Date: 20061201
Docket: IMM-7289-05
Citation: 2006 FC 1457
Ottawa, Ontario, December 1, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ISSAM AL YAMANI
Applicant
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER AND ORDER
[1] Mr. Issam Al
Yamani, the Applicant, is a permanent resident of Canada who wishes
to remain in Canada. In a
decision dated November 22, 2005, a panel of the Immigration and Refugee Board,
Immigration Division (the Board) found Mr. Al Yamani to be a person who is
inadmissible to Canada on security grounds for being a member of an
organization that there are reasonable grounds to believe engages, has engaged
or will engage in terrorism. This determination was made pursuant to s.
34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c.27
(IRPA), set out below in these reasons. Mr. Al Yamani requests that this
Court quash the decision of the Board.
Issues
[2] The
background to this application is lengthy and, in my view, largely irrelevant
to the application before me. The focus, therefore, is not on what previous or
subsequent determinations may have been made with respect to Mr. Al Yamani, but
on the particulars of the decision of the Board that is the subject of this
application. In that regard, Mr. Al Yamani submits that there are 5 issues:
1.
Did
the Board err in law in concluding that there were reasonable grounds to
believe that Mr. Al Yamani was a member of the Popular Front for the Liberation
of Palestine (PFLP) from the time he joined the youth study ring to 1991/92?
2.
Did
the Board err in law in determining that the PFLP had engaged in terrorist
activities during the time that Mr. Al Yamani was a member?
3.
Did
the Board err in law in concluding that s. 34(1)(f) of IRPA was not a
violation of s. 2 of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c.11 (the Charter)?
4.
Did
the Board err in law in concluding that s. 34(1)(f) of IRPA was not a
violation of s. 15 of the Charter?
5.
Did
the Board breach the duty of fairness in failing to provide reasons which
addressed the issues raised before it?
[3] The first two
issues relate to the merits of the Board’s findings. I will deal with these two
issues together followed by a consideration of the Charter issues. I
will then conclude with a consideration of the adequacy of the reasons given by
the Board.
Relevant
Statutory Provisions
[4] The Board’s
finding of inadmissibility was made, after an oral hearing, pursuant to s.
34(1)(f) of IRPA. That provision states that:
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34. (1) A permanent resident or a
foreign national is inadmissible on security grounds for
…
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).
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34. (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
…
f) être membre d'une organisation dont
il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur
d'un acte visé aux alinéas a), b) ou c).
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[5] In making its
finding, the Board is to be guided by the rules of interpretation set out in s.
33 of IRPA:
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33. The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred, are occurring or may occur.
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33. Les faits — actes ou omissions —
mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu'ils sont survenus,
surviennent ou peuvent survenir.
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[6] Finally, I
would refer to the exception to an inadmissibility finding set out in s. 34(2) of
IRPA.
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(2) The matters referred to in
subsection (1) do not constitute inadmissibility in respect of a permanent
resident or a foreign national who satisfies the Minister that their presence
in Canada would not be detrimental to
the national interest.
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(2) Ces faits n'emportent pas
interdiction de territoire pour le résident permanent ou l'étranger qui
convainc le ministre que sa présence au Canada ne serait nullement
préjudiciable à l'intérêt national.
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Analysis of the issues
related to the merits of the decision
- What is the
applicable standard of review?
[7] The
question of whether an organization is one described in s. 34(1)(a), (b) or (c)
has been dealt with previously by this Court according to the standard of
reasonableness (Kanendra v. Canada (Minister of Citizenship and
Immigration), 2005 FC 923, [2005] F.C.J. No. 1156 at para. 12 (F.C.)). In Kanendra,
above, Justice Simon Noël, relying upon a pragmatic and functional analysis
conducted by Justice Marshall Rothstein of the Federal Court of Appeal in Poshteh
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005]
F.C.J. No. 381 at para. 23 (F.C.A.) applied the reasonableness standard to a
finding of "membership" in an organization described in paragraph
34(1)(f). The facts and issues before me are no different than those considered
in those cases and, accordingly, I see no reason to depart from the standard of
reasonableness.
[8] Accordingly, the findings of the Board, in this case, must
be supported by reasons that will withstand a somewhat probing examination (Canada
(Director of Investigation and Research, Competition Act) v.
Southam, [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 56).
[9] In considering the
reasonableness standard in Law Society of New Brunswick v. Ryan, [2003]
1 S.C.R. 247 at para. 56, Justice Iacobucci cautioned that the reasons should
be taken as a whole and that a reviewing court should not seize on one or more
mistakes or elements of the decision which do not affect the decision as a
whole. In my view, even if a court finds that one or more elements of a
decision are unreasonable, it does not follow that the decision as a whole is
unreasonable. It would then be necessary to examine the impact of those
elements on the decision to assess whether, in spite of any errors, the
decision, as a whole, is "tenable".
- What is the proper meaning of s. 34(1)(f)?
