Federal Court Sets Aside Delegate Decision in Refugee Case

OUTCOME: Allowed

Date: 20260604 Docket: IMM-5330-18 Citation: 2026 FC 719 Ottawa, Ontario, June 4, 2026 PRESENT: Mr. Justice Norris BETWEEN: [NAME_1] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

REASONS AND

JUDGMENT I. OVERVIEW [ 1 ] The applicant is a citizen of Algeria. He arrived in Canada in 1995 and claimed refugee protection based on his fear of persecution due to his membership in the [NAME_2] , an Algerian opposition group. In 1997, the [NAME_3] Determination Division found the applicant to be a [NAME_3] refugee. However, in 2002, the Solicitor [NAME_4] and the Minister of Citizenship and Immigration signed a security certificate under subsection 77(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 ( IRPA ), stating that the applicant is inadmissible to Canada on security grounds. As required, the certificate was referred to this Court for a determination as to its reasonableness. The certificate was upheld as reasonable in 2005. [ 2 ] In 2008, following a successful constitutional challenge to the security certificate scheme and subsequent amendments to the IRPA , the ministers signed a second security certificate against the applicant. As with the first certificate, in the ministers’ opinion, the applicant is inadmissible to Canada on security grounds under paragraphs 34(1)(c), (d) and (f) of the IRPA for engaging in terrorism, being a danger to the security of Canada, and being a member of an organization (the [NAME_5]) that there are reasonable grounds to believe engages, has engaged, or will engage in acts of terrorism. The second certificate was then referred to this Court for a determination as to its reasonableness. [ 3 ] In 2010, [NAME_6] concluded that the second security certificate was reasonable. This determination was upheld by the Supreme Court of Canada in 2014. Under section 80 of the IRPA , a certificate that is determined to be reasonable “is conclusive proof that the person named in it is inadmissible and is a removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing.” [ 4 ] As a general rule, under subsection 115(1) of the IRPA , [NAME_3] refugees like the applicant are protected from removal from Canada by the principle of non- refoulement – that is to say, they may not be removed to a country where they would be at risk of persecution on a [NAME_3] ground or where they would be at risk of torture or cruel and unusual treatment or punishment. This general rule is subject to exceptions. One exception is that the principle does not apply in the case of a person who is inadmissible on grounds of security and, “in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada” ( IRPA , paragraph 115(2)(b)). [ 5 ] In January 2011, shortly after [NAME_6] upheld the second certificate as reasonable, the Canada Border Services Agency ([NAME_7]) notified the applicant that an opinion pursuant to paragraph 115(2)(b) of the IRPA would be sought from the Minister of Citizenship and Immigration in his case. Subsequently, in August 2015, the [NAME_7] provided the applicant with a modified notice to the same effect. In response to the latter notice and a [NAME_7] assessment for decision dated February 19, 2016, the applicant provided detailed and comprehensive submissions and supporting evidence opposing a finding that the principle of non- refoulement did not apply to him. [ 6 ] On October 2, 2018, a delegate of the Minister determined that the applicant should not be allowed to remain in Canada “based on the nature and severity of acts committed.” [ 7 ] The applicant has applied for judicial review of this decision. He contends that the decision is unreasonable and that the process leading to it was unfair. In the event that the Court were to set the decision aside and remit the matter for redetermination, the applicant also asks the Court to direct the new decision maker to follow certain procedures in order to safeguard the fairness of the process and its compliance with section 7 of the Canadian Charter of Rights and Freedoms . [ 8 ] For the reasons that follow, this application for judicial review will be allowed. Briefly, I am not persuaded that the process followed by the decision maker breached the requirements of procedural fairness, either at common law or stemming from section 7 of the Charter . On the other hand, I have concluded that the delegate’s determination that the applicant should not be allowed to remain in Canada on the basis of the nature and severity of acts committed is unreasonable because a key finding by the delegate – that the applicant was complicit in acts of terrorism committed by [NAME_8] – is not reasonably supported by the delegate’s analysis of the record, including [NAME_6]’s findings supporting the reasonableness of the security certificate. This is a fundamental flaw in the delegate’s determination that the principle of non- refoulement stated in subsection 115(1) of the IRPA does not apply to the applicant. The delegate’s decision must, therefore, be set aside and the matter redetermined. Finally, I am not persuaded that the procedural directions the applicant seeks with respect to the redetermination of the matter are necessary or appropriate. [ 9 ] In his Further Memorandum of Fact and Law, the applicant submitted in the alternative that, if the Minister’s delegate did not commit a reviewable error in concluding under paragraph 115(2)(b) of the IRPA that he should not be permitted to remain in Canada, that provision should be found to violate section 7 of the Charter and declared of no force or effect under section 52 of the Constitution Act, 1982 . Acknowledging that a Notice of Constitutional Question had not been served in accordance with section 57 of the Federal Courts Act , RSC 1985, c F-7, the applicant abandoned this argument at the hearing of the application while still maintaining his position that he is entitled to a remedy under subsection 24(1) of the Charter in relation to any redetermination of the matter. [ 10 ] As well, in his application for leave and for judicial review, the applicant named both the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness as respondents. In an application for judicial review of a decision under section 115 of the IRPA , the Minister of Citizenship and Immigration is the sole proper respondent: [redacted] [ 11 ] Finally by way of introduction, paragraph 74(d) of the IRPA provides that an appeal to the Federal Court of Appeal may be made only if, in rendering judgment on an application for judicial review, the judge certifies that a serious question of general importance is involved and states the question. While the parties have proposed questions for certification, they also agreed that it would be of assistance if they were able to review the Court’s judgment and reasons before taking a final position on whether questions of general importance are involved. In the circumstances of this case, I agree this would be appropriate.

Accordingly, whether any questions should be stated under paragraph 74(d) will remain under reserve pending further submissions from the parties.

II.

