Date: 20040227
Docket: DES-4-01
Citation: 2004 FC 299
IN THE MATTER OF a certificate issued pursuant to
Section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2
AND IN THE MATTER OF an application
pursuant to subsection 84(2) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended ("IRPA")
AND IN THE MATTER OF Mahmoud JABALLAH
BETWEEN:
MAHMOUD JABALLAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
Respondents
MacKAY J.
[1] These Reasons concern the dismissal of an application for release from detention by the applicant, Mr. Jaballah, made pursuant to s-s. 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended ("IRPA"). The application was made more than 120 days after the determination by this Court that a certificate signed by the two respondent Ministers, under s. 40.1 of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "former Act"), was reasonable in stating that Mr. Jaballah, a foreign national, is inadmissible to Canada on grounds of national security. Earlier a similar certificate by the Ministers in relation to Mr. Jaballah, issued in March 1999, had been found not to be reasonable, on the evidence then available, by Mr. Justice Cullen in November 1999.
[2] My determination about the second certificate was made May 23, 2003 after proceedings that commenced in August 2001, when Mr. Jaballah was detained under the Ministers' certificate in accord with the former Act. Those proceedings were suspended in July 2002 when he applied to the Minister of Citizenship and Immigration (the "Minister") to be a person in need of protection in accord with IRPA, which replaced the former Act on June 28, 2002. After some interlocutory proceedings, the Court resumed hearings in March 2003. The Reasons for my decision of May 23, 2003, holding the Ministers' certificate to be reasonable on the information available to me, are reported at 2003 FCT 640, [2003] F.C.J. No. 822 (QL) (F.C.T.D.).
[3] After the Ministers' certificate was found to be reasonable, Mr. Jaballah remained in detention. Both parties, the applicant and the respondent Ministers, appealed this Court's determination, despite s-s. 80(3) which provides that such a determination, made under IRPA, may not be appealed. Those appeals have yet to be heard.
[4] On November 16, 2003, after advance notice, the applicant applied for release from detention under s-s. 84(2) of IRPA, which provides:
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84.(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person. |
84.(2) Sur demande de l'étranger dont la mesure de renvoi n'a pas été exécutée dans les cent vingt jours suivant la décision sur le certificat, le juge peut, aux conditions qu'il estime indiquées, le mettre en liberté sur preuve que la mesure ne sera pas exécutée dans un délai raisonnable et que la mise en liberté ne constituera pas un danger pour la sécurité nationale ou la sécurité d'autrui. |
[5] This provision carries forward a process established under s-ss. 40.1(8) and (9) of the former Act, and that process for review of detention was followed by Mr. Justice Teitelbaum in Suresh v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 385 (F.C.T.D.), by Mr. Justice Rothstein in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 970 (T.D.) (QL), and by Mr. Justice Denault in Ahani v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 49, [1999] F.C.J. No. 310 (QL); aff'd (2000) 261 N.R. 40; [2000] F.C.J. No. 1114 (C.A.) (QL). The similar process established under s-s. 84(2) of IRPA has been followed in Canada (Minister of Citizenship and Immigration and the Solicitor General of Canada) v. Mahjoub, 2003 FC 928, [2003] F.C.J. No. 1183 (QL).
[6] In the last of those cases, Madam Justice Dawson commented at para. 16:
Subsection 84(2) of the Act carries forward the right of a foreign national who is not removed from Canada within 120 days after a security certificate has been found to be reasonable to apply to be released from detention. The test to be applied remains a two-fold test. The judge designated to hear the application is to be satisfied that the foreign national "will not be removed from Canada within a reasonable time" and that the person's "release will not pose a danger to national security or to the safety of any person". . . .
[7] Further, she concluded that the jurisprudence under the former Act remains relevant to applications made under s-s. 84(2) and she set out, at para. 22, the legal principles to be applied in these cases, as follows:
i) The standard of proof is the ordinary civil standard.
ii) The Ministers have already discharged the onus upon them to establish the grounds for the initial detention.
iii) The certificate is conclusive proof that the person is inadmissible to Canada on grounds of security or any other ground listed in subsection 77(1) of the Act, or its predecessor section, and referenced in the certificate.
iv) Release under subsection 84(2) cannot be an automatic, because persons to whom subsection 84(2) applies have been found to be inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality.
v) A person cannot be detained indefinitely, at least without good reason. Therefore, review is available after 120 days and release is allowed, but only if the statutory criteria are met.
Issues
[8] In addition to issues concerning the merits of release from detention of Mr. Jaballah, his counsel raised a preliminary procedural issue at the hearing. That issue concerns the admission and possible consideration of information proposed to be adduced by the respondent Ministers subject to a ruling that it not be disclosed to the public, to the applicant or his counsel, but it be considered by the Court, in the same manner as certain information before the Court was not disclosed but was considered in assessing the reasonableness of the Ministers' certificate.
