Date: 20060210
Docket: DES-04-01
Citation: 2006
FC 180
Toronto, Ontario,
February 10, 2006
PRESENT: THE HONOURABLE MR. JUSTICE W. ANDREW MACKAY
BETWEEN:
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
& SOLICITOR GENERAL OF CANADA
Applicants
and
MAHMOUD JABALLAH
Respondent
REASONS FOR ORDER AND ORDER
(Applicant’s Motion to recuse)
[1]
These Reasons
and Order concern the disposition of a Motion on behalf of the applicant, Mr.
Jaballah, that I now recuse myself “from the determination of the reasonableness
of the security certificate in this matter on grounds of a reasonable
apprehension of bias.”
[2]
The Motion
made orally without written text or affidavit, is raised in the course of
on-going proceedings initiated in August 2001 when a security certificate,
signed by the two ministers of Canada concerned, was referred to
this Court for determination of its reasonableness, in accord with the process
now provided under s-s. 77 (1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 as amended (“IRPA”).
[3]
These
proceedings have a long and somewhat complex history. That was most recently
summarized in paragraphs 2, 3 and 4, in a recent decision of this Court (2006
FC 115, filed February 1, 2006) whereby I dismissed an application by Mr.
Jaballah for his release from detention and ordered that his detention be
continued pending further order. That summary history is, of course,
supplemented by the decision concerning Mr. Jaballah’s continuing detention
(2006 FC 115).
[4]
Two
findings made in that most recent decision are the bases for the application
that I recuse myself from consideration of the reasonableness of the
certificate. The first is a finding in relation to certain of Mr. Jaballah’s
testimony, i.e. explanations given in cross examination concerning telephone
records of long distance calls to overseas numbers charged to his telephone
number in Toronto, and similar calls and personal
contacts with persons in Canada of concern to CSIS for
security reasons. Those explanations I described as “not satisfactory and
simply not credible.” The second finding of concern is that in considering Mr.
Jabballah’s application for release from detention, I adopted, as counsel for
Mr. Jabballah had suggested when the matter was heard, the statutory standard
under s. 83 (3) for considering an application for release from detention in
similar circumstances of a permanent resident, and had followed that statutory
provision since I was satisfied that Mr. Jabballah “continues to be a danger to
national security”.
[5]
It is
urged for Mr. Jabballah that those two findings will be key elements in the
assessment of the reasonableness of the Ministers’ certificate, and, having
made them, a reasonable apprehension of bias arises if I were to proceed in due
course to consider the reasonableness of the certificate. Before proceeding to
consider further the issue raised, I set out the context of the proceedings in
which it arises and I refer briefly to the principles applicable in considering
a claim of a reasonable apprehension of bias.
[6]
It may be
somewhat unusual that matters dealt within in interlocutory proceedings become
the basis for a Motion to recuse and not, at least as yet, a basis for appeal.
So be it. In this case it is also unusual in that the application to recuse myself
relates only to determination of the reasonableness of the security
certificate, and not to the determination of the lawfulness of the decision, on
behalf of the Minister of Citizenship and Immigration, to refuse Mr. Jaballah’s
application for protection, a decision made pursuant to subpara. 113 (d) (ii)
of IRPA. I heard argument on that matter in December 2005 and my
decision is currently under reserve.
[7]
The Court
scheduled hearings to resume on February 7, 2006, to hear evidence, having
earlier granted leave to Mr. Jabballah, who had originally declined to adduce
any evidence in relation to the Ministers’ certificate, though he later
testified in regard to his Motion for release from detention. That schedule
was put aside pending hearing and decision on the Motion that I now recuse
myself. When the Motion was heard on February 7, I reserved decision to
consider counsel’s submissions. By these Reasons and Order I now dismiss the
Motion to recuse myself.
[8]
Counsel
for the parties are agreed on the general principles relating to claims of a
reasonable apprehension of bias, as enunciated by well known authorities. Not
surprisingly, counsel for the Ministers concerned, the Minister of Citizenship
and Immigration and the Minister of Public Safety and Emergency Preparedness,
do not agree with counsel for Mr. Jabballah on the application of principles in
this case. After the applicable principles, I turn to consider their
application in the circumstances and context in which the concerns are raised
on behalf of Mr. Jabballah, discussing first the finding of credibility and
then the finding that Mr. Jabballah continues to be a danger to national
security.
