since the ministerial report; and the applicant admits only to what he believes is known or can no longer be held against him and demonstrated a lack of transparency essential to convey a sense of truthfulness.
[12] The Review Committee concluded as follows:
After carefully considering all of the documentary evidence and the testimony given before me on a balance of probabilities, I conclude that Mr. Yamani has engaged in acts of subversion by assisting and facilitating the objective of the PFLP. By virtue of his resort to counter-surveillance tactics and code words, his actions in transferring PFLP funds, involving himself in facilitating the travel of persons for PFLP military training, and establishing cells, Mr. Yamani must be seen as someone who, through his efforts to further the PFLP’s objective, has participated in the subversive acts of the PFLP.
Quite apart from his activity in participating in the subversive acts of the PFLP, I cannot ignore evidence of Mr. Yamani’s participation in the 1977 bombing of the Air Egypt office in the United Arab Emirates. While this incident may have been unrealistic and futile in terms of what it actually accomplished, the intention behind the bombing being to signal displeasure with Egypt’s peace overtures towards Israel. This incident, like other terrorist acts committed by the PFLP in furtherance of subversion, was intended to draw attention to the plight of the Palestinian people and to isolate Israel and the nations that evidenced a willingness to compromise the goal of an independent Palestinian state, all with the aim of contributing, however indirectly and ineffectively, to the overthrow of the State of Israel. Seen in this light, the Air Egypt bombing can be seen as a terrorist, subversive act directed against the State of Israel, which Canada recognizes as a democracy.
…
I relied on the tests set out in A.G. v. Jolly and later applied in Farahi-Mahdavieh and Baroud:
“Where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression ‘reasonable grounds for believing’ implies that the fact itself [need] not be established and that evidence which falls short of proving the subversive character of the organization [will be sufficient if it is enough to show reasonable grounds for believing that the organization] is one that advocates subversion by force, …”.
Terrorism has been employed as a tactic of subversive organizations, such as the PFLP. I cannot ignore this fact. There is no reason to believe that the PFLP is any less dedicated to its goals and would be any less willing to engage in terrorist actions in Canada, if that was perceived to be required to allow it to achieve its goals. I conclude, therefore, that there is still a possibility that the PFLP may commit acts of violence in Canada.
Allowing Mr. Yamani to remain in Canada could provide logistical support for such acts of violence in Canada. I note that Mr. Yamani was assigned his tasks as a communications link and was a travel facilitator for all PFLP activities in North America by PFLP Headquarters in the Middle East because of his location in Canada.
Based on all the evidence before me, I conclude that Mr. Yamani only makes admissions when he believes that those admissions cannot be used against him, or when he is confronted with a certain level of knowledge on the part of the Service. Given his demonstrated commitment to the “PFLP cause” and his leadership position, I conclude that there are reasonable grounds to believe that Mr. Yamani is likely (“susceptible”) to participate in the unlawful activities of the PFLP, if called upon to do so. Given Mr. Yamani’s past actions, I conclude that there are reasonable grounds to believe that he will engage in acts of subversion against democratic government, institutions or processes, as they are understood in Canada.
Having found that Mr. Yamani is a person described in paragraphs 19(1)(e) and 19(1)(g), I conclude that a certificate should be issued in accordance with subsection 40(1) of the Immigration Act. [Citations omitted; emphasis added; some errors in the quotation corrected.]
[13] In reaching its conclusions, the Review Committee relies on a commentary on “subversion”, referred to by the Review Committee as a “definition” of “subversion”, provided by Mr. Justice Cullen in Shandi, Re[5] where he wrote at paragraph 17 [page 258]:
Espionage and subversion are not limited to the actual act but to be engaged in these activities the words envisage participation by one who assists or facilitates the objective as one who commits the actus reus. Any act that is intended to contribute to the process of overthrowing a government is a subversive act. It perplexes me that so much has been written about subversion, or that the word should not be used because it runs contrary to a person’s rights under the Charter to be a dissident. Certainly CSIS investigators must be aware of the difference (which may not always have been the case), but subversive acts are not difficult to distinguish from acts of protest that should not be subject to investigations. For example, if funds are raised or guns sent to the I.R.A. from Canada, is that not clearly subversion? However, vocal comment or written treaties on the “Struggle” are clearly protected under the Charter. Examples of subversive acts are not difficult to find. [Emphasis added.]
THE ISSUES
[14] In the applicant’s memorandum of fact and law in support of the application for leave to commence this judicial review application, the following issues are identified:
— whether the Review Committee erred in law in determining that it did not have jurisdiction to consider and rule on constitutional challenges to the validity of the legislation it is otherwise required to apply;
— whether the Review Committee erred in law in its interpretation of terms that it applied without considering the constitutional validity of such terms, those terms including “subversion”, “democratic government … as understood in Canada” and “reasonable grounds to believe”; and
— whether the Review Committee ignored evidence or misinterpreted evidence such that it erred in law and whether these errors led the Review Committee to reach unreasonable conclusions.
[15] The first issue was not pursued at the hearing before me in light of the fact that the constitutional challenges were argued de novo before me within the context of the second issue.
[16] The second issue identified comprehends questions of whether or not interpretations adopted by the Review Committee infringe the applicant’s rights to freedom of expression and association as enshrined in section 2 of the Charter and violate his equality rights under section 15 of the Charter. Further, the second issue encompasses an argument that paragraphs 19(1)(e) and 19(1)(g) of the Act incorporate terms that are unconstitutionally vague with the result that those paragraphs should be held to be of no force or effect.
[17] A notice of constitutional question was served on the attorneys general of the provinces and territories and of Canada on August 12, 1999. In the notice, the legal basis of the constitutional questions is described in the following terms:
1. “Subversion” in sections 19(1)(e) and 27(1)(c) of the Immigration Act is of no force and effect under section 52(1) of the Constitution Act 1982. It is vague and not capable of being given a consistent and settled meaning and as such is inconsistent with the principles of fundamental justice under section 7 of the Charter. It lacks definitional boundaries, and is overly broad, resulting in an infringement of section 2 Freedoms and section 15 Equality Rights under the Charter.
2. “Democratic government, institutions and processes” in section 19(1)(e) of the Immigration Act is of no force and effect under section 52(1) of the Constitution Act, 1982. It is vague and not capable of being given a consistent and settled meaning and as such in inconsistent with the principles of fundamental justice under section 7 of the Charter. It lacks definitional boundaries, and is overly broad.
3. “Reasonable grounds to believe” in sections 19(1)(e) and (g) of the Immigration Act establishes an “illusory” standard of defence, inconsistent with the principles of fundamental justice under section 7 of the Charter.[6]
[18] The Review Committee recommendation did not extend to paragraph 27(1)(c) of the Act with the result that it was acknowledged before me that this judicial review application could not properly extend to issues surrounding that paragraph.