BACKGROUND [ 12 ] The referral of the applicant’s case to the Minister for an opinion under paragraph 115(2)(b) of the IRPA was premised on the applicant being named in a security certificate that had been determined to be reasonable. As already mentioned, a second security certificate proceeding concerning the applicant was undertaken following amendments to the IRPA in response to a successful challenge to the constitutionality of the previous security certificate scheme: see [NAME_10] v Canada (Citizenship and Immigration) , 2007 SCC 9 ( [NAME_10] ) and An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act (SC 2008, c 3). Shortly after the second security certificate proceeding began, the Supreme Court of Canada released its decision in [NAME_10] v Canada (Citizenship and Immigration) , 2008 SCC 38 ( [NAME_10] ). [ 13 ] These developments provide important context for the second security certificate proceeding, for the subsequent appeals to the Federal Court of Appeal and the Supreme Court of Canada, for the consideration of this matter by the Minister’s delegate under paragraph 115(2)(b) of the IRPA , and for the present application for judicial review. After reviewing the implications of these developments for the applicant’s case, I will summarize the decisions concerning the reasonableness of the second security certificate and the record before the Minister’s delegate. I will then turn to the applicant’s grounds of review. [ 14 ] I will begin, however, with an overview of the legal framework governing the determination that a [NAME_3] refugee who is inadmissible on security grounds should not be permitted to remain Canada despite the principle of non-refoulement . A. Legal Framework [ 15 ] The applicant has been found inadmissible on security grounds under paragraphs 34(1)(c), (d), and (f) of the IRPA . These provisions state: Inadmissibility Interdictions de territoire Security Sécurité 34 (1) A permanent resident or a foreign national is inadmissible on security grounds for 34 (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : [. . .] [. . .] (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; [. . .] [. . .] (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c). [ 16 ] The applicant has also been found to be a [NAME_3] refugee. As such, he is a protected person ( IRPA , subsection 95(2)). Under Canadian law, protected persons are protected by the principle of non-refoulement unless an exception to that principle is found to apply in their case. Subsection 115(1) of the IRPA states the principle; paragraph 115(2)(a) specifies the circumstances under which an exception may be made in the case of a protected person who is inadmissible on grounds of serious criminality; paragraph 115(2)(b) specifies the circumstances under which an exception may be made in the case of a protected person who, like the applicant, is inadmissible on grounds of security. These provisions state: Principle of Non- refoulement Principe du non-refoulement Protection Principe 115 (1) A protected person or a person who is recognized as a [NAME_3] refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. 115 (1) Ne peut être renvoyée dans un pays où elle risque la persécution du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusités, la [NAME_11] protégée ou la [NAME_11] dont il est statué que la qualité de réfugié lui a été reconnue par un autre pays vers lequel elle peut être renvoyée. Exceptions Exclusion (2) Subsection (1) does not apply in the case of a person (2) Le paragraphe (1) ne s’applique pas à l’interdit de territoire : (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or a) pour grande criminalité qui, selon le ministre, constitue un danger pour le public au Canada; (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. b) pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée si, selon le ministre, il ne devrait pas être présent au Canada en raison soit de la nature et de la gravité de ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada. [ 17 ] The immediate predecessor to section 115 of the IRPA was section 53 of the Immigration Act , RSC 1985, c I-2. In relevant part, it provided as follows: 53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a [NAME_3] refugee [. . .] shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless 53. (1) Par dérogation aux paragraphes 52(2) et (3), la [NAME_11] à qui le statut de réfugié au sens de la [NAME_3] a été reconnu aux termes de la présente loi ou des règlements [. . .] ne peut être renvoyée dans un pays où sa vie ou sa liberté seraient menacées du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, sauf si, selon le cas : [. . .] [. . .] (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; b) elle appartient à l’une des catégories non admissibles visées aux alinéas 19(1)e) f), g), j), k) ou l) et que, selon le ministre, elle constitue un danger pour la sécurité du Canada; [ 18 ] Paragraph 53(1)(a) of the Immigration Act , which I have omitted, provided that a [NAME_3] refugee who is inadmissible on the basis of what would today be considered serious criminality may be removed from Canada if the Minister is of the opinion that the person “constitutes a danger to the public in Canada.” Paragraph 53(1)(b) applied in cases of inadmissibility on what would today be considered grounds of security under section 34 of the IRPA (including engaging in terrorism or being a member of a terrorist organization) and violating human or international rights under section 35 of the IRPA (including committing war crimes or crimes against humanity). [ 19 ] For present purposes, there are two important differences between section 53 of the Immigration Act and section 115 of the IRPA . First, subsection 115(1) of the IRPA broadened the scope of the principle of non- refoulement to include not only a risk of persecution on a [NAME_3] ground (as provided for in subsection 53(1) of the Immigration Act ) but also a risk of torture or cruel and unusual treatment or punishment. Second, under paragraph 115(2)(b) of the IRPA , a protected person who is inadmissible on security grounds can be excluded from the protection of this principle not only because they constitute a danger to the security of Canada (as was the case under paragraph 53(1)(b) of the Immigration Act ) but also because of the nature and severity of acts committed. (This is also true of protected persons who are inadmissible on grounds of violating human or international rights or on grounds of organized criminality.) What this new basis for denying a [NAME_3] refugee the benefit of the principle of non-refoulement means and how it is to be determined are two of the central issues raised by this application. [ 20 ] In [NAME_9] (at para 39), the Federal Court of Appeal summarized the principles governing determinations under paragraph 115(2)(b) of the IRPA. [NAME_9] concerned inadmissibility on grounds of organized criminality rather than security, there is no issue that the analytical framework set out there applies in the present case. This framework was derived from the terms of section 115 itself and from the legal context in which it operates, including the requirements of fundamental justice in cases of refoulement articulated by the Supreme Court of Canada in [NAME_12] v Canada (Minister of Citizenship and Immigration) , [2002] 1 SCR 3, as well as international human rights instruments such as the 1951 [NAME_3] relating to the Status of Refugees (189 UNTS 150) and its 1967 Protocol relating to the Status of Refugees (606 UNTS 267) (together, the [NAME_3] ). [ 21 ] First, an individual who is a protected person benefits from the principle of non-refoulement recognized by subsection 115(1) unless an exception provided for by subsection 115(2) applies. In other words, removal of a protected person to their country of origin will be presumed to constitute refoulement to a country where they would be at risk of persecution on a [NAME_3] ground or a risk of torture or cruel and unusual treatment or punishment. Whether, in fact, the individual would be at risk in their country of origin and the seriousness of any risks of mistreatment are relevant questions but they only arise later in the analysis ( [NAME_9] , at paras 40-43). [ 22 ] Second, for paragraph 115(2)(b) to apply, the individual must be inadmissible on grounds of security, violating human or international rights, or organized criminality. [ 23 ] I pause here to note that the applicant submits that this requires the Minister to determine that the person in question is inadmissible on one or more of the grounds listed in paragraph 115(2)(b). In one sense, this is indisputable. Since inadmissibility on at least one of the listed grounds is a necessary precondition for paragraph 115(2)(b) to apply, before proceeding to render an opinion, the decision maker must first be satisfied that the person is, in fact, inadmissible on at least one of these grounds. On the other hand, to the extent that the applicant sometimes appears to be suggesting that the Minister is required to make his or her own determination as to whether the person is inadmissible, I must disagree. [ 24 ] In the present case, the applicant’s inadmissibility on security grounds was conclusively determined by the Supreme Court of Canada’s decision upholding [NAME_6]’s determination that the second security certificate was reasonable. It is not the Minister’s role to agree or disagree with this determination or to redetermine the question of inadmissibility. As already mentioned, under section 80 of the IRPA , a certificate that is determined to be reasonable “is conclusive proof that the person named in it is inadmissible.” As long as the decision maker is satisfied that a legally competent authority has determined that the person in question is inadmissible on security grounds (or on any of the other listed grounds), this is sufficient to engage paragraph 115(2)(b). [ 25 ] That said, while a finding of inadmissibility is a legal precondition to seeking an opinion under paragraph 115(2)(b) of the IRPA , a decision maker acting under this provision is required to resolve issues that were not addressed in the inadmissibility proceeding. The simple fact that the person is inadmissible – even for being a danger to the security of Canada under paragraph 34(1)(d) of the IRPA – is insufficient to establish that their removal from Canada should be considered under paragraph 115(2)(b); more is required ( [NAME_12] , at paras 89-90; [NAME_9] , at para 73). [ 26 ] As will be discussed further below, under paragraph 115(2)(b), the decision maker must determine whether the acts committed by the protected person or the danger they pose to the security of Canada warrant their removal from Canada. This is an entirely different question from whether the person is inadmissible; a finding of inadmissibility alone does not answer it. Consequently, it is open to the individual with respect to whom an opinion has been sought under paragraph 115(2)(b) to present evidence and arguments relevant to the new issues the Minister must determine. [ 27 ] This was also the case under paragraph 53(1)(b) of the Immigration Act , the predecessor to paragraph 115(2)(b) of the IRPA. In [NAME_12] , the Supreme Court held with respect to danger opinions under the Immigration Act that “the refugee must . . . be given an opportunity to challenge the information of the Minister where issues as to its validity arise” ( [NAME_12] , at para 123). Thus, the Court continued, “the refugee should be permitted to present evidence pursuant to s. 19 of the Act showing that his or her continued presence in Canada will not be detrimental to Canada, notwithstanding evidence of association with a terrorist organization. The same applies to the risk of torture on return” ( [NAME_12] , at para 123). (The question of whether the person’s presence in Canada would be detrimental to Canada arose from the inapplicability of certain grounds of inadmissibility on security grounds under section 19 of the Immigration Act to persons “who have satisfied the Minister that their admission would not be detrimental to the national interest.” ) [ 28 ] In my view, it would even be open to the person concerned to try to show that, in light of new evidence (for example, new historical research), an earlier finding in connection with the inadmissibility determination that an organization had conducted itself in certain ways or was responsible for certain incidents should be given less weight or even disregarded entirely. On the other hand, it would be an abuse of the process under paragraph 115(2)(b) of the IRPA to re-argue on the same record the issues previously determined in the security certificate proceeding. Still, while the findings of fact supporting the finding of inadmissibility form the foundation for an opinion under paragraph 115(2)(b), the significance of those findings for the matters the Minister must now determine can be a live issue. Indeed, in the present case, it is the determinative issue. [ 29 ] Third, if the individual is inadmissible on one or more of the grounds listed in paragraph 115(2)(b), the Minister must determine whether they should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada. This is to be determined on a reasonable grounds to believe standard ( [NAME_9] , at para 50). This standard is in keeping with Article 33(2) of the [NAME_3] , which provides that the benefit of the protection against refoulement to a risk of persecution on a [NAME_3] ground conferred by Article 33(1) “may not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is.” The applicant submits that a higher standard – proof on a balance of probabilities – should be applied but I cannot agree. [NAME_9] is binding authority to the contrary. [ 30 ] There is no issue that the acts in question must be those of the person whose right to protection from removal is being determined ( [NAME_9] , at para 51). The more difficult question, and another of the central issues raised in this application, is when that person can be implicated in the acts of others such that not only the former but also the latter are relevant to a determination under paragraph 115(2)(b) of the IRPA. [ 31 ] Fourth, if satisfied that, because of the nature and severity of acts committed or danger to the security of Canada, the individual’s removal from Canada should be considered despite their status as a [NAME_3] refugee or a protected person, the Minister must then undertake an analysis under section 7 of the Charter . [ 32 ] The first step in this analysis is to determine whether section 7 is engaged in the circumstances of the case at hand. The fact that the individual is a protected person is insufficient on its own to engage section 7 ( [NAME_12] , at para 127). That said, to engage the protections of section 7, the individual concerned only needs to make out a prima facie case that there may be a risk to life, liberty, or security of the person ( ibid. ). Likewise, in [NAME_10] , the Supreme Court recognized that the deportation of someone labelled a terrorist is inherently fraught with risks to that person (at para 14). In such circumstances, section 7 is engaged by a process leading to “possible deportation” ( [NAME_10] , at para 18). The Supreme Court reiterated this point in [NAME_10] , confirming that the serious consequences of the procedure for expelling a person named in a security certificate bring the interests protected by section 7 of the Charter into play (at paras 50 and 53). [ 33 ] In the present case, the respondent agrees that the possible deportation of the applicant engages section 7 of the Charter . [ 34 ] When the protections of section 7 are engaged, the Minister must assess whether, on a balance of probabilities, the individual will personally face a risk to life, liberty, or security of the person in the country to which they would be removed. This assessment must be made in light of current circumstances, including current country conditions. (If section 7 is engaged, this also has important implications for the requirements of procedural fairness when an opinion under paragraph 115(2)(b) of the IRPA is being formulated. These requirements will be discussed below.) [ 35 ] Fifth, the Minister must then balance the nature and severity of acts committed or the danger to the security of Canada (as the case may be) against the nature and degree of risk the individual would face if removed. The Minister must also assess any humanitarian and compassionate considerations that may weigh against removal. The Minister must exercise the discretion conferred by paragraph 115(2)(b) of the IRPA in accordance with the Charter ( [NAME_12] , at para 106; see also York Region District School Board v [NAME_13]’ Federation of Ontario , 2024 SCC 22 at para 91) . Ultimately, the Minister must determine whether the removal of the protected person would conform to the principles of fundamental justice under section 7 of the Charter ( [NAME_12] , at paras 76-77). At least in cases where there is a serious risk of torture, deportation will generally violate the principles of fundamental justice; barring rare and exceptional circumstances, the Charter requires the Minister to decline to deport the individual in question ( [NAME_12] , at para 78). [ 36 ] In [NAME_12] , the specific issue was a risk of torture if [NAME_12], who had been found inadmissible on the basis of his membership in the Liberation Tigers of Tamil Eelam (LTTE), were to be removed to Sri Lanka, his country of nationality. As noted above, paragraph 53(1)(b) of the Immigration Act , which was the only statutory protection against refoulement when [NAME_12] was decided, did not prohibit removal to a risk of torture or other cruel and unusual treatment or punishment. Consequently, the focus in that case was on the constraints section 7 of the Charter placed on government action that could expose someone to that risk. Now, in addition to the constitutional constraints imposed by section 7 when there is a risk of torture or other cruel and unusual treatment or punishment, paragraph 115(2)(b) of the IRPA places a statutory limit on such action. Given the sequence described in [NAME_9] , unless the decision maker is satisfied that removal of the protected person should be considered because either the nature and severity of acts committed or the danger to the security of Canada meets the requisite threshold, it will not be necessary to consider whether removal would be consistent with the Charter , even if removal would expose the person to a risk of torture, because the statutory test for removal to even be considered has not been satisfied. Nevertheless, the Charter still plays an important role in the interpretation and application of paragraph 115(2)(b) of the IRPA by mandating that only acts meeting a high threshold will satisfy the third step of the [NAME_14]. I return to this point below. B. [NAME_10] [ 37 ] In [NAME_10] , the Supreme Court considered a Charter challenge to several aspects of the former security certificate scheme brought by the applicant and two other individuals named in security certificates – [NAME_10] and [NAME_10]. These included (1) the requirement to maintain the confidentiality of information or other evidence the disclosure of which would be injurious to national security or endanger the safety of any person; (2) the ability of the designated judge to conduct proceedings ex parte the person named in the certificate; (3) the ability of the designated judge to base a decision on the reasonableness of the certificate or continuing the detention of the named person on information or other evidence that had not been disclosed to the named person; and (4) the provisions governing the detention and release of persons named in security certificates. Only the challenge to the first three aspects of the former scheme is relevant for present purposes. [ 38 ] Under the former scheme, section 78 of the IRPA (now repealed and replaced) described the procedure to be followed when a security certificate was referred to the Federal Court for a determination as to its reasonableness. It provided as follows: 78 The following provisions govern the determination: 78 Les règles suivantes s’appliquent à l’affaire : (a) the judge shall hear the matter; a) le juge entend l’affaire; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; (c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; c) il procède, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et selon la procédure expéditive; (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve; (e) on each request of the Minister or the Minister of Public Safety and Emergency Preparedness made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; e) à chaque demande d’un ministre, il examine, en l’absence du résident permanent ou de l’étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Minister of Public Safety and Emergency Preparedness and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary; f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l’affaire soit si le juge décide qu’ils ne sont pas pertinents ou, l’étant, devraient faire partie du résumé, soit en cas de retrait de la demande; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; g) si le juge décide qu’ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d’autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l’affaire; (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed; h) le juge fournit au résident permanent ou à l’étranger, afin de lui permettre d’être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; (i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and i) il donne au résident permanent ou à l’étranger la possibilité d’être entendu sur l’interdiction de territoire le visant; (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. j) il peut recevoir et admettre en preuve tout élément qu’il estime utile — même inadmissible en justice — et peut fonder sa décision sur celui-ci. [ 39 ] Among the questions before the Supreme Court in [NAME_10] was whether these provisions, together with the rest of the security certificate scheme, infringed section 7 of the Charter . [ADDRESS] concluded that they did in material respects and, further, that this infringement was not a justifiable limit under section 1 of the Charter . [ 40 ] In summary, the Court found that, while [NAME_18] had made a sincere attempt to give the designated judge the powers necessary to discharge his or her role in an independent manner, based on the facts and the law, “the secrecy required by the scheme denied the named person the opportunity to know the case put against him or her, and hence to challenge the government’s case. This, in turn, undermines the judge’s ability to come to a decision based on all the relevant facts and law” ( [NAME_10] , at para 65). As a result, the former security certificate scheme failed to ensure the fair hearing required by section 7 before the state deprives a person of life, liberty, or security of the person ( ibid. ). [ 41 ] In concluding that this limit on section 7 rights was not justified under section 1 of the Charter , the Court observed that there were other processes that were less intrusive on section 7 rights, that would facilitate a hearing where the facts and the law could be examined more fully, and that would nevertheless provide the necessary safeguards for protecting information that must remain confidential ( [NAME_10] , at paras 70-84). Among the alternatives mentioned was the use of special counsel in proceedings before the Security Intelligence Review Committee (SIRC) – which, under the Immigration Act , had reviewed findings of inadmissibility based on alleged threats to national security – and the use of special advocates in ex parte proceedings before the Special Immigration Appeals Commission in the United Kingdom. Given that there were viable, more rights-respecting alternatives available, the Court concluded that the former security certificate scheme did not minimally impair the named person’s rights under section 7 of the Charter . Writing for the Court, Chief Justice McLachlin stated: Under the IRPA , the government effectively decides what can be disclosed to the named person. Not only is the named person not shown the information and not permitted to participate in proceedings involving it, but no one but the judge may look at the information with a view to protecting the named person’s interests. Why the drafters of the legislation did not provide for special counsel to objectively review the material with a view to protecting the named person’s interest, as was formerly done for the review of security certificates by SIRC and is presently done in the United Kingdom has not been explained. The special counsel system may not be perfect from the named person’s perspective, given that special counsel cannot reveal confidential material. But, without compromising security, it better protects the named person’s s. 7 interests. I conclude that the IRPA ’s procedures for determining whether a certificate is reasonable and for detention review cannot be justified as minimal impairments of the individual’s right to a judicial determination on the facts and the law and right to know and meet the case. Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA . Precisely what more should be done is a matter for [NAME_18] to decide. But it is clear that more must be done to meet the requirements of a free and democratic society. ( [NAME_10] , at paras 86-87) C. The New Security Certificate Scheme [ 42 ] [NAME_18] responded to [NAME_10] by enacting An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act (cited above), which received Royal Assent on February 14, 2008. The new scheme retained several elements of the former scheme, including the obligation to maintain the confidentiality of any information or other evidence the disclosure of which would be injurious to national security or endanger the safety of any person, the ability to conduct proceedings ex parte the person named in the security certificate, and the ability to base a decision on the reasonableness of the certificate or continuing the detention of the named person on information or other evidence that had not been disclosed to the named person. [NAME_18] sought to rectify the constitutional shortcomings of the former scheme by introducing the special advocate, a security-cleared lawyer whose role would be to protect the interests of the named person when information or other evidence is heard in their absence ( IRPA , subsection 85.1(1)). In discharging this role, it would be the responsibility of the special advocate to challenge claims for non-disclosure of information or other evidence by the Minister and to challenge the relevance, reliability, and sufficiency of information or other evidence that is not disclosed to the named person and the weight to be given to it ( IRPA , subsection 85.1(2)). [ 43 ] Jumping ahead for a moment, the new scheme withstood a constitutional challenge in Canada (Citizenship and Immigration) v [NAME_1] , 2014 SCC 37 ( [NAME_1]) ), an appeal arising from a constitutional challenge the applicant had brought in connection with his second security certificate proceeding. [NAME_6] found the new scheme to be constitutional, a determination that was upheld by the Federal Court of Appeal: see, respectively, [NAME_1]) , 2010 FC 1242 ( Constitutionality Decision ), and [NAME_1]) , 2012 [NAME_1] 122 ( [NAME_1] ([NAME_1]) . [ 44 ] In challenging the constitutionality of the new security certificate scheme, the applicant argued that the limited public disclosure of information or other evidence the scheme permits and, given their circumscribed role, the representation of the interests of the named person by special advocates, were insufficient to meet the requirements of section 7 of the Charter as determined in [NAME_10]. The Supreme Court was not persuaded in either respect. [ 45 ] First, the Supreme Court was satisfied that the scheme provided sufficient disclosure to the named person to be constitutionally compliant. In so concluding, the Court underscored the designated judge’s statutory duty to ensure that the named person is “reasonably informed” of the Minister’s case throughout the proceedings (see IRPA , paragraph 83(1)(e)). In interpreting what this requires, the Court noted its conclusion in [NAME_10] that “there is an incompressible minimum amount of disclosure that the named person must receive in order for the scheme to comply with s. 7 of the Charter . He or she must receive sufficient disclosure to know and meet the case against him or her” ( [NAME_1]) , at para 54). Thus, to be “reasonably informed” (as the Act requires), the named person must personally receive “sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his special advocates which will allow them to challenge the information and evidence relied upon by the Minister in the closed hearings” ( [NAME_1]) , at para 56). At the very least, the named person must be given sufficient disclosure not only about the allegations against him but also about the evidence the Minister relies on to support the allegations ( [NAME_1]) , at para 56). While this is always going to be a case-by-case determination, at a minimum, the named person “must know the essence of the information and evidence supporting the allegations” ( [NAME_1]) , at para 57). In the event of an irreconcilable conflict between the requirement that the named person be reasonably informed and the imperative that sensitive information not be disclosed, “the Minister must withdraw the information or evidence whose non-disclosure prevents the named person from being reasonably informed,” even if this would effectively compel the Minister to “put an end to the proceedings” ( [NAME_1]) , at para 59). [ 46 ] In the applicant’s own case, [NAME_6] was satisfied that the applicant knew the case he had to meet in relation to the grounds of inadmissibility alleged by the ministers. In dismissing the applicant’s constitutional challenge, [NAME_6] provided a detailed itemization of the disclosure the applicant had received over the course of the second security certificate proceeding: see Constitutionality Decision , at paras 25-31. [NAME_6] also addressed the sufficiency of the disclosure provided to the applicant in his decision upholding the reasonableness of the certificate, stating: The public hearings resulted in 52 exhibits for the ministers and 85 exhibits for [NAME_1], as well as 9 witnesses. The public evidence is voluminous and is instructive as to the factual situation at play, the history of Islam, the political reality of the time involving countries such as Algeria, Saudi Arabia, Pakistan, Afghanistan and Russia (Chechnya and Dagestan). It also gives a good understanding of our Canadian immigration process insofar as it relates to [NAME_1]. The public evidence is such that [NAME_1] knows all of the allegations made against him, with supporting factual evidence. The entire factual basis may not be known to him (it is known to the special advocates who are representing his interests in closed hearings), but his knowledge is such that, as it was seen during the presentation of his evidence, he was able to respond to it. The written submissions of public counsel for [NAME_1] confirm it quite clearly. I conclude that the public evidence provided [NAME_1] with adequate knowledge of the allegations made against him. It also gave him much of the factual evidence on which the ministers relied. ( [NAME_1]) , 2010 FC 1241 ( [NAME_19] ), at para 71) [ 47 ] The applicant challenged these findings unsuccessfully in his appeals to the Federal Court of Appeal and the Supreme Court of Canada. After citing the summary of disclosure set out in paragraphs 25 to 31 of the Constitutionality Decision (noted above), the Federal Court of Appeal found that [NAME_6]’s reasons “attest to an extensive disclosure of information [to the applicant], a disclosure quite sufficient to inform him of the case against him and to allow him, his counsel and the special advocates to meet that case” ( [NAME_1] ([NAME_1]) , at para 85). Furthermore, the Court of Appeal agreed with [NAME_6] “that the disclosure provided for in the revised Act, when combined with the procedural safeguard of the special advocate, is in accordance with the principles of fundamental justice” ( ibid. ). The Supreme Court of Canada also found that the applicant had received a fair process ( [NAME_1]) , at para 106). [ 48 ] The applicant also argued that [NAME_18] had constrained the role of special advocates in such a way that they failed to be a substantial substitute for participation by the named person, as section 7 of the Charter required. Specifically, he argued that restrictions on the ability of the special advocates to communicate with the named person or their counsel (see IRPA , subsection 85.4(2)) prevented the special advocates from effectively protecting the named person’s interests. Of particular concern, according to the applicant, was that to seek judicial authorization to communicate with him, his special advocates would be required to breach solicitor-client privilege. (For further context, while the relationship between the special advocate and the named person is not that of solicitor and client, any communications between the named person or their counsel and the special advocate that would be subject to solicitor-client privilege if the relationship were one of solicitor and client are deemed to be subject to solicitor-client privilege: see IRPA , subsections 85.1(3) and (4).) The applicant contended that, since it may be necessary to disclose communications between the named person or their counsel and the special advocate in order for the special advocate to obtain authorization for further communications, breaches of solicitor-client privilege would be unavoidable. And, since effective communication between the named person and their special advocate was essential to the ability of the special advocate to represent the interests of the named person, this hindrance on the ability to obtain authorization to communicate undermined the fundamental fairness of the process. [ 49 ] The Supreme Court did not agree. (Neither did [NAME_6] or the Federal Court of Appeal in their respective decisions on the constitutionality of the new scheme.) [ 50 ] Under the new security certificate scheme, the designated judge can ensure that special advocates “function as closely as possible to ordinary counsel in a public hearing” ( [NAME_1]) , at para 70). The designated judge should “take a liberal approach in authorizing communications and only refuse authorization when the Minister has demonstrated, on a balance of probabilities, a real – as opposed to a speculative – risk of injurious disclosure” ( ibid. ). [ADDRESS] continued: “As much as possible, the special advocates should be allowed to investigate the case and develop their strategy by communicating with the named person, the named person’s counsel, and third parties who may bring relevant insights and information” ( ibid .). [ADDRESS] also noted that the named person and his counsel “can send an unlimited amount of one-way communications to the special advocates at any time throughout the proceedings” ( [NAME_1]) , at para 71). Finally, the Court found that the record did not support the conclusion that seeking authorization to communicate with the named person would necessarily breach solicitor-client privilege. To the extent that requests to communicate may implicate privileged information, it should be possible to find solutions that protect the privilege while ensuring that authorization to communicate can be sought when the fairness of the proceeding requires this ( e.g. by dealing with a request to communicate ex parte counsel for the ministers). If, in a given case, judicial authorization to communicate cannot be obtained without breaching solicitor-client privilege, the proceeding would fail to meet the requirements of section 7 of the Charter and a remedy should be granted under subsection 24(1) of the Charter ( [NAME_1]) , at paras 72-73). [ 51 ] In this respect as well, the Supreme Court was satisfied that the applicant had received a fair process. [ 52 ] For the sake of completeness, I would note that the new security certificate scheme was amended in 2015 and again in 2024. These amendments do not have any bearing on the present matter. [NAME_10] [ 53 ] In June 2008, a few months after the applicant’s second security certificate proceeding began, the Supreme Court released its decision in [NAME_10] . In that decision, the Court considered two related issues arising from [NAME_10]’s security certificate proceeding. One concerned when information or evidence the Canadian Security Intelligence Service ([NAME_20] or the Service) gathered in the course of its activities had to be retained in its original form. The other concerned what information or evidence the Service was required to produce to the designated judge in connection with a proceeding concerning the reasonableness of a security certificate. (As the Supreme Court noted, while [NAME_10] was decided after the IRPA was amended following [NAME_10] , the case arose from a security certificate proceeding being conducted under the former scheme. As a result, the procedures the Court found were required when a designated judge considers the reasonableness of a security certificate are framed in terms of the former scheme; the judgment does not address the role played by special advocates or any other new features of the amended scheme: see [NAME_10] , at paras 18 and 60. Subsequently, in proceedings concerning the reasonableness of security certificates under the amended process, designated judges adapted the requirements of [NAME_10] to the new scheme, including by involving special advocates in the disclosure determinations required by [NAME_10] .) [ 54 ] The first issue arose from the Service’s general policy that information or evidence it gathered should be summarized in reports rather than retained in its original form. For example, in connection with an investigation into a threat to national security, the Service may be