Date: 19981127
Docket: DES-4-93
Applicant
| AND: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
-and
| SOLICITOR GENERAL FOR CANADA |
Respondents
REASONS FOR ORDER and ORDER
DENAULT J:
[1] On April 17, 1998, in my capacity as a designated judge pursuant to section 40.1 of the Immigration Act (the Act), I determined that the certificate issued by the Minister of Employment and Immigration and the Solicitor General for Canada pursuant to subsection 40.1(1) was reasonable. In the result, the applicant must be considered, pursuant to subsection 40.1(7) of the Act, a person who has engaged or will engage in terrorism, or a person who is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism, or a person who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada1.
[2] Since the applicant was not removed from Canada within the 120 days contemplated by subsection 40.1(8) of the Act, on November 2, 1998 he filed a notice of motion for an order releasing him from detention pursuant to subsection 40.1(8).
[3]
On November 12, 1998, I examined, in camera and in the absence of the applicant and his counsel, the evidence or information presented to the Minister in relation to national security or the safety of persons, pursuant to paragraph 40.1(10)(a) of the Act, and I approved and issued a statement summarizing the information pursuant to paragraph 40.1(10)(b). This document was served upon the applicant the same day.
[4] At the outset of the public hearing on that day, applicant's counsel filed a motion for my recusation. She argued that I should not hear the application for release from detention because I had previously made a general finding that the applicant lacked credibility : she alleges that the "consideration by the same judge of whether to continue the detention of the applicant or to release him on conditions"2 would give rise to a reasonable apprehension of bias.
[5] The only issue is whether, in the circumstances of the case, I ought to recuse myself from further involvement in the matter and have the motion for an order releasing the applicant from detention heard by another designated judge. There is no issue of actual bias.
[6] Subsections 40.1(8) to (11) of the Immigration Act provide for the following:
| 40.1(8) Where a person is detained under subsection (7) and is not removed from Canada within 120 days after the making of the removal order relating to that person, the person may apply to the Chief Justice of the Federal Court or to a judge of the Federal Court designated by the Chief Justice for the purposes of this section for an order under subsection (9). |
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40.1(8) La personne retenue en vertu du paragraphe (7) peut, si elle n'est pas renvoyée du Canada dans les cent vingt jours suivant la prise de la mesure de renvoi, demander au juge en chef de la Cour fédérale ou au juge de cette cour qu'il délègue pour l'application du présent article de rendre l'ordonnance visée au paragraphe (9).
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| (9) On an application referred to in subsection (8) the Chief Justice or the designated judge may, subject to such terms and conditions as the Chief Justice or designated judge deems appropriate, order that the person be relased from detention if the Chief Justice or designated judge is satisfied that |
| (a) the person will not be removed from Canada within a reasonable time; and |
| (b) the person's release would not be injurious to national security or to the safety of persons. |
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(9) Sur présentation de la demande visée au paragraphe (8), le juge en chef ou son délégué ordonne, aux conditions qu'il estime indiquées, que l'intéressé soit mis en liberté s'il estime que:
(a) d'une part, il ne sera pas renvoyé du Canada dans un délai raisonnable;
(b) d'autre part, sa mise en liberté ne porterait pas atteinte à la sécurité nationale ou à celle de personnes.
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| (10) On the hearing of an application referred to in subsection (8), the Chief Justice or the designated judge shall |
| (a) examine, in camera, and in the absence of the person making the application and any counsel representing that person, any evidence or information presented to the Minister in relation to national security or the safety of persons; |
| (b) provide the person making the application with a statement summarizing the evidence or information available to the Chief Justice or designated judge in relation to national security or the safety of persons having regard to whether, in the opinion of the Chief Justice or the designated judge, as the case may be, the evidence or information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons; and |
| (c) provide the person making the application with a reasonable opportunity to be heard. |
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(10) À l'audition de la demande visée au paragraphe (8), le juge en chef ou son délégué:
(a) examine, à huis clos et en l'absence de l'auteur de la demande et du conseiller le représentant, tout élément de preuve ou d'information présenté au ministre concernant la sécurité nationale ou celle de personnes;
(b) fournit à l'auteur de la demande un résumé des éléments de preuve ou d'information concernant la sécurité nationale ou celle de personnes dont il dispose, à l'exception de ceux dont la communication pourrait, à son avis, porter atteinte à la sécurité nationale ou à celle de personnes;
(c) donne à l'auteur de la demande la possibilité d'être entendu.
