Suresh v. Canada (Minister of Citizenship and Immigration), docket A-265-98

Date: 19980721

Docket: A-265-98

CORAM:      STRAYER J.A.

         McDONALD J.A.

         HENRY D.J.

IN THE MATTER OF a certificate issued pursuant to section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act");

AND IN THE MATTER OF an application for release from detention pursuant to section 40.1(8) of the Act.

BETWEEN:

     MANICKAVASAGAM SURESH

     Appellant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     and THE SOLICITOR GENERAL OF CANADA

     Respondents

Heard at Toronto, Ontario, on Thursday, June 18, 1998

Judgment delivered at Ottawa, Ontario, on Tuesday, July 21, 1998

REASONS FOR JUDGMENT BY:      McDONALD J.A.

CONCURRED IN BY:      STRAYER J.A.

     HENRY D.J.

Date: 19980721

Docket: A-265-98

CORAM:      STRAYER J.A.

         McDONALD J.A.

         HENRY D.J.

IN THE MATTER OF a certificate issued pursuant to section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act");

AND IN THE MATTER OF an application for release from detention pursuant to section 40.1(8) of the Act.

BETWEEN:

     MANICKAVASAGAM SURESH

     Appellant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     and THE SOLICITOR GENERAL OF CANADA

     Respondents

     REASONS FOR JUDGMENT

McDONALD J.A.

[1]      The issue that arises from the facts of this case is whether a designated judge under s. 40.1(8) and (9) of the Immigration Act (the Act) has jurisdiction to hear any constitutional issues that arise from an order made by that judge pursuant to subsection 40.1(9) of the Act.

[2]      The appellant is believed to be a member of the Liberation Tamil Tigers of Elam, an organization that has purportedly committed numerous acts of terrorism. He arrived in Canada on October 5, 1990 applied for and was granted Convention Refugee Status by the Refugee Board on April 11, 1991. He was detained on October 18, 1995 pursuant to a Security Certificate issued by the Minister of Citizenship & Immigration and the Solicitor General (the "respondent Ministers"). The Ministerial certificate issued concluded that Suresh was inadmissible to Canada because he was a person described in sections 19(1)(e)(iv)(C), 19(1)(f)(iii)(B) of the Act (a person who there are reasonable grounds to believe has engaged in terrorism or is a member of such an organization.)1

[3]      A hearing was held pursuant to s.40.1(4)(d) of the Act to consider whether the certificate filed by the respondent Ministers was reasonable. On August 29, 1997 the Trial Judge upheld the reasonableness of the certificate finding that there were reasonable grounds to believe that Suresh was and is a member of the Liberation Tigers of Elam (LTTE). Specifically, the Trial Judge concluded that the appellant partook in LTTE activities, such as, the posting of posters, collecting food and being a member of the LTTE executive. He also found that the appellant had travelled to various countries, including Canada, to head the World Tamil Movement and that this was done at the request of the LTTE. With respect to his refugee status, the Trial Judge concluded that the appellant had lied under oath before the Immigration and Refugee Board and wilfully misrepresented the facts.

[4]      The appellant was arrested on October 18, 1995 pursuant to paragraph 40.1(2)(b) of the Act and remained incarcerated throughout the proceedings under subsection 40.1(4) and thereafter, pending possible removal from Canada. On September 17, 1997, the appellant was ordered removed from Canada. However, an injunction issued by Mr Justice Lane of the Ontario Court, General Division prevented the appellant's removal from Canada. After 120 days elapsed following the making of the removal order he was entitled to file an application for an order releasing him from detention pursuant to subsection 40.1(8) of the Act, which he did on December 23, 1997. Subsections 40.1(8) and (9) provide:

(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).

(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 released 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.

