Date: 20070222
Docket: A-652-05
Citation: 2007 FCA 80
CORAM: DESJARDINS
J.A.
DÉCARY
J.A.
NADON J.A.
BETWEEN :
ADIL CHARKAOUI
Appellant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
DESJARDINS
J.A.
[1]
We
have before us an appeal from an order by Mr. Justice Simon Noël,
designated judge of the Federal Court (2005 FC 1670, [2006] 3
F.C.R. 325), dismissing the appellant’s motion to stay proceedings and
seeking a declaration that certain provisions of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) and the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations) are
unconstitutional, and that the security certificate and arrest warrant signed
and issued against him are invalid and of no force or effect.
[2]
In
July 2003, the appellant, Mr. Charkaoui, applied for protection under
section 112 of the Act. On August 25, 2003, an officer responsible for the
pre-removal risk assessment (PRRA) determined that there was a danger of
torture, a risk to his life or a risk of cruel and unusual treatment or
punishment if the appellant were to return to Morocco. On
April 1, 2004, an officer responsible for assessing the appellant’s
dangerousness determined that Mr. Charkaoui was a danger to the security
of Canada. On August 6
(addendum dated August 20, 2004), the delegate of the Minister of
Citizenship and Immigration, with these two reports before her, dismissed the
appellant’s application for protection. She determined that the appellant was
not faced with a serious and personal danger of torture or a risk of cruel and
unusual treatment or punishment if he were to return to Morocco and that, if
she were underestimating the risk, the exceptional circumstances test justified
the appellant’s removal to Morocco despite the danger of
torture.
[3]
On
March 22, 2005, the decision to dismiss the application for protection was set
aside by the Federal Court, as the Minister had informed the Court that a new
PRRA should be done because there were new facts, namely that Morocco had issued
an international arrest warrant for the appellant.
[4]
The
appellant is now awaiting a decision on his second application for protection.
The reasonableness of the security certificate issued against him has not yet
been examined.
[5]
Before
us, the appellant in essence submits that the provisions of the Act and the
Regulations, inter alia the PRRA provisions (paragraph 95(1)(c)
in fine, sections 98, 112, paragraphs 112(3)(d), 113(b)(c),
subparagraphs113 (d)(i) and (ii), and subsection 115(2) of the
Act in connection with subsection 77(2), paragraph 101(1)(f) and
section 104 and the corresponding regulatory provisions, namely
subsections 167 to 172 of the Regulations), breach sections 7,
12 and 15 of the Canadian Charter of Rights and Freedoms and the
Canadian Bill of Rights as well as the international conventions signed by Canada.
[6]
The
appellant submits that he is not challenging the Supreme Court of Canada’s
decision in Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3,
but that this matter is different from the one before us. He has acknowledged
in his arguments that if we interpret Suresh in the same manner as the
designated judge – an interpretation with which he obviously does not agree –
the debate before us would be moot.
[7]
For
my part, I interpret Suresh in the same manner as the designated judge.
[8]
Suresh challenged
paragraph 53(1)(b) of the Immigration Act, R.S.C. 1985, c.
I-2, in regard to section 7 of the Canadian Charter of Rights and
Freedoms. The Supreme Court of Canada first states its findings at
paragraph 5 of its reasons:
We conclude that to
deport a refugee to face a substantial risk of torture would generally violate
s. 7 of the Charter. The Minister of Citizenship and Immigration must exercise
her discretion to deport under the Immigration Act accordingly.
Properly applied, the legislation conforms to the Charter. We reject
the arguments that the terms “danger to the security of Canada” and “terrorism”
are unconstitutionally vague and that ss. 19 and 53(1)(b) of the Act violate
the Charter guarantees of free expression and free association, and conclude
that the Act’s impugned procedures, properly followed, are constitutional. We
believe these findings leave ample scope to Parliament to adopt new laws and
devise new approaches to the pressing problem of terrorism.
[Emphasis added.]
The Minister is obliged to exercise the discretion conferred upon her by
the Immigration Act in accordance with the Constitution. This requires
the Minister to balance the relevant factors in the case before her. As stated in Rehman, supra, at para. 56,
per Lord Hoffmann:
The question of whether the risk
to national security is sufficient to justify the appellant’s deportation
cannot be answered by taking each allegation seriatim and deciding whether it
has been established to some standard of proof. It is a question of evaluation and judgment, in
which it is necessary to take into account not only the degree of probability
of prejudice to national security but also the importance of the security
interest at stake and the serious consequences of deportation for the deportee.
Similarly, Lord Slynn of Hadley stated, at para. 16:
Whether there is . . . a real possibility [of an adverse effect on the
U.K. even if it is not direct or immediate] is a matter which has to be weighed
up by the Secretary of State and balanced against the possible injustice to
th[e] individual if a deportation order is made.
In Canada, the balance struck by the Minister must conform to the
principles of fundamental justice under s. 7 of the Charter. It follows that
insofar as the Immigration Act leaves open the possibility of deportation to
torture, the Minister should generally decline to deport refugees where on the
evidence there is a substantial risk of torture.