[10] The question before the
Board involved an interpretation of s. 34(1)(f). Accordingly, it is necessary
to examine that provision. In my view, the words of s. 34(1)(f) are clear and
unambiguous. The provision requires that the Board carry out two separate
assessments:
- The Board must determine whether there are
reasonable grounds to believe that the organization in question engages,
has engaged or will engage in acts referred to in (a), (b) or (c). In this
case, s. 34(1)(c) “engaging in terrorism” is applicable.
- The Board must also consider whether the
individual is inadmissible for “being a member” of such an organization. To
assist in responding to this question, s. 33 sets out that the facts that
constitute inadmissibility include facts for which there are reasonable
grounds to believe that “they have occurred, are occurring or may occur”.
Thus, pursuant to s. 33, the fact of membership is determined whether that
membership has occurred or is occurring.
[11] Quite simply, and
contrary to the arguments made by Mr. Al Yamani, there is no temporal component
to the analysis in s. 34(1)(f). If there are reasonable grounds to believe that
an organization engages today in acts of terrorism, engaged in acts of
terrorism in the past or will engage in acts of terrorism in the future, the
organization meets the test set out in s. 34(1)(f). There is no need for the
Board to examine whether the organization has stopped its terrorist acts or
whether there was a period of time when it did not carry out any terrorist
acts.
[12] Membership by the
individual in the organization is similarly without temporal restrictions. The
question is whether the person is or has been a member of that organization.
There need not be a matching of the person’s active membership to when the
organization carried out its terrorist acts.
[13] The result may seem
harsh. An organization may change its goals and methodologies and an individual
may choose to leave the organization, either permanently or for a period of
time. The provision seems to leave no option for changed circumstances by
either the organization or the individual. Fortunately, Parliament, in
including s. 34(2) in IRPA, provided means by which an exception to a
finding of inadmissibility under s. 34(1) can be made. Under that provision, a
permanent resident or a foreign national may apply to satisfy the Minister that
“their presence in Canada would not be
detrimental to the national interest”. Parliament has provided all persons, who
would otherwise be inadmissible under s. 34(1), with an opportunity to satisfy
the Minister that their presence in Canada is not detrimental to the national interest.
Under this procedure, factors such as the timing of membership or the present
characterization of the organization may be taken into account.
[14] In sum, s. 34 of IRPA
provides a comprehensive approach to inadmissibility determinations. The
section addresses the goals of maintaining the security of Canadian society (IRPA,
s. 3(1)(h)) and denying access to our country to persons who are security risks
(IRPA, s. 3(1)(i)) while providing (through s. 34(2)) an avenue for all
persons to have an individualized assessment of their impact on the national
interest. The Board carries out a factual analysis as to the nature of an
organization and the individual’s membership. The Minister determines whether
the individual, notwithstanding his or her inadmissibility, should be allowed
to remain in Canada. In my view, that is
what Parliament intended with s. 34.
[15] With this interpretation
of s. 34(1)(f) in mind, I will consider the specifics of Mr. Al Yamani and the
Board’s decision.
- Was Mr. Al Yamani a member of the PFLP?
[16] I now turn to the application
before me, dealing first with the question of Mr. Al Yamani’s membership in the
PFLP. Was it reasonable for the Board to conclude that there were reasonable
grounds to believe that Mr. Al Yamani was a member of the PFLP? In its reasons,
the Board stated, at para. 30, that:
It
is an acknowledged fact that Mr. Al Yamani was a member of the PFLP and the
evidence supports this. At a minimum he was a member from the time he joined a
student study group affiliated with this organization until he publicly
distanced himself from it in 1991/1992.
[17] Mr. Al Yamani
argues that the Board erred in concluding that there were reasonable grounds to
believe that he was a member of the PFLP from the time he joined the youth
study ring to 1991/92. Mr. Al Yamani concedes that he was a member of the PFLP
from: 1972 to 1974, 1974 to later that year or early 1975, 1979 to 1982 and
1987 to 1991 or early 1992. However, he submits that the Board did not take
issue with his credibility but concluded that he was a member of the PFLP
during times when he had testified that he was not a member. Consequently, Mr.
Al Yamani submits that the Board was obligated to explain its apparent
inconsistency or explain why it did not believe him.
[18] At the hearing before
the Board and in submissions before this Court, Mr. Al Yamani acknowledged that
he had been a member of the PFLP. References are contained throughout the admissibility
hearing transcripts to Mr. Al Yamani’s membership in the PFLP. At one point in
the admissibility hearing, counsel for Mr. Al Yamani conceded that Mr. Al
Yamani’s past involvement with the PFLP would satisfy the reasonableness
grounds for membership; her disagreement was with the characterization of the
PFLP (Certified Tribunal Record at 2409-2410).
[19] Mr. Al Yamani asserts
that the Board erred by failing to exclude those periods of time when he stated
that he was not a member of the PFLP. The first response to this is that
whether or not he was a member for the entire period of time is not determinative.
All that has to be established for the purposes of s. 34(1)(f) is that he was
or is a member of the organization. His acknowledged membership even for the
abbreviated times is sufficient to establish membership for purposes of the
statutory provision. Thus, even if the Board erred in stating that he was a
member for the entire period, this error is immaterial.