[9] After consideration of this preliminary procedural issue, I turn to issues raised by counsel in support of Mr. Jaballah's application for release, i.e.,
1. whether the applicant should be released pursuant to s-s. 84(2) of IRPA; i.e., the requirements of s-s. 84(2) and the evidence;
2. in the alternative, whether the applicant should be released pursuant to constitutional rights said to exist, particularly under relevant provisions of the Charter, with particular reference to s-ss. 82(2) and 84(2); or
3. whether the applicant ought to be released because his detention is illegal for ss. 77 - 82 of IRPA (and s. 40.1 of the former Act) are said to be unconstitutional.
Non-disclosure of information, s-s. 84(2) IRPA proceedings
[10] When this matter came on for hearing, counsel for Mr. Jaballah objected to any application by the Ministers for non-disclosure of information which the Ministers proposed to introduce and have the Court consider, without disclosure to Mr. Jaballah or to his counsel or to the public. It was submitted that, on the construction of IRPA as a whole, in light of the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, 208 D.L.R. (4th) 1, the process under s-s. 84(2) IRPA does not include arrangements for non-disclosure of information to the applicant seeking release. Unlike the former Act, which specifically provided for non-disclosure of information in an application for release from detention (under then s-s. 40.1(10)), IRPA does not specifically provide for non-disclosure of information in an application for release under s-s. 84(2).
[11] IRPA does make general provision for the Minister of Citizenship and Immigration to apply for non-disclosure of information in certain proceedings, under s. 86 which provides:
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86. (1) The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, make an application for non-disclosure of information.
(2) Section 78 applies to the determination of the application, with any modifications that the circumstances require, including that a reference to "judge" be read as a reference to the applicable Division of the Board. |
86. (1) Le ministre peut, dans le cadre de l'appel devant la Section d'appel de l'immigration, du contrôle de la détention ou de l'enquête demander l'interdiction de la divulgation des renseignements.
(2) L'article 78 s'applique à l'examen de la demande, avec les adaptations nécessaires, la mention de juge valant mention de la section compétente de la Commission. |
[12] Counsel for Mr. Jaballah urges that this provision excludes an application for release from detention under s-s. 84(2). In his opinion that reading of IRPA is consistent with the decision of the Supreme Court of Canada in Suresh, supra, at paras. 122 and 123, where there is discussion of the assessment of whether a person is a danger to Canada in considering his possible deportation despite a risk of torture in his own country. Danger of that order, it is urged, must be grounded on objectively reasonable suspicion based on evidence indicating that the threat of harm is substantial, not negligible, and that evidence, in fairness, must be disclosed to the person concerned.
[13] A similar objection was raised by counsel in Mahjoub, supra. There Madam Justice Dawson found that in an application under s-s. 84(2), the Ministers may apply to the Court pursuant to para. 78(e) for an order for non-disclosure. That interpretation she based upon construction of IRPA as a whole. In her view, with which I agree, proceedings for release from detention after a Ministers' certificate is found to be reasonable are a continuation of proceedings arising from the issuance of the certificate. Moreover, from the context of s-s. 84(2), within Division 9 of Part I of IRPA, which concerns the protection of information, in the view of Dawson, J. parliament must have intended to protect information the disclosure of which would be injurious to national security, or the safety of any person, when the danger to national security is an essential assessment to be made under s-s. 84(2). Finally, a non-disclosure ruling in an application under s-s. 84(2) would simply continue the process previously followed under the former Act within s. 40.1.
[14] In my opinion, the absence of specific provision for this in s-s. 84(2) in an application for release from detention, has not the significance that counsel for Mr. Jaballah urges. In the first place, I do not read the decision of the Supreme Court in Suresh, supra as indicating that at this stage, in an application for release from detention, the Ministers are precluded from applying for non-disclosure of information sought to be introduced. Suresh, supra, does not establish the principle of full disclosure at this stage of proceedings. The Court there was not concerned with review of detention, rather it was concerned with considering possible removal of a person who was earlier certified to be inadmissible and the risks to him or her if removed from Canada. The lack of disclosure of concern to the Supreme Court in Suresh related to a report and recommendation to the Minister with respect to deportation, not to information concerning national security. Moreover, the comments of the Court in Suresh specifically exclude from full disclosure requirements any "valid reasons for reduced disclosure, such as safeguarding confidential public security documents" (at para. 122). As Madam Justice Dawson commented in Mahjoub (supra, at para. 31) the state's interest in protecting information which, if disclosed, would be injurious to national security has also been recognized by the Supreme Court of Canada in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at 745 and in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75 at para. 43.