[5]      The Trial Judge allowed the application under subsections 40.1(8) and (9) as he was satisfied that because of the injunction issued by Justice Lane the appellant would not be removed from Canada within a reasonable period and that, subject to the strict conditions he placed on the appellant's release, his release would not be injurious to national security or to public safety. The following conditions were attached to the appellant's release:

1. The Applicant, Manickavasagam Suresh, or persons for and on his behalf but not directly or indirectly by the LTTE, shall deposit with the Respondent a sum of Forty Thousand Dollars cash ($40,000), which sum shall remain with the Respondent for the Government of Canada until such time as the Government of Canada removes the Applicant, Suresh, from Canada, at which time the money, with interest, shall be returned to the person or persons who have deposited the said moneys.

2. A performance bond in the sum on One Hundred and Fifty Thousand Dollars ($150,000) shall be deposited by Xavier Noble Arasaratnam for the benefit of the Government of Canada and Mr. Arasaratnam shall give as security the home where he resides, 6136 Silken Lauman Way, Mississauga, Ontario, to the Government of Canada.

3. Suresh, while out of detention, shall report once per week to the Immigration Reporting Centre at 60 Richmond Street East, Toronto, Ontario on a day and at a time as determined by a representative of the Respondent.

4. Suresh shall reside at the residence of Xavier Noble Arasaratnam at 6136 Silken Lauman Way, Mississauga, Ontario L5V 182.

5. In the event that Mr. Arasaratnam should, for whatever reason, change his address, Suresh must advise the CIC in advance and obtain the Respondent's permission to change his residence.

6. This does not preclude occasional overnight visits with Ramalashmy Jayavaman Sivasway at 5 Greystone Wall, Apartment 1711, Toronto.

7. Suresh, during the time of his release shall keep the peace and be of good behaviour.

8. Suresh shall remain within Fifty (50) kilometres of the Toronto City limits and cannot go outside this area without permission of the CIC.

9. Suresh shall not have direct or indirect, except through his solicitor, Ms. Jackman or Ms. Jackman's employees (her secretary, paralegal or articling student) and this solely for the preparation of court proceedings or in an effort to locate a third country, with any executive members of the WTM, or with any of the WTM's employees, and affiliated groups, such as the WTA in Montreal, ETA B.C. Vancouver, WTCC Ottawa, the executives and employees of FACT or TESC and is not for any reason to visit the offices of these organizations.

10. Suresh shall have no direct or indirect contact, except through his solicitor, with LTTE members, officials, executives, representatives, spokespersons, or coordinators, including individuals in any way linked to the LTTE offices outside Canada; as for example, the Tamil Information Centre in London, England, LTTE's International Secretariat in London, England, or Paris, France, or in any other country.

11. Suresh shall not be involved directly or indirectly in any activities, including protests, demonstrations or rallies of any kind or for any cause related to or not related to the LTTE, WTM. WTA Montreal, ETA B.C. Vancouver, or WTCC, Ottawa.

12. Suresh shall surrender to Canadian Immigration authorities his passport and all other travel documents while out of detention (if he has any such documents).

13. If Suresh agrees in writing to abide by these terms and conditions while out of detention, then he is to be released from detention.

[6]      All of the afore-mentioned conditions were agreed to by the appellant and his solicitor, Mrs. Barbara Jackman. Indeed, Mrs. Jackman appears to have taken an active role in the formulation of the conditions surrounding the appellant's release. He now appeals that Order on the grounds that paragraphs 9, 10 and 11 of the said Order infringe his and other individuals rights to freedom of expression and association as guaranteed by the Canadian Charter of Rights and Freedoms. The appellant did not voice his objections to the terms of the Order before the Trial Judge, nonetheless, Mrs. Jackman reserved the right to attack the order on constitutional grounds. There is some dispute, however, over whether her reservation applies to the constitutionality of the provisions of the Act itself or whether it applies to the actual terms and conditions of the Order.

[7]      The Minister argues that the appellant has waived his Charter rights by consenting in testimony and in writing to the imposition of strict conditions for his release from detention. The Minister claims that had the appellant wished to challenge the Order he should have done so before the Trial Judge. The appellant claims to have reserved the right to attack the terms of the Order and specifically did not raise the constitutional issues with the Trial Judge as previous decisions rendered at the trial level state that a judge hearing these cases lacks jurisdiction to hear constitutional arguments. The decisions cited by the appellant as standing for this proposition are: Suresh v Canada (1996) 105 F.T.R. 299 (a decision of Cullen J.); Re Baroud (1995) 98 FTR 99 (a decision of Denault J.); and, Singh v Minister of Citizenship & Immigration (a decision of Rothstein J.).