We do not exclude the possibility that in exceptional circumstances,
deportation to face torture might be justified, either as a consequence of the
balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 “only in cases
arising out of exceptional conditions, such as natural disasters, the outbreak
of war, epidemics and the like”: see Re B.C. Motor Vehicle Act, supra, at p.
518; and New Brunswick (Minister of Health and Community Services) v. G. (J.),
1999 CanLII 653 (S.C.C.), [1999] 3 S.C.R. 46, at para. 99.) Insofar as Canada
is unable to deport a person where there are substantial grounds to believe he
or she would be tortured on return, this is not because Article 3 of the CAT
directly constrains the actions of the Canadian government, but because the
fundamental justice balance under s. 7 of the Charter generally precludes
deportation to torture when applied on a case-by-case basis. We may predict
that it will rarely be struck in favour of expulsion where there is a serious
risk of torture. However, as the matter is one of balance, precise prediction
is elusive. The ambit of an exceptional discretion to deport to torture, if
any, must await future cases.
In these circumstances, s. 53(1)(b) does not violate s. 7 of the Charter.
What is at issue is not the legislation, but the Minister’s obligation to
exercise the discretion s. 53 confers in a constitutional manner.
[Emphasis
added.]
[10]
The
designated judge properly acknowledged that Suresh validated the
balancing exercise provided under subsection 53(1) of the former act, now
found under subparagraph 113(d)(ii) and subsection 115(2) of
the Act and under section 172 of the Regulations. The Act was not declared
unconstitutional. Properly applied, the Act is consistent with the Charter. The
Minister must however exercise his discretion accordingly (“en conséquence”) (Suresh,
at paragraph 5).
[11]
The
principles of Suresh were reiterated by our Court in Almrei v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 54, [2005] 3 F.C.R. 142, at
paragraph 126.
[12]
In
an attempt to distinguish this case from Suresh, the appellant pointed
out paragraph 3(3)(f) of the Act, a provision that was not
considered by the Supreme Court in Suresh and did not exist in the
former act. He also refers to this Court’s decision in de Guzman v.
Minister of Citizenship and Immigration, 2005 FCA 436, [2006] 3
F.C.R. 655. This Court’s decision in de Guzman had not yet been
rendered when the designated judge made his decision. Only the Federal Court’s
decision in de Guzman (2004 FC 1276, [2005] 2 F.C.R. 162) had
been rendered.
[13]
The
decision of the designated judge Mr. Justice Simon Noël is nevertheless
consistent with this Court’s decision in de Guzman, where the Court
states at paragraph 83 of the reasons:
[83] On its face, the
directive contained in paragraph 3(3)(f) that the IRPA “is to be
construed and applied in a manner that complies with international human rights
instruments to which Canada is signatory”, is quite clear: the IRPA must be
interpreted and applied consistently with an instrument to which paragraph
3(3)(f) applies, unless, on the modern approach to statutory
interpretation, this is impossible.
[Emphasis added.]
[14]
This
Court decided in de Guzman that the international human rights
instruments to which Canada is signatory are determinative in terms of
how the Act should be to interpreted and implemented, but only “in the absence
of a clear legislative intent to the contrary” (paragraphs 75 and 108).
[15]
The
designated judge, after reviewing the scope of paragraph 3(3)(f) of
the Act according to the modern interpretation method, and after noting that
the provisions of the Act and of the Regulations expressly provide for a
balancing exercise, was therefore correct to determine at paragraph 44 of his
reasons:
To summarize, the
decision in Suresh, supra, upheld the balancing mechanism set out
in the IRPA. The interpretation of paragraph 3(3)(f) of the IRPA leads
to the conclusion that it is a general, interpretive provision that does not
operate to incorporate international law into domestic law. The effect of that
provision is not to give international law norms status equal or superior to
domestic law, or to invalidate domestic law.
[16]
The
legislative and regulatory provisions at issue are therefore valid. As the
second PRRA is still pending, the Court does not have a factual record enabling
it to rule on the validity of their application in this case. The designated
judge was correct in refusing to decide what is in essence a moot question, for
the time being.
[17]
The
appellant also argued that the delays of the Minister or the Minister’s
delegate in responding to the applications for protection were excessive and
amounted to cruel and unusual treatment within the meaning of sections 7 and 12
of the Charter or within the meaning of the Convention against Torture.
[18]
The
designated judge dismissed these arguments on the grounds that the process
provided under the Act was complex, which took time, and moreover that the
appellant himself had asked for the proceedings to be suspended, thereby
availing himself of the legislative measures conferred to him under the Act.
[19]
The
designated judge made no error in deciding as he did.
[20]
I
would dismiss the appeal with costs.
“Alice Desjardins”
“I
concur.”
“Robert Décary, J.A. “
“I concur.”
“Marc Nadon, J.A.”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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