[20] Further, I am not
persuaded that the Board erred. Mr. Al Yamani’s evidence appears to have been
that he was not actively involved with the PFLP during certain periods of time.
His own testimony was that the reason for his inactivity was that the countries
that he traveled to and stayed in did not have active PFLP cells in which he
could participate. As soon as he reached a location where he could participate
in member activities, he resumed his own activities within the PFLP. On this
evidence, it was not unreasonable for the Board to conclude that, while Mr. Al
Yamani’s direct activities may have ceased for certain periods of time, his
membership did not. The Board’s conclusion is tenable.
[21] I am satisfied that the
Board’s conclusion that Mr. Al Yamani was a member of the PFLP is not
unreasonable.
- Is the PFLP a terrorist organization?
[22] I move to the second
question. Did the Board err in concluding that there were reasonable grounds to
believe that the PFLP engages or has engaged in acts of terrorism? Mr. Al
Yamani points to a number of alleged errors. Specifically, he alleges that the
Board erred by:
- considering acts of terrorism that took
place while he was not a member of the PFLP;
- not applying the correct test of
“terrorism”;
- failing to understand the various factions
that operate within the PFLP and the Palestinian Liberation Organization
(PLO) and erroneously attributing the acts of other factions to the PFLP
group to which Mr. Al Yamani belonged; and
- finding that certain acts were acts of
terrorism on the basis of inadequate evidence.
[23] I will consider each of
these alleged errors.
[24] Mr. Al Yamani submits
that the Board erred by considering acts of terrorism that occurred before or
after the time of his membership or during the times of his inactivity. As
discussed above, this temporal aspect is not relevant to a s. 34(1)(f)
determination. For purposes of s. 34(1)(f), the question of whether the PFLP
engages, has engaged or will engage in acts of terrorism is independent of Mr.
Al Yamani’s membership in the organization.
[25] Mr.
Al Yamani’s arguments appear to infer that a terrorist organization is only a
terrorist organization on the days when a specific act of terrorism occurs.
This point of view is illogical. The fact that there are time lags between
terrorist acts does not render the group “non-terrorist” during the intervening
periods. Indeed, the unpredictability of terrorists and terrorist organizations
has been succinctly summarized by W. Michael Reisman, Professor of Law, Yale
Law School:
[…] Sometimes, the terrorists in a particular state will
remain inactive for extended periods, but that should not make their presence
there any less cognizable under international law. The terrorists are being
kept, like any other weapon in an arsenal, from side-arms to nuclear missiles
in a silo, for future contingencies. As such, they should be viewed as active
weapons whose per se unlawfulness, in contrast to the other weapons mentioned,
makes their mere retention by a government a continuing violation of
international law […]
W. Michael Reisman, “International Legal Responses to
Terrorism” (1999) 22 Hous. J. Int’l L. 3 at 41
[26] Even if I were to give a narrow and temporal interpretation
of s. 34(1) (which I do not), I would point out that the question of the
temporal aspects of s. 34(1) may not be directly relevant to the situation of
Mr. Al Yamani. That is because the record demonstrates that there is linkage
between the periods of Mr. Al Yamani’s admitted membership in the PFLP and the
time when the organization carried out terrorist acts. For example, in June 1989,
the PFLP kidnapped an American aid worker. This action could be clearly
characterized as a terrorist act. Mr. Al Yamani has admitted to being a member
of the PFLP at that time.
[27] Mr. Al Yamani
further submits that the Board committed a reviewable error since it did not
clearly indicate what definition of ‘terrorism’ was being applied (Ali v.
M.C.I., 2004 FC 1174, [2004] F.C.J. No. 1416 at para. 63 (F.C.)). A review
of the reasons of the Board demonstrates that there was no such error.
[28] In its
reasons for decision, the Board cited the Supreme Court of Canada’s definition
of terrorism in Suresh v. Canada (Minister of Citizenship and
Immigration) [2002] 1 S.C.R. 3. The Board wrote at para. 31:
At paragraph 98 of the Suresh
decision (Suresh v. Canada (Minister of Citizenship and Immigration)
[2002] 1 S.C.R. 3), there is found a definition of terrorism; one which has
been referred to in subsequent decisions on the issue. The Court said:
98.) In our view, it may safely be
concluded, following the International Convention for the Suppression of the
Financing of Terrorism, that “terrorism” in s. 19 of the Act
includes any “act intended to cause death or serious bodily injury to a
civilian, or to any other person not taking an active part in the hostilities
in a situation of armed conflict when the purpose of such act, by its nature or
context, is to intimidate a population, or to compel a government or
international organization to do or abstain from doing any act. This definition
captures the essence of what the world understands by “terrorism”. …”
[29] The Board
carried on to apply that definition to the acts that were described in the
documentary evidence. In Ali, above, cited by Mr. Al Yamani in support
of this argument, the situation was very different. In that case, Justice Anne
MacTavish found that there was “no indication in either the officer's notes, or
in her letter, as to what she means when she says that Mr. Ali is a member of
an organization that is engaged in 'terrorism', as it is impossible to discern
how the officer defines the term”. The Board, in its reasons, clearly set out
the definition of “terrorism” that is being applied and reviewed the alleged
acts of terrorism against that standard. Consequently, there is
no error.