Assessing a claim of a reasonable
apprehension of bias
[9]
It is
well-accepted that the applicable principle of law as to a claim of a
reasonable apprehension of bias is that stated by de Grandpre J., writing in
dissent in Committee for Justice and Liberty et al. v. National Energy Board
et al., [1978] 1 S.C.R. 369 at 394-5, as follows:
[W]hat would
an informed person, viewing the matter realistically and practically, and
having thought the matter through – conclude. Would he think it is more likely
than not that Mr [X], whether consciously or unconsciously, would not decide fairly?
[10]
In Arthur
v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 94,
[1992] F.C.J. No. 1000 (QL), Mr. Justice MacGuigan writing for the Court of
Appeal, in relation to successive determinations by an adjudicator, commented
at para 15:
The most
accurate statement of the law would thus appear to be that the mere fact of a
second hearing before the same adjudicator, without more, does not give rise to
reasonable apprehension of bias, but that the presence of other factors
indicating a predisposition by the adjudicator as to the issue to be decided on
the second hearing may do so. Obviously one consideration of major significance
will be the relationship of the two issues on the two hearings, and also the
finality of the second decision. If, for instance, both [page 106} decisions
are of an interlocutory character, such as two decisions on detention (as in
Rosario), it may be of little significance that the matter in issue is the
same, but where the second decision is a final one as to a claimant’s right to
remain in the Country, the avoidance of a reasonable apprehension of bias may
require greater distinction in the issues before the tribunal on the two
occasions.
[11]
In R.
v. S (R.D), [1997] 3 S.C.R. 484 at pp. 531-532, Cory J. comments upon the necessity
for substantial grounds to support a claim of a reasonable apprehension of
bias, that the threshold for establishing such a claim is high, and whether a
reasonable apprehension of bias arises will depend entirely upon the facts of
the case.
[12]
In Charkaoui,
2004 FC 624, [2004] F.C.J. No. 757 (QL), my colleague Noël J. reviewed the
statutory arrangements for designated judges under IRPA with particular
reference to a single judge considering applications for release from detention
and also the reasonableness of the security certificate. I agree that under IRPA
parliament has provided arrangements for the same judge to consider the various
phases of the process relating to persons detained under certificates that they
are inadmissible to Canada on national security grounds,
including any applications for release from detention. At paragraphs 15-22 in
that case Noël J. compared the decisions concerning continuing detention and
concerning the reasonableness of the certificate. He concluded:
Accordingly,
it follows that review of the reasonableness of a certificate, determining
whether a danger exists and monitoring the continued detention are separate
functions which ultimately lead to different conclusions. It cannot be said
that a determination regarding continuing detention necessarily leads to the
same kind of determination regarding the reasonableness of the certificate.
[13]
In Fong
v. Winnipeg Regional Health Authority, [2004] M.J. No. 299 (QL),
2004 MBGB 182, where the issue of a reasonable apprehension of bias arose in
regard to decisions rendered by an arbitrator, Beard J. discussing
“pre-judgement” as an aspect of procedural fairness, commented at para 12:
…the question
typically becomes one of whether the decision–maker exhibited such a degree of
pre-judgement or predisposition to one side or the other that it gives rise to
a reasonable apprehension that the decision-maker is or would be unresponsive
to the evidence and arguments advanced at the hearing…
[14]
These
principles I now apply to the facts of this case and the particular
circumstances which it is urged give rise to a reasonable apprehension of bias.
The finding of a lack of credibility
[15]
In the
decision in question I accepted much of Mr. Jaballah’s testimony about
conditions of his detention and the effects of those upon him, and the
testimony of his wife and his son about the adverse effects of his continuing
detention upon his family, as well as the written assessment by Dr. Bagby of
his psychological and emotional condition. I did not draw similar inferences
as they urged about the appropriateness of Mr. Jaballah’s release, or in the
case of Dr. Bagby as he would support for release from detention.
[16]
The
decision also reviewed the evidence of the conditions of his detention and then
turned to evidence on other aspects, including “Mr. Jaballah’s attitude to his
release and his credibility.” That section of the decision, at paras. 53 to 57
is as follows:
[53] In
the course of his testimony, Mr. Jaballah undertook that if now released he
would obey any conditions imposed on him by the Court. He stressed that for
him the important thing is to be close to his family. Conditions of house
arrest, or time outside his home only in the company of persons approved by the
Court, he undertook would be met if released. In his own words: (transcript
p.503 lines 7-12)
…I am willing
to accept any condition that the Court asks me to observe because breaking
those conditions would mean that I would be deprived of the only thing I am
fighting for, which is being with my children.