authorized to intercept private telephone communications. Instead of retaining recordings of the intercepted communications, the Service would summarize the relevant parts of the communications in a report and then destroy the recordings. [ 55 ] In the case of [NAME_10], the ministers sought to rely on two interviews [NAME_20] officers had conducted with him (one on January 31, 2002; the other on February 2, 2002). After a document summarizing the two interviews was disclosed to [NAME_10], he requested disclosure of the complete notes of the interviews taken by the [NAME_20] officers together with recordings of the interviews. Counsel for the ministers informed the designated judge that it was impossible to provide this disclosure because there were no recordings of the interviews and any notes the officers had taken would have been destroyed after the officers had completed their reports. [ 56 ] The latter step was in accordance with OPS-217, [NAME_20]’s internal policy at the time governing the handling and retention of operational notes. Operational notes included: “Any rough note, preliminary draft, drawing, diagram, photograph, calculation, audio or video recording, electronically stored information or other material made by an employee which is to be used in the preparation of a record of the Service” ( [NAME_10] , at para 31, quoting OPS-217, para 1.12). According to the policy, operational notes were temporary in nature; they must be destroyed after they have been transcribed into a report by the employee who took them ( [NAME_10] , at para 33). This general policy was subject to only two exceptions. One was that the relevant portion of operational notes may be retained if the information in them cannot be transcribed into a report. The other was that the notes of a [NAME_20] employee must be retained where “information contained in the notes may be crucial to the investigation of an unlawful act of a serious nature and employees may require their notes to refresh their memories prior to recounting the facts of an event” ( [NAME_10] , at para 35, quoting OPS-217, para 3.5). Notably, the policy did not contemplate retention of operational notes in connection with a security certificate proceeding. [ 57 ] [NAME_10] argued that the failure of [NAME_20] to retain a proper record of the interviews with him (either in the form of complete notes or complete recordings) breached his rights under the Charter and entitled him to a remedy – specifically, an order staying the proceeding and quashing the security certificate. In agreeing with [NAME_10] in part, the Supreme Court made three key determinations. [ 58 ] First, whenever [NAME_20] officers are conducting a targeted investigation – that is, an investigation that is not of a general nature but, rather, targets a particular individual or group – they must retain their operational notes ( [NAME_10] , at para 43). [ 59 ] [NAME_20] had based its records retention policy in OPS-217 on section 12 of the Canadian Security Intelligence Service Act , RSC 1985, c C-23 ( [NAME_20] Act ). At the time, section 12 provided as follows: Collection, analysis and retention Informations et renseignements 12 The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada. 12 Le Service recueille, au moyen d’enquêtes ou autrement, dans la mesure strictement nécessaire, et analyse et conserve les informations et renseignements sur les activités dont il existe des motifs raisonnables de soupçonner qu’elles constituent des menaces envers la sécurité du Canada; il en fait rapport au gouvernement du Canada et le conseille à cet égard. [ 60 ] The Supreme Court concluded that OPS-217 was based on a misinterpretation of this provision. Contrary to [NAME_20]’s view, nothing in section 12 required the Service to destroy the information it collects. In fact, properly construed, section 12 demands that [NAME_20] retain operational notes. More precisely, the “intelligence” that the provision requires to be retained should not be limited to the summaries prepared by officers, as OPS-217 had directed ( [NAME_10] , at para 39). [ 61 ] Furthermore, operational notes must be retained if doing so would serve a practical purpose. It was evident to the Court that retaining operational notes served such a purpose in the security certificate context. Writing for the Court, [NAME_21] JJ. explained: The original operational notes will be a better source of information, and of evidence, when they are submitted to the ministers responsible for issuing a security certificate and to the designated judge who will determine whether the certificate is reasonable. Retention of the notes will make it easier to verify the disclosed summaries and information based on those notes. Similarly, it is important that [NAME_20] officers retain access to their operational notes (drafts, diagrams, recordings, photographs) in order to refresh their memories should they have to testify in a proceeding to determine whether a security certificate is reasonable – a proceeding not mentioned in OPS-217. ( [NAME_10] , at para 39) [ 62 ] Second, in the security certificate context, all relevant information in the possession of [NAME_20] must be disclosed to the ministers when a certificate is put before them for their consideration and then to the designated judge when the certificate is referred to the Federal Court for a determination as to its reasonableness. The designated judge, in turn, will be responsible for “verifying” the information they are given – in other words, they will check the information for accuracy and reliability ( [NAME_10] , at para 62). The designated judge will also be responsible for summarizing any relevant non-privileged information for disclosure to the named person ( ibid. ). [ 63 ] Third, the destruction of operational notes is a breach of [NAME_20]’s duty to retain and disclose information. The high degree of procedural fairness owed to a person named in a security certificate includes a procedure for verifying the evidence adduced against him or her and disclosure of the evidence to them “within limits that are consistent with legitimate public safety interests” ( [NAME_10] , at para 56). If the original evidence is destroyed, “the designated judge has access only to summaries prepared by the state, which means that it will be difficult, if not impossible, to verify the allegations” ( [NAME_10] , at para 61). This compromises the very function of judicial review ( [NAME_10] , at para 62). Given that the security certificate process engages the protections of section 7 of the Charter , the destruction of original evidence can also occasion an infringement of this right. Whether this is so and what remedy, if any, is required will depend on the particular circumstances of the case. This is because the seriousness of the consequences of following OPS-217 “may vary considerably” ( [NAME_10] , at para 46). Specifically, it will depend on how the destruction of the notes has affected the reliability of the evidence offered in support of the certificate or otherwise has a prejudicial effect, things that can only be determined in light of all the information available to the designated judge ( [NAME_10] , at paras 46 and 77). [ 64 ] In the case of the notes of [NAME_20]’s interviews with [NAME_10], the seriousness of the consequences of their destruction could not be determined yet since the issue had only been raised at a preliminary stage of the security certificate proceeding. As a result, the Supreme Court could not agree with [NAME_10] that a stay of the security certificate proceeding was appropriate. Instead, for the moment at least, the only appropriate remedy “is to confirm the duty to disclose [NAME_10]’s entire file to the designated judge and, after the judge has filtered it [for privileged information], to [NAME_10] and his counsel” ( [NAME_10] , at para 77). [ 65 ] The decision in [NAME_10] had three important implications for the proceeding concerning the reasonableness of the applicant’s second security certificate. [ 66 ] First, to ensure that the broad duty to disclose relevant information to the designated judge delineated in [NAME_10] was met, on September 24, 2008, [NAME_6] ordered the ministers to “file all information and Intelligence related to [[NAME_1] including, but not limited to, drafts, diagrams, recordings and photographs in [NAME_20]’s possession or holdings with the designated proceedings section of the Court” ( [NAME_19] , at para 23). In response, a substantial amount of additional information and evidence from [NAME_20]’s file concerning the applicant was produced to the designated judge besides that included in the classified [NAME_22] originally filed in support of the certificate. [ 67 ] Second, this additional information and intelligence had to be reviewed by the designated judge and the special advocates for potential disclosure to the applicant. Following this review, summaries of some of this additional information and intelligence were provided to the applicant: [redacted] [ 68 ] Third, since the bulk of [NAME_20]’s investigation of the applicant pre-dated [NAME_10] , operational notes and other original evidence had been destroyed in accordance with OPS-217. The designated judge therefore had to determine whether this violated the applicant’s procedural fairness rights (including the right to an effective judicial review of the security certificate) and, if so, whether a remedy was required. The applicant raised this issue in a motion seeking the exclusion of summaries of conversations tendered by the ministers in support of the reasonableness of the certificate and, in the alternative, a stay of proceedings. [NAME_6] dismissed this motion in a separate decision released at the same time as the decision dismissing the constitutional challenge and the decision upholding the security certificate as reasonable: see [NAME_1]) , 2010 FC 1243 ( Abuse of Process Decision ). [ 69 ] The applicant’s arguments relating to the destruction of original evidence focused on 20 summaries of conversations that the ministers were relying on to support the reasonableness of the certificate. The applicant was a party to most but not all of these conversations, which were alleged to have taken place between September 1996 and June 2001. At least some of the conversations would have taken place by telephone (see [NAME_19] , at para 449; see also [NAME_1] ([NAME_1]) , at para 136). Originals of the conversations were destroyed once transcribed into a report in accordance with OPS-217. The applicant sought the exclusion of all the summaries, arguing that the destruction of the original evidence left him – and the designated judge – unable to determine the accuracy and reliability of the summaries. [NAME_6] did not agree, stating: Having fully reviewed the confidential information in support of the allegations, and having gained a knowledge of the factual situation surrounding [NAME_1]’s life at the time, each summary of conversation, including the ones with his family or fiancée, is supported by the evidence, whether public or confidential, which further supports the content of the summaries. It is significant that the individuals involved in these conversations are related to [NAME_1]’s past life and the contents of the conversations are related thereto. The summaries accurately reflect [NAME_1]’s life at the time and I therefore find them reliable. They are redacted in such a way as to give [NAME_1] more information in support of the allegations made against him. They allow him to better understand the case made and to respond to it if he so chooses. In most cases, he denied having them. . . . [NAME_1] submits that the originals of these conversations would have enabled him to challenge them on the basis of faulty voice identification, inaccurate translation, etc. There is no evidence that these challenges would have been successful. On the contrary, the evidence presented in public and closed hearings supports the facts and substance of these summaries. ( Abuse of Process Decision , at paras 66-67, and 71) [ 70 ] Accordingly, [NAME_6] concluded that the destruction of the originals of the conversations had not “caused a prejudice constituting a Charter breach based on an abuse of process theory” and, as a result, no remedy under section 24 of the Charter was called for ( Abuse of Process Decision , at para 76). [ 71 ] On appeal, the Federal Court of Appeal disagreed with [NAME_6]’s conclusions in this respect. In the view of the Cout of Appeal, even though [NAME_20] had acted in good faith and in accordance with the policy in place at the time, “the breach of its duty to retain the information and disclose it under the Act impacted on the appellant’s right to know the case and his ability to meet it. The destruction also compromised the very function of judicial review” ( [NAME_1] ([NAME_1]) , at para 125). [ADDRESS] of Appeal therefore found that the applicant had suffered a breach of his Charter section 7 right to disclosure and was entitled to a just and appropriate remedy ( [NAME_1] ([NAME_1]) , at para 139). [ADDRESS] concluded that the appropriate remedy in the circumstances was the exclusion of the conversations to which the applicant was not a party ( [NAME_1] ([NAME_1]) , at paras 141-144). This then required that the matter be referred back to [NAME_6] “for a new determination of the reasonableness of the security certificate on the basis of the evidence on the record, excluding the confidential summaries made of the destroyed originals of the conversations to which the appellant was not privy” ( [NAME_1] ([NAME_1]) , at para 160). [ 72 ] On further appeal to the Supreme Court, the ministers argued that the Federal Court of Appeal erred in excluding some of the summaries while the applicant argued that [NAME_6] (and the Court of Appeal) erred in failing to exclude all of the summaries. The Supreme Court found that the destruction of the original operational notes and recordings constituted “unacceptable negligence” and compromised “the very function of judicial review” ( [NAME_1]) , at para 93). Consequently, the ministers had failed to meet their disclosure obligations towards the applicant and had breached the applicant’s rights under section 7 of the Charter ( ibid. ). However, the Court was not persuaded that exclusion of the summaries was an appropriate and just remedy: see [NAME_1]) , at paras 94-99. [ 73 ] Writing for the Court on this point, Chief Justice McLachlin found that destruction of the original conversations did not significantly prejudice the applicant’s ability to know and meet the case against him. The Chief Justice noted [NAME_6]’s finding that the summaries disclosed to the applicant were reliable. Disclosure of those summaries in an abridged form to the applicant and in an unredacted form to his special advocates was sufficient to prevent significant prejudice to the applicant’s ability to know and meet the case against him. Moreover, admission of the summaries did not undermine the integrity of the justice system. While the destruction of the original conversations was a serious breach of the duty to preserve evidence, it was not done for the purpose of deliberately defeating the ministers’ obligation to disclose evidence. As well, prior to [NAME_10] , the existence and scope of the Service’s duty to preserve operational materials had not been definitively settled by the courts. Therefore, it could not be said that the Service’s application of OPS-217 in the applicant’s case “evidenced a systematic disregard for the law” ( [NAME_1]) , at para 99). Balancing these considerations, the Chief Justice stated: “Since the admission of the summaries would neither deny procedural fairness to [NAME_1] nor undermine the integrity of the justice system, I conclude that [NAME_6]. made no reviewable errors in refusing to exclude the impugned summaries of the intercepted conversations” ( ibid. ). [ 74 ] I will return to the significance of all of these findings concerning the fairness of the applicant’s security certificate proceeding when I address the applicant’s procedural fairness objections to the process followed by the Minister’s delegate. E. The Decisions on the Reasonableness of the Security Certificate [ 75 ] To repeat for ease of reference, the security certificate stated the ministers’ opinion that the applicant is inadmissible on security grounds under paragraphs 34(1)(c), (d) and (f) of the IRPA for engaging in terrorism, being a danger to the security of Canada, and being a member of an organization (the [NAME_5]) that there are reasonable grounds to believe engages, has engaged, or will engage in acts of terrorism. [ 76 ] In concluding that the security certificate was reasonable, [NAME_6] found that, while the applicant had been involved in the [NAME_23] both before and after coming to Canada, there was no evidence that he had personally engaged in acts of violence either in Canada or abroad ( [NAME_19] , at para 544). Rather, prior to coming to Canada in early October 1995, the applicant’s role in this movement “would have been largely one of logistics and facilitation” on behalf of [NAME_24] ( ibid. ). [ 77 ] More specifically, the applicant went to Pakistan in May 1990, when he was almost 22 years of age, and remained there until September 1995, when he left for Canada. For at least 15 months during 1994 and 1995, he operated a guest house for [NAME_24] in Peshawar, Pakistan. [NAME_6] does not specify exactly how or when [NAME_24] was associated with the guest house. A profile of [NAME_24] prepared by the Islamic Observation Centre in 1999 states that he had returned to Afghanistan from Tajikistan at the beginning of 1995 and then left for Chechnya that spring (Certified Tribunal Record, Volume 21, page 3995). [NAME_6] found that reports suggested that [NAME_24] “arrived in Chechnya in 1995, after having fought for two years with the Islamic opposition against the [NAME_25] in Tajikistan” ( [NAME_19] , at para 380). In his role operating the guest house, the applicant facilitated the transfer of mujahideen to and from training camps and performed “other duties” such as running errands and working as a chauffeur ( [NAME_19] , at paras 372, 397, and 408). This “demonstrated active membership in a group involved in terrorist activities in Chechnya which was affiliated with the [NAME_26] group” ( [NAME_19] , at para 5; see also paras 408-409). [ 78 ] The [NAME_24] and [NAME_26] groups (which were distinct but affiliated) had material and ideological links to Osama bin Laden, making them part of the [NAME_5] ( [NAME_19] , at paras 427-428). Since the applicant knew [NAME_24], had worked for him as a facilitator, and was a member of his group, it followed that the applicant himself was also part of the [NAME_5] ( [NAME_19] , at para 428). [ 79 ] [NAME_6] also found that the applicant was directly connected to other [NAME_27] besides [NAME_24] both abroad (connections he had established before coming to Canada and which he maintained after arriving here) and in Canada. [ 80 ] The applicant had used “sleeper agent” methods in Canada. He arrived here using false documents (which he declared immediately), he employed various counter-surveillance techniques, and (at least for a time) he concealed aliases he had used in Pakistan ( [NAME_19] , at para 8). The applicant had attempted to keep a low profile and had minimized or denied his past activities and his connections to [NAME_27], evidently to avoid jeopardizing his efforts to establish himself in Canada legally. Despite this, the applicant provided assistance to at least two individuals associated with [NAME_28] who arrived in Canada after him and who remained here briefly ( [NAME_19] , at para 9). In one case, in the fall of 1996, the applicant advised [NAME_30] on how to answer questions from [NAME_33] upon arrival and let him stay at his place for at least three days. In another case, in early 1997, the applicant provided moral support and financial assistance to [NAME_35] after the latter was detained upon arrival in Canada, including by helping to arrange funds to pay for his lawyer. [ 81 ] In making these findings, [NAME_6] found that the applicant’s blanket denial of essentially all of the material allegations against him, not only when [NAME_20] interviewed him but also in the security certificate proceedings, was seriously lacking in credibility: see [NAME_19], at paras 1 and 529-538. [ 82 ] Finally, while the applicant’s activities both before and after he came to Canada constituted a danger to the security of Canada, that danger had been attenuated by the passage of time, by the applicant’s public exposure as the target of a security investigation through the legal proceedings brought against him, by his detention in custody, by his release on stringent terms and conditions, and by the severing of his past associations: see [NAME_19] , at paras 539-547. [ 83 ] On the basis of these findings, [NAME_6] concluded that the security certificate was reasonable ( [NAME_19] , at para 548). [ 84 ] On appeal, the applicant challenged several of [NAME_6]’s determinations, including his ruling on the constitutionality of the new security certificate process, his refusal to exclude the summaries of conversations, his conclusion that confidential sources of information for the Service are protected by a class privilege akin to police informer privilege, his refusal to allow the special advocates to cross-examine human sources who had provided information concerning the applicant, and his refusal to stay the proceedings as an abuse of process. [ 85 ] The applicant also challenged the reasonableness finding itself but that challenge was limited to alleged errors in [NAME_6]’s interpretation and application of the terms “terrorism,” “danger to the security of Canada,” “member,” and “organization.” The Federal Court of Appeal found no basis to interfere with the [NAME_19] on these grounds: see [NAME_1] ([NAME_1]) , at paras 146-152. Nevertheless, since, as set out above, the exclusion of the summaries of some of the conversations called for a reassessment of the remaining evidence on the record and a re-evaluation of the reasonableness of the certificate, the Court of Appeal set aside the reasonableness finding and remitted this issue for redetermination: see [NAME_1] ([NAME_1]) , at paras 153-154. [ 86 ] At the Supreme Court of Canada, the applicant raised a number of legal issues but he alleged only one error with respect to the merits of the finding that the security certificate was reasonable: that [NAME_6] erred in his weighing of the evidence in two respects – his finding that [NAME_24] was involved in terrorist activities and his assessment of the applicant’s credibility. [ 87 ] Observing that [NAME_6]’s weighing of the factual evidence on the record was entitled to deference and should be interfered with only if he committed a palpable and overriding error, Chief Justice McLachlin found no basis to interfere with either of the findings the applicant had challenged: see [NAME_1]) , at paras 107-109. After reviewing these findings, the Chief Justice concluded that [NAME_6] “did not commit a palpable and overriding error in concluding that the record provided reasonable grounds to find that [NAME_1] was inadmissible on security grounds” ( [NAME_1]) , at para 111). Having found (as set out above) that the Federal Court of Appeal erred in excluding certain summaries and, consequently, in setting aside the reasonableness determination, the Supreme Court allowed the ministers’ appeal in this respect and reinstated [NAME_6]’s conclusion that the certificate was reasonable ( ibid. ). F. The Record Before the Minister’s Delegate [ 88 ] As has been mentioned, the process for seeking an opinion under paragraph 115(2)(b) of the IRPA was first triggered in January 2011, shortly after [NAME_6] upheld the 2008 security certificate as reasonable. That this step would be taken was reiterated to the applicant in August 2015, after the Supreme Court of Canada confirmed the reasonableness of the security certificate. The January 2011, notice to the applicant stated: “Since there is information in your immigration file to suggest that you are a person who represents a danger to the security of Canada, an opinion, pursuant to paragraph 115(2)(b) [of the] IRPA , will be sought from the Minister of Citizenship and Immigration.” The August 2015, notice broadened the grounds on which the Minister’s opinion would be sought, stating: “You are hereby advised that the Canada Border Services Agency ([NAME_7]) possesses evidence suggesting you should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of the danger to the security of Canada. We intend to request an opinion that that [ sic ] effect from the Minister of Citizenship and Immigration.” Both notices informed the applicant that, in addition to the information that had been disclosed to him during the security certificate process, the Minister would also be provided with confidential information that could not be disclosed to him or his counsel. [ 89 ] The decision under paragraph 115(2)(b) of the IRPA , which was rendered by a Senior Decision maker with [NAME_37] who was acting under authority delegated by the Minister, was based on a voluminous written record consisting of both unclassified and classified documents. For this application for judicial review, the unclassified materials were compiled in a forty-volume Certified Tribunal Record (CTR). Broadly speaking, these materials consist of the public record from the Federal Court proceeding concerning the reasonableness of the second security certificate, the public record from various Federal Court proceedings relating to the applicant’s conditions of release that post-date the reasonableness determination (including redacted [NAME_7] risk assessments), and written materials created or compiled specifically in connection with the determination under paragraph 115(2)(b) of the IRPA . [ 90 ] There is no need to summarize the public evidence [NAME_6] considered when determining the reasonableness of the certificate; it is described in detail in his decision on the reasonableness of the security certificate and in several other related decisions. [NAME_6]’s main factual findings that are relevant to the delegate’s opinion have been summarized above and will be discussed further below. [ 91 ] The public materials that were created or compiled specifically in connection with the paragraph 115(2)(b) determination included an assessment for decision dated February 19, 2016, prepared by [NAME_38], Manager, [NAME_7], Canada Border Services Agency ([NAME_7]), as well as the applicant’s responding submissions and supporting evidence. [ 92 ] The [NAME_7] assessment for decision recommended that the Minister form the opinion that the applicant should not be allowed to remain in Canada based on the nature and severity of his acts and the danger he constitutes to the security of Canada. [ 93 ] Attached as appendices to the assessment for decision were the materials listed in paragraph 89, above, as well as diplomatic notes exchanged between Canada and Algeria in 2004 and 2005 along with a number of publicly available documents post-dating the second security certificate proceeding and the subsequent appeals. The latter documents relate to, among other things, the threat of terrorism (both internationally and within Canada) as well as political and social conditions in Algeria. [ 94 ] The assessment for decision and its appendices (apart from Appendix 10, which will be addressed below) were disclosed to the applicant in February 2016 and he was given an opportunity to provide responding submissions. The applicant’s submissions and supporting evidence were provided in three stages in December 2016 and January 2017. The applicant argued that the evidence did not establish that he was a danger to the security of Canada or that the nature and severity of acts committed warranted his removal from Canada. The applicant also argued that, in any event, the Minister should not exercise the discretion to deny him the protection of the principle of non- refoulement because humanitarian and compassionate considerations favoured permitting him to remain in Canada and because his removal would violate section 7 of the Charter . [ 95 ] In April 2018, a Senior Decision maker with [NAME_37] (who, as it turned out, was the Minister’s delegate responsible for providing the opinion under paragraph 115(2)(b)) wrote to the applicant to bring to his attention some recent articles concerning Algeria and to offer him an opportunity to address the information in the articles. As well, after noting that the applicant’s most recent submissions had been provided in early 2017, the delegate offered the applicant the opportunity to provide updated submissions on the information previously disclosed to him by the [NAME_7], should he wish to do so. The applicant did not provide any response to this letter. [ 96 ] As mentioned above, the [NAME_41] includes [NAME_7] risk assessments. After being detained in custody during the first certificate proceeding, the applicant was ordered released on terms and conditions in May 2006. Under the amended security certificate scheme, those terms and conditions were subject to regular reviews and the [NAME_7] risk assessments were prepared in connection with these reviews. The versions of these risk assessments in the [NAME_41] have been redacted, presumably to protect any information or other evidence the disclosure of which would be injurious to national security or endanger the safety of any person. While this is not entirely clear, it appears that the delegate did not have access to unredacted versions of these assessments. [ 97 ] The record before the delegate also included classified documents that were not disclosed to the applicant during the delegate’s decision making process. The applicant was informed that this would be the case in the assessment for decision as well as in the letter that accompanied that document when it was disclosed to him in February 2016. Indeed, as already noted, the January 2011 and August 2015 notices had also alerted the applicant that confidential information would be provided to the Minister’s delegate. [ 98 ] The February 19, 2016, covering letter that accompanied the assessment for decision stated: Please note that Appendix 10 of the [NAME_7] contains information which cannot be disclosed to you as its disclosure would be injurious to national security or endanger the safety of any person. The documentation included in this appendix will be provided to the Minister’s Delegate for his/her review and consideration. [ 99 ] For its part, the assessment for decision described this confidential information as “Appendix 10 – Information which cannot be disclosed per Order of the Federal Court of Canada (not to be disclosed to [NAME_1], his counsel or any other person).” Addressing the Minister’s delegate, the assessment for decision also stated the following about Appendix 10: Information that was presented in camera ex parte to the Federal Court during the proceedings into the reasonableness of the certificate and the reviews of terms and conditions of [NAME_1]’s release, and which by order of the Court cannot be disclosed, was considered in preparing the present assessment. This information also includes the transcript of in camera ex parte proceedings as well as classified reasons and orders. This information which forms Appendix 10 is available for your review in reaching your decision. [ 100 ] The January 2011 and August 2015 notices from the [NAME_7] were somewhat more precise about the basis on which information was being withheld from the applicant, stating that the documents that would be presented to the Minister for consideration under paragraph 115(2)(b) of the IRPA included confidential information considered by the Federal Court during the proceeding concerning the reasonableness of the second security certificate. According to both notices, this was information which, “by order of the Court, cannot be disclosed to you or your counsel as its disclosure would be injurious to national security or to the safety of any person.” This rationale was also set out in the February 29, 2016, covering letter. This was, of course, the test [NAME_6] would have applied in determining under paragraphs 83(1)(d) and (e) (as they read at the time) what information could be disclosed to the applicant during the proceeding concerning the reasonableness of the security certificate. Thus, while the assessment for decision could have been clearer about which Order of the Federal Court was being invoked to withhold the confidential information from the applicant as well as the actual rationale for withholding the information, there can be no doubt that it is referring to the determination (or, more accurately, determinations) made by [NAME_6] during the second certificate proceeding confirming the non-disclosure of information or other evidence. Nor can there be any doubt that the applicant would have understood that this was the basis for continuing to withhold the information from him and his counsel. [ 101 ] Appendix 10 is omitted entirely from the [NAME_41] prepared for this application for judicial review. Instead, what appear to be its contents were filed as an eleven-volume [NAME_42]. As will be explained in a moment, a redacted version of the [NAME_42] was ordered disclosed to the applicant in connection with the present application for judicial review. [ 102 ] The [NAME_42] contains, among other things, the classified [NAME_22] prepared by [NAME_20] in support of the second security certificate (dated February 22, 2008), classified Reference Indices of supporting documentation for the [NAME_22], a classified [NAME_20] (dated September 18, 2009), a classified [NAME_22] (dated November 12, 2009), various other reports, the special advocates’ final submissions on the reasonableness of the security certificate (in two parts, both dated May 19, 2010), and the ministers’ responding submissions (dated June 1, 2010). The latter three documents make extensive reference to the classified information or other evidence filed during closed parts of the reasonableness hearing. [ 103 ] Despite what is stated in the assessment for decision, the [NAME_42] does not include any transcripts of in camera ex parte proceedings or classified reasons and orders – most notably, not even the classified version of [NAME_6]’s decision on the reasonableness of the certificate. [ 104 ] [NAME_6]’s decision upholding the second security certificate as reasonable is almost entirely public. The only references to classified information are found in footnotes. In a note to paragraph 31 of the decision, [NAME_6] explains the purpose of the footnotes as follows: “References to footnotes will be made and shall contain pertinent sensitive information in support of these public reasons. They shall be included at the end of these reasons and only accessed by those having such authority.” The unredacted footnotes are set out in a separate Top Secret document, effectively a classified appendix to the public reasons. The public version of the [NAME_19] includes these footnotes as endnotes that have all been redacted to at least some extent to protect sensitive information: see [NAME_1]) , [2012] 3 FCR 251 at 421-431. [ 105 ] The Top Secret document setting out the unredacted footnotes is not included in the [NAME_42]. Given the description of the contents of Appendix 10 in the assessment for decision (see paragraph 99 above), this raises the question of whether the [NAME_42] actually includes everything that was in Appendix 10 or, conversely, whether the assessment for decision described the contents of Appendix 10 accurately. Either way, these discrepancies create uncertainty about what, exactly, was in the confidential record before the Minister’s delegate. [ 106 ] After the Minister made claims for non-disclosure of information or other evidence in the [NAME_42] under section 87 of the IRPA , on November 10, 2020, [NAME_43] (who had been one of the applicant’s special advocates for the security certificate proceeding as well as the subsequent appeals) was appointed as special advocate for this application for judicial review. [NAME_44], a security cleared lawyer, was appointed to assist [NAME_43] in discharging his responsibilities as special advocate. [ 107 ] On May 3, 2024, Justice Walker (then a member of this Court) granted the Minister’s motion for non-disclosure. A revised redacted version of the [NAME_42] reflecting the non-disclosure claims that had been upheld was ordered produced to the applicant. [ 108 ] In addition to the documents listed in paragraph 102 above, the [NAME_42] contains 94 publicly-available source documents that had been disclosed to the applicant while the matter was before the delegate, only not as part of Appendix 10. In fact, most if not all of these documents were disclosed to the applicant during the second security certificate proceeding. They were included in the public Reference Indices of source documents for either the February 2008 public summary of the [NAME_22] or the February 2009 revised public summary of the [NAME_22]. As it turns out, they were also used as source documents in the classified Security Intelligence Reports. Consequently, these 94 documents are included in both the unclassified and the classified CTRs. They were all provided to the applicant in the unclassified CTR and in the redacted version of the [NAME_42] ordered disclosed under section 87 of the IRPA . [ 109 ] In post-hearing submissions, the respondent has identified seven additional publicly-available source documents in the [NAME_42] that were not disclosed to the applicant while the matter was before the delegate or, it would appear, during the security certificate proceeding. These seven documents have been disclosed to the applicant in their entirety in the redacted version of the [NAME_42] disclosed to him pursuant to Justice Walker’s May 3, 2024, order. The impact, if any, of the failure to disclose these documents earlier on the fairness of the process before the delegate will be addressed below.

