[1] This is an appeal on certified questions from an Order of Kelen J. of the Trial Division (as it then was) dated December 5, 2002. Kelen J. certified two questions for appeal:

1. Where the Minister has unsuccessfully engaged a permanent resident in removal proceedings under a particular section of the Immigration Act for more than eight years, is it an abuse of process for the Minister to commence a new removal proceeding against the permanent resident on a ground available to the Minister to use for eight years?

2. Does section 27(1)(a) of the Immigration Act permit exposure of a permanent resident to deportation on a ground that did not barr [sic] the person's admission to Canada? (i.e. Can the applicant be deported on the basis of a legislative provision that did not exist at the time of his admission to Canada as a permanent resident.)

[2] The appellant asks that the appeal be allowed and the decision of the adjudicator in proceedings under paragraph 27(1)(a) of the former Immigration Act, R.S.C. 1985, c. I-2, be stayed or terminated on the grounds of:

1. improper retrospective application of legislation;

2. res judicata; and

3. abuse of process.

CHRONOLOGY OF EVENTS

[3] The most relevant events that have occurred in this case can be summarized as follows:

1. April 27, 1985 Appellant, a stateless Palestinian, immigrates to Canada and is granted permanent resident status.

2. May 29, 1992 Minister and Solicitor General inform the appellant by letter that they have issued a report to the Security Intelligence Review Committee (SIRC) under subsection 39(2) of the Act, as it then read, alleging that the appellant is a person described in paragraphs 19(1)(e), 19(1)(g) and 27(1)(c) of the Act by reason of being a member of the Popular Front for the Liberation of Palestine (PFLP).

3. August 3, 1993 SIRC issues a report under subsection 39(9) of the Act concluding that the appellant is a member of the PFLP and therefore is a person described in paragraph 19(1)(g) of the Act.

4. November 7, 1995 MacKay J. of the Trial Division issues an Order quashing the August 3, 1993, SIRC decision on the grounds that the membership portion of paragraph 19(1)(g) of the Act is a violation of freedom of association contrary to paragraph 2(d) of the Charter, and remits the matter to SIRC for redetermination.

5. April 17, 1998 SIRC issues a second report concluding that, on grounds not based on membership, the appellant is a person described in paragraphs 19(1)(e) and 19(1)(g) of the Act, as it read before the amendments made by An Act to amend the Immigration Act and to amend other Acts in consequence thereof, S.C. 1992, c. 49 which came into force on February 1, 1993.

6. March 14, 2000 Gibson J. of the Trial Division issues an Order quashing the April 17, 1998, decision of SIRC on the grounds of insufficient analysis by SIRC, and remits the matter to a differently constituted panel of SIRC for redetermination.

7. October 17, 2000 SIRC advises the appellant that the respondent is no longer pursuing a security report under section 39 of the Act.

8. December 18, 2000 Immigration officer issues a report to the Deputy Minister under paragraph 27(1)(a) of the Act, as it read after the 1993 amendments, alleging that the appellant is a person described in clause 19(1)(f)(iii)(B) of the Act and the Deputy Minister directs an inquiry to be held pursuant to paragraph 27(3)(b) of the Act.

9. November 28, 2001 Adjudicator dismisses preliminary motion to stay the inquiry.

10. December 5, 2002 Kelen J. of the Trial Division dismisses an application for judicial review of the November 28, 2001, decision of the Adjudicator.

[4] I have not referred to a number of interlocutory proceedings or the various hearing dates, not because I have overlooked them but because they are not relevant to the issues on this appeal.

RETROSPECTIVE APPLICATION OF LEGISLATION

[5] The proceedings before the adjudicator were commenced by the issuance of a report under paragraph 27(1)(a) and clause 19(1)(f)(iii)(B) of the Act, as it read after the 1993 amendments. Those provisions read:

27.(1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who

(a) is a member of an inadmissible class described in paragraph 19(1)(c.2), (d), (e), (f), (g), (k) or (l);

...

27.(1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas:

a) appartient à l'une des catégories non admissibles visées aux alinéas 19(1)c.2), d), e), f), g), k) ou l);

19.(1) No person shall be granted admission who is a member of any of the following classes:

...

(f) persons who there are reasonable grounds to believe

...

(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in

...

(B) terrorism,

except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;

...