[30] Next, Mr. Al Yamani argues that the Board’s
conclusion that the PFLP was a terrorist organization was not made with regards
to the evidence. Mr. Al Yamani submits that the decision should be set aside
because of the inadequacy of the evidentiary foundation to support a finding
that the PFLP engaged in acts of terrorism. He cites the decision in Fuentes v.
Canada (Minister
of Citizenship and Immigration), [2003] F.C.J. No. 540 (F.C.),
wherein Justice François Lemieux stated, at para. 69, that the “evidence lacks
the specificity of who, what, when and where and in what circumstances which is
necessary to meet the test of sufficiency in assessing the Minister's burden of
proof gauged in relation to its appropriate standard”.
[31] The Board
had significant documentary evidence before it, much of which was referred to
in its reasons for decision. With respect to terrorist acts, the Board referred
to the following:
- the bombing of a
Marks and Spencer retail store in London;
- several instances
of plane hijacking between the time of the group’s inception and the time
[Mr. Al Yamani] “joined” the student ring in 1972;
- an attack, in 1972,
by the PFLP together with a faction of the Red Army on Lod Airport in
Israel resulting in the deaths of about 24 persons;
- the hijacking, in
July 1973, of a Japanese airliner;
- a hand grenade attack,
in December 1974, on a theatre in Tel Aviv that killed three persons and
injured over 50;
- attacks on buses in
Israel in 1984 and 1985;
- the kidnapping, in
1989, of a U.S. aid worker; and
- since 1999, car
bombings and suicide bombings.
[32] The Board
acknowledged that the activities of the PFLP – GC, a group which splintered off
from the PFLP in 1973 and was led by Wadi Haddad, should not be considered as
activities of the PFLP faction with which Mr. Al Yamani has been associated.
[33] The Board
concluded its analysis by stating that:
The documentary evidence supports the assertion that from time to
time the PFLP has engaged in activities commonly associated with terrorism such
as airline hijackings, shootings and suicide bombings. The targets of the
violence are not solely military but civilian. It is a fact that the PFLP is
listed as a terrorist organization within provisions of current Canadian
anti-terrorism legislation.
[34] In the face of the
evidence before it, it is difficult to imagine how the Board could have
concluded differently on the nature of this organization. Mr. Al Yamani argues
that there was no evidence to demonstrate that the targets of the activities
were civilians. He submits that the PFLP is fighting for self-determination for
Palestinians and that, as such, military targets are excluded from the
definition of terrorism. Even giving a wide margin to allow the PFLP to target
buses in Israel because they may have contained soldiers (which I cannot accept
on the facts in the record), Mr. Al Yamani’s argument is preposterous with
respect to the kidnapping of an aid worker or the bombing of a department store
in London or the hijacking of numerous civilian aircraft.
[35] As noted earlier, Mr. Al
Yamani argues that the Board did not satisfy the test set out in Fuentes,
above, that the Board must, in respect of each alleged act, analyze “the who, what, when and where and in what circumstances”. My
problem with Mr. Al Yamani’s argument is that he fails to read the remarks of
Justice Lemieux in the context of that decision. As I read the decision,
the evidence before the Adjudicator was woefully inadequate. For example, the
Adjudicator referred to casualties in one instance where the documentary
evidence showed that the casualties were security forces rather than civilians.
At one point, the Adjudicator, herself, acknowledged that the information was
“lacking in information and detail”. In contrast, the
documentary evidence before the Board was relatively detailed and, in my view,
supports the Board’s conclusion. It was not vague. Further, many of the
incidents described by the Board would certainly fall within the Suresh
definition of terrorism, as attacks on civilians. With the notoriety and
obvious civilian targets of most of the incidents – such as, for example, the
hijacking of Pan-Am, TWA, Swissair and BOAC planes in early September 1970 –
the “who, what, when and where and in what circumstances” are clear.
[36] I agree with Mr. Al Yamani that the Board may have erred by
including the 1972 attack at Lod Airport in Israel. The documentary evidence shows that this
attack and
other actions taken in conjunction with a faction of the Japanese Red Army were
committed by the PFLP-GC faction. As noted above, the Board acknowledged that
the acts of the PFLP-GC, after its split from the PFLP, should not be
attributed to the PFLP. Nevertheless, even if I exclude this event from the
list of terrorist activities, there is no change in the totality of the
evidence before the Board. The error, if there is one, is not sufficient to
overturn the decision.
[37] In sum, the
Board’s decision that there were reasonable grounds to believe that the PFLP
had engaged in terrorism was based on the application of the definition of
terrorism as set out in Suresh and an adequate assessment of the
evidence before it. The one possible error related to the PFLP-GC does not
render the decision, as a whole, untenable. The Board’s conclusion on the
nature of the PFLP was reasonable.