III. STANDARD OF REVIEW [ 110 ] The applicable standards of review are not in dispute. [ 111 ] When it is alleged that the requirements of procedural fairness were not met, the reviewing court must examine the process followed by the decision maker and determine whether it was fair in all the circumstances ( Canadian Pacific Railway Co v Canada (Attorney General) , 2018 [NAME_1] 69 at paras 54-56). Although, strictly speaking, no standard of review is being applied, it has been said that this inquiry is functionally the same as applying a correctness standard ( Canadian Pacific Railway Co , at para 54; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship) , 2020 [NAME_1] 196 at para 35; Canadian Hardwood Plywood and Veneer Association v Canada (Attorney General) , 2023 [NAME_1] 74 at para 57). In the present case, the determinative issues are whether the applicant knew the case he had to meet under paragraph 115(2)(b) of the IRPA and whether he had a full and fair opportunity to meet that case ( Canadian Pacific Railway Co , at para 56). [ 112 ] The merits of the delegate’s decision are reviewed on a reasonableness standard ( [NAME_46] v Canada (Public Safety and Emergency Preparedness) , 2020 FC 507 at para 15). Reasonableness review begins by examining the reasons provided and “seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” ( Canada (Citizenship and Immigration) v [NAME_47] , 2019 SCC 65 at para 84; [NAME_48] v Canada (Citizenship and Immigration) , 2023 SCC 21 at paras 58-63). The reasons must be read “holistically and contextually” in light of the history of the proceedings and the record before the decision maker ( [NAME_47] , at para 97). The reviewing court must determine whether the reasons led to a decision that is “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” ( [NAME_47] , at para 85). If a decision has particularly harsh consequences for the affected individual, “the decision maker must explain why its decision best reflects the legislature’s intention” ( [NAME_47] , at para 133; see also [NAME_49] v Canada (Citizenship and Immigration) , 2025 SCC 21 at paras 115-119). There is no question that a determination that a [NAME_3] refugee or a protected person should not receive the benefit of the principle of non- refoulement is a matter of the utmost seriousness that can have profound, life-altering consequences for the person concerned. [ 113 ] Broadly speaking, a decision will be unreasonable if there has been a failure of rationality internal to the decision maker’s reasoning process or a failure of justification given the legal and factual constraints bearing on the decision ( [NAME_47] , at para 101; [NAME_48] , at paras 65-66). To set aside a decision on the basis that it is unreasonable, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” ( [NAME_47] , at para 100).