19.(1) Les personnes suivantes appartiennent à une catégorie non admissible:

...

(f) celles dont il y a des motifs raisonnables de croire qu'elles:

...

(iii) soit sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée

...

(B) soit à des actes de terrorisme,

le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;

[6] Paragraph 19(1)(f)(iii)(B) came into force on February 1, 1993. The allegation that there are reasonable grounds to believe that the appellant is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism (in these reasons, this allegation will be referred to as an allegation that the appellant was a former member of a terrorist organization) appears to pertain to his membership in the PFLP prior to February 1, 1993. Kelen J. found that the appellant "severed his ties with the PFLP in 1992." The appellant says paragraph 19(1)(f)(iii)(B) cannot apply to membership in a terrorist organization when the member retired before February 1, 1993, because of the presumption against retrospective application of legislation.

[7] I cannot agree with this argument for two reasons. The first is that even if paragraph 27(1)(a) and clause 19(1)(f)(iii)(B) are being applied retrospectively, the presumption against retrospective application is displaced by the clear words of clause 19(1)(f)(iii)(B). The use of the words "are or were members" in clause 19(1)(f)(iii)(B) make it obvious that the legislation is intended to cover membership in a terrorist organization whenever the membership occurred. With respect, an interpretation that would make the legislation inapplicable to a person who retired from a terrorist organization on January 31, 1993, but applicable to a person who retired from such an organization on February 1, 1993, is unreasonable. It is not necessary to dwell on the scourge of terrorism. As pointed out by the respondent, sleeper or retired terrorists may be reactivated. It is simply impossible to construe clause 19(1)(f)(iii)(B) to conclude that Parliament's intention was that members of terrorist organizations who retired prior to February 1, 1993, would be excluded from its application.

[8] In any event, I do not think applying clause 19(1)(f)(iii)(B) to a person who retired from a terrorist organization in 1992 or, indeed, at any time before February 1, 1993, constitutes a retrospective application of the provision. Having been a member of a terrorist group is a continuing status. Put another way, finding that an individual is ineligible to remain in Canada on the basis that he was formerly a member of a terrorist organization is the imposition of a present consequence based on past behaviour in order to protect public safety. That is not retrospective application of legislation (Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301 at 319-20).

RES JUDICATA

[9] The appellant argues that the doctrine of res judicata prevents the Minister from bringing the current proceedings. He submits that the decision of MacKay J. (Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (T.D.)) has already dealt with the issue of his membership in the PFLP and that the Minister cannot bring another proceeding under a different provision of the Act, which he could have relied on in the earlier proceeding. He also submits that, even if the Minister can bring a new proceeding, MacKay J.'s decision conclusively determined that his membership in the PFLP cannot serve as a basis for deportation because to do so would violate his freedom of association. The appellant therefore claims that issue estoppel prevents the Minister from arguing in this proceeding that he can be deported because of his membership in the PFLP.

[10] There are two branches of the doctrine of res judicata. Cause of action estoppel "precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction" ([1975] 2 S.C.R. 248">Angle v. M.N.R., [1975] 2 S.C.R. 248 at 254. Issue estoppel applies "where, the cause of action being different, some point or issue of fact has already been decided" ([1975] 2 S.C.R. 248">Angle at 254, quoting Higgins J. in Hoystead v. Federal Commissioner of Taxation (1921), 29 C.L.R. 537 at 561 (H.C.A.)).

[11] It is not entirely clear on which branch of the doctrine the appellant is relying. There is clearly no cause of action estoppel here. In Beattie v. Canada, 2001 FCA 309 at paragraph 18, Sexton J.A. set out four criteria for the application of cause of action estoppel:

1. there must be a final decision of a court of competent jurisdiction in the prior action;

2. the parties to the subsequent litigation must have been parties to or privy with the parties to the prior action;

3. the cause of action in the prior action must not be separate and distinct; and

4. the basis of the cause of action in the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.

[12] The causes of action here are statutorily created. Paragraphs 19(1)(e) and (g), as they read at the relevant time, provided:

19.(1) No person shall be granted admission who is a member of any of the following classes:

...

(e) persons who have engaged in or who there are reasonable grounds to believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest;

...

(g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence;

...

19.(1) Les personnes suivantes appartiennent à une catégorie non admissible:

...