[8]      This court as an appeal court finds itself in the awkward position of being the first body to hear the constitutional arguments. As an appeal court we lack the advantage of having heard the witnesses (which in this case involved 50 days of hearings on the reasonableness issue plus further evidence received on the application for release, some of which evidence was received ex parte and in camera). We are not in a position for determining issues of credibility with respect to these witnesses and we do not have a full factual record before us. A full factual record is especially vital to the s.1 Charter issue. For these reasons, and for the reasons to be elaborated on below, I am of the view that an appeal court should not be the court of first instance in a s.40.1(8) application to hear Charter arguments concerning the terms of an Order rendered pursuant to this subsection. In my view, the appropriate procedure to follow is to raise any constitutional concerns at the trial level.2 Clearly a designated Judge hearing a s.40.1(8) application is in the best position to rule on any Charter issues. Indeed, a designated Judge is compelled to consider whether an Order he or she makes has any constitutional implications. If the designated Judge decides in the first instance that prima facie a Charter right might be infringed by the terms of an Order, he is in the best position, after hearing all the evidence, to determine whether, given security concerns, the terms of the Order can be upheld under s.1 of the Charter. In doing so he may have to consider whether the application of Charter requirements to an order made under subsection 40.1(9) involved a determination of the "constitutional applicability" of that subsection, thus giving rise to the notice requirements of section 57 of the Federal Court Act. This matter was not argued before us.

[9]      With respect to the jurisdiction issue, I am convinced that there is nothing in the Act limiting a designated Judge on jurisdictional grounds from considering constitutional issues on a s.40.1(8) application. The cases cited by the appellant as standing for the proposition that constitutional issues can not be considered are, in any event, easily distinguished on their facts.

[10]      In Baroud, supra, Denault J was called on to consider under s.40.1(4)(d) of the Act whether a security certificate signed and filed by the Solicitor General of Canada and the Minister of Immigration and Citizenship was reasonable. In reaching his decision that the certificate was reasonable, he stated at p 108: "I have an obligation to enforce the applicable legislation and, in the context of this hearing, it is not my role to determine whether the section in question is contrary to the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms." In Suresh, supra, Cullen J considered the very same provision of the Immigration Act. In discussing the issue of jurisdiction he stated:

At issue is whether Mr. Justice Teitelbaum, sitting as the designated judge, has jurisdiction to hear the applicant's Charter arguments and, if required, issue a Charter remedy.

Earlier decisions of this court determined that a designated judge was without jurisdiction to hear Charter issues. In the case of Re Shandi [cite omitted] I stated:

I ruled that the constitutionality of sections of the Immigration Act could not be challenged at the hearing but that I would accept arguments based on the possibility that the Charter rights of the applicant had not been met. This latter pronouncement by me was in error and conformed with the dissenting judgment of Lamer J. of the Supreme Court of Canada in United States v Allard [cite omitted] but not with the majority decision of McIntyre J, in Mills v The Queen [cite omitted]

In Re Baroud [cite omitted] Denault J found that the role of the court was to enforce the applicable legislation and, in the context of a s.46.1 hearing, it was not the role of the Court to 'determine whether the section in question is contrary to the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms." However, in both of these cases, the respondent Ministers argued that the court was without jurisdiction and the issue was not otherwise fully explored. While I do not agree with the applicant that these cases were wrongly decided, I was willing to consider the applicant's arguments.

[11]      After considering the jurisdiction issue, Cullen J concluded that provided the designated judge has jurisdiction over the whole of the matter before him or her -- the parties, the subject matter and the remedy sought -- the judge has jurisdiction to hear constitutional arguments. He found that because s.40(4)(d) of the Act only gave the designated judge jurisdiction to consider the reasonableness of the certificate, constitutional arguments could not be entertained.