IV. ANALYSIS A. Introduction [ 114 ] As I have already said, I have concluded that the process followed by the decision maker met the requirements of fairness both at common law and stemming from section 7 of the Charter. I have also concluded that the delegate’s determination at the third step of the [NAME_14] that the applicant’s removal from Canada should be considered because of the nature and severity of acts committed is unreasonable. I will address the applicant’s grounds of review relating to procedural fairness before turning to the substance of the decision. B. Was the process followed by the decision maker fair? (1) Determining the requirements of procedural fairness [ 115 ] It is well established that what is required by the duty of fairness – and, when section 7 of the Charter is engaged, what procedures are required by the principles of fundamental justice – depends on the legislative context in which a decision is made and the rights or interests affected ( [NAME_12] , at para 115; [NAME_50] v Canada (Minister of Citizenship and Immigration) , [1999] 2 SCR 817 at para 21). When deciding what procedural protections are required in a particular decision making context, five factors can be particularly salient: (1) the nature of the decision made – that is, the closeness of the administrative process to the judicial process; (2) the role of the decision within the statutory scheme; (3) the importance of the decision to the individual affected; (4) any legitimate expectations of the individual regarding the procedure to be followed; and (5) the choice of procedure made by the agency itself ( [NAME_12] , at para 115, citing [NAME_50] , at paras 23-27). [ 116 ] In [NAME_12] (at paras 116-120), the Supreme Court assessed these factors (except legitimate expectations) in the context of an opinion under paragraph 53(1)(b) of the Immigration Act (the predecessor to paragraph 115(2)(b) of the IRPA ) as follows: (1) The nature of the decision to deport militates neither in favour of particularly strong, nor particularly weak, procedural safeguards. On the one hand, the decision is of a serious nature; on the other hand, it is one to which considerable discretion must attach. (2) The nature of the statutory scheme suggests the need for strong procedural safeguards. [NAME_18] has constructed fair and systematic procedures in a related context, the security certificate process under section 40.1 of the Immigration Act . This suggests that similarly robust safeguards are required when an opinion is to be rendered under a closely connected provision of the Act. (3) The importance of the decision for the individual affected militates in favour of heightened procedural protections. [NAME_12]’s interest in remaining in Canada “is highly significant, not only because of his status as a [NAME_3] refugee, but also because of the risk of torture he may face on return to Sri Lanka as a member of the LTTE” ( [NAME_12] , at para 118). More generally, deportation from Canada “engages serious personal, financial and emotional consequences” ( ibid .). (4) Regarding the choice of procedure, under the terms of the statute, the Minister is free to choose whatever procedures she wishes in making a decision under paragraph 53(1)(b). As well, the Minister must be allowed considerable discretion in evaluating future risk and security concerns. Indeed, by leaving the choice of procedures to the Minister, [NAME_18] has signalled the difficulty of the decision and the broad range of considerations that may be implicated. At the same time, the deference otherwise called for in relation to the decision maker’s choice of procedures “must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees like [NAME_12], who if deported may face torture and violations of human rights” in which Canada cannot be complicit, either constitutionally or under its international treaty obligations ( [NAME_12] , at para 120). [ 117 ] Applying these factors to a danger opinion under paragraph 53(1)(b) of the Immigration Act , the Court concluded that, at a minimum, the common law duty of fairness and the principles of fundamental justice required the following procedural protections in cases where the person concerned has made a prima facie showing that he or she might be tortured or face other serious human rights violations if expelled to their country of origin: The person concerned must be informed of the case to be met. “Subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents, this means that the material on which the Minister is basing her decision must be provided to the individual, including memoranda such as Mr. [NAME_51]’s recommendation to the Minister” ( [NAME_12] , at para 122). (In [NAME_12]’s case, [NAME_51], an immigration officer with Citizenship and Immigration Canada, had prepared a memorandum recommending that the Minister issue an opinion under paragraph 53(1)(b) of the Immigration Act that [NAME_12] constituted a danger to the security of Canada. Mr. [NAME_51]’s memorandum was not provided to [NAME_12] before the Minister issued the opinion under review: see [NAME_12] , at para 16.) The person concerned must be provided an opportunity to respond to the case presented to the Minister. Thus, they must have the opportunity to make submissions after they have had an opportunity to examine the material being used against them. ([NAME_12] and his counsel had provided written representations to the Minister, “in the absence of the material [the Minister] was receiving from her staff and on which she based much of her decision, [NAME_12] and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations” ( [NAME_12] , at para 122).) The Minister must then consider these responding submissions along with the submissions made by the Minister’s staff ( [NAME_12] , at para 122). The person concerned must also be given an opportunity to challenge the Minister’s information “where issues as to its validity arise” ( [NAME_12] , at para 123). They should be permitted to present evidence in relation to the grounds of inadmissibility “showing that his or her continued presence in Canada will not be detrimental to Canada, notwithstanding evidence of association with a terrorist organization” ( ibid. ). “The same applies to the risk of torture on return” ( ibid. ). · On the other hand, the Minister is not required “to conduct a full oral hearing or a complete judicial process” ( [NAME_12] , at para 121). The Minister must provide written reasons for her decision ( [NAME_12] , at para 126). (Paragraph 53(1)(b) of the Immigration Act itself did not require reasons to be given and none were provided in [NAME_12]’s case: see [NAME_12] , at para 16). The reasons must: o Articulate and rationally sustain a finding that there are no substantial grounds to believe that the person in question will be subject to torture, execution or other cruel or unusual treatment (if these issues have been raised by the person concerned); and o Articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the person to be a danger to the security of Canada. Finally, the reasons must emanate from the person making the decision (namely, the Minister or their delegate), rather than taking the form of a recommendation from ministerial staff ( [NAME_12] , at para 126). [ 118 ] These specific procedural protections “need not be invoked in every case” because “not every case of deportation of a [NAME_3] refugee under s. 53(1)(b) will involve risk to an individual’s fundamental right to be protected from torture or similar abuses” ( [NAME_12] , at para 127). To engage these protections, the refugee must “establish a threshold showing that a risk of torture or similar abuse exists before the Minister is obliged to consider fully the possibility ” ( ibid. ). [ADDRESS] explained: “This showing need not be proof of the risk of torture to that person, but the individual must make out a prima facie case that there may be a risk of torture upon deportation” ( ibid. , emphasis in original). In summary, if the refugee establishes that torture or similar abuse is a “real possibility,” the Minister “must provide the refugee with all the relevant information and advice she intends to rely on, provide the refugee with an opportunity to address that evidence in writing, and after considering all the relevant information, issue responsive written reasons. This is the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice under s. 7 of the Charter ” ( ibid. ). [ 119 ] Given the clear parallels between a danger opinion under paragraph 53(1)(b) of the Immigration Act and an opinion under paragraph 115(2)(b) of the IRPA , there is no dispute that the minimum requirements identified by the Supreme Court in [NAME_12] in relation to the former determination are applicable to the latter. As will be discussed below, the applicant submits that the requirements of procedural fairness now go beyond those identified in [NAME_12] . Nevertheless, there is no dispute that the minimum requirements identified in [NAME_12] continue to be relevant and are binding on the decision maker. (2) Were the requirements of procedural fairness met? [ 120 ] There is no question that the decision making process followed by the delegate met the minimum requirements identified in [NAME_12] as a matter of common law and under section 7 of the Charter . (As noted earlier, the respondent accepts that the process potentially leading to the applicant’s removal from Canada engaged section 7 of the Charter .) [ 121 ] The relevant information and advice that was provided to the delegate was disclosed to the applicant (subject to claims of privilege “or similar valid reasons for reduced disclosure” ( [NAME_12] , at para 122)). The applicant was given an opportunity to address that information and advice in writing. He was able to take full advantage of that opportunity, providing detailed and comprehensive submissions and supporting evidence in response to the [NAME_7] assessment for decision. (The decision maker also alerted the applicant to some additional information regarding Algeria that could be considered but the applicant declined the opportunity to provide further submissions.) The delegate, who was the actual decision maker, considered the record, considered fully the risk of torture or similar abuses, and issued written reasons. ([NAME_47] , whether the decision maker’s reasons are sufficient in the respects highlighted in [NAME_12] is now a separate question that should be assessed under the reasonableness framework rather than as a matter of procedural fairness. I will do so below.) Measured against the requirements of [NAME_12] , the process followed by the decision maker is unimpeachable. [ 122 ] Against this backdrop, the applicant raises three main arguments that the requirements of procedural fairness were not met in his case. [ 123 ] First, the applicant submits that it would be a breach of the requirements of procedural fairness and fundamental justice under section 7 to allow his deportation to proceed on the basis of a [NAME_7] risk assessment that was rendered in 2016 and an opinion under paragraph 115(2)(b) of the IRPA that was rendered in 2018. According to the applicant, both are now outdated. The applicant submits that, as a matter of procedural fairness and fundamental justice, he is entitled to an assessment of the risks he faces in Algeria that is based on current conditions, not conditions in 2016 or 2018. The applicant contends that this alone is a sufficient reason to set the decision aside and remit the matter for redetermination. [ 124 ] Second, the applicant submits that the requirements of procedural fairness were breached by the fact that the decision under review does not identify the Minister’s delegate by name but only by title (Senior Decision maker, [NAME_37]) and employee number (C5869). [ 125 ] Third, the applicant submits that the fairness of the process was undermined by the inclusion of confidential information in the record before the delegate. [ 126 ] Given that the decision is being set aside and the matter is being remitted for redetermination on other grounds, there is no need to address the applicant’s first argument other than to observe that the jurisprudence is clear that the assessment of risk in the person’s country of origin must be based on current conditions: see [NAME_9] , at para 44; see also [NAME_53] v Canada (Minister of Public Safety and Emergency Preparedness ), 2006 FC 1370 at para 27. A current risk assessment will obviously be required should the [NAME_7] seek a new opinion from the Minister. Whether the 2016 risk assessment meets this requirement will be for the [NAME_7] and the Minister to determine. [ 127 ] The second issue can also be disposed of quickly. The applicant has not established any basis for concluding that not knowing the personal identity of the decision maker breached the requirements of procedural fairness in this case. [ 128 ] There is no dispute that the Minister’s delegate was the decision maker, nor that she had the legal authority to make the decision she rendered. (While the decision maker’s identity has been partially anonymized, the respondent has used the pronouns she/her when referring to the decision maker and I have followed suit.) As a result, I agree with the respondent that [NAME_54] v Canada (Attorney General) , 2006 FC 727, on which the applicant relies, is distinguishable. [ 129 ] Furthermore, the applicant’s assertion that he is impeded from considering whether the decision is tainted by bias (whether actual or apprehended) is entirely speculative. The possibility that the decision maker responsible for providing an opinion under paragraph 115(2)(b) may have had some prior involvement with the applicant’s case was hardly unforeseeable given the lengthy history of proceedings concerning the applicant. I agree with the respondent that, if the applicant had had genuine concerns that the decision maker may have had some prior involvement with his case or would otherwise not approach it objectively and with an open mind, he should have raised those concerns in his submissions to the Minister. This would have given the decision maker an opportunity to address them directly, either as a preliminary matter or in the decision itself. While I would not necessarily find that the applicant’s failure to raise this issue earlier amounts to a waiver that precludes him from raising it now (see [NAME_55]) v Canada (Transportation Agency) , 2024 [NAME_1] 122 at para 38 and the decisions mentioned there), the fact remains that the decision maker was deprived of the opportunity to address this concern. The applicant’s failure to raise this issue in a timely way has also meant that the record is bereft of any explanation for why the identity of the decision maker was anonymized to the extent that it was. In the absence of such information, and without the benefit of the delegate’s perspective, it would not be appropriate to consider this issue further. In any event, since the decision is being set aside on other grounds, it will be open to the applicant to raise this issue again before the next decision maker, if so advised. [ 130 ] Finally in this regard, the applicant asserts that keeping “both the evidence and the decision-maker’s identity” from him “raises serious concerns about the integrity of the process.” According to the applicant, this is a process “akin to the unfair trials that occur in non-democratic states that engage in consistent human rights abuses. It is not becoming of Canada” ( Applicant’s Further Memorandum of Fact and Law , paragraph 94 ). With respect, these hyperbolic assertions are unhelpful. They are also entirely unwarranted. [ 131 ] Turning to the applicant’s remaining procedural fairness arguments, the applicant submits that the delegate erred by failing to accede to his request to have special advocates appointed to represent his interests given that the record before her included confidential information. He also submits that he was prejudiced by the blanket refusal to disclose Appendix 10 before the delegate rendered a decision, a measure he says was manifestly overbroad given that substantial parts of the [NAME_42] have now been disclosed in the present application. [ 132 ] As I will explain, I do not agree in either respect. (a) The applicant’s request for special advocates [ 133 ] The applicant submits that the fairness of the process before the Minister’s delegate was undermined by the inclusion of confidential information in the record before the delegate that he did not have a meaningful – or any – opportunity to address before a decision was made. According to the applicant, while [NAME_12] may suggest that doing so is not inconsistent with the requirements of procedural fairness or the principles of fundamental justice, that decision did not address this issue directly and, in any event, the requirements of procedural fairness and fundamental justice must now be understood in light of subsequent developments – namely, [NAME_10] , the ensuing changes to the security certificate scheme, and [NAME_1]) . Drawing on these developments, the applicant submits that it was unfair for the Minister’s delegate to consider confidential information without providing him with an opportunity to address that information with the assistance of special advocates. [ 134 ] Counsel for the applicant raised this issue in her first set of written submissions to the Minister (dated December 19, 2016). As a preliminary matter, [NAME_56] requested that the Minister appoint the special advocates who had been the applicant’s special advocates in the second security certificate proceeding “to fulfill the same role in this determination process.” [NAME_56] observed that the special advocates had played a “crucial role” in the Federal Court proceeding. She submitted that the current process under paragraph 115(2)(b) of the IRPA “is much more significant because [NAME_1] is a [NAME_3] refugee, with a well-founded fear of persecution on refoulement to Algeria, who also faces a substantial risk of torture there.” After observing that the [NAME_7] brief to the Minister (the February 2016 assessment for decision) included “information that has not been released to [NAME_1] and about which he cannot comment,” [NAME_56] continued: As noted below, the Minister must make a fresh determination of whether [NAME_1] presents a danger to the security of Canada. He cannot do so fairly unless he is permitted to comment on all of the material or, as a substitute for him, where the evidence is subject to a national security claim, a special advocate it [ sic ] permitted to comment on the undisclosed material. While the legislation does not contemplate this, reading in a fair process does not require a legislative amendment. As authority for the last statement, [NAME_56] cited SIRC’s practice of using “independent counsel” to represent an excluded party’s interests during closed proceedings despite the fact that its enabling statute – the [NAME_20] Act – did not expressly provide for this. [ 135 ] On this application for judicial review, the applicant has developed his argument that the fairness of the process before the Minister’s delegate required the participation of special advocates in greater detail. He submits that, under the IRPA , just as was the case under the Immigration Act , a decision to deny someone who is inadmissible on security grounds the protection of the principle of non- refoulement is closely connected to the security certificate process that resulted in the finding of inadmissibility. As [NAME_12] recognized, the requirements of procedural fairness when the reasonableness of a security certificate is being determined are relevant considerations when determining what procedural protections are required when a decision is to be made concerning whether to deny a person named in a security certificate the protection of the principle of non- refoulement . The applicant points out that, as a result of jurisprudential developments and legislative changes that post-date [NAME_12] , the rights of individuals named in security certificates are now protected much more assiduously than was the case when [NAME_12] was decided, especially in relation to the use of confidential information. According to the applicant, the requirements of procedural fairness and fundamental justice that now govern the security certificate process are equally applicable to the process before the Minister’s delegate and, he submits, the process followed in his case did not meet these requirements. In particular, the applicant submits that the delegate’s failure to appoint special advocates to represent his interests in relation to the confidential information that was provided to her undermined the fairness of the process leading to the delegate’s decision. [ 136 ] While this argument has now been developed much more comprehensively than before, in his earlier submissions to the Minister, the applicant expressly requested that special advocates be appointed to represent his interests in relation to the proceeding under paragraph 115(2)(b) of the IRPA – indeed, the very same special advocates as had participated in the second security certificate proceeding and the subsequent appeals. The Minister’s delegate did not accede to this request. Nor, regrettably, did she explain why not. In fact, the delegate does not even acknowledge that the request had been made. While it might have been helpful to understand the delegate’s thinking on this point, the absence of reasons does not hamper my assessment of whether the decision making process was fair having regard to all of the circumstances. [ 137 ] I would begin by stating that I agree with the applicant that the requirements of procedural fairness and fundamental justice in the security certificate process are highly germane to the process for obtaining an opinion under paragraph 115(2)(b) of the IRPA . In [NAME_12] , the Supreme Court recognized that the security certificate scheme was a relevant comparator for determining the minimum requirements for a fair process when the Minister’s opinion was sought under subsection 53(1) of the Immigration Act. This is equally true under the IRPA . In the end, however, this comparison does not assist the applicant – or at least, not to the extent he contends. [ 138 ] There is no question that, following [NAME_10] , [NAME_18] made the procedural fairness protections in the security certificate process much stronger than was the case under the Immigration Act , including, of course, the introduction of special advocates. However, the significance of these changes for the present application must not be overstated. In [NAME_10] , the court was only considering the requirements of a fair judicial process. The same is true of [NAME_10]. [ADDRESS] held in [NAME_12] that a decision on non- refoulement does not require “a complete judicial process” (at para 121). Nothing in [NAME_10] or [NAME_10] calls the soundness of this proposition into question. [ 139 ] Moreover, the process followed under paragraph 115(2)(b) of the IRPA in the applicant’s case cannot be divorced from the security certificate proceeding that preceded it. The foundation for the opinion under paragraph 115(2)(b) of the IRPA is [NAME_6]’s determination that the second security certificate was reasonable, including the specific findings he made in support of that determination. [NAME_6] made those findings in a proceeding that he was satisfied was fundamentally fair, a conclusion ultimately upheld by the Supreme Court of Canada. [ 140 ] Importantly, as set out in detail above, [NAME_6] was satisfied that, through the information disclosed to him over the course of the security certificate proceeding, the applicant personally knew the case he had to meet in relation to the allegation that he is inadmissible to Canada on security grounds. This is the very same case that supported the opinion under paragraph 115(2)(b) of the IRPA , only now that case has been refined and clarified by [NAME_6]’s findings. With the benefit of those findings, together with the disclosure he received in connection with the security certificate proceeding (which was essentially reproduced again in connection with the proceedings before the Minister’s delegate), there can be no doubt that the applicant knew the case he had to meet when the matter was referred to the Minister for a determination under paragraph 115(2)(b) of the IRPA. [ 141 ] In my view, the applicant’s argument that the non-disclosure of information in the process before the Minister’s delegate undermined the fairness of that process simply repeats the arguments he made (unsuccessfully) during the second security certificate proceeding and the subsequent appeals. To be blunt, that ship has sailed. The applicant has had the benefit of the disclosure regime governing the security certificate process, as determined by [NAME_10] and [NAME_10] . He has had the benefit of having special advocates represent his interests in the second security certificate proceeding. The Supreme Court of Canada concluded that that proceeding was fundamentally fair. Most importantly, it has been conclusively determined that the applicant knew the essential elements of the basis for the allegation of inadmissibility on security grounds and the evidence that supported this. [ 142 ] The only confidential information the delegate considered related to the applicant’s inadmissibility. This was the confidential information [NAME_6] considered when determining the reasonableness of the security certificate. In the second security certificate proceeding, the applicant had a full and fair opportunity to meet the allegations of inadmissibility based on that confidential information. The delegate did not consider any new confidential information bearing on the applicant’s inadmissibility on security grounds beyond what had been put before [NAME_6]. In fact, as mentioned above and discussed further below, the delegate may not have had the transcripts of the closed proceedings concerning the second security certificate or even [NAME_6]’s confidential reasons for judgment upholding the security certificate. In other words, the delegate may have had access to less confidential information than the assessment for decision suggested; indeed, she may also have had access to less confidential information than [NAME_6] did. [ 143 ] In addition to all of the disclosure provided to him during the second security certificate proceeding, the applicant now has had the benefit of [NAME_6]’s decision upholding the second certificate as reasonable. That decision is not only the legal prerequisite for obtaining an opinion under paragraph 115(2)(b) of the IRPA ; the findings made there form the factual substratum for that opinion. The applicant may continue to disagree with those findings but, as I have already said, the process under paragraph 115(2)(b) of the IRPA is not meant to be an opportunity to relitigate those findings (or at least, not in the absence of new evidence that calls those findings or the weight to be given to them into question). The applicant knew what these findings were. The issues before the delegate were whether, in view of those findings and the relevant evidence, the applicant should not be allowed to remain in Canada because of the nature and severity of acts committed or danger to the security of Canada (step 3 of [NAME_9] ) and, if so, whether removal from Canada would be an unjustifiable limitation on the applicant’s rights under section 7 of the Charter (steps 4 and 5 of [NAME_9] ). The applicant knew everything he needed to know to try to make the case that these questions should be answered in his favour. [ 144 ] In sum, given the disclosure provided to the applicant through the proceeding concerning the reasonableness of the second security certificate (including [NAME_6]’s detailed reasons for upholding the certificate as reasonable), and given the conclusive judicial determinations that that process was fundamentally fair (because the applicant knew the case he had to meet and had a full and fair opportunity to meet that case), there is no basis for the delegate to have concluded that, unless special advocates were appointed, including the same confidential information in the record before the decision maker undermined the fairness of the decision making process under paragraph 115(2)(b) of the IRPA . Nor is there any basis for me to so conclude. To repeat, I am satisfied that the applicant personally knew the case he had to meet under paragraph 115(2)(b) of the IRPA and that he had a full and fair opportunity to meet that case. As a result, even if the Minister had the legal authority to appoint someone akin to a special advocate to represent the applicant’s interests in relation to the confidential information – itself a contentious question – this was not required by common law procedural fairness or the principles of fundamental justice under section 7 of the Charter . The delegate did not err in failing to appoint special advocates for the proceeding under paragraph 115(2)(b) of the IRPA . [ 145 ] While this is sufficient to dispose of the ground of review relating to the delegate’s failure to appoint a special advocate, given the emphasis the applicant placed on this issue, I would also raise a number of practical concerns with the applicant’s request. [ 146 ] Subject to the requirements of procedural fairness and the principles of fundamental justice, the Minister is free to determine the procedures to follow in making a decision under paragraph 115(2)(b) of the IRPA ( c.f. [NAME_12] , at para 120). Nothing in the IRPA says the Minister cannot receive classified submissions on behalf of the person about whom an opinion is to be provided. At the same time, nothing in the IRPA suggests that the Minister would have the legal authority to proceed as the applicant requested. Indeed, it is far from clear how the process requested by the applicant would work. [ 147 ] In his December 2016 submissions to the Minister, the applicant asked that “the special advocates who were appointed in the security proceedings be appointed to fulfill the same role in this determination process.” It is understandable why the applicant would request that his former special advocates be permitted to participate in the process under paragraph 115(2)(b) of the IRPA . After all, they knew the case well (including the confidential record) and they obviously continued to have the applicant’s confidence. But the request to appoint these lawyers “to fulfill the same role” in the