[19] During the course of the hearing of this matter, the further issue of the standard of review of the decision of the Review Committee was identified.
ANALYSIS
Standard of Review
[20] Counsel were in agreement that the standard of review with regard to the issue of ignoring or misinterpreting of evidence resulting in unreasonable conclusions on the part of the Review Committee is “reasonableness simpliciter”. In support of this position, counsel cited Moumdjian v. Canada (Security Intelligence Review Committee)[7] and Baker v. Canada (Minister of Citizenship and Immigration).[8] With regard to the other issues, counsel were in agreement that the standard of review is “correctness”. I am in agreement with the position of counsel on both aspects of the issue, standard of review.
Vagueness
[21] The applicant submitted that the word “subversion”, the phrase “democratic government, institutions or processes, as they are understood in Canada” as used in paragraph 19(1)(e) of the Act, and the phrase “reasonable grounds to believe” as it is used in both paragraphs 19(1)(e) and (g) of the Act, should be found to be of no force and effect as they are void for vagueness. Counsel urged that if I were to find any of the impugned word and phrases to be void for vagueness, the decision of the Review Committee should be struck down by virtue of its reliance on the impugned word or phrase.
[22] For ease of reference, the relevant portions of subsection 19(1) of the Act are repeated here:
19. (1) No person shall be granted admission who is a member of any of the following classes:
…
(e) persons who have engaged in or there are reasonable grounds to believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest;
…
(g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence;
[23] The doctrine of vagueness was clearly and extensively articulated by the Supreme Court of Canada in R. v. Nova Scotia Pharmaceutical Society.[9] In writing for a unanimous Court, Mr. Justice Gonthier reviewed the case law of the Court on vagueness in the context of the Charter and, commencing at pages 626-627 of the reported decision, wrote:
The foregoing may be summarized by way of the following propositions:
1. Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be “prescribed by law”. Furthermore, vagueness is also relevant to the “minimal impairment” stage of the Oakes test….
2. The “doctrine of vagueness” is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion….
3. Factors to be considered in determining whether a law is too vague include (a) the need for flexibility and the interpretative role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist….
4. Vagueness, when raised under s. 7 or under s. 1 in limine, involves similar considerations…. On the other hand, vagueness as it relates to the “minimal impairment” branch of s. 1 merges with the related concept of overbreadth….
5. The Court will be reluctant to find a disposition so vague as not to qualify as “law” under s. 1 in limine, and will rather consider the scope of the disposition under the “minimal impairment” test…. [Citations omitted.]
[24] After noting at page 632 that “the threshold for finding a law vague is relatively high.”, Gonthier J. wrote at page 643 that “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.” The Court’s rationale for this conclusion was in the following terms at pages 639 and 640:
A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary. This is an exacting standard, going beyond semantics. The term “legal debate” is used here not to express a new standard or one departing from that previously outlined by this Court. It is rather intended to reflect and encompass the same standard and criteria of fair notice and limitation of enforcement discretion viewed in the fuller context of an analysis of the quality and limits of human knowledge and understanding in the operation of the law.
[25] Mr. Justice Gonthier continued at page 642:
The modern State intervenes today in fields where some generality in the enactment is inevitable. The substance of these enactments remains nonetheless intelligible. One must be wary of using the doctrine of vagueness to prevent or impede State action in furtherance of valid social objectives, by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself. A delicate balance must be maintained between societal interests and individual rights. A measure of generality also sometimes allows for greater respect for fundamental rights, since circumstances that would not justify the invalidation of a more precise enactment may be accommodated through the application of a more general one.
What becomes more problematic is not so much general terms conferring broad discretion, but terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled. Once more, an unpermissibly vague law will not provide a sufficient basis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements. In giving unfettered discretion, it will deprive the judiciary of means of controlling the exercise of this discretion. [Emphasis added.]
[26] Gonthier J. expressly stated at page 642 that the doctrine of vagueness “applies to all enactments, irrespective of whether they are civil, criminal, administrative or other.”
[27] As noted earlier, Gonthier J. also stated that the doctrine of vagueness imposes a high threshold. This is evidenced by the fact that it has only been invoked on one occasion by the Supreme Court of Canada. In R. v. Morales,[10] Chief Justice Lamer, writing for the majority, held that the “public interest” criterion within paragraph 515(10)(b) of the Criminal Code of Canada,[11] which permitted the detention of an accused on the ground that it was necessary “in the public interest or for the protection or safety of the public”, was “too vague and imprecise” under paragraph 11(e) of the Charter such that it was unconstitutional.
[28] While Lamer C.J. acknowledged at pages 729-730 that:
A provision does not violate the doctrine of vagueness simply because it is subject to interpretation. To require absolute precision would be to create an impossible constitutional standard.
…
It seems apparent that, at the very least, the term “public interest” is subject to interpretation. It accordingly becomes necessary to determine whether it is capable of being given a constant and settled meaning by the courts.
[29] After canvassing the ongoing legal debate as to whether a workable meaning had been found for the term “public interest”, he concluded at page 732:
As currently defined by the courts, the term “public interest” is incapable of framing the legal debate in a meaningful manner or structuring discretion in any way.
Nor would it be possible in my view to give the term “public interest” a constant or settled meaning. The term gives the courts unrestricted latitude to define any circumstances as sufficient to justify pre-trial detention. The term creates no criteria to define these circumstances. No amount of judicial interpretation of the term “public interest” would be capable of rendering it a provision which gives any guidance for legal debate.
[30] Lamer C.J. went on to hold that the vague provision could not be saved under section 1 of the Charter. He did, however, at page 740, find the “public safety component of s. 515(10)(b)” of the Criminal Code to be constitutionally valid since it “establishes narrow circumstances in which bail is denied. Those circumstances are necessary to promote the proper functioning of the bail system and are not undertaken for any purpose extraneous to the bail system.”
[31] It is worthy of note that Gonthier J. and L’Heureux-Dubé J. dissented from the majority’s finding in Morales that the phrase “public interest” was unconstitutionally vague.
“Subversion”
[32] “Subversion”, I am satisfied, is an extraordinarily elusive concept.
[33] In undertaking a vagueness analysis, it is well established that a court must first develop the full interpretive context surrounding an impugned provision in order to determine whether the provision provides a sufficient basis for distinguishing between permissible and impermissible conduct, or for ascertaining an “area of risk”. The factors to be considered in applying a contextual approach were outlined by Mr. Justice Gonthier in Ontario v. Canadian Pacific Ltd.,[12] where he wrote:
In determining whether legal debate is possible, a court must first engage in the interpretive process which is inherent to the “mediating role” of the judiciary…. Vagueness must not be considered in abstracto, but instead must be assessed within a larger interpretive context developed through an analysis of considerations such as the purpose, subject matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicial interpretations of the provision. Only after exhausting its interpretive role will a court then be in a position to determine whether an impugned provision affords sufficient guidance for legal debate. [Citation omitted.]