- Conclusion
[38] In
conclusion, the Board found that Mr. Al Yamani “is a person who is inadmissible
on security grounds for being a member of an organization that there are
reasonable grounds to believe engages, has engaged or will engage in
terrorism”. Having reviewed the decision and the record before the Board, I am
satisfied that the Board’s decision stands up to a somewhat probing examination
and should not be overturned.
Analysis of the Charter
Issues
- What is
the applicable standard of review?
[39] The
Board considered and rejected the arguments of Mr. Al Yamani that his rights
under s. 2 and s. 15 of the Charter were violated. Mr. Al Yamani submits
that the Board erred in its conclusions. The parties agree that the standard of
review to be applied to the Charter determinations made by the Board is
that of correctness.
- Relevant
Charter provisions
[40] Mr.
Al Yamani submits that his Charter rights under both s. 2 and s. 15 of
the Charter are violated by the application of s. 34(1)(f) of IRPA.
Those provisions are as follows:
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2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion
and expression, including freedom of the press and other media of
communication;
c) freedom of peaceful assembly; and
d) freedom of association.
15. (1) Every individual is equal before and under
the law and has the right to the equal protection and equal benefit of the
law without discrimination and, in particular, without discrimination based
on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
(2) Subsection (1) does not preclude any law, program or activity that
has as its object the amelioration of conditions of disadvantaged individuals
or groups including those that are disadvantaged because of race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability.
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2. Chacun a les libertés fondamentales suivantes :
a) liberté
de conscience et de religion;
b) liberté
de pensée, de croyance, d'opinion et d'expression,
y compris la liberté de la presse et des autres moyens de communication;
c) liberté
de réunion pacifique;
d) liberté
d'association.
15. (1) La loi ne fait acception de personne et s'applique
également à tous, et tous ont droit à la même protection et au même bénéfice
de la loi, indépendamment de toute discrimination, notamment des
discriminations fondées sur la race, l'origine nationale ou ethnique, la
couleur, la religion, le sexe, l'âge ou les déficiences mentales ou
physiques.
(2) Le paragraphe
(1) n'a pas pour effet d'interdire les lois, programmes ou activités destinés
à améliorer la situation d'individus ou de groupes défavorisés, notamment du
fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de
leur religion, de leur sexe, de leur âge ou de leurs déficiences mentales ou
physiques.
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- Is s.
34(1)(f) of IRPA in violation of s. 2 of the Charter?
[41] Mr.
Al Yamani argues assertively before me (and apparently before the Board) that
his activities within the PFLP are necessary for him to express his political
views and to support Palestinian self-determination. Much time was spent in
argument describing the role of the PLO in the Middle East. Mr. Al Yamani
describes the PLO as a legitimate organization, recognized by the Canadian
Government as a representative of the Palestinian people. Within the PLO, there
are a number of sub-organizations, including the PFLP. Mr. Al Yamani equates
the PLO to our Parliament and likens the various sub-organizations, including
the PFLP, to our political parties. One can only participate, argues Mr. Al
Yamani, in the PLO (the “Palestinian Parliament”) by being a member of a group
such as the PFLP (a “Palestinian political party”). Mr. Al Yamani asserts that
the right to self-determination is protected internationally and that there is
an internationally recognized right to belong to an organization that asserts
self-determination, even where one or more organizations within the umbrella
organization may be classified as “terrorist”. In his view, s. 34(1)(f) is too
broadly worded; as worded the provision would include someone working as a
clerk in a medical clinic operated by the PFLP. In sum, Mr. Al Yamani argues
that s. 34(1)(f) violates his s. 2 Charter right to “freedom of thought,
belief, opinion and expression”.
[42] The
first general problem that I have with Mr. Al Yamani’s argument is the attempt
to re-characterize his membership as being in the PLO. The application of s.
34(1)(f) is made in respect to his membership in the PFLP, an organization that
has been found – in the Board’s decision and, on a broader base, by the
Government of Canada – to be a terrorist organization. As pointed out by the
Board at para. 43:
Mr. Al Yamani has not been and is not
subject to Immigration proceedings because he is a Palestinian who engages in
activities of a political nature. He is not the subject of these proceedings
based on any association he may have to the PLO and his support for the
Palestinian cause, but based on his involvement and membership in an
organization (the PFLP) which has engaged in terrorist activities.
Accordingly, when assessing the merits of
Mr. Al Yamani’s Charter arguments, the starting point is that Mr. Al
Yamani’s membership is in the PFLP.