[15] As I construe IRPA, a proceeding under s-s. 84(2) is a "detention review" within the meaning of those words in s. 86 which authorizes motions for non-disclosure by the Minister.
[16] A detention review may be conducted by the Immigration Division in respect of a permanent resident or a foreign national who is detained by an immigration officer on reasonable grounds of belief that the person detained is inadmissible and a danger to the public, or unlikely to appear for immigration proceedings (ss. 55, 57, 58 IRPA). In the case of a permanent resident detained under a Ministers' certificate, on grounds of security, early review of detention is assigned by the Act to a designated judge of this Court (s. 83), and a foreign national detained on grounds of security may apply for release to a designated judge after 120 days in detention following a finding that the Ministers' certificate is reasonable.
[17] Sub-section 86(1) provides for an application for non-disclosure of information by the Minister during a "detention review". In my opinion those words are not a term of art, and they are not limited to proceedings of the Immigration Division, or of a judge reviewing the detention of a permanent resident. Those words are an appropriate generic description of the process for those reviews and for that under s-s. 84(2), for applying for release from continuing detention initiated as a result of the certificate issued by the Ministers concerning the inadmissibility to Canada of a foreign national.
[18] I consider the request of the Minister of Citizenship and Immigration for non-disclosure of information to be within the terms of s-s. 86(1), and s. 78 applies to the determination of that application in accord with s-s. 86(2). I so ruled at the hearing after considering submissions of counsel.
[19] Thereafter, I met with counsel for the Minister, in camera, with only a registry officer present, in secure chambers, in the absence of Mr. Jaballah and his counsel, to consider the information sought to be adduced on behalf of the Minister but not disclosed on grounds that its disclosure would be injurious to national security or the safety of any person.
[20] After examination of that information I determined that portions of it were not relevant to the issues before me in this proceeding pursuant to s-s. 84(2), i.e. whether Mr. Jaballah "will not be removed from Canada within a reasonable time," and whether his "release will not pose a danger to national security or the safety of any person".
[21] When the hearing resumed in public I informed counsel and those present that certain portions, not otherwise identified, of information submitted to the Court on behalf of the Minister were determined by me not to be relevant to the ultimate issues raised by the application. Those portions had been struck out in the Court's file copy of the documents submitted which will be sealed as confidential and shall not be disclosed. Reference to those portions was excluded from the summary of the information approved by the Court to enable Mr. Jaballah to be reasonably informed of circumstances relating to the issue whether his release from detention "will not pose a danger to national security".
[22] No information provided to the Court, which I considered relevant but the disclosure of which would be injurious to national security or to the safety of any person, as set out by paras. 78(b) and (h) of IRPA, was included in the summary provided to Mr. Jaballah. Nor is any such evidence filed in the Court's file available to the public.
[23] In the result, the application by the Minister, for non-disclosure of information, the disclosure of which was considered would be injurious to national security or to the safety of any person, was allowed in part, by oral Order for brief reasons then stated. So far as that information was considered by the Court to be relevant to the issues to be considered in determining whether Mr. Jaballah should be released, it is before the Court for consideration of Mr. Jaballah's application.
The Requirements of s-s. 84(2) and the Evidence
[24] On an application pursuant to s-s. 84(2) the judge may order release of the applicant from detention, on terms and conditions considered appropriate, if the judge is satisfied that the foreign national in detention will not be removed from Canada within a reasonable time and that his or her release will not pose a danger to national security or the safety of any person. I deal with each of those requirements after reviewing the evidence adduced at the hearing.
[25] On behalf of Mr. Jaballah the affidavits of fifteen members of the community are before the Court. Fourteen of those are persons undertaking to be sureties, and to provide cash or bonds as assurance of their pledges to supervise and ensure compliance with any conditions the Court might impose on Mr. Jaballah if he were released. Among those prospective sureties Mr. Jaballah's wife is a Convention refugee awaiting opportunity to acquire citizenship, and the others are all Canadian citizens, including Dr. Aly Hindy, a consultant and Imam of Salahaddin Mosque in Scarborough. Together those affiants are prepared to post cash or bonds totalling more than $125,000, acknowledging that would be lost if Mr. Jaballah were released and he subsequently fails to meet conditions that might be applied to his release.
[26] Dr. Hindy's affidavit and the others, including implicitly that of Mr. Jaballah's wife, provide undertakings to supervise the applicant if he were released, and each expresses the opinions that he is a quiet, honest, and decent person who would neither pose a flight risk nor a danger to the public, and that since he is a practicing Muslim, undertakings or pledges signed by the affiants as sureties would bind his actions not to breach the terms of his bail. Dr. Hindy and two others were examined and cross-examined at the hearing on matters arising from their affidavits.