[34] The starting point, therefore, for determining whether a provision provides an adequate basis for legal debate, and consequently, for arriving at a conclusion as to its meaning by reasoned analysis, is the statute itself in which the impugned provision appears.
[35] The Immigration Act neither expressly defines nor sets out any criteria by which to gauge the meaning of the term “subversion”. The language of paragraph 19(1)(e) is very broad; not only does it contemplate activities taking place within Canada but aimed towards the undermining of foreign countries, but it also captures both violent and non-violent acts of espionage and subversion. One thing is clear from the terminology of paragraph 19(1)(e): it employs the words “espionage” and “subversion” disjunctively. Thus, whatever “subversion” is intended to mean, it is not intended to encompass “espionage”.
[36] The absence of statutory definition necessitates a consideration of the underlying objectives of the Immigration Act. Of particular relevance is paragraph 3(j), which provides:
3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
…
(j) to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity. [Emphasis added.]
[37] This declaration is strengthened and amplified by the declaration of purpose reflected in section 38.1 of the Act that is quoted in the Schedule to these reasons.
[38] It is therefore evident that the policy and purpose behind the exclusion from Canada pursuant to paragraph 19(1)(e) of the Act of persons who either have engaged in or who may engage in espionage or subversion is to promote international order and justice by denying the use of Canada as a base for espionage or subversion or, in the words of paragraph 3(j), for “criminal activity”, an expression that is clearly not coextensive with espionage and subversion.
[39] That the inadmissibility terms of paragraph 19(1)(e) of the Act are inextricably linked to national security interests is no surprise. Indeed, the Immigration Act expressly refers to the Canadian Security Intelligence Service Act[13] and empowers the Review Committee to investigate the grounds of a report made by the Minister of Citizenship and Immigration and the Solicitor General of Canada stating the opinion that, based on security or intelligence reports received and considered by them, a permanent resident is described within one or more of the inadmissible classes.[14]
[40] Given the absence of a definition of “subversion” within the Immigration Act and its failure to set out any factors or determinative elements for identifying the parameters of activities falling within the scope of “subversion”, I turn to the related provisions of the Canadian Security Intelligence Service Act for guidance.[15]
[41] It is interesting to note that the Canadian Security Intelligence Service Act simply does not use the term “subversion”. Paragraph (d) of the definition “threats to the security of Canada” in section 2 of that Act[16] is apparently as close as the Act gets to a concept of subversion. Further, that paragraph, as with all elements of the definition, is specifically limited to exclude lawful advocacy, protest or dissent unless the advocacy, protest or dissent is carried on in conjunction with the activities referred to in the elements of the definition.
[42] In its report, the Special Committee of the House of Commons on the Review of the Canadian Security Intelligence Service Act and the Security Offences Act[17] stated that two types of activity are included in paragraph (d) of the definition “threats to the security of Canada”. The Special Committee [at page 23] indicated that paragraph (d) covered activities that were either:
1) directed toward undermining by covert unlawful acts the constitutionally established system of government in Canada; or
2) directed toward or intended ultimately to lead to the destruction or overthrow by violence of the constitutionally established system of government in Canada. [Emphasis added.]
[43] The Special Committee recommended the repeal of paragraph (d) on the basis that many of the activities that it encompassed could be dealt with under paragraphs (a) “espionage or sabotage”, (b) “foreign influenced activities” and (c) “politically motivated violence” of the definition. In reaching this conclusion, the Special Committee noted that paragraph 2(d) was by far the most controversial provision that it had addressed and outlined briefly both sides of the argument as follows:
Those who call for the repeal of paragraph (d) see it as having a chilling effect on rights and freedoms. They argue that the vagueness of this provision leads to excessive speculation on the ultimate effect of the exercise of guaranteed rights and freedoms and, consequently, to uncalled-for targeting of legitimate activity. They also say that since the Counter-Subversion Branch of CSIS was disbanded in 1987, it is now time to repeal paragraph (d) of the definition of threats to the security of Canada as a spent provision.
Those who argue in favour of retaining paragraph (d) admit that the activities it covers do not constitute a major threat to the security of Canada at present and that many of the activities it encompasses may be captured by paragraphs (b) and (c) of the definition. But they go on to argue that Canadians expect CSIS to be in a position to forwarn the Government of Canada about potential threats to the security of Canada, especially if the activities dealt with by paragraph (d) again become a significant threat at some future time.[18]
[44] Given the close relationship between the Immigration Act and the Canadian Security Intelligence Service Act in terms of national security issues, it is perhaps surprising that the “threats” provisions in section 2 of the Canadian Security Intelligence Service Act differ so markedly from the related criteria for denying admission to Canada in the Immigration Act, particularly since the McDonald Commission,[19] the Review Committee[20] and the Special Committee on the Review of the Canadian Security Intelligence Service Act and the Security Offences Act[21] recommended that these criteria be consistent.
[45] In contrast to paragraph 19(1)(e) of the Immigration Act, the Canadian Security Intelligence Service Act confines the concept of “subversion” to acts directed toward either the undermining by covert unlawful acts or the overthrow by violence of the constitutionally established system of government in Canada. It therefore is much more specific or focussed than the concept “subversion” in the Immigration Act in that it requires acts to be directed at the Canadian system of government, and to be either covert and unlawful or violent.
[46] The uncertainty surrounding any attempt to distinguish between permissible and impermissible conduct in relation to “subversion” is compounded when one considers the broad definition of “subversive or hostile activities” found in subsection 15(2) of the Access to Information Act.[22] The relevant portion of that provision reads:
15. (1) …
(2) In this section,
…
“subversive or hostile activities” means
(a) espionage against Canada or any state allied or associated with Canada,
(b) sabotage,
(c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states,
(d) activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means,
(e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada, and
(f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada.
[47] The foregoing definition would appear to contemplate “subversive activities” which may or may not involve violence and that target Canada or any state allied or associated with Canada. It does not distinguish between activities which would be considered subversive as opposed to hostile; rather, it lumps together a broad mix of activities ranging from intelligence-gathering to terrorism.