[12]      I would note that a prominent factor giving rise to Cullen J's decision in Suresh was that s.40.1(6) of the Act sets out that a determination under paragraph 4(d) is not subject to appeal or review by any court.3 There is no such corresponding limit pertaining to s.40.1(8) of the Act. Further, both Suresh and Baroud were concerned with attacking the constitutionality of an entire section of the Act (for instance, in Suresh clauses 19(1)(e)(iv)(C) and 19(1)(f)(iii)(B)) whereas in the case at bar, we are concerned only with the constitutionality of the terms of an order made by the designated Judge. These cases are, therefore, distinguishable on the ground that they arose under a different section of the Act which limits any right of appeal and on the ground that they were concerned with entirely different issues.

[13]      Thus, I find that a designated judge under subsection 40.1(8) of the Act has jurisdiction to entertain Charter arguments with respect to the constitutionality of the terms of any order made under subsection 40.1(9) of the Act. Indeed, a designated judge is compelled to consider the constitutionality of any order he or she makes pursuant to this subsection. Unlike a proceeding under subsection (4) he has the remedy available: namely, the appropriate wording of the release conditions. It must be emphasized that in this case the designated judge did not wrongly refuse to exercise that jurisdiction: he was never asked by the appellant. Having found that the designated trial judge had jurisdiction to consider the Charter issues, I am of the view that the most appropriate course of action is to send the Charter issues back to him for consideration as he has the benefit of being the only one to have before him a full factual record and of having heard any relevant testimony on this issue. As a judge issuing a release order he can exercise a continuing jurisdiction as to its impact, including considering the appellant's argument that in its operation the order is unconstitutionally curtailing his liberties. He is also in the best position to decide whether the events that passed before him amounted to a waiver by the appellant of any future right to have the order itself reviewed on constitutional grounds.

[14]      I would note, however, that the word "activities" and the phrase "related or not related to" as found in paragraph 11 are not defined in the Order and thus appear to be excessively broad. Taken literally, paragraph 11 would preclude the appellant from even enjoying a game of golf. The words "or not related to" should, therefore, be deleted from paragraph 11. The designated trial Judge should also provide a definition of "activity" for the purposes of clarity since the term is broad and it will be necessary for the appellant to determine clearly whether any actions of his will result in a breach of one of the imposed conditions.

[15]      I would allow the appeal to the extent of remitting the matter back to the designated trial division Judge to determine whether or not the conditions imposed by the release order are in accordance with the Charter. In the interim, the release order will remain in place to ensure the applicant does not return to jail, unless altered by the designated judge. The words "or not related" should be deleted from paragraph 11 of the Order and the omitted word "contact" added after indirect in line 1 of paragraph 9 of the conditions (as agreed to by the respondent). There will be no order as to costs.

"F.J. McDonald"

J.A.

"I agree

B.L. Strayer J.A."

"I agree

D. Henry D.J."

     FEDERAL COURT OF APPEAL

Date: 19980721

Docket: A-265-98

IN THE MATTER OF a certificate issued pursuant to section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act");

AND IN THE MATTER OF an application for release from detention pursuant to section 40.1(8) of the Act.

BETWEEN:

MANICKAVASAGAM SURESH

     Appellant

- and -

THE MINISTER OF CITIZENSHIP &

IMMIGRATION and

THE SOLICITOR GENERAL OF CANADA

     Respondents

    

     REASONS FOR JUDGMENT

    

__________________

1      These sections provide as follows: e) persons who there are reasonable ground to believe (iv) are members of a organization that there are reasonable grounds to believe will          (C) engage in terrorism (f) persons who there are reasonable grounds to believe (ii) have engaged in terrorism, or(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in              (B) terrorism

2      See for example [1991] S.C.R. 671">Vickery v N.S.S.C. Prothonotary [1991] S.C.R. 671 at 679.

3      This section provides: "A determination under paragraph 4(d) is not subject to appeal or review by any court."