[43] The
question posed by Mr. Al Yamani is, in my view, completely on all fours with
the issue before the Supreme Court of Canada in Suresh. In that case,
the Supreme Court was considering the deportation of Mr. Suresh who was a member and
fundraiser of the Liberation Tigers of Tamil Eelam (the LTTE), an organization
alleged to be engaged in terrorist activity in Sri Lanka. The
provisions in question under the former Immigration Act and the
issues before the Supreme Court were substantially identical to those before
me. Mr. Suresh’s arguments to the Supreme Court were summarized at para. 100:
Suresh argues that the Minister's issuance of the certificate
under s. 40.1 of the Immigration Act and the order declaring him
a danger to the security of Canada under s. 53(1)(b) on the ground that he was
a member of the LTTE violate his Charter rights of free expression and
free association and cannot be justified. He points out that he has not been
involved in actual terrorist activity in Canada, but merely in fund-raising and support activities that may, in
some part, contribute to the civil war efforts of Tamils in Sri Lanka. He also points out that it
is not a criminal offence to belong to such an organization and that the
government seeks to deport him for something that Canadian citizens may
lawfully do without sanction. He suggests that inclusion of mere membership in
an organization that has been or will be involved in acts of terrorism unjustifiably
limits the freedom of Convention refugees to express their views on dissident
movements outside the country, as well as their freedom to associate with other
people in Canada who come from similar backgrounds. He points out that the
alleged terrorist organizations he was found to have been a [page 57] member of
are engaged in many positive endeavours to improve the lives of people in Canada and are not involved in
violence here.
[44] The
Supreme Court rejected these arguments completely concluding that there was no
breach of Mr. Suresh’s rights under s. 2 of the Charter. At paras. 107-111,
the reasons of the Supreme Court are set out:
107. It is established that s. 2 of the Charter does not
protect expressive or associational activities that [page 59] constitute
violence: Keegstra, supra. This Court has, it is true, given a
broad interpretation to freedom of expression, extending it, for example, to
hate speech and perhaps even threats of violence: Keegstra; R. v.
Zundel, [1992] 2 S.C.R. 731. At the same time, the Court has made plain
that the restriction of such expression may be justified under s. 1 of the Charter:
see Keegstra, at pp. 732-33. The effect of s. 2(b) and the justification
analysis under s. 1 of the Charter suggest that expression taking the
form of violence or terror, or directed towards violence or terror, is unlikely
to find shelter in the guarantees of the Charter.
108. The Minister's discretion to deport under s. 53 of the Immigration
Act is confined, on any interpretation of the section, to persons who
have been engaged in
terrorism or are members of terrorist organizations,
and who also pose a threat to the security of Canada. Persons associated with terrorism or
terrorist organizations -- the focus of this argument -- are, on the approach
to terrorism suggested above, persons who are
or have been associated with things directed at violence, if not violence
itself. It follows that so long as the Minister exercises her discretion in
accordance with the Act, there will be no ss. 2(b) or (d) Charter
violation.
109. Suresh argues that s. 19 is so broadly drafted that it has the
potential to catch persons who are members of or participate in the activities
of a terrorist organization in ignorance of its terrorist activities. He points
out that many organizations alleged to support terrorism also support
humanitarian aid both in Canada and abroad. Indeed, he argues that this is so of the LTTE, the
association to which he is alleged to belong. While it seems clear on the
evidence that Suresh was not ignorant of the LTTE's terrorist activities, he
argues that it may be otherwise for others who were members or contributed to
its activities. Thus without knowingly advocating terrorism and
violence, they may be found to be part [page 60] of the organization and hence
subject to deportation. This, he argues, would clearly violate ss. 2(b) and
2(d) of the Charter.
110. We believe that it was not the intention of Parliament to
include in the s. 19 class of suspect persons those who innocently contribute
to or become members of terrorist organizations. This is supported by the provision
found at the end of s. 19, which exempts from the s. 19 classes "persons
who have satisfied the Minister that their admission would not be detrimental
to the national interest". Section 19 must therefore be read as permitting
a refugee to establish that his or her continued residence in Canada will not
be detrimental to Canada, notwithstanding proof that
the person is associated with or is a member of a terrorist organization. This
permits a refugee to establish that the alleged association with the terrorist
group was innocent. In such case, the Minister, exercising her discretion
constitutionally, would find that the refugee does not fall within the targeted
s. 19 class of persons eligible for deportation on national security grounds.
111. It follows that the appellant has not established that s. 53's
reference to s. 19 unjustifiably violates his Charter rights of freedom
of expression and freedom of association. Moreover, since there is no s. 2
violation, there is no basis to interfere with the s. 40.1 certificate that was
issued in October 1995.
[45] In spite of Mr. Al
Yamani’s efforts, I can see nothing to distinguish the decision in Suresh
from the facts before me. For example, Mr. Suresh’s activities within the
organization, like Mr. Al Yamani’s, were administrative rather than directly
involved in acts of terrorism. Mr. Suresh argued that his organization engaged
in humanitarian activities as well as alleged terrorism; so does Mr. Al Yamani.
The LTTE, like the PFLP, was described as “multi-faceted”. In Suresh,
the Supreme Court referred to the ministerial exemption as allowing a claimant
to assert his innocent association with a terrorist organization. Similarly,
ministerial exemption is available to Mr. Al Yamani pursuant to s. 34.2 of IRPA.
[46] Thus, the Board’s
decision is consistent with the Supreme Court of Canada’s findings in Suresh
and is supported by the evidence. In my view, the Board correctly concluded
that the provisions of s. 34(1)(f) of IRPA did not breach Mr. Al
Yamani’s rights under s. 2 of the Charter.
- Is s.
34(1)(f) of IRPA in violation of s. 15 of the Charter?