[48] Given the ambiguity and lack of determinative elements regarding the term subversion in the Immigration Act, it is perhaps surprising that the term has been rarely judicially considered. In fact, Mr. Justice Cullen appears to be alone in his attempt to give meaning to the term. In Shandi, Re,[23] in the context of a judicial review of the validity of a certificate issued pursuant to subsection 40.1(4) [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4] of the Immigration Act, Mr. Justice Cullen, as noted earlier in these reasons, wrote:
Espionage and subversion are not limited to the actual act but to be engaged in these activities the words envisage participation by one who assists or facilitates the objective as one who commits the actus reus. Any act that is intended to contribute to the process of overthrowing a government is a subversive act. It perplexes me that so much has been written about subversion, or that the word should not be used because it runs contrary to a person’s rights under the Charter to be a dissident. Certainly CSIS investigators must be aware of the difference (which may not always have been the case), but subversive acts are not difficult to distinguish from acts of protest that should not be subject to investigations. For example, if funds are raised or guns sent to the I.R.A. from Canada, is that not clearly subversion? However, vocal comment or written treaties on the “Struggle” are clearly protected under the Charter. Examples of subversive acts are not difficult to find. [Emphasis added.]
[49] Mr. Justice Cullen’s terminology would appear to be remarkably broad. The highlighted sentence involves no concept of covertness, violence or unlawfulness; rather, it would appear to encompass open, non-violent, lawful activities of legitimate political opposition parties, albeit that this breadth would appear to be qualified somewhat later in the quoted paragraph. In the end, Justice Cullen appears to be saying, we will know subversion when we see it. In this, he appears to draw support from reputable dictionaries.
[50] The Oxford English Dictionary, 2nd edition,[24] defines “subversion” as including “the action of subverting or state of being subverted”:
1. Overthrow, demolition (of a city, stronghold, etc.).
…
4. In immaterial senses: Overthrow, ruin.
a. of a law, rule, system, condition, faculty, character, etc.
…
b. of persons, countries, peoples or their lives or fortunes.
[51] The ITP Nelson Canadian Dictionary of the English Language[25] provides the following relevant definitions:
subversion 1.a. The act or an instance of subverting. b. The condition of being subverted. 2…. A cause of overthrow or ruin.
subversive Intended or serving to subvert, esp. intended to overthrow or undermine an established government.
subvert 1. To destroy completely; ruin. 2. To undermine the character, morals, or allegiance of; corrupt. 3. To overthrow completely.
Black’s Law Dictionary, 7th edition,[26] provides:
subversion. The process of overthrowing, destroying, or corrupting.
subversive activity. A pattern of acts designed to overthrow a government by force or other illegal means.
[52] While Mr. Justice Cullen’s definition and the dictionary definitions of “subversion” and related terms are helpful in providing a general understanding of the concept, they do not clarify its legal parameters. In particular, they do not aid in distinguishing between subversion and lawful dissent, nor do they provide guidance to define the boundary between the two. They provide no basis or guidance for legal debate.
[53] Indeed, the fluidity of the term or concept was affirmed by Professor Reg Whitaker, who was the only expert witness to testify before the Review Committee on the historical application of the concept of subversion in Canada. The following is extracted from his evidence:[27]
Q. First of all, if it is possible, can you explain what your understanding would be of the concept of subversion?
A. One would have to make some distinctions here because it is a very fluid concept, to put it mildly.
The first distinction to be made would be between what one might call popular understanding of the term and the legal understanding of the term.
In terms of the popular understanding of the term, I suppose that one could best understand it within the context of the Cold War from the 1940s through to the 1980s. The popular notion, which was also one that was certainly held by governments, I think, in that period, was that there was a threat to security which was allied to an external power, the Soviet Bloc, international communism, but which was manifested from within, and involved the clandestine, deceptive, covert undermining of the institutions of Canadian Government by a kind of fifth column allied to this external enemy or this external threat.
The crucial elements there are “undermining from within” and “in a clandestine” or “deceptive fashion”. So, you had the notion of, for example, activities that were carried on by front groups which allegedly concealed their aims and sought to covertly achieve an undermining of the fabric of Canadian democracy without, in fact, being open about it.
…
In terms of the legal definition, we are on even shakier ground. There is, in fact, no clear legal definition of which I am aware in Canadian law, although the term is used occasionally. I suppose the closest one can come to a definition is in Section 2(d) of the CSIS Act, … although the term “subversion” is not used, …
…
That definition has been an extremely controversial one, which has probably had more criticism directed against it than any other part, to my knowledge, of the CSIS Act.
…
Q. You identified covert activity from within a government, from within a country. Does it necessarily include violence?
A. That is one of the problems with the concept. Perhaps going back over it, both in terms of the popular and the legal conception of subversion, it seems to me that the crucial difficulty is that every attempt to specify what is involved in subversion tends to either disappear into other clearly specified kinds of threats, such as espionage, such as foreign influence to activities in Canada as terrorism, sabotage or what one might call revolutionary violence, that is actual overt attempts to overthrow government by violent means.
Subversion seems to disappear into one or other of those categories, which are all caught under different definitions already in various areas or—and this is why it has been so controversial—it tends to disappear into what one might call the very contentious area of lawful advocacy, protest and dissent, i.e. views that are considered to be dissenting, radical, out of the pale of orthodoxy at a particular time.
…
Q. How would you characterize attempts to overthrow a government from outside that government?
A. There is a fairly well established set of notions about that. We have military force war and a government is overthrown by a foreign government’s military force. One form or other of military aggression would seem to cover that.
There might be individual acts that might be taken in a different context. Short of that, such as a terrorist act, for example, directed from abroad, which would be clearly seen as terrorism or something like foreign-directed sabotage, might be seen in that light. Again, a fairly clear definition there, I would think.
[54] Professor Whitaker also testified about the term “subversion” in relation to the Palestinian movement and the activities of the PFLP within that movement:[28]
The point about subversion is that it must imply, if it implies anything at all, a covert or clandestine threat from within. It has always, even in both the popular and in whatever one can make of the legal definition here, involved those two elements, both the clandestine element or the deceptive element, but also that undermining from within.
In the case of whether Palestinian political activities directed against Israel, whether they took the form of terrorist actions in the early phase or whether they take the form of actions carried out against what are perceived to be military targets, or even in the case of actions undertaken within the Occupied Territories in which Israel appears in the form of a military conqueror and has established a military occupation of those territories, and I think that puts a very different framework on whatever actions take place within that context, none of those can one reasonably describe such activities as undermining from within.
It is precisely because the Palestinians have been excluded by the State of Israel, both physically and formally in terms of Israeli citizenship, et cetera, et cetera, that those activities are directed, in effect, from the outside in, not from the inside, I would say quite clearly that I cannot even comprehend how the term “subversion” would make any sense in relation to that. [Emphasis added.]
He continued at pages 1560-1561 of the transcript:
Q. In your mind or in your opinion, can the PFLP commit subversive activities in relation to the State of Israel?
A. No, I would be quite categorical about that. This is not to say that the PFLP might not commit acts of violence, of terrorism, or that they have not in the past carried out such acts. But subversion, however difficult it might be to get a hold of that concept in its entirety in the Canadian context, seems to me to clearly and decisively not apply to the case of the Palestinians who are not situated in a position where they could, even if they were to choose such a strategy, to undermine clandestinely from within.