process under paragraph 115(2)(b) of the IRPA as they had played in the security certificate proceeding raised many questions that the applicant did not even attempt to answer in his submissions to the Minister or on this application. [ 148 ] The applicant submitted to the Minister that “reading in a fair process does not require a legislative amendment” yet he was urging the Minister to do much more than “read in” a new process. He was asking the Minister to transplant a statutorily defined role into an entirely new setting. Using the term “special advocate” in his request simply begged the question of whether this could even be done. While the two lawyers the applicant had in mind ([NAME_43] and [NAME_57]) had been given a specific mandate under Part 1 (Division 9) of the IRPA , that mandate had come to an end by the time the matter reached the Minister under paragraph 115(2)(b) of the IRPA (which is found in Part 2 (Division 3) of the Act). Even if there was no impediment to the Minister giving additional lawyers an opportunity to make submissions on behalf of the applicant, and even if the lawyers the applicant had in mind had once had access to the confidential record, obviously those lawyers could not responsibly work solely from their memory of the confidential information. But under what authority could the Minister permit them to have access to the confidential record now given that the confidentiality of that record was protected by determinations made by the Federal Court? Even if the Minister could somehow grant the lawyers access to the confidential record, who would be responsible for providing the necessary administrative support and resources when they were working with that record? As well, as former special advocates, [NAME_43] and Mr. [NAME_57] are persons permanently bound to secrecy under the Foreign Interference and Security of Information Act , RSC 1985, c O-5. During the period of their appointments as special advocates, they could communicate with the applicant and his counsel only with leave of the court. How could they communicate with the applicant or his counsel now if new issues arose with respect to which they needed to seek his input? And how, finally, would these lawyers be paid? It cannot simply be presumed, as the applicant seems to have done, that they would be paid out of public funds. In short, the applicant’s bare request to the Minister does not shed any light on how the process he was seeking would actually work. [ 149 ] This may all seem overly formalistic; however, one must not lose sight of the fact that special advocates were created by statute to play a specific role in security certificate proceedings and in proceedings under section 87 of the IRPA . It is far from obvious how that role, even if played by the very same lawyers who were once the applicant’s special advocates, would be recreated for an entirely different administrative decision making process under a different part of the IRPA . This strongly suggests that, if a similar role is to be incorporated into the process before the Minister under paragraph 115(2)(b) of the IRPA , it should be [NAME_18] that does so. [ 150 ] All this being said, in the end, the applicant’s concerns about the confidential record turned out to be entirely theoretical. This is because the delegate concludes her decision with the following statement (emphasis added): With respect to the information that is classified as Top Secret, and which is contained in Appendix 10 of the [NAME_7] package, I have reviewed the documents in full . However, in making my decision, above, I have relied entirely on the public documents only, and not on any information in the Top Secret appendix . [ 151 ] Confusingly, earlier in the decision, the delegate had stated that, in making her determination under paragraph 115(2)(b), she would “rely on the entire record included in the RMO [Request for Minister’s Opinion – i.e. the [NAME_7] assessment for decision].” That record, of course, included Appendix 10. Despite this comment, reading the decision as a whole and in light of the record, I am satisfied that the delegate should be taken at her word when she says at the conclusion of her reasons that she only relied on the public documents and not on any information in the Top Secret appendix. [ 152 ] In sum, given the decision rendered, even if, contrary to my conclusion above, there had been some basis for the applicant’s concerns going into the decision making process about the inclusion of confidential information in the record, those concerns turned out to have no foundation. This is because the confidential information ended up having no bearing on the decision actually made. Of course, the applicant still has concerns about the process that will be followed when the matter is redetermined and he asks the Court to order the appointment of a special advocate or an amicus to represent his interests in that process. I will have more to say about this later. (b) The non-disclosure of Appendix 10 [ 153 ] The applicant also raises a concern about the withholding of publicly-sourced documents when the matter was before the Minister’s delegate, documents that have now been disclosed to him through the IRPA section 87 process . More particularly, the applicant argues that he was prejudiced by the non-disclosure of publicly-sourced documents included in Appendix 10 to the assessment for decision. Since the applicant could not have known about this non-disclosure when the matter was before the Minister’s delegate, there is no bar to him raising this issue for the first time on judicial review. That said, the applicant should not have waited until the hearing of this application to raise it. Nevertheless, since the respondent has had an opportunity to address this issue in post-hearing submissions, and given its potential importance, I am prepared to address the issue on its merits. [ 154 ] As described above, the respondent’s post-hearing submissions helpfully explain that the [NAME_42] contains 101 publicly-available source documents. Ninety-four of these documents were disclosed to the applicant through the IRPA section 87 process. However, these documents had also been disclosed to the applicant when the matter was before the delegate, only not as part of Appendix 10. In fact, most if not all of these documents were also disclosed to the applicant during the second security certificate proceeding. In my view, the applicant could not possibly have been prejudiced by the fact that these documents were not disclosed to him earlier as part of Appendix 10 but were otherwise available to him. [ 155 ] As also set out above, the respondent has confirmed that seven additional publicly-sourced documents in Appendix 10 were disclosed to the applicant for the first time as a result of the order under section 87 of the IRPA. In other words, these seven documents were never disclosed to the applicant during the security certificate proceeding or while the matter was before the Minister’s delegate. In its post-hearing written submissions, the respondent argues that these seven documents were immaterial to the issues before the delegate. The applicant did not file anything in response. [ 156 ] I am not persuaded that the earlier non-disclosure of these seven documents gives rise to a basis on which to interfere with the delegate’s decision. I say this for three reasons. [ 157 ] First, I reject the key premise of the applicant’s argument – that the determination under section 87 of the IRPA that the documents could be disclosed in the context of this application for judicial review entails that the decision to withhold them earlier was somehow improper. While the assessment for decision could have stated the legal basis for withholding all of Appendix 10 more clearly, there is no question that [NAME_6] had confirmed the non-disclosure of this information during the security certificate proceeding or that this is what was being relied on to continue to withhold that information from the applicant. The January 2011 and August 2015 notices from the [NAME_7] as well as the February 29, 2016, covering letter were all clear in this regard. I agree with the respondent that neither the [NAME_7] (in disclosing the source documents for the assessment for decision) nor the Minister had the authority to disclose information or other evidence that this Court had found could not be disclosed to the applicant because its disclosure would be injurious to national security or would endanger the safety of any person. Neither can be faulted for failing to exercise an authority they did not have. Only the judge determining the non-disclosure motion under section 87 of the IRPA had the authority to revisit this issue and determine whether additional disclosure should be provided to the applicant. [ 158 ] Second, I also reject any suggestion that it was improper to withhold these documents because they are publicly available. The sensitivity of the documents arose from the fact that they were attached as source documents to a classified [NAME_22], not from their contents per se . To give a purely hypothetical example, a [NAME_22] could include a news article about a particular individual as a source document. Considered in isolation, there would be nothing sensitive about the contents of the article; after all, the article is publicly available. But the fact that it was used as a source document in a [NAME_22] could imply that the person who is the subject of the article is referred to in the report and disclosing this fact may be injurious because it could reveal the Service’s investigative interest in that individual. [ 159 ] Third, while it might have appeared to the applicant following the IRPA section 87 motion that a large number of documents had been withheld from him because they were in Appendix 10, as I have already explained, in fact almost all of those documents were duplicates of documents that had been disclosed to him in connection with the 2016 assessment for decision (which, in turn, had substantially reproduced disclosure provided to the applicant during the second security certificate proceeding). In the end, of all the publicly-sourced documents in Appendix 10 that were disclosed to the applicant through the IRPA section 87 process, only seven had not previously been disclosed to him. I agree with the respondent that none of these documents are material to the issues before the Minister’s delegate. Their earlier non-disclosure could not possibly have had an impact on the fairness of the process before the Minister’s delegate. The applicant did not even attempt to show otherwise. [ 160 ] Taking a step back, this application for judicial review has provided the applicant with essential safeguards. He has had the benefit of the participation of a special advocate and a special counsel. Through the IRPA section 87 process, he has received additional disclosure beyond what was provided to him when the matter was before the Minister’s delegate. Together, the applicant himself and the special advocate were well placed to demonstrate that the inclusion of confidential information in the record before the Minister’s delegate caused him actual prejudice, if such were the case. [ 161 ] Having considered both the public and the confidential records, and bearing in mind that the security certificate proceeding was fundamentally fair, I have concluded that neither including confidential information in the record before the Minister’s delegate nor withholding Appendix 10 in its entirety undermined the fairness of the decision making process under paragraph 115(2)(b) of the IRPA . Critically, the fact that the applicant personally did not have access to the confidential information in Appendix 10 did not hamper in any way his ability to know the case he had to meet under paragraph 115(2)(b) or his ability to meet that case. [ 162 ] I would add one final point in this regard. To anticipate matters that will be discussed in the next section, the reasonableness of the delegate’s decision is to be assessed in light of the entire record, including the classified record. I have heard nothing to suggest that the unreasonableness of the decision is only apparent in light of the confidential record. [ 163 ] In short, the applicant has not established that he was prejudiced in any way by the manner in which the delegate proceeded, and certainly not in any way that could not be rectified in the present proceeding. [ 164 ] Before leaving the issue of the non-disclosure of documents or information considered by the delegate, I must underscore my concern about the lack of clarity about what, exactly, was in Appendix 10 to the [NAME_7] assessment for decision. [ 165 ] As set out above, there are significant discrepancies between the contents of Appendix 10 according to the assessment for decision and the contents of the [NAME_42]. The Minister’s delegate has certified that the documents in the [NAME_42] are true copies of the original documents she reviewed for the purpose of preparing an opinion under paragraph 115(2(b) of the IRPA. But this then calls into question the accuracy of the statement in the assessment for decision that Appendix 10 included transcripts of in camera ex parte proceedings concerning the security certificate as well as classified reasons and orders, none of which are to be found in the [NAME_42]. [ 166 ] Even though the delegate ultimately did not rely on any of the classified information in Appendix 10, as she acknowledges, she did review it “in full.” It is also clear that the author of the assessment for decision would have considered this information and, in the absence of any indication to the contrary, she must have relied on it in forming her recommendations. The assessment for decision, in turn, was relied on by the Minister’s delegate in rendering the opinion under paragraph 115(2)(b) of the IRPA . [ 167 ] Surprisingly, despite what was said in the assessment for decision, it appears that the Minister’s delegate did not have access to the classified version of [NAME_6]’s decision upholding the second security certificate as reasonable (that is, the version of the decision that included the unredacted footnotes), nor did she have access to the transcripts of the closed proceedings before [NAME_6]. (As for the author of the assessment for decision, it is entirely unclear whether she had access to these documents.) This lack of clarity about the contents of Appendix 10 and whether they are reproduced in their entirety in the [NAME_42] creates uncertainty not only about what information the delegate reviewed but also about what information she chose not to rely upon. On judicial review, expressly disregarding or simply failing to consider relevant information could itself undermine the reasonableness of a decision: see [NAME_47] , at para 126. [ 168 ] This said, in the present case, nothing ends up turning on the lack of clarity about the contents of Appendix 10 when the matter was before the delegate. Neither the applicant nor the special advocate raised any concerns in this regard and, in any event, the delegate’s decision must be set aside on other grounds. Nevertheless, in the future, when such is the case, any classified information put before a decision maker should be identified accurately and completely. Even if this can only be done confidentially, this will assist not only the decision maker when the matter is before them but also the court that may be called upon to review their decision. To the extent that anything is said publicly about the classified record before the administrative decision maker (whether in an assessment for decision or elsewhere), it is imperative that the information provided not be inaccurate or misleading. (3) Conclusion [ 169 ] For these reasons, I am satisfied that the process followed by the Minister’s delegate met the requirements of procedural fairness, both as a matter of common law and as entailed by the principles of fundamental justice. This ground of review must be rejected. C. Is the decision unreasonable? [ 170 ] The law places significant constraints on Canada’s power to remove protected persons to their country of origin. When, as in the applicant’s case, Canada seeks to remove a protected person because they are inadmissible on security grounds, it may do so only if (1) the Minister is of the opinion that “the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada” ( IRPA , paragraph 115(2)(b)); and (2) removing the person would not violate section 7 of the Charter . While these are legally distinct determinations, each informs the other. In practice, they are made together under the framework described in [NAME_9] . [ 171 ] To be reasonable, a decision “must be justified in relation to the constellation of law and facts that are relevant to the decision [references omitted]. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers” ( [NAME_47] , at para 105). [ 172 ] Since administrative decision makers receive their powers by statute, “the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision” ( [NAME_47] , at para 108). An administrative decision maker may have considerable discretion in making a particular decision but the decision “must ultimately comply with the rationale and purview of the statutory scheme under which it is adopted” ( [NAME_47] , at para 108, internal quotation marks omitted). Likewise, a decision “must comport with any more specific constraints imposed by the legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion” ( ibid. ). [ 173 ] As well, “a reasonable decision is one that is justified in light of the facts” ( [NAME_47] , at para 126). The decision maker “must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them” ( ibid. ). The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended the evidence before it, has failed to account for that evidence, or where the decision maker’s conclusions are not reasonably supported by the record before the decision maker ( ibid. ). [ 174 ] In my view, the delegate’s conclusion that the applicant’s removal from Canada should be considered because of the nature and severity of acts committed is not justified in light of the record before her. Specifically, the delegate’s finding that the applicant was complicit in acts of terrorism committed by [NAME_8] is not reasonably supported by the reasons for the decision, by [NAME_6]’s findings, or by the evidence before the decision maker. As I will explain, the delegate conflates the applicant’s complicity in terrorist crimes with his inadmissibility on security grounds despite the fact that these determinations involve entirely different tests. This conflation led the delegate to conclude that [NAME_6]’s findings in relation to the applicant’s inadmissibility demonstrated that the applicant had made a knowing, voluntary and significant contribution to attacks on civilians by [NAME_8] and, therefore, was complicit in these acts of terrorism. The inference of complicity also rests on speculation, unfounded assumptions, and extrapolations that go well beyond anything reasonably supported by the record. [ 175 ] While this fundamental flaw is found in the delegate’s application of paragraph 115(2)(b) of the IRPA as opposed to its interpretation, it is nevertheless helpful to begin by examining the meaning of the phrase “should not be allowed to remain in Canada on the basis of the nature and severity of acts committed.” This test is a fundamental legal constraint on the Minister’s discretion to remove a protected person from Canada. As such, it necessarily guides the decision maker’s assessment of the findings of fact supporting the determination of inadmissibility and the relevant evidence that are required to determine whether a protected person should be denied the protection of the principle of non-refoulement . (1) The meaning of “should not be allowed to remain in Canada on the basis of the nature and severity of acts committed” (a) The principles of statutory interpretation [ 176 ] As is well known, the meaning of a statutory provision is determined by reference to its text, context and purpose. According to [NAME_58]’s oft-cited statement of the modern principle of statutory interpretation, the words of a provision must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of [NAME_18]” ( [COMPANY_59]. (Re) , [1998] 1 SCR 27 at 41, quoting [NAME_60], Construction of Statutes (2 nd ed. 1983), at 87). In other words, statutory language must be interpreted “according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole” ( R v [NAME_61] , 2023 SCC 6 at para 24, quoting Canada Trustco Mortgage Co v Canada , 2005 SCC 54 at para 10). These elements “are often closely related or interdependent” ( [NAME_62] v Canada (National Revenue) , 2025 SCC 13 at para 43). [ 177 ] The modern principle recognizes that context plays an important role when a court construes the words of a statute (see [COMPANY_64] v [NAME_63] , 2002 SCC 42 at para 27). Statutory interpretation “cannot be founded on the wording of legislation alone” because “words, like people, take their colour from their surroundings” ( [NAME_62] , at para 44, quoting Rizzo & Rizzo Shoes , at para 21, and [NAME_63] , at para 27). As a result, “the plain meaning of the text is not in itself determinative and must be tested against the other indicators of legislative meaning – context, purpose, and relevant legal norms” ( [COMPANY_66] v Quebec , 2023 SCC 22 at para 23; see also R v [NAME_67] , 2017 SCC 37 at para 31, and [NAME_62] , at para 45). At the same time, “just as the text must be considered in light of the context and object, the object of a statute and that of a provision must be considered with close attention always being paid to the text of the statute, which remains the anchor of the interpretive exercise” ( [NAME_62] , at para 45, quoting Quebec ( Commission des droits de la [NAME_11] et des droits de la jeunesse ) v Directrice de la protection de la jeunesse du CISSS A , 2024 SCC 43 at para 24). [ 178 ] Some additional principles of statutory interpretation are especially germane in the refugee law context. Paragraph 3(3)(f) of the IRPA requires that the Act be construed and applied in a manner that “complies with international human rights instruments to which Canada is signatory.” This codifies the common law principle that “legislation is presumed to comply with Canada’s international obligations, and courts should avoid interpretations that would violate those obligations” ( R v [NAME_68] , 2015 SCC 59 at para 40). Likewise, legislation must be interpreted “in a way that reflects the values and principles of customary and conventional international law” ( ibid ., citing R v [NAME_69] , 2007 SCC 26 at para 53, and [NAME_70] v Canada (Justice) , 2010 SCC 56 at para 34). (As important as they are, these presumptions can be rebutted by the clear words of the statute under consideration: [NAME_69] , at para 53; [NAME_70] , at para 35; [NAME_71] v [NAME_72] , 2014 SCC 62 at para 60.) In all these ways, international law operates as an important constraint on administrative decision makers acting under the IRPA ( [NAME_47] , at para 114; [NAME_48] , at paras 10 and 105-111). [ 179 ] In sum, the “prime directive” of statutory interpretation is that after taking into account all relevant and admissible considerations . . . the court must adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of legislative intent; and (c) its acceptability, that is, the outcome complies with accepted legal norms; it is reasonable and just. ( [NAME_62] , at para 49 quoting [NAME_73], The Construction of Statutes (7 th ed 2022), at § 2.01[4]) (b) The principles applied [ 180 ] The source of the phrase “on the basis of the nature and severity of acts committed” is unclear. It cannot be traced to another statute, to an international human rights instrument addressing the principle of non- refoulement , or to the jurisprudence. It appears to be sui generis . [ 181 ] This phrase was first introduced into Canadian law with the enactment of the IRPA in 2001 (Bill C-11, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger (Royal Assent November 1, 2001)). When it was first put before [NAME_18], what is now paragraph 115(2)(b) of the IRPA required the Minister to determine whether “it would be contrary to the national interest for the foreign national to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada” (Bill C-11 – First Reading (February 21, 2001)). Following committee proceedings, the current version of the provision was adopted. The test would no longer be whether it would be contrary to the national interest for the person to remain in Canada, with the nature and severity of acts committed and danger to the security of Canada being two factors to consider in this regard; rather, the nature and severity of acts committed and danger to the security of Canada were to be freestanding tests in their own right. The parliamentary debates and committee proceedings shed little light on why this change was made. [ 182 ] Viewed in isolation, the test of “should not be allowed to remain in Canada on the basis of the nature and severity of acts committed” is hardly “precise and unequivocal” and it cannot be said that the ordinary meaning of the words alone settles the interpretive exercise ( c.f. [NAME_47] , at para 120). Indeed, in the English version of paragraph 115(2)(b) of the IRPA , it is not even clear whose acts are in issue. Fortunately, the French version is clearer in this respect: “ en raison soit de la nature et de la gravité de ses actes passés ” (emphasis added). The relevant acts are the acts committed personally by the person about whom the Minister’s opinion has been sought: see [NAME_9] , at para 51. As we will see shortly, this does not preclude the possibility of relying on the acts of others or the acts of a group of which the person is a member, “so long as it is established that [the person in question] was complicit in the commission of those acts” ( [NAME_9] , at para 51). But what about the “nature” ( “ la nature ” ) and “severity” ( “ la gravité ” ) of the person’s acts? The meaning of these abstract nouns is not obvious. This becomes clearer, however, when the words are considered in light of the purpose of the provision and its broader legal context, including international law. [ 183 ] Section 115 as a whole would appear to be directed to at least five of the objectives of the IRPA with respect to refugees set out in subsection 3(2), namely: (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; b) de remplir les obligations en droit international du Canada relatives aux réfugiés et aux personnes déplacées et d’affirmer la volonté du Canada de participer aux efforts de la communauté internationale pour venir en aide aux personnes qui doivent se réinstaller; [. . .] [. . .] (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; and d) d’offrir l’asile à ceux qui craignent avec raison d’être persécutés du fait de leur race, leur religion, leur nationalité, leurs opinions politiques, leur appartenance à un groupe social en particulier, ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels et inusités; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings; e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile et, d’autre part, des droits et des libertés fondamentales reconnus à tout être humain; [. . .] [. . .] (g) to protect the health and safety of Canadians and to maintain the security of Canadian society. g) de protéger la santé des Canadiens et de garantir leur sécurité; [ 184 ] These are not watertight compartments. Different aspects of section 115 of the IRPA promote combinations of these objectives to varying degrees. The enactment of the principle of non- refoulement in subsection 115(1) serves the first three of these objectives while subsection 115(2) serves the latter two objectives. Paragraph 115(2)(a) provides that the principle of non- refoulement does not apply in the case of a person who is inadmissible on grounds of serious criminality “and who constitutes, in the opinion of the Minister, a danger to the public in Canada.” The link between this provision and the objective of protecting the safety of Canadians is clear. Also clear is the link between the second operative part of paragraph 115(2)(b) – “should not be allowed to remain in Canada on the basis of . . . danger to the security of Canada” – and the objective of maintaining the security of Canada. But what about “the nature and severity of acts committed” ? It is certainly not obvious that this test promotes either public safety or the security of Canadian society. [ 185 ] Read in the broader context of the IRPA and Canada’s international commitments to refugee protection, the wording of this phrase suggests that it serves a different purpose: to grant the Minister the discretion to remove a [NAME_3] refugee or a protected person from Canada because they have committed wrongful acts of such gravity that denying them the protection of the principle of non- refoulement is justified. If applied consistently with the Charter and, as the jurisprudence requires, with due restraint, this provision helps to maintain the integrity of the Canadian refugee protection system and to guard against abuses while also upholding Canada’s respect for the human rights and fundamental freedoms of all human beings and promoting the humanitarian aim of the [NAME_3] ( c.f. [NAME_75] v Canada (Citizenship and Immigration) , 2013 SCC 40 at paras 35-36; and IRPA , para 3(2)(e)). [ 186 ] The IRPA is the “main legislative vehicle for implementing Canada’s international refugee obligations” ( [NAME_70] , at para 21). The provisions of the [NAME_3] relating to expulsion and return are “[a]t the heart of the protections accorded to refugees” by the [NAME_3] ( [NAME_70] , at para 18). Article 33 (set out below) addresses the return of refugees to places where they may face persecution. The principle of non- refoulement is considered “the cornerstone of the international refugee protection regime” ( [NAME_70] , at para 18, citing United Nations High Commissioner for Refugees, Guidance Note on Extradition and International Refugee Protection (April 2008)). Section 115 of the IRPA is the statutory expression of this principle ( [NAME_70] , at para 22). It is “directed to fulfilling Canada’s obligations under the [NAME_3] in relation to non- refoulement and there is, accordingly, a close correspondence between it and the relevant provisions of the [NAME_3] ” ( [NAME_70] , at paras 22-23). [ 187 ] Article 33 of the [NAME_3] provides:

