Almrei (Re)

Almrei (Re)
Court (s) Database
Federal Court Decisions
Date
2009-01-02
Neutral citation
2009 FC 3
File numbers
DES-3-08
Decision Content
Date: 20090102
Docket: DES-3-08
Citation: 2009 FC 3
Ottawa
,
Ontario
, January 2, 2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
IN THE MATTER OF a certificate signed pursuant
to section 77(1) of the Immigration and Refugee
Protection Act (IRPA);
AND IN THE MATTER OF the referral of a
certificate to the Federal Court pursuant to section
77(1) of the IRPA;
AND IN THE MATTER OF a review of the detention
of HASSAN ALMREI
REASONS FOR JUDGMENT
INDEX (by paragraph numbers)
Introduction 1-2
Background 3-25
Procedural History 26-43
Legal Framework 44-59
Preliminary Issues 60-93
Evidence
Ministers’ Witnesses 94
1. Mr. Marc Towaij 95-105
2. Sukhvindar 106-157
Mr. Almrei’s Witnesses
1. David Stokes 158-160
2. Mr. Chris Shannon 161-163
3. Mr. Alexandre Trudeau 164-167
4. Mr. Hassan Ahmed 168-172
5. Tracey Thomas-Falconar 173-176
6. Dr. Mustafa Fahmy 177-179
7. Dr. Hafizur Rahman 180-183
8. Mr. Thomas Quiggin 184-217
Submissions
The Case for Continued Detention 218-226
The Case for Release 227-234
Analysis 235-237
1. Reasons for Detention 238-264
2. Length of Detention 265-270
3. Reasons for Delay in Deportation 271-273
4. Anticipated Future Length of Detention 274-275
5. Availability of Alternatives to Detention 276-283
Conclusion 284-290
Introduction
[1] Hassan Almrei has been detained since October 2001 for the purpose of his removal from the country as a risk to
Canada
’s national security. For the reasons that follow, I have concluded that his continued detention can no longer be justified and that he should be released under strict conditions pending a determination of the reasonableness of the security certificate under which he is presently detained, and if the certificate should be found to be reasonable, until a determination is made whether he can be removed from Canada to his country of nationality or some other country.
[2] Mr. Almrei is presently detained under a certificate issued on February 22, 2008. The grounds for the decision of the Minister of Citizenship and Immigration and the Minister of Public Safety (the “Ministers”) to issue the certificate will be closely examined at a later date. This decision deals only with the question of whether Mr. Almrei should continue to be detained pending the outcome of the certificate proceedings. His history, as the subject of a security certificate issued in 2001, has been thoroughly documented in previous decisions of this Court, the Federal Court of Appeal and the Supreme Court of Canada. A summary of the background to these proceedings follows to provide a context for this detention review.
Background
[3] Mr. Almrei was born in 1974 in
Syria
. His father moved to
Saudi Arabia
in 1980 and obtained a job as a teacher. The family joined him there in 1981. The father was involved with the Muslim Brotherhood, a movement with deep roots in the Sunni Muslim world and which has a history of opposition to the Syrian government. As a result, the Brotherhood is proscribed in
Syria
. Family members have been detained for prolonged periods in
Syria
because of their involvement with the movement. Almrei graduated from high school in
Saudi Arabia
in 1992 and was thereafter self-employed.
[4] Based on what he disclosed in a November 2002 statutory declaration and his testimony in the earlier proceedings, in 1990 Almrei travelled to
Pakistan to join the resistance to the communist regime which remained in place in
Afghanistan
after the Soviet withdrawal in 1989. He became ill and returned to
Saudi Arabia without going to
Afghanistan
. Several months later he returned and stayed at a guesthouse and a camp controlled by Abdul Rasul Sayyaf, one of the leaders of the mujahideen resistance against the Soviets and their puppet regime in
Kabul
. Sayyaf later became a member of the Afghan Parliament said to be close to the Karzai government.
[5] Almrei received basic training with an AK-47 assault rifle at Sayyaf’s camp. He says he spent his time there as an imam reading prayers and teaching the Koran. He left and returned to school in
Saudi Arabia
. About a year later he returned to
Pakistan
for several months and went to the camp for a few weeks during which he again served as an imam.