The PFLP is an organization which is clearly external of the State of Israel and has no capacity to carry out anything that might be referred to under the minimal definition that I can find of subversion as clandestinely undermining from within.
As I say, that is not to say acts of violence, terrorism and so on, but those are directed from without, not from within.
“Subversion”—Void for Vagueness?
[55] For the concept of unconstitutional vagueness to be engaged, a provision of the Charter must first be engaged.
[56] Counsel for the applicant urged that section 7 of the Charter, among other provisions, is engaged. Section 7 reads as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[57] In Chiarelli v. Canada (Minister of Employment and Immigration),[29] the Court had before it a similar but different certificating process under the Immigration Act. At pages 318 and 319, Mr. Justice Pratte wrote:
Did, however, the filing of the section 83 certificate affect the appellant’s right to life, liberty and security of the person? The filing of the certificate had the effect of depriving the Immigration Appeal Board of its power to allow the appellant’s appeal on compassionate grounds. This, in itself, did not directly interfere with the appellant’s right to life, liberty and security of the person. However, if things are looked at realistically, it cannot be denied that, as a result of the filing of the certificate, the appellant will be deported to Italy while he otherwise might have been allowed to remain in the country. As, in my view, deportation necessarily implies an interference with the liberty of the person, I would say that a violation of section 7 of the Charter has been established.
The next question is whether that violation was authorized by section 1 of the Charter. In other words, was the limitation that was imposed on the right of the appellant to know the allegations made against him reasonable? Was it prescribed by law and demonstrably justified in a democratic society?
[58] The issue before the Court in this matter is not the issuance or filing of a certificate but rather a recommendation by the Review Committee to the Governor in Council that a certificate should be issued in accordance with subsection 40(1) of the Immigration Act. At the time this matter was heard, it was known that that recommendation had been accepted and that a certificate had in fact issued. In the words of Mr. Justice Pratte, “looked at realistically, it cannot be denied that, as a result of the [Review Committee report], the [applicant] will be deported” although the destination to which he will be deported apparently remains uncertain.
[59] I adopt the view of Mr. Justice Pratte that, on the facts of this matter, “deportation necessarily implies an interference with the liberty of the [applicant]”.[30] Parenthetically, though perhaps not relevant for the purposes of determining whether or not section 7 is engaged, the impact of deportation of the applicant on his wife and his children is potentially dramatic.
[60] Counsel for the respondent urged that I should distinguish the reasoning of Mr. Justice Pratte in Chiarelli because of the investigatory nature of the enquiry before the Review Committee, the decision of which is the only decision before me, and because, following the Review Committee’s recommendation, it remained open to the Governor in Council to reject the Review Committee’s recommendation. He referred, by analogy, to the decision of the Federal Court of Appeal in Ahani v. Canada[31] where Mr. Justice Marceau wrote at page 183:
There are two propositions that are central to the appellant’s argument, as we understand it, propositions that are related to one another. One is that the s. 40.1 process, in the case of a convention refugee, affects his or her most basic right to life, liberty and security, since it implies the potential consequence that he or she be sent to a country where he or she may well be subject to persecution. The other is that, even if we are in an immigration context, the rights affected are so basic that the standards of fundamental justice required by s. 7 of the Canadian Charter of rights and Freedoms must be very high indeed, and close to those recognized as being applicable in the criminal context where the same basic rights are at stake.
We dispute the validity of the first proposition. Between a determination by the designated judge that the certificate filed by the ministers is reasonable and a possible removal of the person concerned to the country where he or she fears persecution, there must be, as required by s. 53 of the Act…, a second opinion formed by the Minister of Employment and Immigration based on a determination that the person constitutes “a danger to the public in Canada”, or “a danger to the security of Canada”, a determination which will have to be made in accordance with the principles of fundamental justice and which will remain subject to judicial review. [Citations omitted.]
[61] I prefer to work by analogy to the reasoning of Mr. Justice Pratte in Chiarelli, which is to say, that things should be looked at realistically. I take note of the fact, although it was only informally before me at the hearing of this matter, that by the time of the hearing, the Governor in Council had accepted the recommendation of the Review Committee, had directed that a certificate issue and a certificate had issued, all without the knowledge of the applicant or his counsel. The accoutrements of fundamental justice that Mr. Justice Marceau refers to as surrounding the “danger opinion” determination in Ahani appear to have been nowhere present during the steps in this matter that followed the Review Committee recommendation.
[62] I am satisfied that, against the guidance provided by the Supreme Court of Canada earlier reviewed, the use of the word “subversion” in paragraph 19(1)(e) of the Act violates section 7 of the Charter since it is, in the words of Chief Justice Lamer in R. v. Morales quoted earlier: “incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.”
[63] I turn then to the question of whether the violation of section 7 of the Charter that I have found to have occurred is authorized by section 1 of the Charter. Once again, by analogy to the words of Mr. Justice Pratte:
In other words, was the limitation that was imposed on the right of the appellant to [respond to the] allegations [regarding “subversive” activity on his part, having regard to the vagueness of that term,] reasonable? Was it prescribed by law and demonstrably justified in a [free and] democratic society?
[64] In RJR-MacDonald Inc. v. Canada (Attorney General),[32] Mr. Justice La Forest, albeit in dissent, reaffirmed the appropriate methodology for a section 1 analysis set forth in The Queen v. Oakes.[33] He wrote at paragraph 60, page 268:
Section 1 of the Charter guarantees the rights and freedoms set out therein “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. It is well established that the onus of justifying the limitation of a Charter right rests on the party seeking to have that limitation upheld, in this case the Attorney General. In Oakes, … this Court set out two broad criteria as a framework to guide courts in determining whether a limitation is demonstrably justified in a free and democratic society. The first is that the objective the limit is designed to achieve must be of sufficient importance to warrant overriding the constitutionally protected right or freedom. The second is that the measures chosen to achieve the objective must be proportional to the objective. The proportionality requirement has three aspects: the measures chosen must be rationally connected to the objective; they must impair the guaranteed right or freedom as little as possible; and there must be proportionality between the deleterious effects of the measures and their salutary effects. [Citation omitted.]
[65] At paragraph 63 on page 270, Mr. Justice La Forest continued:
This Court has on many occasions affirmed that the Oakes requirements must be applied flexibly, having regard to the specific factual and social context of each case. The word “reasonable” in s. 1 necessarily imports flexibility. In a significant, but often neglected, passage from Oakes itself, Dickson C.J. warned against an overly formalistic approach to s. 1 justification, stating at p. 139 that: “[a]lthough the nature of the proportionality test will vary depending on the circumstances, in each case the courts will be required to balance the interests of society with those of individuals and groups”.
