FACTS
The trial in
this matter proceeded on the basis of an agreed statement of facts which was
supplemented by three affidavits and the cross-examination of one affiant. The
following are the facts as I find them.
On October 14,
1991, the plaintiff entered Canada and claimed Convention refugee status based
on his political opinion and membership in a particular social group. The
plaintiff initially supported his refugee claim with a declaration that he had
been beaten by members of the Islamic Revolutionary Committee in Iran for being
intoxicated. On December 31, 1991, the plaintiff claimed that his return to
Iran would endanger his life due to his knowledge of Iranian covert operations
and personnel. He further claimed that he acquired this knowledge while he was
a forced conscript in the foreign assassins branch of the Iranian Foreign
Ministry. On December 31, 1991, the plaintiff was found to have a credible
basis for his claim to Convention refugee status. On April 1, 1992, the
Immigration and Refugee Board determined that the plaintiff was a Convention
refugee.
On June 9 and
June 15, 1993, the Solicitor General of Canada ("Solicitor General")
and the Minister of Employment and Immigration ("Minister")
respectively certified under subsection 40.1(1) of the Immigration Act
that they were of the opinion, based on a security intelligence report received
and considered by them, that the plaintiff was a member of an inadmissible
class described in the anti-terrorism provisions in sections 19(1)(e)(iii),
19(1)(e)(iv)(C), 19(1)(f)(ii), 19(1)(f)(iii)(B), and 19(1)(g) of the Immigration
Act. On June 17, 1993, the certificate of the Solicitor General and the
Minister was filed with an immigration officer and with this Court. On the
same date, the plaintiff was served with a copy of the certificate and taken
into detention. The plaintiff has remained in detention since that date.
On June 22,
1993, in accordance with paragraph 40.1(4)(a) of the Act, Mr. Justice
Denault reviewed the security intelligence report in camera and heard
other evidence presented on behalf of the Solicitor General and the Minister in
the absence of the plaintiff. Under paragraphs 40.1(4)(b) and (c) of the Act
respectively, Mr. Justice Denault provided the plaintiff with a summary of the
information and ordered that the plaintiff be given a reasonable opportunity to
be heard on the determination of whether the certificate filed by the Solicitor
General and the Minister was reasonable on the basis of the evidence and
information available.
Since June 25,
1993, the defendant has been ready and willing to participate in the procedure
outlined in paragraph 40.1(4)(d) of the Act to determine the
reasonableness of the certificate signed by the Solicitor General and the
Minister. To date, the plaintiff has not exercised his right to be heard and
no hearing has taken place.
On November
23, 1993, a supplementary statement of information was issued by Mr. Justice
Denault and forwarded to the counsel for the plaintiff.
The security
intelligence report considered by the Solicitor General and the Minister, as
well as the designated judge, was based, in part, on information obtained by
the Canadian Security Intelligence Service ("Service") in eight
interviews with the plaintiff and in a polygraph examination administered to
him on February 12, 1993. The security intelligence report contains references
to this information. The Service compiled for its reporting purposes the
information obtained from the plaintiff during these eight interviews. In
February 1994, following a request by counsel for the plaintiff for disclosure
of this information, edited compilations of these reports were made available
to him.
The summary of
information initially given to the plaintiff by Mr. Justice Denault referred to
the polygraph examination and to three occasions when the polygraphist
determined that the answers given by the plaintiff to questions were untrue.
The reports of the Service pertaining to the duration of the polygraph
examination, the number of questions asked, a certificate attesting to the
proper operation of the machine, and the credentials of the polygraphist were
made available to counsel for the plaintiff in March 1994, following a request
by him for that and other information.
The plaintiff
is 31 years old. In August 1992, he engaged in a form of marriage to a woman
in Toronto.
In response to
all aspects of the constitutional challenge to the validity of section 40.1 of
the Immigration Act, counsel for the Attorney General of Canada tendered
as an exhibit at trial the affidavit of Harry Norman Southern, the Chief of the
Counter Terrorism Section of the Toronto Regional Office of the Service.
Counsel for the plaintiff consented to the filing of the affidavit at trial and
cross-examined Mr. Southern on his evidence. In his affidavit,
Mr. Southern deposed to the mandate of
the Service, the need to prevent "routine, full disclosure of security
intelligence reports", the need to protect the anonymity of human sources
of information and the "third party rule" under which foreign states
or institutions and international organizations of states require the Service
to obtain their consent prior to disclosing information provided by them in
confidence. Mr. Southern also provided evidence concerning international
terrorism, the objectives and methods of terrorists, and terrorism in Canada.