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| (11) For the purposes of subsection (10), the Chief Justice or the designated judge may receive and accept the evidence or information as the Chief Justice or the designated judge sees fit, whether or not the evidence or information is or would be admissible in a court of law. |
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(11) Pour l'application du paragraphe (10), le juge en chef ou son délégué peut recevoir et admettre les éléments de preuve ou d'information qu'il estime utiles, indépendamment de leur recevabilité devant les tribunaux.
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[7] As held by the Supreme Court of Canada in R. v. S. (R.D.)3, the manner in which the test for reasonable apprehension of bias should be applied was set out by de Grandpré J., in dissent, in Committee for Justice and Liberty v. Canada (National Energy Board)4:
| ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. |
| The grounds for this apprehension must, however, be substantial and I.... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". |
[8] The Federal Court of Appeal in Arthur v. Canada5 referred to the applicable principle of law relative to the reasonable apprehension of bias, as stated by de Grandpré J., and immediately thereafter wrote: "Where the double participation in decision-making has been on the part of a judge, the principle has not seemed to pose any great difficulty." (p.102). In support of that position, the Court of Appeal in Arthur referred to the case of Nord-Deutsche Versicherungs Gesellschaft v. The Queen6. In the latter case, the Attorney General argued that all of the judges who sat on an appeal relating to some of the principal questions in issue were barred by natural justice from sitting on the subsequent trial. Jackett P. rejected that argument:
| In my view the correct view of the matter is that which, as I understand it, was adopted by Hyde J. in Barthe v. The Queen (1963), 45 D.L.R. (2d) 612, (1964) 2 C.C.C. 269, 41 C.R. 47 (Que. Q.B.), when he said that "the ability to judge a case only on the legal evidence adduced is an essential part of the judicial process." In my view, there can be no apprehension of bias on the part of a judge merely because he has, in the course of his judicial duty, expressed his conclusion as to the proper findings on the evidence before him. It is his duty, if the same issues of fact arise for determination in another case, to reach his conclusions with regard thereto on the evidence adduced in that case after giving full consideration to the submissions with regard thereto made on behalf of the parties in that case. It would be quite wrong for a judge in such a case to have regard to "personal knowledge" derived from "a recollection of the evidence" taken in the earlier cause. It is not reasonable to apprehend that there is "a real likelihood" that a judge will so derelict in his duty as to decide one case in whole or in part on the evidence heard in an earlier case. |
| If I may be permitted to say so, it seems to me that the real apprehension is that the judge who hears a case in which the same issues of fact arise as have recently been decided in the same court can hardly ignore the existence of the earlier decision for he cannot be unconscious of the possibility of apparently conflicting decisions creating an atmosphere of lack of confidence in the administration of justice. I should have thought, however, that a judge who participates in both of two such matters is more likely to appreciate and explain different results flowing from different bodies of evidence or differences in presentation and argument than a judge who had no part in the earlier case. I do not say this to indicate that I have a view that the same judge should always try two such cases, but to indicate that, in my view, it is not necessarily prejudicial to the party who assumes the burden of producing a result in the second case that is apparently in conflict with the earlier decision. |
[9] In Arthur, the Federal Court of Appeal also held that although the mere fact of a second hearing before the same adjudicator does not, in and of itself, give rise to a reasonable apprehension of bias, the presence of other factors indicating a predisposition by the adjudicator relative to the issue to be decided at the second hearing may have that effect. As in the case at bar, the applicant there had argued that having previously formed an opinion on the general question of his credibility, the same adjudicator should not hear an application involving a similar issue. That argument was considered insubstantial. In dismissing the application, MacGuigan J.A., writing for the Court, concluded: "I am unable to detect any predisposition by the adjudicator on the applicant's general credibility such as to amount to prejudgment of the result of the second hearing."7
[10] In Nord-Deutsche Versicherungs Gesellschaft, supra, Jackett P. similarly concluded that there can be no apprehension of bias on the part of a judge merely because he has, in the course of his judicial duties, expressed his conclusion as to the proper findings on the evidence before him, having given full consideration to the parties' submissions with regard thereto.