[6] With Saudi and
U.S.
financial support, the Afghan government was ousted from power in 1992. In 1994 Almrei travelled back to
Pakistan and to Ibn al-Khattab’s camp in
Kunduz ,
Afghanistan where preparations were underway to carry the jihad to
Tajikistan
. Almrei stayed for several months before returning to
Saudi Arabia
. He later returned to Kunduz and stayed for five months in 1995. During that period he travelled twice to
Tajikistan
and took part in scouting Russian positions. He says he did not engage in combat. He returned to
Saudi Arabia
and continued a business of buying and selling honey. His last visits to
Pakistan
were in 1996 and 1997.
[7] Ibn al-Khattab later became involved in the insurgency in
Chechnya
and was killed by the Russians in 2002. Almrei remained in touch with al-Khattab and raised funds for him prior to coming to
Canada
. It is alleged that al-Khattab and the group he led were linked to terrorist acts in
Russia
although Khattab denied any involvement in those events.
[8] In 1998 Almrei applied unsuccessfully for a visa to visit
Canada
. He then made his way here in January 1999 using a false
United Arab Emirates
passport and, upon arriving, claimed protection as a Convention refugee. The Immigration and Refugee Board granted him that status in June 2000. He applied for permanent residence in November 2000. Almrei came to the attention of the Canadian Security and Intelligence Service (“CSIS”) shortly after his arrival in
Canada
. He was interviewed by CSIS in October 2001 at his former lawyer’s office.
[9] Almrei acknowledges that he failed to disclose details about his travels to
Pakistan ,
Afghanistan and
Tajikistan
to the Board, in his application for permanent residence and during the interview with CSIS. He acknowledges that he possessed a passport issued by the Muslim Brotherhood, that he travelled to
Canada
on a false passport and that he also held a false Kuwaiti driver’s licence and a Yemeni passport. He admits that he assisted in procuring a false passport for Nabil al-Marabh and referred other persons to a third party who provided false drivers’ licenses. Nabil al-Marabh was arrested in the
United States , detained and subsequently deported to
Syria
. Almrei admits assisting a woman to undergo a false marriage of convenience to remain in
Canada
. He denies being part of a forgery ring.
[10] Almrei was living and working in
Toronto
when a certificate naming him as a security risk was signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada.
The certificate declared that based on a security intelligence report received and considered by the Ministers, they were of the opinion Mr. Almrei was a person described in subparagraphs 19(1)(e)(iii), 19(1)(d)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, (“the former Act”). Those subparagraphs, in essence, refer to persons who there are reasonable grounds to believe have or will engage in terrorism or are members of organizations that have or will engage in terrorism. Almrei was taken into custody and detained on October 19, 2001, in accordance with subsection 40.1(1) of the former Act.
[11] The matter was then referred to the Federal Court for a determination as to the reasonableness of the certificate. Hearings were held in October and November 2001. Following a ruling that he could not testify in a closed session, as he had requested, Mr. Almrei declined to provide evidence in that proceeding. The Court concluded that on the evidence before it, heard in the absence of Mr. Almrei and his counsel and in closed session:
The confidential information, which I am unable to disclose, strongly supports the view that Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Osama Bin Laden and that Mr. Almrei is involved in a forgery ring with international connections that produces false documents.
Almrei (Re), 2001 FCT 1288, [2001] F.C.J. No. 1772 at para. 31 (“Almrei 1”).
[12] A deportation order was issued against Mr. Almrei on February 11, 2002 after an inquiry in which it was determined that he was a member of an inadmissible class for the reasons set out in the certificate. Mr. Almrei filed a motion in the Federal Court on September 23, 2002 for a review of his detention pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), which, as it then read, stated that:
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.
[13] On January 13, 2003, a Minister’s Delegate formed the opinion pursuant to paragraph 115(2)(b) of the IRPA that Mr. Almrei was a danger to the security of
Canada and could be removed to
Syria
, his country of nationality. Mr. Almrei filed an application for leave and for judicial review of that decision and brought a motion to stay his removal until his application for judicial review was considered and determined. That stay application was withdrawn on the Ministers’ undertaking not to remove Mr. Almrei until the judicial review application was dealt with. The detention review was suspended on consent pending the outcome of the judicial review. In April 2003, the Minister of Citizenship and Immigration consented to the application acknowledging that serious errors had been made in the danger opinion.