(e) celles qui, s'étant livrées à des actes d'espionnage ou de subversion contre des institutions démocratiques au sens où cette expression s'entend au Canada, ne peuvent convaincre le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national ou celles dont on peut penser, pour des motifs raisonnables, qu'elles se livreront à ces actes;

...

(g) celles dont on peut penser, pour des motifs raisonnables, qu'elles commettront des actes de violence de nature à porter atteinte à la vie ou à la sécurité humaines au Canada, ou qu'elles appartiennent à une organisation susceptible de commettre de tels actes ou qu'elles sont susceptibles de prendre part aux activités illégales d'une telle organisation;

...

[13] A finding that a person is inadmissible under clause 19(1)(f)(iii)(B) is a separate and distinct statutory cause of action from a finding that a person is inadmissible under paragraphs 19(1)(e) and (g). The first SIRC report was based on an allegation that there were reasonable grounds to believe the appellant was a member of or was likely to participate in the unlawful activities of an organization that was likely to engage in acts of violence. The second SIRC report was based on an allegation that he had engaged in or that there were reasonable grounds to believe he would engage in acts of subversion against democratic government, institutions or processes and an allegation that there were reasonable grounds to believe he would engage in acts of violence that would or might endanger the lives or safety of persons in Canada. The inadmissibility report under review in this case is based on an allegation that there are reasonable grounds to believe that the appellant is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism. This is a different cause of action from either of the previous proceedings.

[14] In any case, neither MacKay J. nor Gibson J. purported to finally determine the appellant's case; rather, they both remitted the matter to SIRC for further consideration. It therefore cannot be said that the current cause of action has been finally determined in earlier proceedings. As a result, cause of action estoppel is not applicable.

[15] Turning to issue estoppel, there are three requirements that must be met:

1. that the same question has been decided;

2. that the judicial decision which is said to create the estoppel was final; and,

3. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

See [1975] 2 S.C.R. 248">Angle at 254, quoting Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 at 935 (H.L.).

[16] I am unable to agree with the appellant's submissions for three reasons. First, the decision of MacKay J. did not concern the same issue as this proceeding. In his decision, MacKay J. found that, in part, paragraph 19(1)(g) contravened paragraph 2(d) of the Charter. He held that, to the extent paragraph 19(1)(g) deemed a person inadmissible solely based on his or her membership in an organization likely to engage in acts of violence, it violated the paragraph 2(d) guarantee of freedom of association and thus was unconstitutional. MacKay J. specifically stated that the sole ground for setting aside the SIRC report was that it was based on an unconstitutional portion of paragraph 19(1)(g). He did not express any conclusions on whether the appellant was a member of the PFLP or whether prior membership in the organization could serve as a basis for removal under another part of section 19.

[17] The fact that a portion of paragraph 19(1)(g) has been found to be unconstitutional does not mean that clause 19(1)(f)(iii)(B) is as well. Unlike paragraph 19(1)(g), paragraph 19(1)(f) exempts from inadmissibility persons who can establish "that their admission would not be detrimental to the national interest." In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, the Supreme Court of Canada determined that subsection 19(1) of the Immigration Act, as applied in the context of determining whether a Convention refugee can be removed from Canada, does not infringe paragraph 2(d) of the Charter. The Court held that paragraph 19(1)(f) does not violate freedom of association because it permits an applicant "to establish that the alleged association with the terrorist group was innocent"(Suresh at 60). Because the Supreme Court has found clause 19(1)(f)(iii)(B) to be constitutional, the appellant cannot rely on MacKay's judgement regarding paragraph 19(1)(g) to estop the Minister from relying on clause 19(1)(f)(iii)(B).

[18] Second, MacKay J.'s decision does not purport to be a final decision affecting the appellant's or the respondent's rights under the Immigration Act. MacKay J. expressly restricted his decision to the constitutionality of a portion of paragraph 19(1)(g) and remitted the matter to SIRC to complete its investigation (at 241-42).

[19] Third, section 34 of the Immigration Act provides:

34. No decision given under this Act prevents the holding of a further inquiry by reason of the making of another report under paragraph 20(1)(a) or subsection 27(1) or (2) or by reason of arrest and detention for an inquiry pursuant to section 103.