[27] There is also an affidavit of the eldest son of Mr. Jaballah, who is a Convention refugee, to which are attached copies of a petition calling for the release of Mahmoud Jaballah, if necessary with his prosecution for any alleged offence, with full disclosure of any evidence against him, and for an end to the security certificate and secret hearing process to which he has been subject. Those petitions bear the names or signatures of more than 1,850 people.
[28] The affidavits of prospective sureties and the signed petitions do indicate considerable support for Mr. Jaballah and his family in the community. That support would be relevant particularly to possible terms and conditions to be applied if he were to be released, but it is not of much weight in considering the two primary requirements of s-s. 84(2), in particular whether his release would not pose a danger to national security.
[29] The evidence adduced at the hearing also includes the testimony of Mr. Louis Dumas, then the Director of Security Review in the Department of Citizenship and Immigration. He was examined and cross-examined concerning the process followed by the Department in its consideration at least up to the time this matter was heard, of Mr. Jaballah's application pursuant to s. 112 of IRPA, to be considered a person in need of protection.
[30] The evidence of Mr. Dumas may be summed up, apart from that relating to the Ministers' applications to appeal and to stay my order of May 23, 2003, as follows. Consideration of Mr. Jaballah's application made July 1, 2002, to be a person in need of protection, was renewed in late August 2003, long after he was initially advised from a reported PRRA decision that he was considered to be in need of protection from return to Egypt. Near the end of September 2003 information expected to be considered by the Minister's delegate was sent to Mr. Jaballah for comment. Comment was not returned by counsel for the applicant pending response from counsel for the Minister on procedural issues that had been raised. With no response received, the matter was submitted for consideration to the Minister's delegate at the end of October 2003. Mr. Dumas believed this matter was being dealt with as one of priority, but he could give no indication when the matter might be decided by the Minister's delegate. Subsequently the Court was advised, by letter early in January 2004, that a negative decision on his application was given to Mr. Jaballah. That decision is now the subject of an application for leave and for judicial review (Court file IMM-184-04).
[31] The last of the evidence before the Court consists of copies of documents submitted by the Ministers to the Court, copies of which, except for those not disclosed, and the summary of the Ministers' case were released to Mr. Jaballah by the Court after consideration of the Minister's motion for non-disclosure. I repeat the summary contains no information the release of which I considered would be injurious to national security, but any such information, together with the documents not subject to the non-disclosure application, is before the Court for consideration of Mr. Jaballah's application for release.
[32] Finally, I note that the full record of these proceedings, including that related to the first and the second certificates issued by the Ministers in relation to Mr. Jaballah so far as that may be relevant, and the record of other related proceedings, cannot be ignored in assessing the issues to be determined in regard to the application for release. Other proceedings include the application for leave and for judicial review (Court file IMM-184-04), not yet perfected for consideration, concerning the decision communicated in January 2004 that his application for protection was rejected, and a similar application for which leave has now been granted for hearing in May 2004 of a review of the decision of the Refugee Protection Division that Mr. Jaballah is not a Convention refugee (Court file IMM-2972-03).
[33] For the first of those issues, whether Mr. Jaballah will not be released in a reasonable time, no evidence is adduced directly by him, but reliance is placed on the testimony of Mr. Dumas, particularly his admission then that it was not possible for him to forecast when Mr. Jaballah's application under s. 112 might be determined, even though the case was considered a matter of priority. Another factor from the record was also particularly relied upon, that is, the delay in determining the application for protection, after the initial PRRA advice to Mr. Jaballah from the Department in August 2002 that he was a person in need of protection. That delay was characterized as an abuse of process in my decision of May 23, 2003, almost six months before the application for release from detention was heard.
[34] At the time this application for release was heard no date for removal of Mr. Jaballah could be predicted. That is still the case, for although that application has now been rejected by the Minister's delegate following the hearing before me of the application for release, that decision is at the initial stage of an application by Mr. Jaballah for judicial review and any decision on that review may be subject to appeal. The prospect of appeals and the uncertainty when those may be dealt with cannot be ignored in light of the implications of the decision in Suresh for removal of a foreign national to possible death or torture.
[35] I should note two considerations relevant in determining whether release will not be in a reasonable time. The first is that the 120 day period of detention before this application for release could be initiated by Mr. Jaballah is measured from the date the Ministers' certificate is found to be reasonable so that time spent in detention before that is not ordinarily a factor, nor is the 120 days, after the certificate is upheld, a factor in assessing whether release in the future will not be in a reasonable time. The 120 day delay is not a measure in itself of a reasonable time, except as a necessary condition of application under s-s. 84(2). Thereafter, the burden to establish requirements under s-s. 84(2) is that of the applicant. In the normal course, release under s-s. 84(2) is not automatic or easily achieved; one would expect the applicant to show change in circumstances or new evidence not previously available to obtain release (see Ahani v. Canada (Minister of Citizenship and Immigration), supra).