1. No Contracting State shall expel or return (“ refouler ”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. [ 188 ] The grounds on which removal is prohibited in subsection 115(1) “closely parallel” those in Article 33 ( [NAME_70] , at para 23). The exceptions to the application of subsection 115(1) identified in subsection 115(2) “closely follow” the exclusions from the definition of refugee in Article 1F of the [NAME_3] (committing a crime against peace, a war crime, or a crime against humanity; committing a serious non-political crime outside the country of refuge prior to admission to that country; being guilty of acts contrary to the purposes and principles of the United Nations) as well as the grounds on which a refugee may be expelled under Article 32 (national security or public order) ( ibid. ). The exceptions in subsection 115(2) also overlap with the exceptions to the principle of non- refoulement set out in Article 33 (danger to the security of the country in which the person is or danger to the community of that country). [ 189 ] Significantly, however, paragraph 115(2)(b) also countenances refoulement outside the circumstances described in Article 33(2). It permits the Minister to allow refoulement of a [NAME_3] refugee “based on ‘the nature and severity’ of acts not linked to ‘the security of the country’” ( [NAME_48] , at para 113). As a result, Article 33 of the [NAME_3] is of little direct assistance in determining the meaning of this particular part of paragraph 115(2)(b) of the IRPA . Indeed, the argument could be made that this part of paragraph 115(2)(b) is actually inconsistent with Article 33(2). [ 190 ] On the other hand, Article 1F states that the provisions of the [NAME_3] do not apply to persons for whom there are serious reasons for considering that they have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside the country of refuge prior to admission to that country, or that they are guilty of acts contrary to the purposes and principles of the United Nations. Of course, the provisions of the [NAME_3] include the principle of non-refoulement in Article 33(1). Thus, individuals who come within Article 1F are not entitled to the protection of that principle. These exclusions from refugee protection roughly correspond to the grounds of inadmissibility that can trigger paragraph 115(2)(b) of the IRPA – security, violating human or international rights, and organized criminality. While these grounds of inadmissibility are broader than the categories set out in Article 1F of the [NAME_3] , the latter is undoubtedly a sub-set of the former. [ 191 ] As we have seen, like paragraph 115(2)(b) of the IRPA , paragraph 53(1)(b) of the Immigration Act created an exception to the principle of non- refoulement for [NAME_3] refugees who are inadmissible on grounds of security (including for engaging in terrorism or being a member of a terrorist organization) and violating human or international rights (including committing war crimes or crimes against humanity). Such a person could be removed from Canada only if the Minister was of the opinion that the person constitutes a danger to the security of Canada. But this test could be under-inclusive in two respects. One is where the person was once a danger to the security of Canada but this is no longer the case. The other is where the ground of inadmissibility (committing war crimes or crimes against humanity, for example) may appear to have little direct connection to the security of Canada. (A third potential gap may have been created by including organized criminality in paragraph 115(2)(b); the connection between being inadmissible on this ground and the security of Canada may also not always be apparent.) [ 192 ] Whether these are gaps that ought to have been filled is not for me to say – at least, not in the absence of a constitutional challenge to the provision. Paragraph 115(2)(b) of the IRPA fills them by adding, along with the original test of danger to the security of Canada found in paragraph 53(1)(b) of the Immigration Act , a second test: the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed. Given the sorts of individuals to whom the provision applies (those who are inadmissible on grounds of security, human or international rights violations, or organized criminality), when the legislation speaks of the “nature” of the acts committed, it must be referring to the inherent wrongfulness of the acts. And when it speaks of the “severity” of those acts, it must mean that the wrongful acts have to be particularly grave or serious to engage the exception. This is consistent with the nature of the exclusions from refugee protection under Article 1F of the [NAME_3]. What the Minister must determine, then, is whether the removal of an inadmissible protected person is justified despite the principle of non-refoulement because the person committed particularly grave or serious wrongful acts ( [NAME_9] , at paras 69-72). [ 193 ] In paragraph 115(2)(b) of the IRPA , the tests based on the nature and severity of acts committed and danger to the security of Canda are disjunctive; either one can justify considering the individual’s removal from Canada. While they are not mutually exclusive (the same act can satisfy both), the tests are independent of one another. The test based on the nature and severity of acts committed could be satisfied in the case of an individual who is not a danger to the security of Canada but, because of things they have done, it would be contrary to fundamental principles and values to grant them Canada’s protection. Conversely, someone who has never committed abhorrent acts could still be a danger to the security of Canada. [ 194 ] Combined, the two tests in paragraph 115(2)(b) of the IRPA are broader than the exception to the principle of non- refoulement stated in Article 33(2) of the [NAME_3] but they are consistent with Article 1F, which, as already noted, states that the provisions of the [NAME_3] (which include the principle of non- refoulement in Article 33(1)) do not apply to persons for whom there are serious reasons for considering that they have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside the country of refuge prior to admission to that country, or that they are guilty of acts contrary to the purposes and principles of the United Nations. By their very nature, these are wrongful acts of exceptional or substantial gravity. The same would be said of the acts that would exclude a [NAME_3] refugee from the protection of the principle of non- refoulement under paragraph 115(2)(b) in cases where the person is not a danger to the security of Canada (as that test is used in this provision). The Supreme Court of Canada has confirmed that the exceptions under subsection 115(2) “apply in limited circumstances” ( [NAME_48] , at para 113). [NAME_9] established that a “high threshold” must be met for the removal of a protected person to be considered under paragraph 115(2)(b) on the basis of the nature and severity of the person’s acts (at para 74). This high threshold is required to ensure that a properly restrictive approach is taken to exceptions to the principle of non- refoulement ( [NAME_9] , at paras 69-72). [ 195 ] Interpreted in this way, paragraph 115(2)(b) is consistent with the [NAME_3] as a whole, even if the grounds for making an exception to the principle of non- refoulement are broader than those set out in Article 33(2) of the [NAME_3]. Whether paragraph 115(2)(b) is also consistent with the [NAME_3] against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Can. T.S. 1987 No. 36), which does not admit of any exceptions to the principle of non- refoulement in cases where there are substantial grounds for believing that the person would be in danger of being subjected to torture, or with the status of the prohibition on torture as a jus cogens norm ( [NAME_71] , at para 152), are entirely different questions that it is not necessary to answer here. At the very least, however, Canada’s adherence to the [NAME_3] against Torture is another indication that the exceptions to the principle of non- refoulement under paragraph 115(2)(b) must be construed restrictively and that they will only be satisfied in truly exceptional cases ( c.f. [NAME_12] , at para 78). (2) Applying the test to the applicant’s acts [ 196 ] The [NAME_7] assessment for decision, the applicant, and the Minister’s delegate all shared this understanding of the high threshold that must be met to satisfy the “nature and severity” part of the test in paragraph 115(2)(b) of the IRPA . Given that there was no evidence that the applicant had personally engaged in acts of violence, the focus of the inquiry was on whether there were reasonable grounds to find that the applicant’s acts nevertheless met this high threshold because he was complicit in particularly grave wrongdoing by others. (a) Complicity in the wrongful acts of others [ 197 ] As discussed above, the acts in question under paragraph 115(2)(b) of the IRPA are those committed personally by the person in question. Often, the inherent wrongfulness of an act and its gravity will be evident – for example, the individual personally engaged in a serious act of violence that constitutes an act of terrorism or a crime against humanity. In other cases, even though, when viewed in isolation, the individual’s acts may appear benign, the law will still judge those acts wrongful because they have a sufficient connection to the wrongful acts of others. Broadly speaking, this is the notion of complicity. As [NAME_21] JJ explained in [NAME_75] , at para 1: Criminal responsibility does not fall solely upon direct perpetrators of crime. A murder conviction, for example, can attach equally to one who pulls the trigger and one who provides the gun. Complicity is a defining characteristic of crimes in the international context, where some of the world’s worst crimes are committed often at a distance, by a multitude of actors. [ 198 ] What constitutes a sufficient connection between the acts of the person in question and the acts of others to establish complicity varies with the circumstances but in all cases the connection must warrant characterizing the acts of the person in question as wrongful – in other words, it must warrant a finding that there is “culpable complicity” on the part of the person in question ( [NAME_75] , at para 4). In the present context, given the high threshold that must be met to satisfy paragraph 115(2)(b) of the IRPA , the test for complicity must be a stringent one. It will not be sufficient for there simply to be a causal link between a series of acts. Nor will mere association with the perpetrators of wrongful acts be sufficient; this would amount to guilt by association ( [NAME_75] , at paras 2-3). [ 199 ] In [NAME_9] , which concerned inadmissibility on grounds of organized criminality, the Federal Court of Appeal found the Criminal Code provisions dealing with party liability, including on the basis of aiding and abetting, relevant in defining the circumstances under which a determination under paragraph 115(2)(b) of the IRPA could rely not only on the acts of the person in question but also on the acts committed by the criminal organization as a whole: see [NAME_9] , at paras 57-68; see also [NAME_76] v Canada (Citizenship and Immigration) , 2013 FC 80 at para 18. In [NAME_75] , the Supreme Court concluded that, in the context of exclusion from refugee protection under Article 1F(a) of the [NAME_3] on the basis that there are serious reasons for considering that an individual has committed a crime against peace, a war crime, or a crime against humanity, culpable complicity in crimes committed by others requires that there be serious reasons for considering that the individual “voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime” ( [NAME_75] , at para 29). Both of these tests go well beyond mere association with the perpetrators of criminal acts. [ 200 ] The determinative question in the applicant’s case was whether there was a reasonable basis to find that he was complicit in acts of terrorism committed by the organization of which he was a member (the [NAME_5]) and, as a result, that denying him the protection of the principle of non- refoulement was justified because of the nature and severity of his acts. (b) The [NAME_7] assessment for decision [ 201 ] The [NAME_7] assessment for decision concluded that the applicant was currently a danger to the security of Canada and, further, that the nature and severity of the acts he committed “reach a serious level of gravity.” In the latter regard, the assessment for decision took into account the acts committed personally by the applicant “as well as those committed by the organization in which he was a member, if he was complicit in the commission of their crimes.” It noted that [NAME_6] found that the applicant was not only a member of the [NAME_5], he also engaged in terrorism by providing logistical support to [NAME_24] and his associates. While the evidence did not show that the applicant was “personally and directly implicated in violence,” support of terrorism “can take many forms such as recruitment, intelligence, providing material, shelter or money.” The assessment for decision continued: “These functions are not benign and they are essential parts of the Network’s operations. It is what allows organizations to function.” After observing that in order for terrorist acts to take place, a number of individuals “must work in concert,” the assessment for decision states: Indeed, participation in terrorist activity may take different forms, including support functions enhancing the ability of a terrorist group to facilitate or carry out terrorist activity, as illustrated by the variety of criminal offenses described under section 83.18 of the Criminal Code of Canada. In and by itself, participation in terrorist activities of a terrorist group is serious in nature, whether or not this participation results directly or indirectly in acts of violence. [ 202 ] The assessment for decision goes on to list [NAME_6]’s main findings concerning the specific acts the applicant committed: he operated a guesthouse for [NAME_24] in Pakistan for a period of at least 15 months between 1994 and 1995; he provided assistance to at least two [NAME_27] who came to Canada; he used the methods of a “sleeper agent” in Canada; and both before and after he came to Canada, he associated with [NAME_27]. The assessment for decision then concludes that the information “demonstrates that [NAME_1] actively acted, contributed to and took steps towards the furtherance of the extremist ideals and goals espoused by the [NAME_5].” [ 203 ] In summary on the issue of the nature and severity of the applicant’s acts, the assessment for decision states: Through his activities, both in Canada and abroad, [NAME_1] actively contributed [to] and supported the furtherance of the extremist ideals and goals expressed by and espoused by the [NAME_5]. Engaging in activities of a terrorist organization, albeit in support functions, is, in and by itself something very serious in nature. Even in an operational position that is remote from actual acts of violence, engaging in terrorist activity involves, at best, acceptation [ sic ] of the risk that someone might get injured or killed as a result of activities you are engaging in, which is indicative of extremely grave recklessness and contempt of other people’s lives. At worse [ sic ], engaging in terrorism involves a willingness to kill innocents. (c) The applicant’s submissions to the Minister [ 204 ] The applicant’s submissions in response to the [NAME_7] assessment for decision challenged both the conclusion that he was currently a danger to the security of Canada and the analysis of the nature and severity of his acts. The submissions concerning the analysis of the nature and severity of his acts were brief and to the point. [ 205 ] The applicant pointed out that, while the assessment for decision acknowledged that the acts at issue must be those of the person concerned, including through complicity, it failed to address (or even mention) the test for complicity in [NAME_75] . The applicant acknowledged that [NAME_6] had found (among other things) that he had operated a guest house for [NAME_24] and had facilitated travel to training camps. However: There was no allegation, nor evidence, that [NAME_1] made a voluntary, knowing, and significant contribution to the crime or criminal purpose of any terrorist group [footnote citing [NAME_75] omitted]. The contribution must be related to the criminal purpose. Helping someone get through the immigration process or pay for his lawyer or running a hotel are, like the facts in [NAME_75] , too remote from engagement in violence to render [NAME_1] responsible for the acts of others. [ 206 ] In other words, the applicant’s position was that the acts of the [NAME_5](including the acts of extremists associated with [NAME_24] and [NAME_26]) were irrelevant because there was no reasonable basis to find that he was complicit in those acts under the test for complicity stated in [NAME_75] . (d) The delegate’s determination [ 207 ] The delegate summarized her task in this regard as follows: . . . the purpose of my assessment is not to revisit the finding of inadmissibility. Rather, my task is to start at the finding of inadmissibility and, using the findings of fact established over the years, and the evidence submitted by [NAME_1] as part of this process to determine whether or not the nature and severity of [NAME_1]’s past acts reach the substantial level of gravity envisaged by the Federal Court of Appeal in [NAME_9] such that his removal from Canada to Algeria could be considered; or whether or not he poses a danger to the security of Canada of a substantial level as outlined in the Supreme Court’s decision in [NAME_12] , such that his removal may be considered. [ 208 ] In the end, it was not necessary for the delegate to address danger to the security of Canada because she was satisfied that the applicant’s removal from Canada could be considered solely on the basis of the nature and severity of his past acts. In so concluding, the delegate found that the applicant, by virtue of his work running a guest house in Peshawar for [NAME_24], “is complicit in the crimes committed by [NAME_24] and his co-commander in Chechnya, [NAME_26].” [ 209 ] The delegate explained the basis for this finding of complicity as follows: “A clean connection may be draw [ sic ] between [NAME_1]’s guesthouse operation in Peshawar, where these would-be jihadis were funnelled, to the actions in Chechnya where the trained Mujahidin fought and killed.” While the delegate refers to “actions in Chechnya,” which were largely actions against military targets, she also finds that [NAME_24], through his association with [NAME_26], “bears responsibility . . . for the deliberate use of civilians as hostages in a number of sieges over the years, including a hospital and a school.” The delegate is referring here to incidents she discusses elsewhere in the decision, including a hostage taking in June 1995 at a hospital in Budyonnovsk, a hostage taking in October 2002 at the Dubrovka Theater in Moscow, and an attack on a school in Beslan in September 2004. The delegate found that, through the operation of the guest house, the applicant made “a knowing, voluntary and significant contribution to these acts, rendering him complicit in these acts.” In other words, the delegate found that the applicant made not only a voluntary, knowing and significant contribution to [NAME_24]’s military operations in Chechnya but also a voluntary, knowing and significant contribution to attacks targeting civilians in Russia. On this basis, the delegate concluded: “Taking all of this into account, it is my opinion that the nature and severity of the acts in which he is complicit is of a substantial level of gravity such that his removal from Canada can be contemplated.” [ 210 ] I would begin by observing that there is a fundamental incoherence in the decision when it is read as a whole. On the one hand, early in the decision, after noting the applicant’s submission that the [NAME_75] test for complicity should be used, the delegate stated that she was “not satisfied that the SCC decision in [NAME_75] , and consequently the analysis required pursuant to that decision to determine that complicity stems from an individual’s contribution to the crimes of the organisation that is voluntary, significant and knowing, is applicable in this matter.” According to the delegate, [NAME_75] was distinguishable because the applicant’s inadmissibility “is differentiated from [NAME_75]’s in that the former is inadmissible on security grounds, whereas the latter was inadmissibility on grounds of human or international rights violations.” On the other hand, as we just saw in the preceding paragraph, the delegate appears to determine the applicant’s complicity using the voluntary, knowing and significant contribution test, which can only have come from [NAME_75] . The respondent does not suggest that the delegate applied some other test for determining the applicant’s complicity. I am satisfied that, despite what is said elsewhere in the decision, the delegate used the [NAME_75] test for determining the applicant’s complicity. [ 211 ] While nothing ends up turning on this, I would also note that the delegate distinguishes [NAME_75] on an erroneous basis. Neither the matter before the delegate nor [NAME_75] concerned inadmissibility. Rather, both concerned exclusion from the protection of the principle of non- refoulement – in the applicant’s case, directly through the application of paragraph 115(2)(b) of the IRPA ; in [NAME_75]’s case, indirectly through exclusion from refugee protection altogether under section 98 of the IRPA . [ 212 ] In my view, it was reasonable for the delegate to use the test of “knowing, voluntary and significant contribution” as the test for complicity in the context of paragraph 115(2)(b) of the IRPA (no one has suggested otherwise). Further, if there was a reasonable basis to find that the applicant made a knowing, voluntary and significant contribution to the acts of violence against civilians by [NAME_8] referred to in the decision, it would also be reasonable for the delegate to find that the applicant’s actions met the high threshold necessary for his removal from Canada to be considered despite his status as a [NAME_3] refugee. However, the delegate’s analysis, considered in light of the record, does not reasonably support a finding of complicity on the basis of a knowing, voluntary and significant contribution to the actions of [NAME_8] targeting civilians. This is a fundamental flaw that undermines the reasonableness of the decision as a whole. [ 213 ] First, quite properly, the delegate relied on [NAME_6]’s findings that the applicant operated a guest house linked to [NAME_24] in Peshawar during at least the period between June 1994, when he lost his job with the [NAME_79], and September 1995, when he left Pakistan for Canada, and that this guest house was used by mujahideen on their way to and from training camps in Afghanistan. During this time, the applicant also performed “other duties” such as running errands and working as a chauffeur. As [NAME_6] also found, this demonstrated active membership in a group involved in terrorist activities in Chechnya that was affiliated with the [NAME_26] group. (See the [NAME_19] , particularly at paragraphs 5, 372, 397, and 408.) However, even if it is possible to trace connections between [NAME_24]’s activities in 1994 and 1995 in Pakistan and Afghanistan and terrorist incidents that occurred subsequently in Russia, there was no reasonable basis to find on the basis of these connections alone that the applicant made a knowing, voluntary and significant contribution to those later acts. [ 214 ] It would have been open to the delegate to conclude, as did [NAME_6], that the applicant’s role in operating the guest house was not entirely innocent. Given the evidence in the record concerning the important role guest houses in Pakistan played in transiting foreign fighters to and from training camps in Afghanistan, it is reasonable to infer that the applicant must have known why the visitors were staying at the guest house, what they were going to do at the camps, and where they were going afterwards. It is also reasonable to infer that the applicant played a trusted role for [NAME_24] when he worked for him. But this is as far as the evidence of the applicant’s own involvement reasonably goes. The delegate’s inference that the applicant knew that the [NAME_8] struggle against Russia would involve criminal attacks on civilians and that he voluntarily made a significant contribution to those attacks or to the criminal purpose of the group that carried them out and that he was, therefore, complicit in those attacks, is not reasonably supported by [NAME_6]’s findings (which were directed towards a different legal test), by the evidence in the record, or by the delegate’s own analysis. [ 215 ] Among the flaws in the decision is that the delegate failed to view the applicant’s actions in their historical context. [NAME_6] observed that it “would appear that [NAME_24] was only involved in military actions” and that there was “no information suggesting that [NAME_24] himself deliberately targeted civilians, or used them as hostages or shields” ( [NAME_19] , at paras 382 and 401). The record suggested that [NAME_24]’s focus shifted to Chechnya in early to mid-1995. It also suggested that the actions in which he and his fighters were directly involved in Chechnya were against Russian military targets. This was also the case when he fought against the Russians elsewhere – first in Afghanistan and then in Tajikistan. [ 216 ] On the other hand, the record suggested that direct responsibility for the attacks on civilians the delegate cites lay with [NAME_26], not [NAME_24]. [NAME_6] found that [NAME_24]’s support for terrorism was more a matter of omission than commission: he had simply failed to condemn attacks on civilians by others (including [NAME_26]), which “reveals at least implicit support for such actions” ( [NAME_19] , at para 401; see also para 408). The applicant’s links to [NAME_24] were insufficient on their own to establish the applicant’s complicity in these attacks on civilians. Something more was required to establish reasonable grounds to conclude that the applicant made a knowing contribution to those attacks or to the group that carried them out. [ 217 ] As [NAME_6] found, [NAME_24]’s commitment to the [NAME_8] struggle against Russia dates from 1995. It is notable that the evidence suggests that many of the actions [NAME_24] failed to condemn occurred after both he and the applicant had left Pakistan. In fact, [NAME_24] was killed in March 2002, allegedly by [NAME_80] ( [NAME_19] , at para 386). Some of the most serious attacks against civilians by [NAME_26] and his group occurred after [NAME_24] was dead. While the link formed between [NAME_24] and [NAME_26] after the former went to Chechnya in 1995 was sufficient to treat them as members of the same organization in determining the reasonableness of the security certificate, and while [NAME_26]’s attacks against civilians were sufficient to characterize their organization as a whole as a terrorist organization for that purpose, this does not provide a reasonable basis to conclude that the applicant was complicit in the group’s attacks on civilians because he made a voluntary, knowing and significant contribution to those attacks. The delegate failed to consider that the test she had to apply to determine complicity played no part in what [NAME_6] had to decide in determining that the security certificate was reasonable. [NAME_6]’s findings that the applicant had engaged in terrorism and that he was a member of a terrorist organization do not, on their own, entail that the test of complicity in crimes committed by the organization was satisfied. More was required yet the delegate relied entirely on those findings in concluding that the test of complicity was met. It was unreasonable of her to do so. [ 218 ] Engaging with military targets is a serious matter, not least because this will often put civilians at risk. But, on a moral scale, there is a world of difference between this and the deliberate killing of civilians, taking them hostage, or using them as human shields. The delegate’s analysis conflates these actions and fails to meaningfully examine who was responsible for what during the [NAME_8] struggle against the Russians. Crucially, her analysis fails to examine the implications of the evidence suggesting it was [NAME_26], someone with whom the applicant had no direct associations, and not [NAME_24], who was responsible for the egregious attacks on civilians on which she relies in determining that the nature and severity of the applicant’s acts warranted considering his removal from Canada. [ 219 ] The delegate found that the applicant “worked for [NAME_24] while being aware of his purpose, that is, the spread of [NAME_81] throughout the Caucuses, and the asymmetric warfare in which he was engaged to expel Russia from the area” but this does not entail that he was also aware that this would involve the deliberate targeting of civilians by an affiliated group. Likewise, the delegate found that the applicant “was responsible for running a guest house on behalf of [NAME_24], with the intent to move these would-be mujahideen to training camps, preparing them for the conflict in which [NAME_24] was engaged.” The record, however, does not reasonably support the implicit assertion that the “conflict in which [NAME_24] was engaged” in 1994 or 1995 was being pursued in the same way then as he would later pursue it together with [NAME_26]. Even if chronological links between these events can be drawn, and even if [NAME_24] is a common element, there is no reasonable basis to infer that the applicant must have known how things were going to turn out. In other words, even if the record reasonably supported the conclusion that the applicant was complicit in what took place at the training camp(s) associated with [NAME_24]’s guest house in 1994 and 1995 (because he voluntarily made a knowing and significant contribution to the operation of those camps by operating a guest house for camp attendees), and even if this was sufficient to support the inference that the applicant was complicit in [NAME_24]’s military engagements, the further inference that this also constituted a knowing contribution to the group that carried out the attacks against civilians in Russia is not justified or intelligible when viewed in light of the record. [ 220 ] The record before the delegate suggested that [NAME_24]’s engagements and ideology evolved over time, as did his relationship with [NAME_26] and the nature of the [NAME_8] conflict generally, especially in the period after 1995. ([NAME_6] summarized this extensive evidence at paragraphs 378 to 428 of the [NAME_19] .) The record also suggested an evolving relationship between [NAME_24], not to mention the evolution of Bin Laden’s own ideology, objectives, and methodologies in the years after 1995. These changing circumstances did not preclude a finding in relation to the inadmissibility determination that the immediate group of which the applicant was a member ([NAME_24] and his associates) and the broader group of which it was a part (the [NAME_5]) were terrorist organizations. The issue of culpable complicity under paragraph 115(2)(b) of the IRPA is entirely different from the issues [NAME_6] had to determine. The delegate relies on [NAME_6]’s finding of membership in a terrorist organization to attribute responsibility for events that occurred after the applicant’s last known involvement with [NAME_24] without meaningfully grappling with the evidence showing how [NAME_24]’s engagement with the [NAME_8] movement changed in the years after 1995. In particular, the delegate fails to consider the implications of these changes for whether the applicant could reasonably be said to have made a knowing, voluntary and significant contribution to subsequent acts of violence against civilians committed in the name of the [NAME_8] struggle against Russia, especially when the evidence of [NAME_24]’s own links to those attacks is highly attenuated. [ 221 ] To be complicit in the acts of violence against civilians by [NAME_8], it was not necessary for the applicant to make a knowing, voluntary and significant contribution to the specific crimes they committed; it would be sufficient if he voluntarily made a knowing and significant contribution to the criminal purpose of the group ( [NAME_75] , at para 8). The record, however, does not reasonably support the inference that the applicant must have known about the group’s criminal purpose when he helped operate the guest house. That purpose only emerged later, when [NAME_24] aligned himself with [NAME_26]. Viewing the applicant’s conduct in its historical context, there is no reasonable basis to find, as the test for complicity requires, that he must have been aware of the group’s crimes or criminal purpose (as identified in the decision) and, further, that he must have been aware that his conduct would assist in the furtherance of those crimes or that criminal purpose. [ 222 ] [NAME_6] found that the group (broadly defined) was the same across the relevant time period. While it was reasonable for the delegate to rely on this finding, her conclusion that the purpose of the group with which the applicant was involved in Pakistan was the same as that of the perpetrators of the violent attacks against civilians in Russia is not justified or intelligible in light of the record. Without this link, without there being a common criminal purpose, the applicant’s knowing contribution to the former cannot reasonably constitute a knowing contribution to the latter. The mere fact that [NAME_24] is linked to the camps and to the perpetrators of the crimes in Russia is too tenuous and speculative to reasonably support a finding of complicity on the part of the applicant. [ 223 ] In sum, the delegate’s analysis of [NAME_6]’s findings and the evidence in the public record, which was all the delegate relied on, does not reasonably support the conclusion that the applicant made a knowing, voluntary and significant contribution to the criminal attacks on civilians the delegate relies on to conclude that the applicant’s own acts met the high threshold necessary to consider his removal from Canada despite his status as a [NAME_3] refugee. As [NAME_75] held, “The collective nature of many international crimes does not erase the importance of holding an individual responsible only for his or her own culpable acts” (at para 7). The finding of complicity ultimately rests solely on the applicant’s association with [NAME_24] and his membership in a broadly defined group (the [NAME_5]). This was sufficient to satisfy the test for inadmissibility on security grounds for having engaged in terrorism and for being a member of a terrorist organization. But it is insufficient to satisfy the test for complicity under paragraph 115(2)(b) of the IRPA . When it comes to the terrorist incidents in which the delegate found the applicant to have been complicit, this amounted to nothing but guilt by association, contrary to the principles articulated in [NAME_75] . As such, the finding that the applicant was complicit in these incidents is unreasonable. This finding of complicity was central to the delegate’s analysis; its unreasonableness undermines the reasonableness of the entire analysis under paragraph 115(2)(b) of the IRPA. [ 224 ] For the sake of completeness, I would note that the delegate also mentions [NAME_6]’s other findings, including that after arriving in Canada the applicant maintained ongoing associations with [NAME_27] in Canada and abroad, and concludes that this “supports a finding that [NAME_1] did not try to distance himself from such individuals or the groups with which they were associated.” The delegate does not suggest that the applicant’s failure to distance himself from [NAME_27] would alone meet the threshold of substantial gravity necessary to satisfy paragraph 115(2)(b) of the IRPA . In any event, it could not reasonably do so. (3) Conclusion [ 225 ] The finding that the applicant’s having operated a guest house for [NAME_24] in 1994 and 1995 made him complicit in acts of terrorism committed by [NAME_8] was central to the delegate’s conclusion that the nature and severity of the applicant’s acts were such that his removal from Canada could be considered – in other words, it was central to the delegate’s conclusion that the third stage of the [NAME_14] was satisfied. The applicant has raised a number of arguments challenging the reasonableness of the delegate’s analysis under the fourth and fifth stages of that framework but it is not necessary to consider them. The fundamental flaw in the application of the statutory test in paragraph 115(2)(b) of the IRPA requires that the decision be set aside and the matter redetermined. D. Should the Court issue procedural directions? [ 226 ] In his Further Memorandum of Argument, the applicant requested three forms of relief that I would summarize as follows: (1) If the Court finds that the delegate’s decision is unreasonable, an order quashing the decision and remitting the matter for redetermination by a different decision maker in accordance with such directions as the Court considers to be appropriate; (2) If the Court determines that the process followed by the delegate violated section 7 of the Charter , an order remitting the matter for redetermination by a different decision maker with such directions as the Court considers appropriate, including, but not limited to: (i) the appointment of a special advocate or amicus “with sufficient authority to meaningfully review, respond to and provide submissions on any secret evidence contained in Appendix 10 of the [NAME_7] package or elsewhere in the record;” (ii) a reasonable timeframe for the redetermination of the danger opinion to ensure the timeliness of the risk assessment; and (iii) disclosure of the name of the senior decision maker who ultimately renders the opinion; and (3) In the alternative, a declaration that paragraph 115(2)(b) of the IRPA is of no force or effect under section 52 of the Constitution Act, 1982 . [ 227 ] As I noted at the outset, the last of these requests was abandoned at the hearing of the application. [ 228 ] Since I have not found that the process followed by the delegate breached section 7 of the Charter , strictly speaking, there is no need to address the requests for relief premised on there having been a section 7 violation. Nevertheless, I would underscore four points. [ 229 ] First, for the reasons set out earlier, I am satisfied that the minimum requirements of procedural fairness established in [NAME_12] were sufficient to ensure that the decision making process complied with section 7 of the Charter despite the fact that the record before the decision maker included confidential information that could not be disclosed to the applicant. Should the Minister’s opinion be sought again under paragraph 115(2)(b) of the IRPA , that process must also comply with these minimum requirements. [ 230 ] Second, one must not forget that, for the applicant’s case to have reached the point that the Minister’s opinion was being sought under paragraph 115(2)(b) of the IRPA , the proceeding concerning the reasonableness of the certificate had to have met the minimum disclosure requirements described in [NAME_1]) . As discussed above, if the person named in a security certificate cannot be reasonably informed about an allegation supporting an alleged ground of inadmissibility or the evidence that supports it, the ministers must withdraw the evidence ( [NAME_1]) , at para 59). The ministers were not required to do so in the applicant’s case. Furthermore, if the inherent limitations of the IRPA scheme create procedural unfairness, “designated judges must exercise their discretion under s. 24(1) of the Charter to grant an appropriate remedy” ( [NAME_1]) , at para 110). As Justice L’Heureux-Dubé stated in R v O’Connor , [1995] 4 SCR 411, “the Charter has now put into judges’ hands a scalpel instead of an axe – a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system” (at para 69). Drawing on the discussion in [NAME_10] as well as in [NAME_1]) , in addition to a stay of proceedings, remedies under subsection 24(1) of the Charter in a security certificate proceeding could include an order excluding evidence or an order limiting the grounds of inadmissibility the court would consider. No such remedies were found to be required in the applicant’s case. [ 231 ] In fact, the applicant is now in an even better position than he was before because some of the confidential record has been disclosed to him through the IRPA section 87 process. Unless the confidential record before the new decision maker is substantially different from the one before the previous decision maker, the applicant’s concerns about potential unfairness are entirely hypothetical. It would also, frankly, be surprising if this turned out to be the case given the lengthy history of these proceedings and how dated the material events now are. If things turn out otherwise and the Minister again determines under paragraph 115(2)(b) of the IRPA that the applicant should not be allowed to remain in Canada, the applicant can raise any concerns about the fairness of the process in an application for judicial review of the decision. [ 232 ] Third, even if I were persuaded that a Charter breach was likely to occur in the redetermination process despite following the minimum necessary procedural requirements and, as a result, the Court’s jurisdiction to grant a prospective remedy under subsection 24(1) of the Charter was therefore engaged (see R v [NAME_82] , 2025 SCC 22 at para 70), I would still have serious doubts about the appropriateness of an order appointing a special advocate (or an amicus ), as the applicant has requested. All of the practical problems with introducing a security cleared lawyer acting on behalf of the applicant into the process under paragraph 115(2)(b) of the IRPA highlighted above would still need to be resolved. But even if a court order could somehow achieve this, I am still not persuaded that it would be appropriate for a reviewing court to issue an order with directions that effectively grafted a whole new procedure onto the Minister’s decision making process. In my view, doing so would upset the proper balance between the autonomy of the administrative decision maker under the statute and the responsibilities of a reviewing court. As I have already said, if there is a case for including a security cleared lawyer acting on behalf of the person in question in the process under paragraph 115(2)(b) of the IRPA , this is a step that only [NAME_18] should take. [ 233 ] Finally, in the particular circumstances of this case, I do not agree it would be appropriate, either under subsection 24(1) of the Charter or as a direction under paragraph 18.1(3)(b) of the Federal Courts Act , to impose a “reasonable timeline” for the redetermination of the matter under paragraph 115(2)(b) of the IRPA “to ensure the timeliness of the risk assessment.” I can understand the applicant’s apprehension about further lengthy delays. Proceedings concerning the applicant (including this application for judicial review) have rarely moved quickly. I also agree with the applicant that a timely risk assessment is essential. At the same time, no one could question the complexity of this case or the seriousness and importance of the issues it raises. At this stage, it is speculative to suggest that, if the [NAME_7] does decide to seek the Minister’s opinion again under paragraph 115(2)(b) of the IRPA , that process would not unfold within a reasonable time and in compliance with the law. Should this turn out to be the case, legal remedies are available to the applicant.