[11] Before deciding the issue of whether there may exist a reasonable apprehension of bias on the part of a designated judge who, having previously determined that there was evidence and information that a person is a member of an inadmissible class of persons (i.e. involved in terrorism), later hears an application for the release of that person, an "informed person" must also properly contextualize section 40.1 of the Act. In Ahani v. Canada8, where the same applicant unsuccessfully challenged the constitutional validity of section 40.1 of the Immigration Act, Madam Justice McGillis stated that in proceedings under that section of the Act, the competing interests of both the person involved and the state must be considered. She wrote (p. 692):
| 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." |
[12] There exists yet another important factor which must be taken into consideration by the "informed person". Any judge selected or designated to hear an application for the release of a person pursuant to subsection 40.1(8) is, subject to subsections 40.1(9) and (10), bound by the certificate previously issued pursuant to subsection 40.1(4). Indeed, Parliament has enacted subsection 40.1(7) :
| 40.1(7) Where a certificate has been reviewed by the Federal Court pursuant to subsection (4) and has not been quashed pursuant to paragraph (4)(d), |
| (a) the certificate is conclusive proof that the person named in the certificate is a person described in subparagraph 19(1)(c.1)(ii), paragraph 19(1)(c.2), (d), (e), (f), (g), (j), (k) or (l) or subparagraph 19(2)(a.1)(ii); and |
| (b) the person named in the certificate shall, notwithstanding section 23 or 103 but subject to subsection (7.1), continue to be detained until the person is removed from Canada. |
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40.1(7) Toute attestation qui n'est pas annulée en application de l'alinéa (4)(d) établit de façon concluante le fait que la personne qui y est nommée appartient à l'une des catégories visées au sous-alinéa 19(1)c.1)(ii), aux alinéas 19(1)c.2), (d), (e), (f), (g), (j), (k) ou l) ou au sous-alinéa 19(2)a.1)(ii) et l'intéressé doit, par dérogation aux articles 23 ou 103 mais sous réserve du paragraphe (7.1), continuer d'être retenu jusqu'à son renvoi du Canada.
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Consequently, a fully informed person, well aware of this requirement of the Act and of the certificate previously issued against an applicant, will undoubtedly appreciate the narrow parameters to be observed by the designated judge who is called upon to hear an application for an order releasing an applicant from detention.
[13] Therefore I conclude that, in this case, there is no reasonable apprehension of bias relative to the application for release of the individual being heard by the same judge who conducted the reasonableness hearing pursuant to subsection 40.1(4) of the Act.
O R D E R
The motion for recusation is dismissed.
J.F.C.C.
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1 Subsections 19(1)(e) (iii) and (iv)(C), 19(1)(f)(ii) and (iii)(B), and paragraph 19(1)(g).
2 Notice of motion, ground b) .
3 [1997] 3 S.C.R. 484
4 [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369 at pp. 394-395
5 [1993] 1 F.C. 94
6 [1968] 1 Ex.C.R. 443
7 Op.cit. p. 106
8 [1995] 3 F.C. 669, a decision upheld by the Federal Court of Appeal (A-639-95) July 4, 1996. Leave to appeal was later denied by the Supreme Court of Canada.
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