[14] On October 23, 2003, a second Minister’s Delegate made a determination that Mr. Almrei would not be at risk of torture if returned to
Syria
. In the alternative, the delegate found, if Almrei would be at risk of torture if returned to
Syria , his removal to torture was justified because of the risk he presented to the security of
Canada
. Mr. Almrei filed an application for leave and for judicial review of that decision and obtained a stay of the execution of the deportation order.
[15] A determination of Mr. Almrei’s application for release was delayed during the challenge to the danger opinion but hearings resumed and were completed in January 2004. The Court was not satisfied that Mr. Almrei had met the threshold test that he would not be removed from Canada within a reasonable time and concluded that the applicant had also failed to meet the onus to satisfy the Court on a balance of probabilities that his release would not pose a danger to national security or to the safety of any person. A challenge to the detention provisions of IRPA as infringing sections 7 and 12 of theCanadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (“the Charter”) was rejected: Almrei v.
Canada
(Minister of Citizenship and Immigration), 2004 FC 420, [2004] F.C.J. No. 509 (“Almrei 2”).
[16] This decision was upheld by the Federal Court of Appeal in Almrei v.
Canada
(Minister of Citizenship and Immigration), 2005 FCA 54, [2005] F.C.J. No. 213 (“Almrei 3”). The Court of Appeal set out a number of principles for the interpretation and application of subsection 84(2) of IRPA and agreed with the conclusion reached that a case for Mr. Almrei's release had not been made out since the condition that removal would not occur within a reasonable time had not been met. The Court of Appeal did not find it necessary to consider whether Almrei's release would or would not pose a threat to national security. It determined that even if it were to assume that Mr. Almrei's detention constituted cruel and unusual treatment contrary to section 7 and 12 of the Charter, the remedy he sought, release from custody, was not the appropriate and just remedy that section 24 of the Charter would require. Leave to appeal to the Supreme Court of Canada from this decision was granted.
[17] The October 2003 determination by a Minister’s delegate that Mr. Almrei would not be at risk if returned to
Syria
was overturned upon judicial review in 2005. The Court concluded that the delegate erred in failing to consider documentary evidence that Almrei would be at risk of torture or cruel and unusual treatment or punishment if returned to Syria and erred in founding her opinion that he is a danger to the security of Canada on evidence that was not before her: Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FC 355, [2005] F.C.J. No.437 (“Almrei 4”).
[18] A second application for release was filed by Mr. Almrei in May 2005. After extensive evidentiary hearings and submissions, and applying the principles which had been laid down by the Federal Court of Appeal in Almrei 3, the Court was satisfied that Mr. Almrei had established that his removal was not imminent and would not occur within a reasonable time. However, on the basis of the public record, the Court found that Almrei had not discharged his onus to establish that he was not a danger to the security of
Canada
or to the safety of any person or that the danger that he posed could be neutralized by the mechanisms that were posed to ensure his compliance. In dismissing the application the Court’s conclusions were summed up in its reasons at paragraph 432:
Mr. Almrei’s application for release is brought under subsection 84(2) of the IRPA and the onus of proof is on him to establish, on a balance of probabilities, that he will not be removed within a reasonable time and that he is not a danger to national security or to the safety of any person. He has premised his application wholly on the grounds that he will not be removed within a reasonable time and that he is not such a danger. The statutory criteria in the provision are conjunctive. Mr. Almrei has met one criterion but not the other. The statute mandates that his application be dismissed. It remains open to him to apply again for release at any time that he is able to establish a substantial change in circumstances. It also remains open to him, under subsection 84(1) of the IRPA, to apply to the Minister for release for removal to a country other than
Syria
.
Almrei v.
Canada
(Minister of Citizenship and Immigration), 2005 FC 1645, [2005] F.C.J. No. 1994 (“Almrei 5”).