In describing terrorism in Canada, Mr. Southern listed 18 acts of terrorism,
domestic or international in scope, which either occurred or had their genesis
in Canada since 1982. In his list of examples, Mr. Southern referred to a
litany of incidents which included violent terrorist acts against foreign
diplomats and embassies in Ottawa, the Air India disaster in which luggage
containing a bomb was checked in at Vancouver, and the Narita Airport bomb in
Japan in which the exploding luggage also came from Vancouver. In his
affidavit, Mr. Southern deposed that terrorists use Canada as a safe haven, as
well as for the planning and procurement of weapons and materiel. He further
indicated that terrorist groups operating in Canada "...are engaged in a
variety of ongoing activities in support of terrorism." For example,
such groups obtain and provide logistical support for terrorist operations
outside of Canada, develop and maintain a support base necessary to commit
terrorist acts in Canada, fundraise, spread propaganda and disinformation,
conduct surveillance on and manipulate immigrants, assist other terrorists in
entering and leaving the United States of America, smuggle people into Canada
and engage in other illegal activities. Mr. Southern further deposed that,
"although homeland conflicts are brought to Canada by only a small
proportion of immigrants and refugees, the vast majority of groups and
individuals in Canada who come to the attention of the [Service] counter
terrorism program are involved in regional conflicts in their countries of
origin." Mr. Southern confirmed that public safety in Canada is the
number one priority of the Service. With respect to the requirement that an
alleged terrorist be detained in custody pending the determination of the
reasonableness of the ministerial certificate under section 40.1 of the Immigration
Act, Mr. Southern stated that the interests of public safety require such
detention. In this regard, he indicated that individuals who are engaged in
terrorism are very dangerous, are frequently fanatical in their beliefs, have
little regard for human lives, including their own, and are transient. He
further stated that, as part of its international obligations, Canada is
expected to pursue vigorously all legal avenues to identify and deal with
terrorists, and to prevent the use of its territory as a safe haven or a base
of operations for terrorists. The cross-examination of Mr. Southern by counsel
for the plaintiff did not undermine or diminish in any significant manner the
facts deposed to in his affidavit.
The plaintiff
tendered affidavit evidence from Reginald Whitaker and Garry Carter to be used
in the analysis under section 1 of the Canadian Charter of Rights and
Freedoms ("Charter"), if section 40.1 of the Immigration
Act, or any part of it, were found to violate section 7 of the Charter.
He also filed as an exhibit a letter dated December 21, 1994 from the
Co-ordinator of Security and Designated Proceedings of this Court concerning
certain procedural aspects of this case. Counsel for the Attorney General of
Canada consented to the filing of the evidence at trial, did not cross-examine
the affiants and took the position that their evidence ought to be accorded
little or no weight for various reasons. Reginald Whitaker, a political
science professor at York University in North York, Ontario, alleged in his
affidavit, among other things, that the information of the Service about the
Middle East, including Iran, was unreliable due to certain factors. He also
deposed to the dangers inherent in the use of "summaries" in section
40.1 of the Immigration Act proceedings. Garry Carter, a private
investigator who was one of the most experienced and highly regarded criminal
investigators in the Metropolitan Toronto Police Force for many years,
concentrated in his affidavit primarily on the editing and disclosure
procedures used by the courts in relation to authorizations to intercept private
communications granted under the provisions of the Criminal Code of Canada.
In view of my conclusions in this case, it is unnecessary for me to outline in
any greater detail the evidence tendered by the plaintiff.
ISSUE
Whether
section 40.1 of the Immigration Act infringes or denies the rights
guaranteed by sections 7, 9, or 10(c) of the Canadian Charter of Rights and
Freedoms or is inoperative by virtue of subsection 2(e) of the Canadian
Bill of Rights.
LEGISLATIVE PROVISIONS
The
legislative provisions referred to in this judgment are reproduced, for ease of
reference, in Schedule "A".
ANALYSIS
i) section 40.1 proceedings
Any
description of the statutory scheme applicable in this matter must start from
the premise that the right to enter Canada is granted to Canadian citizens and,
in a qualified manner, to permanent residents.
Furthermore, Canadian citizens have a statutory right to remain in Canada,
while permanent residents and Convention refugees enjoy only a qualified right
to remain in the country.
For example, a Convention refugee found to be a person described in the
anti-terrorist provisions in paragraphs 19(1)(e) or (f) of the Immigration
Act would lose his right to remain in Canada.
In the 1988
amendments to the Part III Exclusion and Removal provisions in the Immigration
Act,
Parliament enacted two completely separate and distinct legislative schemes,
under the heading "Safety and Security of Canada", governing the
removal from Canada of persons with criminal or terrorist backgrounds or
propensities: sections 39 and 40 for permanent residents and sections 40.1 and
40.2 for persons other than Canadian citizens and permanent residents. In the
1992 amendments to the Immigration Act, Parliament adopted section
38.1, which explained the legislative purposes of sections 39 to 40.1. In
particular, Parliament indicated that the express purposes of these statutory
provisions were:
(a) to enable the Government of Canada to fulfil its duty to remove
persons who constitute a threat to the security or interests of Canada or whose
presence endangers the lives or safety of persons in Canada;
(b) to ensure the protection of sensitive security and criminal
intelligence information; and
(c) to provide a process for the expeditious removal of persons found to
be members of an inadmissible class referred to in section 39 or 40.1.
A review of
section 38.1 of the Immigration Act further confirms that, in enacting
different legislative procedures for permanent residents and for persons who
are not Canadian citizens or permanent residents, Parliament expressly
recognized that the latter group have no right to come into or to remain in
Canada, while permanent residents have only a qualified right to do so.