[66] Madam Justice McLachlin, as she then was, adopted a similar approach[34] in her reasons in RJR-MacDonald.
[67] On the facts of this matter, the question for determination is whether reliance on the term “subversion” in the Immigration Act in the context of the certification process, an element of which is here under review, can be demonstrably justified in a free and democratic society, given the difficulty that reliance on that term, given its vagueness, imposes on persons such as the applicant in defending themselves against removal from Canada, to at best uncertain futures. Put another way, the question is whether the term “subversion” is unconstitutionally vague.
[68] Against the Oakes test, which I do not propose to review in detail in all of its aspects against the facts of this matter, and against the cautionary guidance provided by the case law cited earlier in these reasons regarding findings of unconstitutional vagueness, I am satisfied that the use of the term “subversion” in the context in the Immigration Act that is here under review can be reasonably justified in the free and democratic society that is Canada.
[69] Sections 38.1 to 40.2 [ss. 39.1 (as enacted by S.C. 1997, c. 22, s. 5), 39.2 (as enacted idem), 39.3 (as enacted idem), 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31), 40.2 (as enacted idem, s. 32)] of the Act appear under the heading “Safety and Security of Canada”. Section 38.1 recites the purpose of those provisions in the following terms which I repeat here for ease of reference:
38.1 Recognizing that persons who are not Canadian citizens or permanent residents have no right to come into or remain in Canada and that permanent residents have only a qualified right to do so, and recognizing the necessity of cooperation with foreign governments and agencies in maintaining national security, the purposes of sections 39 to 40.2 are
(a) to enable the Government of Canada to fulfil its duty to remove persons who constitute a threat to the security or interests of Canada or whose presence endangers the lives or safety of persons in Canada;
(b) to ensure the protection of sensitive security and criminal intelligence information; and
(c) to provide a process for the expeditious removal of persons found to be members of an inadmissible class referred to in section 39 or 40.1.
[70] It is in this context that use of the term “subversion” is here under review. The evidence before the Court and the submissions before me clearly demonstrate that, while the term is vague, it has some meaning, albeit, I am satisfied, not enough to afford sufficient guidance for legal debate. Further, recommendations to clarify the term or provide alternative terminology that is less vague have not met with success. That being said, I am satisfied that the social and security objectives that the use of the term is designed to achieve are of sufficient importance to warrant overriding the constitutionally protected right of persons such as the applicant, that is infringed. Furthermore, I am satisfied that the use of the term “subversion”, in the context in which it is here being considered, impairs the constitutionally protected right of the applicant as little as possible and achieves a defensible balance between the deleterious effects flowing from the use of the term and the social and security objectives to which its use is directed.
[71] In reaching the conclusion that the use of the term “subversion” in the context in which it is before me, while it imports vagueness, does not result in unconstitutional vagueness, I am guided in particular by the following words of Mr. Justice Gonthier in Nova Scotia Pharmaceutical Society[35] where he wrote at page 642:
One must be wary of using the doctrine of vagueness to prevent or impede State action in furtherance of valid social objectives, by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself. A delicate balance must be maintained between societal interest and individual rights.
“Subversion”—Sections 2 and 15 of the Charter
[72] Section 2 and subsection 15(1) of the Charter read as follows:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
…
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[73] In the notice of constitutional question served on the attorneys general of the provinces and territories and of Canada in this matter, the applicant takes the position that “subversion” in paragraph 19(1)(e) of the Immigration Act “lacks definitional boundaries and is overly broad, resulting in an infringement of section 2 Freedoms and section 15 Equality Rights under the Charter.”
[74] Based upon the foregoing analysis regarding the argument that “subversion” is unconstitutionally vague, the applicant has failed to satisfy me that the term, while vague, is so lacking in definitional boundaries and overly broad as to result in an infringement of section 2 freedoms. Interpreted in a manner consistent with the terminology of paragraph (d) of the definition “threats to the security of Canada” in section 2 of the Canadian Security Intelligence Service Act or, even more narrowly, as advocated by Professor Whitaker, it is neither without definitional boundaries nor overly broad.
[75] I reach the same conclusion with regard to section 15 equality rights. As to the interrelationship between the certificate process under the Immigration Act of which the Review Committee’s investigation and recommendation that is before me forms a part, I am satisfied that the following words of Mr. Justice Pratte in Chiarelli,[36] at pages 312 and 313, in respect of a different but parallel certificate process under the Immigration Act are apt to this matter:
The appellant argued that sections 82.1 and 83 [the basis of the certificate process there under consideration] violate section 15 because they have the effect of depriving the appellant to whom they apply of the benefit of a hearing on the merits of their appeal on the ground that they are permanent residents. That argument has no merit. Those sections do not deprive permanent residents of a right of appeal on the ground that they are permanent residents but because they are believed to be engaged in criminal activity. This is not discrimination within the meaning of section 15.
[76] By analogy, the applicant here could not be said to have been deprived of a hearing in the portion of the certificate process that is here under review, that is to say, the investigation and recommendation by the Review Committee. If at a later stage there could be said to be a deprivation of a right to a hearing, it would not be on the basis that the applicant is a permanent resident but rather on the basis that, on reasonable grounds, he is believed to be engaged in subversion, or a person who might engage in subversion or might engage in activity described in paragraph 19(1)(g) of the Act.
“Democratic Government, Institutions and Processes”
[77] In the notice of constitutional question, the applicant urges that the expression “democratic government, institutions and processes”, as it is used in paragraph 19(1)(e) of the Act where it is qualified by the words “as they are understood in Canada”, “is vague and not capable of being given a consistent and settled meaning and as such is inconsistent with the principles of fundamental justice under section 7 of the Charter. It lacks definitional boundaries, and is overly broad.”
[78] I am satisfied that the discussion of “Democracy” that was undertaken by the Supreme Court of Canada in Reference re Secession of Quebec[37] provides ample evidence that the expression “democratic government, institutions and processes”, as they are understood in Canada, is not so vague as to be incapable of being given a consistent and settled meaning or to be lacking in definitional boundaries, or to be overly broad.
“Reasonable grounds to believe”
[79] Once again in the notice of constitutional question served in this matter, the applicant takes the position that the expression “reasonable grounds to believe”, as it appears in paragraphs 19(1)(e) and (g) of the Act “establishes an `illusory’ standard of defence, inconsistent with the principles of fundamental justice under section 7 of the Charter.”