[47] Mr. Al Yamani also
argues that s. 34(1)(f) results in discrimination as contemplated by s. 15 (1)
of the Charter. In his view, s. 34(1)(f) proscribes associations and
activities that are lawful for Canadian citizens but are not lawful for
non-citizens. Mr. Al Yamani asserts that non-citizenship falls within an
“analogous ground” to those set out in s. 15 of the Charter. He also
submits that, as a non-citizen and a stateless Palestinian, he is already in a
disadvantageous position within Canadian society and that the discriminatory
treatment he receives under s. 34(1)(f) provides for substantially different
treatment between him and Canadian citizens.
[48] In
my view, there
are a number of reasons why the Board was correct in rejecting these arguments.
[49] An analysis under s.
15(1) involves two steps (see, for example, Law Society British Columbia v.
Andrews, [1989] 1 S.C.R. 143, and R. v. Turpin, [1989] 1 S.C.R.
1296). First, the claimant must show a denial of "equal protection"
or "equal benefit" of the law, as compared with some other person.
Second, the claimant must show that the denial constitutes discrimination. At
this second stage, in order for discrimination to be made out, the claimant
must show that the denial rests on one of the grounds enumerated in s. 15(1) or
an analogous ground and that the unequal treatment is based on the
stereotypical application of presumed group or personal characteristics.
[50] It appears that Mr. Al
Yamani, as a non-citizen, is not equally treated under the law. Accordingly,
there may be some argument that he satisfies the first part of the s. 15 Charter
analysis, since s. 34 does not apply to Canadian citizens. However, in that
regard, I would note that the Charter
recognizes the distinction between Canadian citizens and non-citizens. As
stated by the Supreme Court of Canada in the leading case of Canada (Minister
of Employment and Immigration) v. Chiarelli, [1992] S.C.J. No. 27 at
para. 32:
[Section] 6 of the Charter
specifically provides for differential treatment of citizens and permanent
residents in this regard. While permanent residents are given various mobility
rights in s. 6(2), only citizens are accorded the right to enter, remain in
and leave Canada in s. 6(1). There is
therefore no discrimination contrary to s. 15 in a deportation scheme that
applies to permanent residents, but not to citizens. [Emphasis added.]
[51] Even if I were to
conclude that Mr. Al Yamani demonstrates a denial of equal treatment, the key
to the second step of the analysis is in the nature of Mr. Al Yamani’s
membership. Was his membership in the PFLP one that is referred, directly or by
analogy, to those interests protected under s. 15? If the answer to that is
negative, s. 15 is not engaged.
[52] In
my view, no analogy can be made between the grounds of discrimination listed in
s. 15(1) and membership in a terrorist organization. As discussed above, the
case before me is not about membership in the governing PLO; rather, it is a
case about membership in a terrorist organization.
[53] Membership
in the PFLP cannot be described as an immutable characteristic, such as race or
sex (Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Miron
v. Trudel, [1995] 2 S.C.R. 418). Mr. Al Yamani’s existence as a
Palestinian is, I agree, a constant. The same cannot be said about his
voluntary membership in the PFLP. The record demonstrates that, as Mr. Al
Yamani found it expedient to do so, he ceased his PFLP activities or, as of
1992, resigned from the organization. The ability to opt in or out of a group
is entirely inconsistent with the grounds – both stated and analogous – set out
in s. 15. On this basis, Mr. Al Yamani’s claim that s. 34(1)(f) violates his s.
15 rights is without merit. His right to belong to a terrorist organization do
not fall within the rights protected by s. 15.
[54] I
do not disagree with Mr. Al Yamani that the Supreme Court, in Andrews above,
determined that the distinction made on the basis of citizenship is an
analogous ground under s. 15 of the Charter. This was affirmed by the
Supreme Court in Lavoie v. Canada, [2002] 1 S.C.R. 769. However, these
cases do not assist Mr. Al Yamani for the simple reason that s. 34(1)(f) is not
about a person’s citizenship; rather, it is about the rights of Canada to
refuse admission to Canada of a person who belongs to an organization that
engages, has engaged or will engage in terrorist acts.
[55] Moreover,
Justices MacLachlin and l’Heureux-Dube in Lavoie, at para. 2, pointed
out that “[a] discriminatory distinction is one that violates human dignity”.
Although the discriminatory distinction of citizenship has been found to
violate human dignity, it is hard to imagine how discriminating against a
non-citizen because of his association with a terrorist organization violates
that person’s human dignity. As pointed out by the Respondent, “terrorist
activity is directly inimical to s. 15(1)’s purposes of ensuring the dignity of
all persons”.
[56] There
is no need to carry out any further s. 15 Charter analysis. Mr. Al
Yamani fails to meet the threshold requirement of s. 15 that membership in a
terrorist organization is a right that is protected by s. 15.
[57] The
Board correctly concluded that “the provisions of s. 34(1) of IRPA do
not violate s. 15 Charter rights of Mr. Al Yamani”.