V.

CONCLUSION [ 234 ] For these reasons, the application for judicial review will be allowed. The decision of the Minister’s delegate dated October 2, 2018, will be set aside and the matter will be remitted to a new decision maker for redetermination. [ 235 ] Whether any serious questions of general importance should be stated under paragraph 74(d) of the IRPA will remain under reserve pending the receipt of further submissions from the parties.

JUDGMENT IN IMM-5330-18 THIS COURT’S

JUDGMENT is that The application for judicial review is allowed. The decision of the Minister’s delegate dated October 2, 2018, is set aside and the matter is remitted for redetermination by a new decision maker. Whether any serious questions of general importance should be stated remains under reserve pending receipt of further submissions from the parties. The style of cause is amended to reflect the Minister of Citizenship and Immigration as the only respondent. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5330-18 STYLE OF CAUSE: [NAME_1] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: December 3, 2024

REASONS AND Judgment: NORRIS J. DATED: June 4, 2026 APPEARANCES : [NAME_56] [NAME_84] For The Applicant [NAME_43] [NAME_44] COUNSEL [NAME_87] [NAME_90] [NAME_93] [NAME_96] For The Respondent SOLICITORS OF RECORD : [NAME_102], Ontario For The Applicant [NAME_84] [COMPANY_99], [COMPANY_43], Ontario SPECIAL ADVOCATE/SPECIAL COUNSEL [NAME_4], Ontario For The Respondent