[36] For Mr. Jaballah it is urged that, when the Ministers cannot provide a date for his removal from Canada, it is not possible for the Court to conclude his removal would be effected in a reasonable time. There may be circumstances that would lead the Court to so conclude, but that is not the case here. It is true, uncertainty about a date of removal at the time this matter was heard resulted in part from the lack of a decision on Mr. Jaballah's application to be a person in need of protection. That cause of uncertainty is now removed. Other causes, perhaps inchoate when this matter was heard, have now become confirmed with Mr. Jaballah's applications for judicial review. That application and the appeals of the parties from my decision of May 23, 2003 are now major factors giving rise to uncertainty of any prediction of a date for his removal from Canada.
[37] While Mr. Jaballah is entitled to pursue his legal rights in Canada, he may not rely on any uncertainty in predicting when those matters may be determined as a basis to claim uncertainty about when his removal, if it is ultimately pursued, would be effective. Uncertainty from that cause cannot result in a conclusion that his removal will not be in a reasonable time as intended in s-s. 84(2). Delay resulting from judicial proceedings initiated by the applicant, cannot be considered unreasonable, in my opinion (Singh v. Canada, supra).
[38] In these circumstances I find that Mr. Jaballah has not met the onus of establishing that he will not be removed from Canada within a reasonable time, as required by s-s. 84(2).
[39] If that finding were to be accepted there is no need to assess whether the second criterion under s-s. 84(2) is met, that is, whether the applicant's release will not pose a danger to national security. That issue was fully argued before me and I propose to deal with it next so that all of the issues here raised are determined in the event this matter is subject to appeal.
[40] It is urged for Mr. Jaballah that the fact the Ministers' certificate has been held to be reasonable cannot be the sole basis for a determination that his release will pose a danger to national security. Yet as the Court of Appeal commented in Ahani that fact is the basis from which any assessment of possible danger is to be considered. Parliament intended and provided for the detention of a foreign national who is found to be inadmissible on security grounds by a certificate of the Ministers that is upheld as reasonable. True, IRPA does provide a right to apply for release by a foreign national so detained if removal is not effected in 120 days, but a judge may grant release only if satisfied that this will not pose a danger to national security. The possibility of release is exceptional. It requires more than serving 120 days in detention and the onus remains on the applicant to persuade the Court that his release will not pose a danger to national security.
[41] It is urged for Mr. Jaballah that there is no evidence before me that he has committed any terrorist act in Canada, or elsewhere apart from Egypt where he has been convicted in absentia. Moreover it is said there is no allegation from the earlier evidence of a CSIS officer that he has been associated with terrorists. The fact that he was at liberty without involvement in terrorist activities from November 1999, when the Ministers' first certificate was quashed until August 2001 when he was detained on the second certificate, is said to be the best evidence that he would not be in communication with suspected leaders of terrorist groups. I am not persuaded by those submissions. They are based only on the public evidence in the record concerning the second certificate. Limited evidence in that record, and other information not then disclosed to Mr. Jaballah supported my conclusion in May 2003 that the certificate of the Ministers was reasonable (see The Minister of Citizenship and Immigration et al. v. Jaballah, 2003 FCT 640, supra).
[42] In that decision, my conclusions in regard to the certificate were summed up as follows at para. 98:
In light of the information and evidence before this Court, including in particular the new information not provided in Jaballah No. 1, the certificate of the Ministers, dated August 13, 2001, is reasonable, on the basis of the information and evidence in the public record, available to Mr. Jaballah. Further, that conclusion is supported by other information available to the Court, not provided to the respondent on grounds of national security.
The certified opinion of the Ministers, now found to be reasonable, is that Mr. Jaballah is inadmissible to Canada as a person within paragraphs 34(1)(b), 34(1)(c) and 34(1)(f) of IRPA.
[43] The considerations now raised by Mr. Jaballah, in support of his claim that he poses no danger to national security, were directly or implicitly dealt with in finding the certificate of the Ministers is reasonable. That finding is not an endorsement of other specific opinions of CSIS as reasonable, e.g. the conclusions stated in the summary of the Ministers' information provided to Mr. Jaballah at the hearing of this application. Those conclusions were set out in paras. 17 and 18 of the summary, provided to Mr. Jaballah at the hearing in November 2003, to provide reasonable notice of the case to be met by him, as follows:
17. JABALLAH is a well-connected member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Osama Bin Laden.
18. It is the opinion of the Service that the release of JABALLAH would place him in a position to recommence his contacts with members of the Islamic extremist network, allowing them to be involved in the planning and execution of terrorist acts. The Service believes that his release would be injurious to national security and to the safety of persons.