34. Les décisions rendues en application de la présente loi n'ont pas pour effet d'interdire la tenue d'une autre enqête par suite d'un autre rapport fait en vertu de l'alinéa 20(1)a) ou des paragraphes 27(1) ou (2) ou par suite d'une arrestation et d'une garde effectuées à cette fin en vertu de l'article 103.

[20] I am of the opinion that the purpose of section 34 is to recognize that the public interest in the government retaining a continuing ability to take action against inadmissible persons outweighs the public interest in the finality of litigation. Nothing in section 34 prevents its application to further inquiries based on the same facts. Section 34 is cast in broad terms. Taken to its logical conclusion, the appellant's argument means that if there are grounds for inadmissibility that are known to Minister but which are not advanced in an inquiry, section 34 does not authorize a further inquiry and Canada loses its right to take steps leading to the deportation of an undesirable alien. Having regard to the purpose of section 34, I cannot accept that argument. Section 34 overrides the common law doctrine of res judicata.

[21] For these reasons, I would reject the appellant's arguments in respect of res judicata.

ABUSE OF PROCESS

[22] The appellant says that on the facts of this case, it is an abuse of process, both at common law and under section 7 of the Charter, to put him through another proceeding on grounds that could have been raised at any time since February 1, 1993. February 1, 1993, is the date on which clause 19(1)(f)(iii)(B), the provision under which the current proceeding is being conducted, came into force.

[23] It is only necessary to briefly deal with the appellant's section 7 arguments as the analysis of abuse of process under the Charter is the same as under the common law. Section 7 provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.

[24] In R. v. O'Connor, [1995] 4 S.C.R. 411 at 462, L'Heureux-Dubé J., writing for the majority of the Court on this point, held that "there is no real utility in maintaining two distinct analytic regimes" for abuse of process at common law and under section 7 of the Charter. Subsequent Supreme Court cases have treated O'Connor as subsuming the common law doctrine of abuse of process into the principles of the Charter (R. v. Regan, [2002] 1 S.C.R. 297 at 325-26; 2002 SCC 63">Toronto (City) v. C.U.P.E., Local 79, 2002 SCC 63 at paragraph 36). It is a principle of fundamental justice that one should not be deprived of one's life, liberty, or security of the person "under circumstances which amount to an abuse of process" (O'Connor at 457). On the other hand, courts can still find a common law abuse of process in cases where the Charter does not apply (O'Connor at 462; CUPE at paragraph 36). In either case, however, the analysis of whether there has been an abuse of process is the same. It will therefore only be necessary to consider whether the appellant has been deprived of his liberty or security of the person if it is first determined that there has been an abuse of process.

[25] Judges have an inherent and residual discretion to prevent an abuse of the court's process (CUPE at paragraph 35). In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at 376, the Court held that the doctrine of abuse of process could also apply to administrative tribunals. Bastarache J., writing for the majority, approved a test for abuse of process:

In order to find an abuse of process, the court must be satisfied that, "the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted" (Brown and Evans, supra, at p. 9-68).

[26] The appellant makes six arguments why Kelen J. erred in finding that there was no abuse of process in allowing this proceeding to continue. The first five deal with whether Kelen J. correctly determined that various individual factors did not constitute an abuse of process. These findings are findings of mixed fact and law which should not be disturbed in the absence of a palpable and overriding error (2002 SCC 33">Housen v. Nikolaisen, 2002 SCC 33 at paragraphs 26-28). I can not find any such error in the reasons of Kelen J.

[27] The appellant's final argument is that Kelen J. failed to consider the overall impact of the various factors. If he had done so, that would be an error of law which would be reviewable on a correctness standard (2002 SCC 33">Housen at paragraphs 8-9). However, I cannot accept the appellant's argument. At paragraph 44 of his reasons, Kelen J. expressly considered the overall impact of the factors identified by the appellant. Nonetheless, out of an abundance of caution, I will consider the overall impact of the various factors. In order to do so, I must first deal with each of the arguments raised by the appellant.