[54] I
have no doubt about Mr. Jabballah’s deep interest in being with and supporting
his family. Yet his credibility about other matters leaves much to be
desired. In cross-examination, he first stated that he could not remember
whether he had contacted anyone in Pakistan after he had come to Canada, he had
not contacted anyone in Yemen after leaving there where he only knew one person
he had worked with, and later after leaving Azerbaijan in 1995 he had left no
friends behind and had no communication with persons in either Country after
coming to Canada. Later he was asked about the telephone company records, then
produced, which indicated a number of calls to all three countries, including
72 to Yemen and 47 calls to Azerbaijan from his Canadian
telephone, mainly in 1996 and 1997. He then acknowledged that some of the
recorded calls were his, or perhaps his wife’s. While some recorded calls were
so brief, a minute or so, they might have indicated inability to complete a
call, as he suggested, numerous longer calls that he appeared to acknowledge as
his, were not satisfactorily explained.
[55] Again,
there are telephone records of some 75 calls from his telephone to London England, mainly to
the International Office for Defence of the Egyptian people, believed to be an
office with an operational link to Al Qaeda. These calls he admitted making
when he was seeking advice or assistance for his refugee claim, to support his
application to review his failed refugee claim. Yet many calls recorded in
1996 and 1997 were made before Mr. Jaballah’s application for refugee status
was heard, and, in my opinion, these were not satisfactorily explained. Nor
was there any satisfactory explanation of more than 20 calls billed by Bell Canada to Mr.
Jaballah’s phone number from June 4, to 6, 1996, soon after his arrival to
Canada, made to the United Kingdom, Yemen, Azerbaijan and Pakistan.
[56] Other
testimony about his lack of communication with certain others in this country
after his arrival here was cast into doubt by records of calls from his
telephone to Montreal, to Winnipeg, and to Edmonton, in each
centre to phone numbers of persons suspected by C.S.I.S. of links to
international terrorist activity. As for travels within Canada he first said
he had only visited Montreal, to arrange automobile insurance at a lower
premium than he could arrange in Toronto, and to Niagara Falls and London. Later when
asked specifically about the other centres he had visited, he acknowledged that
he had driven to St. Catherine’s, and also to Winnipeg to visit a particular
person, described by him as not really a friend, who had been of assistance to
him and his family on their arrival to Canada. His contact with another
person, then living in Alberta, one since charged with terrorist funding
activities by prosecutors in the United States, was said to have been
casual, and initiated by the person in Alberta whom
Jaballah claims he really did not know. Yet there were numerous phone calls
recorded from Jaballah’s Toronto telephone number to Edmonton and to Leduc
where his acquaintance was then based. These calls were not satisfactorily
explained.
[57] The
calls and visits in question were now almost a decade ago but Mr. Jaballah’s
explanations, while not directly relevant to the conditions of his detention,
which is the prime issue of concern in this application, were not satisfactory
and are simply not credible. In my opinion that in turn casts doubt upon any
undertaking he might give in relation to conditions imposed if he were to be
released at this stage.
That is the last reference to Mr. Jaballah’s credibility in
the decision. The decision proceeded to recognize a constitutional exemption,
pursuant to s-s. 24 (1) of the Charter, on grounds that the effects of
applying s-s. 82 (2) of IRPA to continue his detention without a
review by a judge resulted in a violation of equality rights guaranteed by s-s.15(1)
of the Charter of Rights and Freedoms. Mr. Jaballah’s detention was then
reviewed by analogy to the process under s-s. 83(3) of IRPA for a
judge’s review of the detention of a permanent resident in circumstances
similar to those of Mr. Jaballah.
[17]
The conclusion of the decision makes no reference to the
testimony of Mr. Jaballah about telephone calls or other contacts with certain
persons overseas or in Canada, and there is no other reference to the
credibility of his explanations.
[18]
The argument on behalf of Mr. Jaballah is put thus by counsel:
This Motion rests on two bases. The first is that in
its decision on continuing detention this Court made determinations of
credibility adverse to Mr. Jaballah, which give rise to a reasonable
apprehension that any attempt by him now to answer the certificate and the
evidence upon which it is based would be an exercise in futility (Transcript,
February 7, 2006, p. 11).
[19]
It is urged that since the finding of credibility related to evidence
about Mr. Jaballah’s associations with others, an underlying concern of the
Ministers’ case leading to issuance of the security certificate, this Court would
be seen by the informed reasonable observer as having prejudged that matter and
as having raised an apprehension of bias about any evidence Mr. Jaballah might
now offer.
[20]
I am not persuaded that the informed reasonable observer aware of all
the circumstances and thinking the matter through would find a reasonable
apprehension of bias arising because of the reference to Mr. Jaballah’s
credibility in his explanations offered in cross examination in respect of
certain telephone billing evidence. That was not an assessment of his general
credibility, and it was considered only with reference to his testimony about
his willingness to abide by reasonable conditions imposed if he were to be
released. Moreover, as noted, much of his evidence about the conditions of his
detention and their effects, and about his life before coming to Canada, was
accepted by the Court. The assessment of his credibility was limited to
certain of his testimony, and was used for a limited purpose.