[19] Mr. Almrei's appeal from the decision of the Federal Court of Appeal (Almrei 3, above) was merged with those in the security certificate cases involving Adil Charkaoui and Mohammed Harkat. Reasons for judgment were issued by the Supreme Court of Canada on February 23, 2007 in Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [2007] S.C.R. 350 (“Charkaoui 1”). In its decision, the Supreme Court concluded that the IRPA regime for determining the reasonableness of security certificates and for reviewing the detention of named persons was inadequate to protect their interests when classified information was provided to a designated judge of the Federal Court during the closed proceedings.
[20] The Supreme Court declared that the procedures under IRPA for the judicial confirmation of certificates and for the review of the detention of the named persons violated section 7 of the Charter and had not been shown to be justified under section 1. Accordingly, they were of no force or effect. In order to give Parliament time to amend the law, the Supreme Court suspended its declaration with respect to the invalidity of the certificate procedure for one year from the date of the judgment. After that year, the certificates concerning Mr. Almrei and any other named person that had been declared "reasonable" would lose that status. Should the Ministers wish to issue a certificate thereafter, a fresh determination of reasonableness would be required under the new process to be devised by Parliament. Similarly, any detention review occurring after the delay would be subject to the new process: (Charkaoui 1 at para. 140).
[21] However, the Supreme Court declined to declare that holding the named persons for prolonged periods in custody in itself violated Charter guarantees so long as there was in place “a process that provides regular opportunities for review of detention”. Guidelines were set out which the reviewing courts must adhere to (Charkaoui 1, paras.110-123).As for the timeliness of such reviews, the Court determined that the legislation, as it then read, arbitrarily denied a prompt hearing for foreign nationals and thereby infringed section 9 of the Charter. The Court crafted an immediate remedy by striking subsection 84(2) of the Act and revising the terms of subsection 83(2) to give foreign nationals the same entitlements to timely and regular detention reviews as had been enjoyed by permanent residents. This remedy was not subject to the 12 month suspension of invalidity.
[22] Thus, Mr. Almrei’s third application for release from detention was considered by this Court applying the guidelines identified by the Supreme Court in Charkaoui 1 but before Parliament’s legislative response was in place. In Almrei v. Canada (Minister of Citizenship and Immigration), 2007 FC 1025, [2007] F.C.J. No.1292 (“Almrei 6”), the Court concluded, at paragraph 56 of its reasons, that Almrei should be released from detention given the length of time he had been in custody and that his removal from Canada would not be accomplished within a reasonable time.However, the Court was not satisfied, on a balance of probabilities, that the proposed terms and conditions of release would contain or diminish the risk that Mr. Almrei was found to represent. Hence the application was dismissed.
[23] The legislative response to Charkaoui 1 was enacted within the one year timeline set by the Supreme Court. An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S. C. 2008, c. 3 ("Bill C-3") received Royal Assent on February 14, 2008 and came into force on February 22, 2008. The amendments to IRPA enacted through Bill C-3 provided for the appointment of special advocates to represent the interests of named persons during closed security certificate proceedings and revised the detention review procedures set out in IRPA.
[24] On the same date that the amendments to IRPA came into effect, the Ministers signed a new certificate naming Mr. Almrei and four other persons as security risks and referred the certificates to the Federal Court for review under subsection 77(1) of IRPA, as amended. Under the terms of the transitional provisions in Bill C-3, anyone then in detention under a previously issued certificate was to remain in detention and the Court was directed to commence a review of the reasons for continued detention within six months. As of February 22, 2008 that applied only to Mr. Almrei who remained in the Kingston Immigration Holding Centre (“KIHC”), the other detainees having all been conditionally released.
[25] On June 26th 2008, the Supreme Court issued a related decision respecting disclosure in security certificate cases. This arose in the context of a controversy over CSIS’ policy not to preserve notes and other original records of its investigations. The Supreme Court declared that CSIS was subject to a duty to preserve such records and that procedural fairness in certificate proceedings required that Ministers disclose the entire file held by CSIS to the designated judge.Subject to the appropriate filtering, the judge would then determine what information was to be disclosed to the named person and his counsel: Charkaoui v.