In enacting
section 40.1 of the Immigration Act, Parliament created a mechanism for
the expeditious review by an independent judicial arbiter of the reasonableness
of the decision of two separate ministers to issue a certificate that a person,
other than a Canadian citizen or permanent resident, is a member of an
inadmissible class of persons for various specified reasons, including
terrorism. Under the scheme established in section 40.1, the Minister and the
Solicitor General are required to make their decision that a person is a member
of an inadmissible class solely on the basis of "...security and criminal
intelligence reports received and considered by them." The filing of
the ministerial certificate with an immigration officer or other specified
officials triggers various statutory procedures, including the mandatory
detention of the named person and the reference of the certificate to this
Court for a determination of its reasonableness.
Within three days of the filing of the certificate, the Minister must
"cause a notice to be sent" informing the named person that a
certificate has been filed and that, following a reference to this Court, a
deportation order may be made against him.
Within seven days of the reference of the certificate to this Court, the Chief
Justice or a judge designated by him ("designated judge") must
examine, in camera, the security or criminal intelligence reports
considered by the Minister and the Solicitor General "...and hear any
other evidence or information that may be presented..." on their behalf. Since the
Minister and the Solicitor General are required to make their decisions solely
on the basis of the security or criminal intelligence reports, the designated
judge knows exactly what information was considered by them prior to the
issuance of the certificate. The security or criminal intelligence reports are
the only evidence which the designated judge must hear in camera. In
the event that "other evidence or information" is to be tendered, the
Minister or Solicitor General may request that "all or part of such
evidence or information" be heard by the designated judge in the absence
of the named person and his counsel. The designated judge may only accede to
this ministerial request where he forms the opinion that the disclosure of the
evidence or information "...would be injurious to national security or to
the safety of persons."
The burden of establishing that the "other evidence or information"
ought not to be disclosed for reasons of national security or safety rests
squarely on the minister who seeks to have it tendered in the absence of the
named person and his counsel. In short, the disclosure of this evidence or
information to the named person may be withheld under the statutory scheme only
following a ministerial request and an independent judicial determination that
its release would be injurious to national security or to the safety of
persons. It follows that, absent a judicial determination of non-disclosure on
the basis of national security or safety in relation to all or part of the "other
evidence or information", this material will be disclosed to the named
person. All of this exercise must be completed within seven days of the
reference of the certificate to this Court.
Following the
completion of his examination of the security or criminal intelligence reports
and the hearing, if any, of other evidence or information in the absence of the
named person and his counsel, the designated judge has a heavy burden to
provide disclosure in order to permit the named person to challenge the
reasonableness of the certificate issued by the Minister and the Solicitor
General. In particular, the designated judge must provide the named person
with a statement summarizing the information available "...as will enable
[him] to be reasonably informed of the circumstances giving rise to the issue
of the certificate."
In preparing the statement of information for the named person, the designated
judge must assess the right of the named person to be "reasonably informed
of the circumstances...having regard to whether, in [his] opinion..., the
information should not be disclosed on the grounds that the disclosure would be
injurious to national security or to the safety of persons." The designated
judge therefore has the discretion to refuse to disclose information to the
named person only where he formulates the opinion that disclosure would be
injurious to national security or to the safety of persons. The disclosure
powers accorded to the designated judge are broad and require the cautious exercise
of judicial discretion to ensure that the competing interests are properly
balanced. By way of example from a practical perspective, a designated judge
would be required to provide disclosure of human source information, if it
were necessary to enable the named person to be "reasonably
informed", save and except where the very nature of the information would
reveal the identity of the source and endanger his safety or compromise
national security. In many instances, information may be divulged without fear
of identifying the source, in that several persons may have had access to the
information provided by him to the authorities. In this type of situation,
counsel for the ministers will have a difficult burden to meet in attempting to
convince the designated judge that the information should not be disclosed.
The designated judge must also bear in mind that the "reasonably
informed" standard which Parliament chose to adopt in relation to persons
other than Canadian citizens and permanent residents is lower than the standard
applicable to permanent residents in the parallel scheme enacted in section 39
of the Immigration Act. With respect to permanent residents, Parliament
provided in subsection 39(6) of the Immigration Act that a permanent
resident must be provided with "...a statement summarizing such
information... as will enable the person to be as fully informed as possible of
circumstances giving rise to the report."
The designated
judge must also provide the named person with a reasonable opportunity to be
heard.
Under the terms of the statute, the nature of the hearing to be accorded to the
named person has been described simply as "a reasonable opportunity to be
heard." At a minimum, "a reasonable opportunity to be heard"
would permit the named person and his counsel to appear before the designated
judge, subpoena and call witnesses, and make submissions on matters, including
the disclosure of information to the named person. However, given the broad
wording used in the legislation, the nature of the hearing afforded to a named
person may vary according to the circumstances of the case. Furthermore, it is
significant to note that the legislation only requires that the designated
judge "provide" the named person with "a reasonable opportunity
to be heard". In the event that the named person fails to avail himself
of the opportunity to be heard within a reasonable period of time, as has
occurred in this case, the designated judge should proceed to determine the
reasonableness of the certificate on the basis of the evidence and information
available. Indeed, the fact that Parliament clearly intended these proceedings
to be conducted expeditiously requires the designated judge to proceed in this
fashion.