[80] “Reasonable grounds to believe” is an expression well known in Canadian law, adopted in many contexts as a standard of proof or of defence. I find no merit to the argument that it provides only an “illusory” standard of defence in the context of paragraphs 19(1)(e) and (g) of the Immigration Act. The applicant has failed to satisfy me that its use in those contexts is inconsistent with the principles of fundamental justice under section 7 of the Charter.
The Review Committee’s Analysis; Ignoring or Misinterpreting Evidence; Error of Law
[81] There is no doubt that there is a great deal of conflict in the evidence that was before the Review Committee and counsel on both sides took me through the evidence in some detail. I am satisfied that the Review Committee’s concerns regarding the credibility of the applicant are justified. In particular, the excerpts from the applicant’s testimony that are contained in the Review Committee’s report demonstrate evasiveness and a willingness to lie. The first paragraph quoted from the applicant’s testimony on page 17 of the Report is of interest. The applicant states:
As a Palestinian who lives in Lebanon and was born in Lebanon, I am not allowed to go back to the West Bank, and I am not allowed, maybe in two years, to go back to Lebanon. I might be deported from Canada. You do not want me to lie? To survive as a human being and to survive for my children, no, I will lie and I will lie and I will lie to protect myself. And I will lie without hurting anyone because I told you, I am not that kind of person who is stupid to go and do whatever activities.
[82] Counsel for the applicant urged that the Review Committee should have adopted a “contextual approach” as per the Baker decision, supra, in considering the applicant’s credibility and I have a good deal of sympathy for that argument. Given the applicant’s life experience, his statelessness, his commitment to re-establishment of a Palestinian homeland, his long period in Canada and his family responsibilities, it is perhaps quite unfair to demand a standard of forthrightness such as one would expect of a native-born Canadian citizen with an unqualified right to remain in Canada. Certainly the Review Committee engaged in no contextual analysis. That being said, I am not satisfied that I can extrapolate from Baker so as to find this lack of a contextual analysis to be a reviewable error.
[83] Certainly there can be no doubt as to the credibility of the evidence from the Canadian Security Intelligence Service (CSIS) that was before the Review Committee and this Court; but the difficulty I find with respect to that evidence is whether much of it is reasonable inference or whether it is speculation and conjecture without adequate foundation. One could certainly argue that it is the latter with regard to the 1977 United Arab Emirates terrorist act. One could also argue that it is the latter with respect to the ultimate use of funds channelled back to the PFLP by the applicant, but this is not a major issue since the ultimate purpose to which those funds were put and the applicant’s knowledge of that purpose were not heavily relied on by either CSIS or the Review Committee. Rather, the undisputed fact that funds were channelled through the applicant was relied on by the Review Committee simply as an indicator of the trust that was placed in him by the PFLP.
[84] The evidence regarding the current and future capacity of the PFLP was to the effect that it is not the potent organization it once was, nor is it the radical terrorist organization that it was in the early 70s. Justice MacKay, in the first Al Yamani case,[38] described the PFLP as a “multi-faceted” organization, and I think the evidence here before the Court supported that description. It continues to work within the PLO and, at least on its right wing, and that was the wing with which the applicant’s father was identified, it appears committed to a peaceful solution based upon a “two-nation” model.
[85] That being said, with great respect to my colleague Mr. Justice Cullen, and more particularly to the Review Committee, I am satisfied that, against a standard of correctness, the Review Committee erred in law in relying, without further analysis, on the definition or description of “subversion” provided in Shandi, Re.[39] The Review Committee appears to have essentially ignored the compelling testimony before it of Professor Whitaker, quoted at some length earlier in these reasons, relating to the elusiveness of the concept subversion and his studied view that the concept involves two essential elements, a clandestine or deceptive element, which would appear to have been identified here, and, more importantly, an element of undermining from within. If one accepts that these elements are fundamental to any definition of subversion, then it is patently obvious that the applicant could not have been engaged in subversion against Israel, either directly or through his support of, and membership in, the PFLP.
[86] The foregoing concerns regarding the Review Committee’s analysis relate only to its conclusion that the applicant is a person described in paragraph 19(1)(e) of the Act. The Review Committee’s decision would nonetheless stand if I were to find that its analysis that the applicant is a person described in paragraph 19(1)(g) of the Act was sufficient to support such a conclusion. I can make no such finding. Indeed, the analysis of the Review Committee in support of its finding that the applicant is a person described in paragraph 19(1)(g) of the Act is even less compelling. It consists of the following three paragraphs in the reasons of the Review Committee:
I understand Mr. Yamani’s position when he highlights that Hamas, unlike the PFLP and other PLO rejectionist factions, completely boycotted the vote to amend the PLO Charter and the elections of representatives to the Palestinian legislature and that threats to Israel are now coming from “organizations, like the Hamas who are not within the PLO structure”. However, I believe that the fact that Hamas effectively cut itself off from democratically influencing the vote does not mean that other rejectionist factions, such as the PFLP, who did participate actually support the amendments to the Charter or the terms of the peace accord.
Terrorism has been employed as a tactic of subversive organizations, such as the PFLP. I cannot ignore this fact. There is no reason to believe that the PFLP is any less dedicated to its goals and would be any less willing to engage in terrorist actions in Canada, if that was perceived to be required to allow it to achieve its goals. I conclude, therefore, that there is still a possibility that the PFLP may commit acts of violence in Canada.
Allowing Mr. Yamani to remain in Canada could provide logistical support for such acts of violence in Canada. I note that Mr. Yamani was assigned his tasks as a communications link and was a travel facilitator for all PFLP activities in North America by PFLP Headquarters in the Middle East because of his location in Canada.
[87] The Review Committee makes no mention of the evidence before it that the PFLP is a “spent force”. It does not reject the evidence from the applicant that the PFLP has no interest in Canada. The Review Committee cites no evidence before it that would make its conclusion that “there is still a possibility that the PFLP may commit acts of violence in Canada” anything more than sheer speculation.
[88] In summary, while the Review Committee’s conclusion that the applicant is a person described in paragraphs 19(1)(e) and 19(1)(g) of the Act might have reasonably been open to it on a more thorough and reasoned analysis of the evidence before it, against a standard of correctness, it simply cannot stand on the basis of the analysis provided.
CONCLUSION
[89] In his supplementary memorandum of fact and law, the applicant seeks the following relief:
… that this application be allowed and [this] matter [be] remitted to a differently constituted panel of the Security Intelligence Review Committee for reconsideration in accordance with law.
[90] Based upon the foregoing analysis, the requested relief will be granted.
[91] I was advised by counsel during a teleconference on March 14, 2000 that the requested relief, and the relief that will be granted, is not entirely moot. As noted earlier in these reasons, before the hearing of this matter in this Court, the Governor in Council apparently accepted the recommendation of the Review Committee, directed the issuance of a certificate and a certificate issued. The applicant was summoned to an inquiry. Counsel advised that the inquiry has not been completed.