[21]
Further, the assessment of his credibility with reference to his
evidence in considering his willingness to meet conditions that might be
imposed if he were released from detention, is not a significant matter
concerning the reasonableness of the Ministers’ security certificate. The assessment
made was concerned with the evidence thus far adduced. Further evidence even on
the same matter, may be adduced if counsel considers that useful. If it is, my
duty to my office as a Judge is to weigh and consider all the evidence before
me.
Mr. Jaballah as a continuing
danger
[22]
The second finding said to give rise to a reasonable apprehension of
bias is my conclusion, in refusing Mr. Jaballah’s application for release from
detention, that he “continues to be a danger to national security” and thus his
detention should be continued, by analogy with s-s. 83(3) of IRPA
applicable to permanent residents detained in similar circumstances. That
finding I explained at paragraphs 88-92 of the decision.
[23]
That is not a factor to be assessed in considering the reasonableness
of the security certificate. That assessment will depend on weighing all of the
evidence and information before the Court relevant to whether the certified
opinion of the Ministers is reasonable that Mr. Jaballah is inadmissible to Canada
on specified grounds included within section 34 of IRPA. The grounds
specified in this case under the Immigration Act, 1978, applicable when
the certificate was issued, I have already determined (see Re: Jaballah,
[2003] 3 F.C. 85 (T.D.) at para. 4) to be those reflected in paragraph
34(1)(b), (c) and (f) of IRPA.
[24]
Those specified grounds are that Mr. Jaballah …is inadmissible on
security grounds for:
(b) engaging in or instigating the
subversion by force of any Government
(c) engaging in terrorism;
(f) being a member of an organization that
there are reasonable grounds to believe engages, has
engaged or will engage in acts referred to in paragraph
(a), (b) or (c).
While “a danger to the security of
Canada” is specified as a ground in subsection 34(1)(d) of IRPA, that
was not a ground specified in paragraph 19(1)(e) or (f) of the Immigration
Act, 1978, in force and referred to when the certificate was issued. It is
not a ground under subsection 34(1) of IRPA which is deemed to have been
specified in the security certificate concerning Mr. Jaballah.
[25]
Thus, the finding, in relation to his application for release from detention,
that Mr. Jaballah continues to be a danger to national security is not directly
relevant for considering the reasonableness of the security certificate in
regard to specified grounds. The issues to be determined in relation to the
certificate, in light of all the evidence adduced relevant to those issues are
different from the assessment made about his continuing to be a danger to
national security in considering his application for release from detention.
That difference was referred to at para. 92 of release from detention:
Finally, I add for the record that my determination,
on the evidence and arguments adduced in these certificate proceedings and in
this application for release, that Mr.. Jaballah continues to be a danger to
national security is a decision at this stage made on the record before me. It
is not a decision on the issue of the reasonableness of the security
certificate. That issue will be addressed after hearing further evidence, for
the presentation of which leave has been granted.
[26]
In the circumstances, I am of the view that an informed, reasonable
observer, aware of the circumstances here, upon thinking the matter through
would not consider that the finding that Mr. Jaballah was at the time of the
decision a continuing danger to national security raises an apprehension of
bias if I were to proceed to hear further evidence and argument concerning the
reasonableness of the security certificate.
Conclusion
[27]
With respect to both grounds here advanced, as the bases of the Motion
to recuse myself from consideration of the reasonableness of the Ministers’
certificate, I conclude that an informed reasonable person, aware of the full
context and the circumstances of this case, would not consider that a
reasonable apprehension of bias is raised if I were to continue and consider
the evidence and argument in regard to the security certificate, I conclude that
the findings concerned in the decision about the release of Mr. Jaballah from
detention do not give rise to a reasonable perception that I have prejudged the
evidence and argument yet to be adduced in regard to the issue of the reasonableness
of the certificate.
[28]
This Court’s task is to consider carefully any new evidence and
argument and all other relevant information, evidence and argument concerning
the Ministers’ certificate. That task I seek to discharge in performance of my
duty as a Judge, consistent with my oath of office.
ORDER
IT IS ORDERED THAT
the application on behalf of Mr. Jaballah heard on oral Motion on February 7,
2006, that this Judge recuse himself from consideration of the reasonableness
of the Ministers’ security certificate, is dismissed.
“W.
Andrew MacKay”
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