[28] First, the appellant submits that the current proceeding commenced under paragraph 27(1)(a) of the Act is based on the same facts as the prior proceedings, the only difference being the section of the Act engaged. As determined by Kelen J., section 34 of the Act expressly permits the holding of a further inquiry, notwithstanding any decision given under the Act. I accept that successive proceedings based on the same facts and same legal grounds, without any new evidence, could constitute an abuse of process. However, section 34 prima facie contemplates the type of circumstances that have occurred here, namely, the government making a further attempt to have an individual determined to be inadmissible to Canada, albeit on the same facts but on different legal grounds. It is difficult to see how the very type of successive proceedings contemplated by the Act could warrant a stay of proceedings on the grounds of abuse of process.

[29] Second, the appellant says that the Minister made a litigation choice not to proceed under clause 19(1)(f)(iii)(B) which has been in force since February 1, 1993. The appellant says the Minister could have abandoned the proceedings he had already taken under paragraphs 19(1)(e) and (g) or consolidated the proceedings he now brings with those prior proceedings. In deciding not to do so, the appellant says the Minister made a "clear and deliberate 'litigation choice.'" The implication appears to be that, having elected to proceed under paragraphs 19(1)(e) and (g), the Minister is precluded from now proceeding under clause 19(1)(f)(iii)(B) as enacted on February 1, 1993.

[30] I agree with the appellant that the Minister might have chosen to proceed in one of the ways he suggests. However, these alternatives would have given rise to their own problems. For example, proceeding under more than one provision would have also complicated and lengthened the proceedings. In this proceeding, the appellant argues that proceeding under clause 19(1)(f)(iii)(B) constitutes a retrospective application of the legislation. Counsel for the appellant readily admits that she would have raised this argument in the prior proceedings had the Minister attempted to invoke this provision earlier. Therefore, had the Minister proceeded in the fashion the appellant proposes, there would undoubtedly have been applications for judicial review and further delay based on the retrospectivity argument.

[31] I do not say the appellant should not be entitled to the judicial reviews or appeals the law provides. However, recognizing that proceeding under the new legislation would have led to further delays, I cannot fault the Minister for attempting to first succeed under the other provisions. When he did not, section 34 allowed him to start again under clause 19(1)(f)(iii)(B).

[32] The appellant's third argument is that the multiple and extended prior proceedings must be taken into account in assessing whether the current proceedings are an abuse of process. Kelen J. dealt with this argument. He found that, while the number of proceedings and length of time were disturbing, there was no evidence that the Minister was at fault. Again, the Act expressly provides for successive proceedings by the Minister and it was the appellant's applications for judicial review that led to the government initiating these successive proceedings. While the appellant is entitled to invoke the rights available to him, the success he achieved in his previous applications for judicial review did not completely resolve the allegations against him. Rather, in each case, the matter was remitted for reconsideration. The mere fact that multiple proceedings may be required to fully resolve a matter does not necessarily constitute an abuse of process.

[33] The fourth argument made by the appellant is based on the length of time that has transpired. In Blencoe, the Supreme Court held that "there is no abuse of process by delay per se. The respondent must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings" (at 376). In this case, the appellant argues that he and his family have been put to significant psychological stress and stigma and that this, coupled with the length of time, constitutes an abuse of process.

[34] I accept that significant prejudice may be considered in assessing whether further proceedings constitute abuse of process. However, the threshold to prove such prejudice is high. In Blencoe, a Minister in the Government of British Columbia was accused of sexual harassment. During the over 30 months between the complaints and the first scheduled hearings, Blencoe was the subject of intense media attention, considered himself "unemployable" in British Columbia, and suffered from severe depression for which he sought counselling and was prescribed medication. His wife also sought psychological counselling and the entire family temporarily relocated to Ontario in an ultimately futile attempt to escape media attention (Blencoe at 325). Nevertheless, the Court was unwilling to find an abuse of process.

[35] The appellant argues that his circumstances exceed those in Blencoe. He points out that the period of time in this case is eight years rather than the 30 months that occurred in Blencoe. However, it should be noted that the period of time in Blencoe was caused by institutional delay whereas the longer period of time here is largely attributable to the applications for judicial review brought by the appellant. In any event, as indicated above, delay alone does not amount to an abuse of process.