[44] These conclusions are more specific than the conclusions certified in the Ministers' certificate. It is urged those specific conclusions of CSIS are not reasonable on the evidence before the Court. I do not consider it necessary to determine that for I am only concerned at this stage with evidence that would support a conclusion that Mr. Jaballah's release from detention will not pose a danger to national security. The belief of CSIS ("the Service") about the prospect of that danger has no weight, in my opinion, for the conclusion is one I must make, not one for the Service, or not one certified by the Ministers here.
[45] There is before me no new evidence not previously considered, and no evidence of changed circumstances, that would support the necessary finding. Mr. Jaballah has produced none and the evidence presented by the Ministers primarily concerns activities of other persons reported to be active in support of actions by members of Al Jihad or Al Qaida, with whom it is believed Mr. Jaballah has been actively associated in the past and with whom he was in communication.
[46] In the circumstances, the evidence before me does not support a conclusion that Mr. Jaballah's release will not pose a danger to national security.
[47] The basis for much of the argument for Mr. Jaballah is a perception that his application is similar to a bail application in a criminal proceeding where an accused is detained pending trial. The argument is interesting and I acknowledge there are bail cases in relation to extradition, or to public trials, which stress the importance of constitutional protections. In my opinion, the suggested comparison is inappropriate. It ignores basic principles of immigration law, recognized by the Supreme Court of Canada in Chiarelli, supra, and other cases, that the state may control access to Canada by foreign nationals and may distinguish between them, permanent residents and citizens. It has long been recognized that the state may preclude admission, particularly for those who are reasonably believed, on the information available to the Ministers concerned, to present a danger to national security. Since September 2001 that concern of the Ministers, and of society, has been heightened. In this situation, release from detention of a person certified as one who presents a threat to national security, is simply not comparable to release on bail of one detained in regular criminal or extradition proceedings.
[48] Finally, it is urged for Mr. Jaballah that his release on conditions established by the Court could ensure that there would be no danger to national security. Conditions were imposed on the release of Mr. Suresh, in Suresh (see [1998] 4 F.C. 192, 47 Imm.L.R. (2d) 1 (F.C.A.)) and in release on bail in an extradition proceeding in France v. Ouzghar, [2001] O.J. No. 5713 (Ont. Sup. Ct.). Conditions similar to those imposed in Ouzghar were suggested for consideration in this case. As I read s-s. 84(2) release upon conditions is only possible when the judge concerned is persuaded, inter alia, that release will not pose a danger to national security. Since I am not so persuaded, I do not consider possible terms for release. While it was acknowledged the Court might impose any reasonable conditions if Mr. Jaballah were released, no terms apart from those drawn from Ouzghar were proposed that would ensure his release would not pose a danger to national security.
[49] For these reasons I conclude that Mr. Jaballah has not established the requirements necessary for his release under s-s. 84(2). I am not persuaded that he will not be released in a reasonable time, now variable in part as a result of judicial processes initiated by Mr. Jaballah. Nor am I persuaded that his release from detention at this time will not pose a danger to national security.
Constitutional validity of s-ss. 82(2) and 84(2)
[50] As an alternative ground for release, for Mr. Jaballah it is urged that s-ss. 82(2) and 84(2) of IRPA are unconstitutional in providing for detention upon administrative decision, with no criminal charges laid, and for continuing detention indefinitely. The latter characterization, provision for indefinite detention, without criminal charge or conviction, concerns particularly s-s. 84(2) which is primarily at issue in this case.
[51] These provisions are said to offend the English Bill of Rights of 1688 as read into the preamble of the Constitution Act, 1867; and also to offend ss. 7, 10(c), 11(e) and 12 of the Charter of Rights and Freedoms. I am not persuaded that the Bill of Rights of 1688 is relevant to the issues here raised for, important as that statute was in the evolution of principles underlying our Constitution, Parliament's authority to legislate in relation to immigration matters, as in the case of IRPA, is not seriously questioned. Within its legislative powers, Parliament's authority is only circumscribed in law by the Charter.
[52] The Charter provisions referred to assure in turn:
1. Everyone's right to life, liberty and security of the person and the right not to be deprived thereof except in accord with the principles of fundamental justice (s. 7);
2. Everyone's right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if detention is not lawful (s-s. 10(c));
3. Everyone's right, when charged with an offence, not to be denied reasonable bail without just cause (s. 11(e)); and
4. everyone's right not to be subject to cruel and unusual treatment or punishment (s. 12).
[53] Counsel for Mr. Jaballah conceded that s. 11(e) of the Charter relates to proceedings in criminal law and is not applicable in this case, but he urges that the right to reasonable bail which that provision assures, is available as an aspect of fundamental justice guaranteed by other provisions of the Charter, in particular s. 7. That right is applicable even where a person detained is not charged with an offence (per La Forest J. in Schmidt v. The Queen, [1987] 1 S.C.R. 500).