It bears noting that, in the case at bar, the plaintiff has attempted to use
the length of his stay in custody, which has occurred as a result of his
failure to avail himself of his statutory right to be heard, in support of his
argument that his detention violates the principles of fundamental justice or
is arbitrary.
In conducting
his review on the reasonableness of the certificate, the designated judge is
permitted to "... receive, accept and base [his] determination..." of
reasonableness on such evidence or information as he sees fit, "...whether
or not the evidence or information is or would be admissible in a court of
law."
This relaxed evidentiary standard applies to all aspects of the review
conducted by the designated judge and, as such, benefits all parties to the
proceedings. At the conclusion of the review, the designated judge must
determine whether the certificate is reasonable on the basis of the evidence
and information available. If the designated judge finds that the certificate
is not reasonable, he must quash it.
The determination made by the designated judge is not subject to appeal or
review by any court.
A certificate which has been reviewed and not quashed by a designated judge
constitutes "conclusive proof" that the named person is a member of
the inadmissible class or classes described in it. Following a
determination of the reasonableness of the certificate, the detention of the
named person continues until his removal from Canada, unless he has not been
deported within 120 days of the making of the removal order. In these
circumstances, the legislation provides a procedure permitting the named person
to apply for his release from detention.
Nothing in the law requires a named person to contest the reasonableness of the
certificate. Indeed, the Minister may at any time order the release of the
named person from detention in order to permit his departure from Canada, even
if the designated judge has not yet made a determination of the reasonableness
of the certificate.
The
proceedings under section 40.1 of the Immigration Act are directed
solely and exclusively to determining the reasonableness of the ministerial
certificate identifying the named person as a member of certain inadmissible
classes of persons. This section of the legislation does not deal with the
question of deportation. In the present case, the provisions in section 53 of
the Immigration Act would be applicable in relation to deportation, by
virtue of the fact that the plaintiff is a Convention refugee. In the event
that a designated judge determined the certificate to be reasonable on the
basis of evidence and information available, the Minister would be required
under section 53 of the Immigration Act to make the separate
determination of whether the plaintiff constituted a danger to the security of
Canada before an order could be made deporting him to a country where his life
or freedom would be threatened. If the Minister determined that the plaintiff
did constitute a danger to the security of Canada, the plaintiff would be entitled
to challenge this decision by bringing an application for leave and for
judicial review. Furthermore, if a removal order were made against the
plaintiff, subsections 70(2), (3) and (4) of the Immigration Act would
permit him to appeal that order to the Appeal Division of the Immigration and
Refugee Board on a ground of appeal involving a question of law or fact or
mixed law and fact. The plaintiff would also be entitled to make an
application for leave and for judicial review of any ensuing decision of the
Appeal Division.
In my overview
of the prescribed procedure, I have refrained from making reference to
subsection 40.1(5.1) of the Immigration Act which deals with
"information obtained in confidence from the government or an institution
of a foreign state or from an international organization of states or an
institution thereof." Counsel for the Attorney General of Canada
submitted that the constitutionality of subsection 40.1(5.1) of the Immigration
Act ought not to be determined in the context of the present case since
there is no foreign government or international information available in
relation to the plaintiff. I agree with this submission and I specifically
refrain from making any comment in this judgment on the constitutionality of subsection
40.1(5.1) of the Immigration Act.
ii) section 7 of the Charter
Section 7 of
the Charter provides as follows:
7. Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
The approach
to be taken in assessing an alleged violation of the section 7 Charter rights
of an individual to life, liberty and security of the person was described by
Sopinka, J. in Rodriguez v. B.C.(A.G.), [1993] 3 S.C.R. 519 at page 584
in the following terms:
Section 7 involves two stages of analysis. The first is as to the
values at stake with respect to the individual. The second is concerned with
possible limitations of those values when considered in conformity with
fundamental justice.
In conducting
the first stage of this two part analysis, the rights accorded to the
plaintiff, as a Convention refugee, under the provisions of the Immigration
Act must be determined in order to assess the scope of the protection
available to him under section 7 of the Charter.
Section 3 of
the Immigration Act affirms that immigration law and policy will be
designed and administered to promote Canadian domestic and international
interests, recognizing various needs. The competing factors outlined in
section 3, which are relevant in the context of this case, include the need
"to fulfil...international obligations with respect to refugees and to
uphold its humanitarian tradition..., to maintain and protect... safety and
good order and to promote international order and justice by denying the use of
Canadian territory to persons who are likely to engage in criminal
activity."
