Date: 19981110
Docket: DES-3-95
IN THE MATTER OF a certificate in
| relation to Manickavasagam SURESH; |
| AND IN THE MATTER OF the referral of |
| a certificate to the Federal Court of |
| Canada pursuant to paragraph 40.1(4)(c) |
| of the Immigration Act, R.S.C. 1985, c. I-2 |
BETWEEN:
MANICKAVASAGAM SURESH
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
and SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER
TEITELBAUM, J.:
[1] This is an application by the applicant, Manickavasagam Suresh, hereinafter referred to as Suresh, for an order for my recusation from hearing a matter referred to me for hearing by the Federal Court of Appeal.
[2] In his Notice of Motion, Suresh lists the following grounds for the present application:
| (a) Mr. Justice Teitelbaum has made a general determination respecting the credibility of the Applicant in such a manner that to have the same judge continue with a consideration of conditions of release of the Applicant gives rise to a reasonable apprehension of bias. |
| (b) The Applicant has complained to the Judicial Council about the decision of Mr. Justice Teitelbaum to detail conclusions of fact in respect of himself in the reasons for upholding the section 40.1 security certificate, and while this alone, would not preclude Mr. Justice Teitelbaum from continuing to hear and consider the issues arising in respect of the detention review, it is an additional factor, which, in light of the conclusions as to the Applicant"s lack of credibility, warrants the presiding judge recusing himself from continuing with a consideration of the conditions of release. |
FACTS
[3] A brief review of the facts in this case is necessary. On August 29, 1997, after more than 50 days of hearing, I determined, from all of the evidence that was presented for my consideration, that reasonable grounds existed for the Solicitor General and the Minister of Employment and Immigration (Crown) to have issued a certificate pursuant to section 40.1 of the Immigration Act (Act), that is to say, that there were reasonable grounds to believe that Suresh is a person described in sections 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(l)(f)(iii)(B) of the Act and is, therefore, a member of an inadmissible class of persons.
[4] In my August 29, 1997 decision, I state:
| From the evidence presented to me, I cannot but come to any other conclusion than that, based on the evidence presented both in the in camera hearings and in the public hearings, it was reasonable for the Ministers to conclude that Mr. Suresh is a person inadmissible into Canada. |
| It is my intention to release more detailed Reasons at a later date. I have decided to release my Decision without detailed Reasons at this time because of the fact that Mr. Suresh has been detained since October of 1995, and because, pursuant to Section 40.1(7), Mr. Suresh will continue to be detained until removed from Canada. I believe this should be done as quickly as possible so as to avoid Mr. Suresh remaining in detention unnecessarily, and to avoid lengthy proceedings pursuant to Subsection 40.1(8) of the Act. |
[5] I also state in my decision of November 14, 1997, in which I gave more detailed reasons, on page 11:
| It is extremely difficult for me to write detailed reasons and to refer to the evidence in this case. A great deal of the evidence made before me by the respondent was made during in camera sessions and, in a number of instances, it could, I was told, be dangerous if it were known that certain specific persons gave evidence for and on behalf of the LTTE or the Tamil cause. When I say "dangerous", I refer as "dangerous" for the witness or for his or her family still living in Sri Lanka. |
| For this reason, I have decided not to name witnesses, expert or otherwise, except that I will speak of the respondent Manickavasagam Suresh (Suresh). |
[6] With regard to the issue of Suresh"s credibility, I state, on page 13, paragraph 24, the following:
| After listening to Suresh and after reviewing certain documents put before me, I can only conclude that Suresh lacks total credibility. I believe I need say no more than that I am satisfied that Suresh obtained his refugee status in Canada "by wilful misrepresentation of facts" aggravated by the fact that he lied under oath before the Immigration and Refugee Board, swearing that the information contained in his Personal Information Form (PIF) was all accurate (see Exhibit C-25). In reviewing the written documentation submitted by Suresh in order to obtain his refugee status, I am convinced that little, if anything, written by Suresh was true. |
[7] I stated the above because it was patently clear from the evidence that Suresh misstated the truth on the written documentation submitted by Suresh in order to obtain his refugee status.
[8] After finding that the certificate issued pursuant to section 40.1 of the Act was reasonable, Suresh remained in detention.
[9] On December 23, 1997, Suresh filed an application for an order releasing Suresh from detention pursuant to subsection 40.1(8) of the Immigration Act. I say in my decision of March 20, 1998, on the above application, at page 5:
| The Applicant was ordered removed from Canada on September the 17th, 1997, but as yet has not been removed from Canada, and this is because of an injunction issued by Mr. Justice Lane of the Ontario General Court preventing Suresh"s removal from Canada for the immediate future. |
| I am also satisfied that Suresh will not be removed from Canada within a reasonable period of time for reasons that will be more fully stated when I issue a more detailed decision. |
[10] Mr. Justice Lane of the Ontario Court issued the injunction preventing Suresh"s removal from Canada at the request of Suresh.
