[1] The appellant, Mr. Harkat, appeals from two separate orders made by the designated judge in the course of determining the reasonableness of the security certificate issued against him on December 10, 2002, alleging that he was inadmissible to Canada on security grounds for engaging in terrorism or for being a member of an organization engaged in terrorism. At the time the security certificate was issued, Mr. Harkat was a foreign national and he had previously been found to be a Convention refugee on February 24, 1997.

[2] After the security certificate was issued, Mr. Harkat brought a motion requesting that the hearing into the reasonableness of the certificate be suspended pursuant to subsection 79(1) of the Immigration and Refugee Protection Act, S.C. 20001, c. 27 ("IRPA") in order for him to make an application for protection under subsection 112(1). In the first order being appealed from, the designated judge declined to suspend the proceedings into the reasonableness of the security certificate on the grounds that Mr. Harkat was not entitled to apply for protection under subsection 112(1) because he had already been determined to be a Convention refugee and therefore was already a protected person under subsection 95(2) of IRPA.

[3] In our opinion, the designated judge was correct. Subsection 112(1) expressly provides that a person in Canada "other than a person referred to in subsection 115(1)" may make an application for protection if subject to a removal order or named in a security certificate. Subsection 115(1) in turn refers to a "protected person". According to the clear language of IRPA, since Mr. Harkat was already a protected person, he was not entitled to apply for protection under subsection 112(1), and indeed there was no benefit for him in doing so.

[4] Mr. Harkat also brought another motion before the designated judge asking her to compel an employee of the Canadian Security Intelligence Service ("CSIS") to testify at the hearing regarding the summary of evidence provided to Mr. Harkat pursuant to paragraph 78(h) of IRPA. The designated judge declined to compel the attendance of a CSIS employee to testify regarding the particulars contained in the summary. Instead, the designated judge established a process whereby Mr. Harkat could serve and file questions in order to clarify the facts and matters set out in the summary.

[5] Present Counsel for Mr. Harkat is not seeking to have the CSIS witness produced for examination and has advised that he will proceed according to the process prescribed by the designated judge.

[6] Original Counsel for Mr. Harkat also argued that counsel for the Ministers abused the process of the Court by sending him a letter threatening to criminally prosecute one of Mr. Harkat's potential witnesses, a former employee of CSIS, if he testified. The designated judge found that the letter sent by counsel for the Ministers to counsel for Mr. Harkat did not constitute an abusive threat of criminal prosecution that would warrant quashing the security certificate. In the letter, counsel to the Ministers merely informed Mr. Harkat's counsel that the testimony of the former CSIS employee might breach his duty of secrecy under the Security of Information Act, R.S.C. 1985, c. O-5, as amended.

[7] With respect to the argument relating to abuse of process, present Counsel for the appellant made no submission as to whether the letter actually constituted a threat, but simply left the matter to the Court.

[8] We agree with the designated judge that the letter did not constitute a threat giving rise to an abuse of process. The former CSIS employee confirmed during cross-examination that he was not aware of the legislation until Mr. Harkat's lawyer informed him of the letter. In our opinion, it was entirely reasonable for counsel for the Ministers to send this letter to ensure that both counsel for Mr. Harkat and the former CSIS employee were aware of their obligations under the legislation. We also find it significant that counsel for the Ministers sent the letter to Mr. Harkat's lawyer rather than directly to the proposed witness, and also that he sent a copy of the letter to the Court. Accordingly, we do not interpret the letter to be an inappropriate threat of prosecution.

[9] We appreciate the present Counsel for the appellant has appeared in difficult circumstances and we commend him for the reasonableness of his submissions to the Court.

[10] The appeals should be dismissed.

"J. E. Sexton"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-317-03

A-337-03

STYLE OF CAUSE: MOHAMMED HARKAT

Appellant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

THE SOLICITOR GENERAL OF CANADA

ATTORNEY GENERAL OF CANADA

Respondents

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: JUNE 22, 2004

REASONS FOR JUDGMENT

OF THE COURT: (LINDEN, ROTHSTEIN, SEXTON JJ.A.)

DELIVERED FROM THE

BENCH BY: SEXTON J.A.

APPEARANCES:

Paul D. Copeland FOR THE APPELLANT

Donald MacIntosh

John Loncar FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Copeland, Duncan

Barristers and Solicitors

Toronto, Ontario FOR THE APPELLANT

Morris Rosenberg

Deputy Attorney General of Canada FOR THE RESPONDENTS

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Harkat v. Canada (Minister of Citizenship and Immigration), 2004 FCA 244

Citations2004 FCA 244

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2004 FCA 244