In recognition of its obligations in respect of refugees, Parliament has
accorded certain limited rights to Convention refugees in the Immigration
Act. Under subsection 4(2.1) of the Immigration Act, a Convention
refugee enjoys a qualified right to remain in Canada. This qualified right is
extinguished where it is established, among other things, that the Convention
refugee is a person described in certain inadmissible classes, including those
pertaining to terrorism. Even if a Convention refugee loses his qualified
right to remain in Canada, subsection 53(1) of the Immigration Act
prohibits his removal from Canada to a country where his life or freedom would
be threatened, unless he is a member of certain inadmissible classes and the
Minister formulates the opinion that he "...constitutes a danger to the
security of Canada." A Convention refugee who has been removed from
Canada may avail himself of the right to re-enter Canada under paragraph
14(1)(c) of the Immigration Act, in circumstances where he "...has
not been granted lawful permission to be in any other country." A
Convention refugee also has the qualified right under subsections 46.04(1) and
(3) of the Immigration Act to apply, on behalf of himself and his
dependents, for landing, unless he is a member of certain inadmissible classes,
including those pertaining to terrorism. Under paragraph 19(4)(j) and section
20 of the Immigration Regulations, a Convention refugee may apply for
employment authorization in Canada. These are the limited rights granted to a
Convention refugee under the Immigration Act and Regulations.
In addition to
the statutory rights accorded to a Convention refugee, counsel for the
plaintiff submitted that the plaintiff had certain "constitutionally
protected interests" which were engaged by the section 40.1 Immigration
Act proceedings. In particular, he submitted that these interests included
the loss of liberty from detention, stress flowing from the allegations made
against him, the stigma associated with confirmation of the certificate, his
forced removal from Canada, and "the threat to life associated with the
potential repatriation to a country which...will likely persecute..."
him. Counsel for the plaintiff submitted that these interests were protected
by section 7 of the Charter.
A review of
the rights granted under the Immigration Act to a Convention refugee
confirms that a finding of membership in certain inadmissible classes,
including those pertaining to terrorism, triggers the condition attached to his
qualified rights to remain in Canada and to apply for landing. In these
circumstances, a Convention refugee ceases to have these two rights.
Furthermore, the absolute nature of his right under subsection 53(1) not to be
removed from Canada to a country where his life or freedom would be threatened
becomes conditional on the Minister formulating the opinion that he does not
constitute a danger to the security of Canada. However, the right of a
Convention refugee to re-enter Canada in the circumstances prescribed in
paragraph 14(1)(c) of the Immigration Act is not affected by a finding
of inadmissibility. Although the ability of a Convention refugee to apply for
employment authorization under the Immigration Regulations would
necessarily be lost if he were removed from the country,
I consider this factor to be of no
significance for the purposes of the analysis under section 7 of the Charter.
In summary, a finding of membership in certain inadmissible classes, including
those pertaining to terrorism, causes a Convention refugee to lose his
qualified rights to remain in Canada and to be considered for landing and makes
his right not to be removed to a country where his life or freedom would be
threatened conditional on a ministerial determination that he does not
constitute a danger to the security of Canada.
Having
considered the statutory rights of the plaintiff as a Convention refugee under
the Immigration Act, I have concluded that the threshold question to be
determined in the first stage of the section 7 Charter analysis is
whether the loss of his qualified rights to remain in Canada and to apply for
landing or the change in the nature of his right not to be removed from the
country constitute a deprivation of his right to life, liberty or security of
the person. However, I have further concluded that it is unnecessary for me to
answer this question, as I am of the opinion that the procedure prescribed in
section 40.1 of the Immigration Act does not violate the principles of
fundamental justice.
In the circumstances, it is also unnecessary for me to consider whether the
alleged breach of his "constitutionally protected interests"
constitutes a deprivation of the right to life, liberty or security of the
person.
With respect
to the second stage of the section 7 Charter analysis, the principles to
be applied in determining whether a statutory scheme violates the principles of
fundamental justice were enunciated by Sopinka, J. in Chiarelli v. Canada
(Minister of Employment and Immigration), [1992] 1 S.C.R. 711. In
considering the constitutionality of previous legislation governing the deportation
of permanent residents convicted of certain criminal offences,
Sopinka, J. confirmed the importance
of adopting a contextual approach to the interpretation of section 7 of the Charter.
In this regard, he stated as follows at page 733:
Thus in determining the scope of principles of fundamental justice as
they apply to this case, the court must look to the principles and policies
underlying immigration law. The most fundamental principle of immigration law
is that non-citizens do not have an unqualified right to enter or remain in the
country. At common law an alien has no right to enter or remain in the
country.
...
The distinction between citizens and non-citizens is recognized in the
Charter. While permanent residents are given the right to move to, take up
residence in, and pursue the gaining of a livelihood in any province in s.
6(2), only citizens are accorded the right "to enter, remain in and leave
Canada" in s. 6(1).
Thus Parliament has the right to adopt an immigration policy and to
enact legislation prescribing the conditions under which non-citizens will be
permitted to enter and remain in Canada. It has done so in the Immigration
Act.
In my opinion,
these words of Sopinka, J. are directly applicable to the case at bar. Accordingly,
I have concluded that the constitutional validity of section 40.1 of the Immigration
Act must be analysed in the context of "the principles and policies
underlying immigration law." Furthermore, I note that proceedings under
section 40.1 of the Immigration Act are directed solely to determining
the reasonableness of the ministerial certification of inadmissibility. This
question is purely and simply an immigration matter.