[36] The appellant then argues that the prejudice he has suffered exceeds that suffered by Blencoe. There is psychological evidence that he suffers from nervousness and tension, is chronically unhappy, has trouble with concentration, has a poor appetite and suffers from insomnia. His wife suffers from stomach discomfort, nervousness, tension and worry. Although it is difficult to compare prejudice across different cases with precision, the psychological harm and stigma the appellant and his family have suffered seem to be quite similar to that suffered by Blencoe and his family. The circumstances faced by the appellant are unfortunate, but as the Supreme Court has recognized, "stress, anxiety, and stigma may arise from any criminal trial, human rights allegation, or even a civil action, regardless of whether the trial or process occurs within a reasonable time" (Blencoe at 345).

[37] The appellant's fifth argument is based on the gravity of the allegations against him. He suggests that the allegations against him are not serious since they are based solely on his past membership in an alleged terrorist organization. The alleged terrorist organization is said to be "a multi-faceted organization" and "an internationally recognized national liberation movement." The appellant also says that he has lived in Canada for many years without incident and that neither he nor the PFLP likely poses any threat to Canadians.

[38] With respect, I think it is hard to conceive of many allegations more serious than one involving terrorism or membership, past or present, in a terrorist organization. Terrorist organizations by their nature are unpredictable. The existence of sleeper cells is widely recognized and the mere fact someone has lived peacefully in Canada for many years does not preclude them from being a threat to the security of Canadians. Contrary to the appellant's arguments, an allegation that someone is a former member of a terrorist organization therefore is a very serious one. Therefore, the gravity of the allegations argues in favour of continuing the proceedings. It should be noted that, in these proceedings, the appellant will have the opportunity to address the question of whether the PFLP is or was a terrorist organization and whether he is or was a member of it. In any case, he will still have the opportunity to convince the Minister that his admission would not be detrimental to the national interest.

[39] Finally, the appellant argues that it is necessary to "consider the entire context of the circumstances" and not dissect each argument one by one. I acknowledge that some of the issues raised by the appellant could, in some circumstances, support an abuse of process argument. However, in the context of proceedings concerning an allegation there are reasonable grounds to believe that the appellant is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism, there is a compelling societal interest in obtaining a decision on the merits (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at 428-29). I therefore agree with Kelen J. that the current proceeding is not an abuse of process.

[40] As there is no abuse of process, no principle of fundamental justice has been violated and I need not consider whether the appellant has been deprived of his liberty or security of the person interests.

[41] Although I have not found an abuse of process in this case, in the interests of both parties, it would be desirable that this matter proceed on an expedited basis.

CONCLUSION

[42] The appeal should be dismissed. I would answer the certified questions as follows:

1. In the circumstances of this case, even though the Minister has unsuccessfully engaged a permanent resident in inadmissibility proceedings for more than eight years, it is not an abuse of process for the Minister to commence a new proceeding against the permanent resident on a different ground, even though that ground has been available to the Minister since February 1, 1993.

2. Under paragraph 27(1)(a) of the Immigration Act, a permanent resident can be found inadmissible to Canada under clause 19(1)(f)(iii)(B) on the grounds that there are reasonable grounds to believe the permanent resident is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism, even if the membership ceased prior to the enactment of clause 19(1)(f)(iii)(B).

"Marshall Rothstein"

J.A.

"I agree J. Edgar Sexton J.A."

"I agree B. Malone J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-694-02

STYLE OF CAUSE: ISSAM AL YAMANI

Appellant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: OCTOBER 23, 2003

REASONS FOR JUDGMENT: ROTHSTEIN J.A

CONCURRED IN BY: SEXTON J.A.

MALONE J.A.

DATED: DECEMBER 19, 2003

APPEARANCES:

Ms. Barbara Jackman FOR THE APPELLANT

Mr. Donald MacIntosh

Mr. Jamie Todd FOR THE RESPONDENT

SOLICITORS OF RECORD:

Barbara Jackman

Toronto, Ontario FOR THE APPELLANT

Morris Rosenberg

Deputy Attorney General of Canada FOR THE RESPONDENT

Date: 20031219

Docket: A-694-02

OTTAWA, ONTARIO, DECEMBER 19, 2003

CORAM: ROTHSTEIN J.A.

SEXTON J.A.

MALONE J.A.

BETWEEN:

ISSAM AL YAMANI

Appellant

and

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Respondent

JUDGMENT

The appeal is dismissed. The certified questions are answered as follows:

"Marshall Rothstein"

J.A.

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Yamani v. Canada (Minister of Citizenship and Immigration), 2003 FCA 482

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