[54] I do not agree that s-ss. 82(2) and 84(2) provide for indefinite continuing detention. Under the former provision, one may be held only pending determination of the reasonableness of the certificate of the Minister. If it be found not to be reasonable, the person concerned is released and the certificate quashed. If it is determined to be reasonable, that finding constitutes a removal order (s-s. 81(b)), IRPA) and detention lasts only so long as the foreign national concerned remains in Canada or pending consideration of his application for release if he has not been removed from Canada within 120 days of the finding that the certificate is reasonable. If he is not then released upon his application under s-s. 84(2), the statute is silent about continuing detention. It continues pending his removal from Canada or a further review by a judge on an application for habeas corpus, a process which has been urged before me should now apply. I make no definitive determination about any such application in future. Circumstances may then be different or satisfactory conditions for release to preclude any danger to national security may be developed. At this stage any such application is not successful, in my opinion, without considering the requirements for release established by Parliament in s-s. 84(2), as I have indicated, I am not satisfied those requirements have been met.
[55] In Ahani v. Canada, (1996) 201 N.R. 233 (F.C.A.), the Court of Appeal upheld Madam Justice McGillis' finding ([1995] 3 F.C. 669 (F.C.T.D.)) that s. 40.1 of the former Act did not violate the principles of fundamental justice or, inter alia, ss. 7 or 10(c) of the Charter.
[56] In Re Charkaoui, 2003 FC 1419 (FC), generally similar arguments about infringement of ss. 7 and 11(e) of the Charter by, inter alia, ss. 78 to 85 of IRPA, which includes the provisions here in question, were dealt with by Mr. Justice Noël. That case concerned a detention review for a detained permanent resident who had been the subject of a certificate issued by the two Ministers of their opinion that he was inadmissible on grounds of national security, a certificate which at that stage had not been assessed for its reasonableness. For the relevant reasons set out by Mr. Justice Noël in discussing "Fundamental Rights: Section 7 of the Charter, s. 1 of the Canadian Bill of Rights in Relation to ss. 33 and 76-85 IRPA", commencing at para. 82 of his decision, I conclude, as he did at his para. 107 in relation to all those sections of IRPA, that the procedures established by s-ss. 82(2) and 84(2) comply with the principles of fundamental justice referred to in s. 7 of the Charter. Further, I do not read them as infringing s-s. 10(c) of the Charter for they do not preclude questioning the validity of detention by way of habeas corpus and release if that detention is not lawful. In my opinion, detention pending removal or release on conditions set by statute or by a judge, which detention is within the authority of Parliament to legislate, does not conflict with s-s. 10(c) of the Charter. Nor does such detention, under reasonable conditions, constitute cruel and unreasonable treatment or punishment prohibited by s. 12 of the Charter.
Constitutional validity of "the Scheme of the Act", ss. 77 to 86 IRPA
[57] Generally similar submissions were made as preliminary matters in the earlier proceedings concerning the reasonableness of the Ministers' certificate. At that time I indicated (see Re Jaballah, 2001 FCT 1287, [2001] F.C.J. No. 1748 (F.C.T.D.) at paras. 32-41) that insofar as the submissions related to the Charter I would not deal with them unless persuaded that Mr. Justice Nadon was in error in similarly declining, in other proceedings, on the ground that a hearing judge considering the Ministers' certificate had no jurisdiction to determine the constitutional validity of proceedings under then s. 40.1 of the former Act (see Canada (Minister of Citizenship and Immigration) v. Mahjoub (2001), 13 Imm. L.R. (3d) 33, [2001] F.C.J. No. 79 (QL) (F.C.T.D.)). I was not then persuaded that Nadon J. was in error.
[58] I note that in Charkaoui, supra, Mr. Justice Noël, upon thorough analysis, found at paras. 21-58, that a designated judge acting under IRPA, considering whether the certificate of the Ministers is reasonable and whether detention should be continued, does indeed have jurisdiction to determine constitutional issues. That jurisdiction had earlier been upheld in relation to a detention review initiated after a person certified to be inadmissible as a danger to national security, who had been detained for 120 days (Suresh (1998, Court of Appeal) supra). At this stage in considering an application for release under s-s. 84(2) there was no submission that the Court did not have jurisdiction, and I find that I have the responsibility to deal with constitutional issues raised.
[59] Numerous issues were raised on behalf of Mr. Jaballah, not all of them fully argued. I deal with them in terms outlined by his counsel at the hearing, and my conclusions and reasons are thereafter briefly set out for each of them.