In Chiarelli
v.Canada (Minister of Employment and Immigration), supra, Sopinka, J. also
suggested that proceedings similar in nature to those before the designated
judge may not be subject to the principles of fundamental justice. The issue
raised by Sopinka, J. was not argued before me. For the purposes of my
analysis, I have therefore assumed that the section 40.1 Immigration Act
proceedings before a designated judge are subject to the principles of
fundamental justice.
In his written
and oral submissions, counsel for the plaintiff argued that the principles of
fundamental justice in section 7 of the Charter give rise to
"procedural due process rights". He submitted that, in the context
of proceedings under section 40.1 of the Immigration Act, the principles
of fundamental justice would guarantee the following procedural rights to the
plaintiff: the right not to be arbitrarily detained, the right to a hearing
before an unbiased decision-maker, the right to disclosure of any information
in the possession of the state "which may potentially assist the
person" in answering the allegations, the right to respond meaningfully to
the allegations, and the right to appeal or review the decision. He further
submitted that the principles of fundamental justice include "the right to
have the state bear the risk of an erroneous determination that will deprive
him of his rights to life, liberty or security of the person." Many of
the submissions made by counsel for the plaintiff in support of his argument
concerning the "procedural due process rights" were premised on the
erroneous assumption that proceedings under section 40.1 of the Immigration
Act were criminal or quasi-criminal in nature.
In determining
the protections afforded by section 7 of the Charter to a person in
proceedings under section 40.1 of the Immigration Act, I am mindful of
the guidance provided by Sopinka, J. in Chiarelli v. Canada (Minister of
Employment and Immigration), supra, at pages 743-744:
The scope of principles of fundamental justice will vary with the
context and the interests at stake. In R. v. Lyons (1987), 32 C.R.R.
41, [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1, 44 D.L.R. (4th) 193, 82 N.S.R. (2d)
271, La Forest J., writing for the majority, stated (p. 82 C.R.R., p. 361
S.C.R.):
It is clear that, at a minimum, the requirements of
fundamental justice embrace the requirements of procedural fairness (see e.g.,
the comments to this effect of Wilson J. in Singh v. Minister of Employment
and Immigration (1985), 14 C.R.R. 13 at pp. 52-53, [1985] 1 S.C.R. 177 at
pp. 212-13...). It is also clear that the requirements of fundamental justice
are not immutable; rather, they vary according to the context in which they are
invoked. Thus, certain procedural protections might be constitutionally
mandated in one context, but not in another.
Similarly, the rules of natural justice and the concept of procedural
fairness, which may inform principles of fundamental justice in a particular
context, are not fixed standards.
An analysis of
the scope of the principles of fundamental justice in proceedings under section
40.1 of the Immigration Act must therefore be conducted in the context
of immigration principles and policies, and with regard to the competing
interests of the state and the person in question. In Chiarelli v. Canada
(Minister of Employment and Immigration), supra, Sopinka, J. noted at page
744 that, although the individual had an interest in a fair procedure, the
state had "...a considerable interest in effectively conducting national
security and criminal intelligence investigations and in protecting police
sources."
With respect
to the immigration context, I have already quoted the observation of Sopinka,
J. that "the most fundamental principle of immigration law is that
non-citizens do not have an unqualified right to enter or remain in the
country." Furthermore, as noted previously, immigration law and policy in
Canada recognize several competing needs, including those pertaining to our
international and humanitarian obligations to refugees, the safety of Canadian
society and the promotion of international order by denying the use of our
territory to persons likely to engage in criminal activity. In section 38.1 of
the Immigration Act, Parliament specifically addressed the statutory
purposes of certain sections, including section 40.1, noting that Canada had a
duty "to remove persons who constitute a threat to the security or
interests of Canada or whose presence endangers the lives or safety of persons
in Canada." Parliament further indicated that section 40.1 of the Immigration
Act, among others, was intended to ensure the protection of sensitive
security and criminal intelligence information and to provide an expeditious
process for the removal of persons in certain inadmissible classes, including
those pertaining to terrorism. Furthermore, in the present case, the facts
established in the evidence of Harry Norman Southern, the Chief of Counter
Terrorism in the CSIS Toronto Regional Office, demonstrate unequivocally that
Canada has compelling interests, both domestically and internationally, in pursuing
terrorists, in denying them access to our country and in protecting national
security and human source information. Despite these considerations, it must
nevertheless be recognized that the plaintiff has a competing interest in the
fairness of procedures under section 40.1 of the Immigration Act.
I have
concluded that, in enacting section 40.1 of the Immigration Act,
Parliament developed a procedure in which it attempted to strike a reasonable
balance between the competing interests of the individual and the state. In
particular, Parliament placed the responsibility of reviewing the
reasonableness of the ministerial certificate on an independent member of the
judiciary and accorded him the power to examine the security or criminal
intelligence reports, to hear evidence, to give disclosure with a view to
permitting the person to be "reasonably informed", and to provide the
person with a "reasonable opportunity to be heard." In my opinion,
the contextual analysis confirms that the principles of fundamental justice
have been respected in the procedure devised by Parliament in section 40.1 of
the Immigration Act.
