Background
Mohamed Harkat, an Algerian national, was found inadmissible to Canada on security grounds under section 34(1) of the Immigration and Refugee Protection Act (IRPA) for membership in the Bin Laden Network. A delegate of the Minister of Citizenship and Immigration subsequently determined under paragraph 115(2)(b) of the IRPA — the provision that allows Canada to remove a protected person who would otherwise benefit from the principle of non-refoulement — that the nature and severity of acts committed by Harkat warranted his removal. The Federal Court allowed Harkat’s judicial review of that decision in a companion ruling, 2026 FC 719, finding the delegate’s complicity analysis insufficiently coherent and rational.
The delegate’s central finding had been that Harkat, by running a guest house in Peshawar for the Chechen extremist commander Ibn Khattab, was complicit in crimes committed by Ibn Khattab and his co-commander Ishmael Basayev in Chechnya. All parties — the Canada Border Services Agency, the applicant, and the delegate — had proceeded on the shared assumption that complicity principles drawn from organized-criminality jurisprudence (specifically Nagalingam v. Canada, 2008 FCA 153) applied equally in the security-inadmissibility context. The Court’s task in this follow-on decision was to determine whether any question arising from that proceeding warranted certification for appeal to the Federal Court of Appeal under paragraph 74(d) of the IRPA.
Following release of 2026 FC 719, the respondent Minister proposed one question for certification: whether a delegate conducting a paragraph 115(2)(b) assessment is required to engage the concept of complicity at all, or whether it is sufficient to assess whether the person’s own individual acts meet the nature-and-severity threshold. Harkat opposed certification and proposed no questions of his own.
The Court’s Holding
Justice Norris declined to certify the Minister’s proposed question. The test for certification under paragraph 74(d) of the IRPA requires that the question be serious, transcend the interests of the parties, be dispositive of the appeal, and — critically — have been raised and dealt with in the decision being appealed. A question that was not before the court below cannot be dispositive of an appeal from that decision.
The Court acknowledged that whether the complicity doctrine applies in the security-inadmissibility context (as opposed to the organized-criminality context addressed in Nagalingam) is theoretically an open legal question. However, because all parties in the underlying paragraph 115(2)(b) determination had accepted without dispute that complicity was the applicable framework, the question of whether complicity analysis was required was never raised or resolved. The Court’s 2026 FC 719 decision likewise did not hold that complicity must always be considered or that the Ezokola test is the only permissible standard; it dealt solely with whether the delegate’s specific complicity finding was internally coherent and justified on the facts.
Because the proposed question raised issues that no party had advanced until the certification stage, it would not be dispositive of any appeal from the existing decision. The Court therefore ordered that no question be certified.
Key Takeaways
- A question may be certified for appeal under paragraph 74(d) of the IRPA only if it was actually raised and resolved in the decision under review; a theoretically open legal question that no party contested below fails this threshold regardless of its general importance.
- Whether the complicity doctrine — developed in the organized-criminality inadmissibility context by the Federal Court of Appeal in Nagalingam — applies equally to paragraph 115(2)(b) assessments grounded in security inadmissibility remains an unresolved question in Canadian immigration law, but it was not answered here.
- A delegate’s paragraph 115(2)(b) determination that rests entirely on a complicity finding (rather than the person’s own acts considered in isolation) must be supported by a coherent and rational analytical chain; the prior ruling 2026 FC 719 turned on that reasonableness deficiency, not on the availability of the complicity framework itself.
Why It Matters
The Harkat litigation — now spanning years and multiple court levels — sits at the intersection of Canada’s national-security certificate regime and the international principle of non-refoulement. This procedural ruling keeps the door closed on an appeal that the Minister hoped would clarify, at the Federal Court of Appeal level, whether decision-makers conducting paragraph 115(2)(b) assessments must engage complicity analysis or may instead rest a removal opinion solely on the individual’s own conduct. Because the Court declined certification, that question will have to await a case in which it is squarely contested before the decision-maker.
For immigration practitioners, the decision is a reminder that certification strategy must be anchored in the record actually made before the tribunal: novel legal arguments floated only after an adverse judicial-review decision will not satisfy the dispositive-of-the-appeal requirement, even if they raise genuinely unsettled points of law.