1. The lack of disclosure of evidence to the applicant and his exclusion from hearings, by ex parte in camera proceedings, is said to violate constitutional and common law principles.
In my opinion, where the processes here followed are directed or authorized by statute, the validity of which has been upheld in similar proceedings, there is no ground to find the proceedings are unconstitutional (see Ahani (1995, McGillis J.), supra and Charkaoui, supra).
2. The failure of the Court to balance state and individual interests in a manner that ensures proper production of documents, a practice developed in criminal and other proceedings, is said to result in unconstitutional processes based on "national security", a term said to be void for vagueness or which is over-broad in the discretion granted in light of the objectives sought by the legislation. Here it is urged the failure of the Court to provide procedural protection for Mr. Jaballah, allegedly in accord with ss. 77-84 IRPA, resulted in the denial of a reasonable opportunity to be heard in fair proceedings by an independent judiciary.
In my opinion, "danger to national security" is not a term void for vagueness. The essence of its meaning has been recognized by the Supreme Court of Canada in its decision in Suresh, supra (2002 SCC 1) at paras 86-92. As for the fairness of the process generally, it is consistent with constitutional principles (see Ahani (1995, McGillis J.), supra and Charkaoui, supra). I note that in the latter, Noël J. rejects submissions there made about lack of independence of a designated judge acting in accord with the questioned provisions of IRPA. It was urged in this case by counsel for Mr. Jaballah that evidence in relation to the first certificate against him in 1999 indicated that designated judges of this Court were "first cleared by CSIS". I have not found such evidence and I am not persuaded that I or my colleagues who serve as designated judges could fairly be seen as nominees of CSIS. In short, I do not think that the nomination of a designated judge of the Federal Court results in any loss of judicial independence or that it would it be so perceived by a reasonably informed person knowledgeable of the process.
3. The procedure followed and the decision and reasons upholding the security certificate in this case are said to constitute a judicial breach of constitutional and Charter rights of Mr. Jaballah.
So far as the Charter rights are based in s-ss. 7, 10(c), and 12, I believe the applicant's submissions are effectively dealt with above in Ahani, supra and Charkaoui, supra.
[60] In sum I am not persuaded that the procedures followed and the substantive provisions of IRPA authorizing those, and the decisions reached in this case can be said to be unconstitutional in general terms and I am not persuaded that in the particulars suggested by counsel for Mr. Jaballah they can be so characterized. I acknowledge that my own assessment may be subject to review by the Court of Appeal.
Conclusions
[61] I summarize my conclusions, reached for the reasons set out herein.
[62] In relation to an application for release from detention pursuant to s-s. 84(2) of IRPA, the Minister may apply for an order for non-disclosure of certain information produced to the Court and that application shall be considered in accord with s. 78 as provided by s-s. 86(2), or per Dawson J. in Mahjoub, supra (2003), in accord with s-s. 78(e).
[63] In considering requirements of s-s. 84(2) and the evidence before this Court, I find that:
1. there is no ground to conclude Mr. Jaballah will not be removed from Canada within a reasonable time; and
2. there is no ground to conclude Mr. Jaballah's release, if it were granted at this time, would not pose a danger to national security.
[64] Sub-sections 82(2) and 84(2) of IRPA, are consistent and are not in conflict with basic constitutional principles or with the Charter's provisions in ss. 7, 10(c), 11(e) and 12.
[65] The procedures followed by the Court and the provisions authorizing those, in particular for non-disclosure of evidence and the conduct of in camera, ex parte hearings to consider information the release of which will create a danger to national security, and the "scheme of the Act", are not unconstitutional.
[66] Thus, an Order goes, dismissing Mr. Jaballah's application for release from detention.
"W. Andrew MacKay"
J.F.C.
Ottawa, Ontario
February 27, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-4-01
STYLE OF CAUSE: MAHMOUD JABALLAH
and THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE SOLICITOR GENERAL
OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 20 AND 21, 2003
REASONS FOR ORDER OF: THE HONOURABLE MR. JUSTICE MacKAY
DATED: FEBRUARY 27, 2004
APPEARANCES:
ROCCO GALATI FOR MAHMOUD JABALLAH
DONALD MACINTOSH FOR THE MINISTER OF CITIZENSHIP AND
and IMMIGRATION
DAVID TYNDALE
ROBERT BATT FOR THE SOLICITOR GENERAL OF CANADA
and
MARTHE BEAULIEU
SOLICITORS OF RECORD:
GALATI, RODRIGUES FOR MAHMOUD JABALLAH
& ASSOCIATES
TORONTO, ONTARIO
MORRIS ROSENBERG FOR THE MINISTER OF CITIZENSHIP AND
DEPUTY ATTORNEY IMMIGRATION AND FOR THE SOLICITOR
GENERAL OF CANADA GENERAL OF CANADA