[11] As a result of the application for Suresh"s release, I decided to grant the application under terms and conditions that I deemed appropriate under the circumstances. Once again, I questioned Suresh"s credibility but, as before, basing myself on the documents signed by Suresh to obtain his refugee status.
[12] At the time of the hearing of the release application and while I was dictating my decision, I stated "if Suresh agrees in writing to abide by these terms and conditions while out of detention then he is to be released from detention".
[13] Mr. Suresh agreed to the terms and conditions.
[14] After agreeing to the terms and conditions of his release, on or about April 1, 1998, Suresh appealed my judgment to the Federal Court of Appeal.
[15] On July 21, 1998, the Federal Court of Appeal issued its judgment ((1998) 229 N.R. 240). In it, at page 243, in speaking of the terms and conditions of release, Mr. Justice McDonald states:
| 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 right 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. |
[16] It is worthy to note that, at the time when the terms and conditions of Suresh"s release were discussed, I had, in my decision of November 14, 1997, clearly stated my opinion of Suresh"s credibility.
[17] At no time during the hearing for Suresh"s release, where the terms and conditions of his release were debated, was the issue of a reasonable apprehension of bias raised, based on Suresh"s credibility or any other reason, as it appears now to be raised.
[18] In any event, in paragraph 15 at page 246 of the Court of Appeal"s Reasons for Judgment, Mr. Justice McDonald states:
| 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. |
[19] Thus, Mr. Justice McDonald remitted back to me to determine whether Charter issues concerning the conditions of the release order have been waived by Suresh "or can now be considered by him (myself), and if so to determine whether the said conditions are in accordance with the Charter (see Judgment dated July 21, 1998).
[20] It must be noted that, at no time during the Court of Appeal hearing, did Ms. Jackman, counsel for Suresh, make any submission of a reasonable apprehension of bias on my part during Suresh"s release hearing.
[21] At the request of the Court, a meeting was to take place in Toronto to discuss a date for the hearing of the issue referred back to the designated judge.
[22] During a telephone conference call, a day or two before the meeting date, counsel for Suresh stated she "forgot" that a meeting was to take place but, in any event, she intended to file an application "for an order recusing the presiding judge from the case ...".
[23] As I have stated, counsel for Suresh lists two grounds for her application, the issue of a reasonable apprehension of bias based on the ground that I made a determination respecting Suresh"s credibility and secondly, that Suresh "has complained do the Judicial Council about my decision respecting the section 40.1 security certificate".
[24] I am satisfied that neither ground, as stated, is a reason for me to recuse myself from determining "whether Charter issues concerning the conditions of the release order have been waived by the appellant (Suresh) or can now be considered by him (Justice Teitelbaum) and if so, to determine whether the said conditions are in accordance with the Charter".
[25] First, as it relates to the credibility issue, and as I have already stated, I had determined Suresh"s credibility before I determined the conditions of Suresh"s release from detention. If there was an issue of a reasonable apprehension of bias because of my credibility determination, it should have been raised during the hearing or before the hearing of Suresh"s application for release or, at the very least, before the Court of Appeal.
[26] I fail to see how there can now exist a reasonable apprehension of bias because of my credibility finding when, on or before March 19, 1998, no such reasonable apprehension of bias existed. The same conditions exist today.
[27] Secondly, Suresh, through his counsel, now states that he has filed a complaint with the Judicial Council by a letter of complaint dated October 19, 1998 for the reasons stated in the grounds for the present Notice of Motion.
[28] Suresh himself states that this fact, the filing of the complaint, alone "would not preclude Mr. Justice Teitelbaum from continuing to hear and consider the issues arising in respect of the detention review, it is an additional factor, which, in light of the conclusions as to the applicant"s lack of credibility, warrants the presiding judge recusing himself ...".
[29] I am satisfied that, if Suresh was concerned with my finding of his lack of credibility which causes him to have a reasonable apprehension of bias, he should have raised the issue at the earliest possible time, that is, before his release hearing.
[30] In that I have made the above finding of credibility, the fact that Suresh is unhappy with my finding on the security certificate issue and files a complaint with the Judicial Council would not raise a reasonable apprehension of bias in a reasonably well informed person.
[31] The mere fact of the filing of the complaint to the Judicial Council does not raise a reasonable apprehension of bias. Suresh himself states that the filing of the complaint, by itself, "would not preclude Mr. Justice Teitelbaum from continuing to hear and consider ....".
[32] I do not intend to comment on the vast number of cases submitted for my consideration. The facts of this case, including my finding on Suresh"s credibility will not, in my opinion, give rise to a reasonable apprehension of bias in a reasonably well informed person.
[33] The present application is denied. The hearing on the issue(s) remitted back to me by the Federal Court of Appeal will take place in Toronto, on the 24th day of November 1998 at 10:00 a.m.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, Ontario
November 10, 1998