CERTIFICATION OF A QUESTION
[92] At the close of the hearing of this matter, I undertook to circulate draft reasons to counsel and to provide an opportunity for submissions on certification of a question. A version of these reasons, slightly different in form and detail, but not in substance from this version, was circulated to counsel and to counsel only. It found its way into the hands of some representatives of the media. The Court convened a teleconference with counsel at which it was determined that these reasons would issue without further delay. Counsel will have until the close of business on Friday the 31st of March to provide written submissions on certification of a question or questions. If counsel so request or if the Court considers it necessary, a further teleconference will be convened. On finalization of the issue of certification of a question or questions, an order will issue.
SCHEDULE “A”
19. (1) No person shall be granted admission who is a member of any of the following classes:
…
(e) persons who have engaged in or who there are reasonable grounds to believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest;
…
(g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence;
…
27. (1) Where an immigration officer or a peace officer is in possession of information indicating that a permanent resident is a person who
…
(c) is engaged in or instigating subversion by force of any government,
…
the immigration officer or peace officer shall forward a written report to the Deputy Minister setting out the details of such information.
38.1 Recognizing that persons who are not Canadian citizens or permanent residents have no right to come into or remain in Canada and that permanent residents have only a qualified right to do so, and recognizing the necessity of cooperation with foreign governments and agencies in maintaining national security, the purposes of sections 39 to 40.2 are
(a) to enable the Government of Canada to fulfil its duty to remove persons who constitute a threat to the security or interests of Canada or whose presence endangers the lives or safety of persons in Canada;
(b) to ensure the protection of sensitive security and criminal intelligence information; and
(c) to provide a process for the expeditious removal of persons found to be members of an inadmissible class referred to in section 39 or 40.1.
…
39. (1) …
(2) Where the Minister and the Solicitor General of Canada are of the opinion, based on security or criminal intelligence reports received and considered by them, that a person, other than a Canadian citizen, is
(a) in the case of a permanent resident, a person described in subparagraph 19(1)(d)(ii) or paragraph 19(1)(e) or (g) or 27(1)(c), or
(b) in any other case, a person described in any of paragraphs 19(1)(d) to (g) or 27(2)(c),
they may make a report to the Review Committee.
…
(5) Where a report is made to the Review Committee pursuant to subsection (2), the Review Committee shall investigate the grounds on which it is based.…
…
(9) The Review Committee shall, on completion of an investigation in relation to a report made to it pursuant to subsection (2), make a report to the Governor in Council containing its conclusion whether or not a certificate should be issued under subsection 40(1) and the grounds on which that conclusion is based.
[1] R.S.C., 1985, c. I-2.
[2] ;Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (T.D.), at p. 241.
[3] Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), [R.S.C., 1985, Appendix II, No. 44].
[4] See Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (C.A.), at para. 4 [pp. 406-407].
[5] (1992), 51 F.T.R. 252 (F.C.T.D.).
[6] Aspects of these issues, in a substantially different factual context, were considered by the Federal Court of Appeal in Suresh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 5 (QL). Reasons in Suresh were issued after this matter was argued before me. In the result, while I have been cognizant of the reasons in Suresh in writing these reasons, I have not relied on them.
[7] [1999] 4 F.C. 624 (C.A.).
[8] [1999] 2 S.C.R. 817.
[9] [1992] 2 S.C.R. 606.
[10] [1992] 3 S.C.R. 711.
[11] R.S.C., 1985, c. C-46.
[12] [1995] 2 S.C.R. 1031, at p. 1070.
[13] R.S.C., 1985, c. C-23.
[14] See s. 39(2) of the Immigration Act in the Schedule to these reasons.
[15] In considering the terms of the CSIS Act, I am mindful of Mr. Justice Denault’s position in Baroud, Re (1995), 98 F.T.R. 99 (F.C.T.D.), where he considered the terms “terrorism” and “terrorist”. He stated at para. 28 [p. 109]:
… I am mindful of the fact that the terms “terrorism” and “terrorist” are not defined in the Act. … I do not accept counsel for the Ministers’ contention that the definition of “threats to the security of Canada” … found in s. 2 of the Canadian Security Intelligence [Service] Act, R.S.C. 1985, c. C-23, should apply to describe a terrorist organization in this case. While it may be appropriate, in some instances, to refer to a definition contained in a different act in order to properly discern Parliament’s meaning and intention with respect to a specific term or word, I do not see fit to do so in the present case.
[16] The relevant portions of the definition “threats to the security of Canada” in s. 2 of the Canadian Security Intelligence Service Act read as follows:
2. In this Act,
…
“threats to the security of Canada” means
…
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d). [Emphasis added.]
[17] Report of the House of Commons Special Committee on the Review of the Canadian Security Intelligence Service Act and the Security Offences Act. In Flux But Not in Crisis. (Ottawa: Supply and Services Canada, 1990).
[18] Ibid., at p. 24.
[19] Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report: Freedom and Security Under the Law, Vol. 2 (Ottawa: Supply and Services Canada, 1981) (Chair: Justice D. C. McDonald), at p. 823.
[20] Immigration Screening Activities of the Canadian Security Intelligence Service (Ottawa: Queen’s Printer, January 1988; expurgated version released under the Access to Information Act), at p. 23.
[21] Supra, note 17, at p. 31.
[22] R.S.C., 1985, c. A-1.
[23] Supra, note 5.
[24] Oxford: Clarendon Press, 1989.
[25] Toronto: ITP Nelson, 1997.
[26] St. Paul: West Publishing, 1999.
[27] Transcript, Vol. 16, at pp. 1515-1522.
[28] Transcript, Vol. 16, at pp. 1535-1536.
[29] [1990] 2 F.C. 299 (C.A.).
[30] The quotation from the reasons of Justice Pratte in Chiarelli on which I rely is from dissenting reasons. However, Justice Pratte’s dissent was with regard to a different issue, that is, whether the violation of s. 7 of the Charter was authorized by s. 1. Mr. Justice Pratte’s colleagues did not disagree with his conclusion that s. 7 was engaged. On the appeal to the Supreme Court of Canada, [1992] 1 S.C.R. 711, Mr. Justice Sopinka, writing for the Court, expressly refrained from deciding whether deportation for serious offences amounts to a deprivation of liberty.
[31] (1996), 37 C.R.R. (2d) 181 (F.C.A.).
[32] [1995] 3 S.C.R. 199.
[33] [1986] 1 S.C.R. 103.
[34] See paras. 126 et seq., of the reasons of McLachlin J. commencing at p. 327.
[35] Supra, note 9.
[36] Supra, note 29.
[37] [1998] 2 S.C.R. 217, at pp. 252-257.
[38] Supra, note 2.
[39] Supra, note 5.