Despite my
conclusion in this matter, I wish to address certain specific submissions made
by counsel for the plaintiff in support of his argument that certain
"procedural due process rights" must be incorporated in the
principles of fundamental justice in the context of this case.
With respect
to the contention that the principles of fundamental justice include the right
not to be arbitrarily detained, counsel for the plaintiff submitted that a
person named in a certificate has a right to apply for release from custody, in
the same manner as a person "accused of the most serious crime known to
our criminal law." As I indicated earlier, the scope of the fundamental
justice applicable in proceedings under section 40.1 of the Immigration Act must
be analysed in the context of immigration principles and policies and not
according to criminal law standards. The argument advanced by counsel for the
plaintiff concerning the right to apply for release was founded on the
statutory provisions in the Criminal Code of Canada, as well as on
criminal law principles and policies, none of which have any application in the
case at bar. In any event, I note that the detention in this case is
statutorily mandated and occurs only following the determination by two
ministers that a person who is neither a Canadian citizen nor a permanent
resident is a member of certain inadmissible classes of persons, including those
pertaining to terrorism. Furthermore, a review of the provisions of section
40.1 of the Immigration Act and its legislative purpose as expressed in
section 38.1 confirms that the proceedings are to be conducted expeditiously,
with the concomitant expectation that the detention of the person will not be
lengthy. As I indicated earlier, the fact that a person fails to avail himself
of his opportunity to be heard and chooses to remain in custody in Canada,
rather than seeking to depart from the country, cannot be used as a basis for
legitimizing his assertion that his detention violates the principles of
fundamental justice. Having considered the detention requirement in section
40.1 of the Immigration Act in the immigration context, I am satisfied
that the principles of fundamental justice do not require Parliament to create
a procedure providing for the pre-determination release of the person, as was
submitted by counsel for the plaintiff. Furthermore, the facts deposed to by
Mr. Southern in support of his statement that the interests of public safety
require such detention indicate that individuals who are engaged in terrorism
are often dangerous, are frequently fanatical, have little regard for human
lives and are transient. He further indicated that the international
obligations of Canada require it to pursue vigorously all legal avenues to
identify and deal with terrorists. In my opinion, the facts established in the
evidence of Mr. Southern assist in demonstrating that, in the immigration context,
the principles of fundamental justice are not violated by the pre-determination
detention of a person certified by two ministers to have a terrorist background
or propensities. Furthermore, I note that section 40.1 of the Immigration
Act provides for the post-determination release of a person from custody in
circumstances where his deportation has not occurred within 120 days after the
making of the removal order.
The existence of this statutory release scheme in a post-determination
situation involving extended delay confirms that Parliament specifically
considered the question of release from detention and chose to permit it only
in the very limited circumstances outlined in subsection 40.1(8). Given the
compelling state interests involved in dealing with alleged terrorists, I am of
the opinion that the failure of Parliament to provide for a mechanism of
pre-determination release does not violate the principles of fundamental
justice.
Counsel for
the plaintiff further submitted that the nature of the process created by
section 40.1 of the Immigration Act creates a reasonable apprehension of
bias on the part of the designated judge who conducts the in camera
hearing. I cannot accept this submission. In my opinion, nothing in the
procedure prescribed in section 40.1 of the Immigration Act raises a
reasonable apprehension of bias on the part of the designated judge. To the
extent that the submission of counsel for the plaintiff is founded on the
assertion that the participation of a designated judge in an in camera
hearing compromises his impartiality, I note that in Chiarelli v. Canada
(Minister of Employment and Immigration), supra, the Supreme Court of
Canada held that the Security Intelligence Review Committee Rules, which
permitted the discretionary exclusion of one or more parties during evidence or
representations, did not violate the principles of fundamental justice.
With respect
to the question of disclosure, counsel for the plaintiff structured his
argument primarily on the principles enunciated in Regina v. Stinchcombe,
[1991] 3 S.C.R. 326. and other criminal law cases. As I have indicated
earlier, criminal law principles have no application in this case. In my
opinion, the statutorily mandated process of disclosure in section 40.1 of the Immigration
Act, which requires an independent member of the judiciary to balance the
competing interests of the state and the individual, complies with the
principles of fundamental justice in the immigration context. Furthermore, the
use of summaries of evidence in immigration matters involving national security
and informant information was specifically approved in Chiarelli v. Canada
(Minister of Employment and Immigration by Sopinka, J. at pages 745-746 in
the following terms:
Although the first day of the hearing was conducted in camera,
the respondent was provided with a summary of the evidence presented. In my
view, these various documents gave the respondent sufficient information to
know the substance of the allegations against him, and to be able to respond.
It is not necessary, in order to comply with fundamental justice in this
context, that the respondent also be given details of the criminal intelligence
investigation techniques or police sources used to acquire that information.
In the circumstances, I am therefore
satisfied that the disclosure procedures in section 40.1 of the Immigration
Act do not violate the principles of fundamental justice.