Adequacy of the Reasons
[58] In
Mr. Al Yamani’s view, the Board breached the duty of fairness in failing to
provide reasons which addressed the issues raised before it. Mr. Al Yamani
submits that the Board merely recited the submissions and evidence of the
parties and stated a conclusion as was found inadequate by the Federal Court of
Appeal in Via Rail Canada Inc. v. Canadian National Transportation Agency [2001]
2 F.C. 25 at para. 22, 193 D.L. R. (4th) 357. Specifically, Mr. Al
Yamani argues that the Board: (a) failed to address the “quality of the
evidence before her as to the acts of the PFLP”; (b) “did not take issue with
Mr. Al Yamani’s credibility yet finds that he was a member of the PFLP when he
had testified that he was not”; and (c) failed to address the complex issues
raised in respect of the Charter.
[59] There
is no doubt that there is an obligation on the Board to provide adequate
reasons. In this case, I am satisfied that the reasons meet the standard of
adequacy. The Board’s reasons – 25 pages in length – are comprehensive and
detailed. Having reviewed those reasons, I am not persuaded that they are
simply a recitation of the submissions and evidence followed by a conclusion as
was the case in Via Rail, above. Rather, the Board engaged in a thorough
analysis of the arguments made to it. Further, the reasons make very clear the
basis upon which the determination of inadmissibility was made and are
sufficient to allow a review of the legality of the decision. This is true in
respect of both the merits-based and the Charter arguments.
[60] In
terms of the specific complaints of Mr. Al Yamani, I am satisfied that the
Board addressed the “quality of the evidence”. Mr. Al Yamani’s argument
regarding his credibility and membership in the PFLP ignores his own admission
of membership. Finally, the s. 2 and s. 15 Charter analyses were
directly on point. The arguments of Mr. Al Yamani on the Charter issues
were answered, regardless of their complexities, by applying well-established
legal principles that were explained in the decision. In any event, since this
Court has reviewed the Charter determinations on a standard of review of
correctness, the adequacy of the reasons is of less importance.
[61] Reasons
can always be “better”. However, in this case, the reasons meet the threshold
for adequacy. There was no breach of the duty of fairness.
Conclusion
[62] For
these reasons, the application for judicial review will be dismissed.
Certified Questions
[63] Mr.
Al Yamani proposes three questions for certification. The first question is:
- [For
purposes of s. 34(1)(f)], do the principles of statutory interpretation
require that membership in an organization engaged in terrorism correspond
in time with the actual engagement of the organization in such activities?
The problem with this question is that it
is not determinative of the case before me. The Board, in its reasons, referred
to a number of acts of terrorism carried out by the PFLP during periods of Mr.
Al Yamani’s admitted membership in the organization. Thus, even if one were to
apply the restricted meaning of s. 34(1)(f) adopted by Mr. Al Yamani (which I
do not accept), the facts of this case demonstrate that there was a
correspondence between the engagement of the PFLP in terrorism and Mr. Al
Yamani’s membership. This question will not be certified.
[64] The second and third questions are:
- Does
s. 34(1)(f) of IRPA breach s. 2 of the Charter where the
organization at issue is a multi-faceted member of a recognized
representative – a national liberation movement (NLM) – of a stateless
people, the person concerned on the facts before the Court has only
engaged in political, non-violent expression, and the only way of
participating in an organized, political and non-violent fashion in the
NLM is through one of the political parties, including the organization at
issue, who are members of it?
- Does
s. 34(1)(f) of IRPA breach s. 15 of the Charter where the
organization at issue is a multi-faceted member of a recognized
representative – a national liberation movement (NLM) – of a stateless
people and the only way of participating in an organized, political and
non-violent fashion in the NLM, as in the case at bar, is through one of
the political parties, including the organization at issue, who are
members of it?
[65] The
first problem with these proposed questions consists of the underlying
premises. Mr. Al Yamani describes the PFLP as a “multi-faceted member of a
recognized representative [of the Palestinian people]” and as a “political
party”. Further, he asserts that membership in such a political party is the
only way to participate in the Palestinian’s “recognized representative” (which
I take to be the PLO). That may or may not be true. Nevertheless, even Mr. Al
Yamani, in the above proposed questions, acknowledges that other “political
parties” of the PLO exist; presumably, “political, non-violent expression” and
participation could be effected through any of those organizations. Thus, s.
34(1)(f) does not prevent Mr. Al Yamani from participation in the NLM through
other, non-terrorist organizations. Mr. Al Yamani has not presented evidence
that all organizations that come within the umbrella of the PLO meet the
definition of “terrorist organization”. Accordingly, the facts upon which the
question is premised do not necessarily give rise to the alleged breaches of Charter
rights that are claimed.
[66] Further,
as discussed above, the Supreme Court in Suresh, above, and in Chiarelli,
above, has answered these questions. The desire of Mr. Al Yamani (or, more
appropriately on this argument, his counsel) to have another opportunity to
address the Supreme Court’s decision in Suresh is not a valid reason for
certifying the second question.
[67] Accordingly,
neither of the Charter questions will be certified.
ORDER
This Court orders that:
- The application for
judicial review is dismissed; and
- No question of
general importance is certified.
“Judith A. Snider”
___________________________
Judge
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