In a similar
vein, counsel for the plaintiff submitted that the procedure prescribed in
section 40.1 of the Immigration Act deprives a person of the right to
respond in a meaningful fashion to the case advanced by the state. I cannot
accept this submission for the reasons indicated in my discussion of the
disclosure argument advanced by counsel for the plaintiff. Furthermore, I am
of the opinion that the summary of the evidence and information, together with
any other material disclosed by either the state or the designated judge,
provides the individual with the substance of the allegations and thereby
permits him to respond to the case against him. Counsel for the plaintiff
further argued that section 117 of the Immigration Act, which prevents
the production of a security or criminal intelligence report or evidence
referred to in section 40.1 "before a court, person or body with
jurisdiction to compel the production of information", prevents the person
from responding meaningfully. In particular, he submitted that section 117 of
the Immigration Act "serves to prohibit the designated judge
conducting the hearing from compelling the production of information or the
attendance of certain witnesses...". This argument is founded on a
misunderstanding of the meaning of section 117 of the Immigration Act.
In my opinion, the plain and obvious wording of section 117 of the Immigration
Act indicates that courts or bodies, other than a designated judge under
section 40.1, are prohibited from compelling the production of security or
criminal intelligence reports. Simply put, section 117 of the Immigration
Act has no application whatsoever in proceedings which are conducted under
section 40.1. Counsel for the plaintiff also argued that the absence of an
express power in section 40.1 of the Immigration Act to subpoena
witnesses constituted a deprivation of the right to respond meaningfully. I
cannot accept this submission. In my opinion, Rule 333 of the Federal Court
Rules would be available to a person facing proceedings under section 40.1
of the Immigration Act and would permit him to subpoena witnesses.
Counsel for
the plaintiff further submitted that the principles of fundamental justice
require the state to establish the allegations made against the person named in
a ministerial certificate beyond a reasonable doubt. I disagree. In my opinion,
the criminal law standard of proof beyond a reasonable doubt has no application
in proceedings under section 40.1 of the Immigration Act. Furthermore,
I am of the view that it is unnecessary for me, in the context of this case, to
determine the standard applicable in proceedings under section 40.1 of the Immigration
Act.
Finally,
counsel for the plaintiff submitted that section 40.1(6) of the Immigration
Act, which provides that a determination made by a designated judge is not
subject to appeal or review by any court, violates sections 7 and 10(c) of the Charter.
The question of rights of appeal was the subject of comment by the Supreme
Court of Canada in Kourtessis v. M.N.R., [1993] 2 S.C.R. 3. In
discussing rights of appeal, La Forest J. stated as follows at pages 70-71:
"Appeals to appellate courts and to the Supreme Court of Canada
have become so established and routine that there is a widespread expectation
that there must be some way to appeal the decision of a court of first
instance. But it remains true that there is no right of appeal on any matter
unless provided by the relevant legislature.
There are various policy reasons for enacting a procedure that limits
rights of appeal. Sometimes the opportunity for more opinions does not serve
the ends of justice... A further policy rationale, and one that is important
to the case before this court, is that there should not be unnecessary delay in
the final disposition of proceedings..."
The procedure
created by Parliament in section 40.1 of the Immigration Act constitutes
the mechanism for reviewing the decision made by the two ministers. I am
satisfied, on the basis of the principles enunciated in Kourtessis v.
M.N.R., supra, that the principles of fundamental justice do not require the
provision of a further right of appeal or review. Furthermore, in expressly
prohibiting a further appeal or review, Parliament reinforced the notion that
proceedings under section 40.1 of the Immigration Act are expeditious in
nature. Finally, the failure of Parliament to provide a further right of
appeal or review has no effect on any rights of the plaintiff under subsection
10(c) of the Charter.
iii) section 9 of the Charter
Section 9 of
the Charter provides as follows:
"Everyone has the right not to be arbitrarily detained or
imprisoned."
With respect
to section 9 of the Charter, counsel for the plaintiff relied on the
submissions which he made in support of his contention that the principles of
fundamental justice include the right not to be arbitrarily detained. I am
satisfied that the pre-determination detention of the named person under
section 40.1 of the Immigration Act is not arbitrary, in that it is
expressly authorized by law and occurs only following a separate decision by
two ministers that a person, who is neither a Canadian citizen or permanent
resident, has a terrorist background or propensities. In the circumstances,
there is no infringement or denial of the right under section 9 of the Charter.
iv) Subsection 2(e) of the Canadian
Bill of Rights
Subsection
2(e) of the Canadian Bill of Rights provides as follows:
2. Every law in Canada shall, unless it is expressly
declared by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed and applied
as not to abrogate, abridge or infringe or to authorize the abrogation,
abridgment or infringement of any of the rights or freedoms herein recognized
and declared, and in particular, no law of Canada shall be construed or applied
so as to ...
(e) deprive a person of the right to a fair hearing in accordance with
the principles of fundamental justice for the determination of his rights and
obligations.
I am of the
opinion that section 40.1 of the Immigration Act is not inoperative by
virtue of subsection 2(e) of the Canadian Bill of Rights.
DECISION
The action is
dismissed. There is no order as to costs.
OTTAWA
12 September 1995Judge
Email this Content