Canada
(Minister of Citizenship and Immigration), 2008 SCC 38, [2008] S.C.J. No. 39 (“Charkaoui 2”).
Procedural History
[26] The Ministers filed a Notice of Referral of Certificate and a Security Intelligence Report, in both public and top-secret versions, with the designated proceedings registry of the Federal Court on February 22, 2008. This matter, as with each of the security certificates signed on that date was immediately assigned to be managed as a specially managed proceeding. The Ministers filed an annotated Security Intelligence Report (“SIR”) classified as top-secret. A public summary of the SIR entitled a Statement Summarizing the Information, was served on Mr. Almrei.
[27] A series of common case management conferences followed and general directives and orders were issued to ensure the efficient and economical use of judicial resources and court facilities. Questions arose with regard to the appointment of counsel and special advocates and potential conflicts of interest that required mediation. Counsel of record for Mr. Almrei withdrew during this period of time and for some weeks Mr. Almrei was not formally represented while he sought to retain counsel and funding issues were addressed.
[28] By the direction of the Chief Justice dated May 6, 2008 the undersigned was designated to be the presiding judge in these proceedings. Steps were taken to develop a litigation plan at this time. However, a motion was brought on behalf of Mr. Almrei to secure funding for counsel which was set down for hearing in July 2008. Pending the outcome of that motion, the Court dealt with several preliminary matters with the cooperation of Mr. Almrei and his as yet unretained counsel. In a hearing by teleconference on June 3, 2008, Mr. Almrei advised the Court that he wished to have two special advocates appointed. Accordingly, by Order dated June 5, 2008, Mr. Paul Copeland and Mr. Gordon Cameron were appointed to act as special advocates in this proceeding pursuant to paragraph 83(1)(b) of the IRPA.
[29] Further to discussion with counsel for the Ministers, the special advocates and putative counsel for Mr. Almrei, appearing without prejudice as the funding issue remained unresolved, a tentative litigation plan was issued by direction of the Court on June 6, 2008 (revised on June 23rd) setting a schedule for the special advocates to meet with Mr. Almrei, review the classified documents and fixing dates for open and closed hearings.
[30] The funding issue, common to each of the five certificate cases, was resolved through a mediation conducted by Justice James Hug
essen
in July 2008. Counsel of record for Mr. Almrei was formally retained at that time. On August 8, 2008 the Court confirmed that Mr. Almrei's detention review hearing would be opened by teleconference on August 20, 2008 and would resume during the weeks of September 15 and September 29, 2008.
[31] With the consent of the parties, the detention review was adjourned due to a number of outstanding substantive and procedural issues, including a constitutional motion respecting communication between the special advocates and Mr. Almrei and his counsel which was filed on July 22, 2008.
[32] As three of the other persons named in security certificates wished to be joined as interveners to the constitutional motion and agreed to be bound by the result, that matter was referred to case management for assignment to another judge for determination. The Chief Justice heard the motion in September and October and rendered his decision on November 3, 2008.
[33] The decision disposed of several questions of statutory construction but dismissed the constitutional challenge as premature in the absence of an appropriate factual matrix: Re Almrei 2008 FC 1216, [2008] F.C.J. No. 1488. A request for directions was made to the Federal Court of Appeal as to whether a Notice of Appeal could be filed. On November 26, 2008, the Registrar of the Court of Appeal was instructed by a judge of the Court not to accept the Notice of Appeal for filing and to return it to counsel as the November 3, 2008 decision was an interlocutory order for which no appeal lies pursuant to section 79 of the IRPA.
[34] As noted, Mr. Almrei’s detention review was begun by teleconference on August 20, 2008 and adjourned to continue in September. The public hearings could not proceed as anticipated in September due to scheduling conflicts with other proceedings and outstanding procedural issues. The Court conducted closed hearings on September 29 and 30 to receive the private oral testimony of witnesses called by the Ministers and cross examined by the special advocates. The Ministers filed a classified Index of Retained Operational Notes on September 29, 2008.
[35] Evidence presented by both Mr. Almrei and the Ministers with respect to the detention review was heard in public on October 2, 3, 8, 9, 14 and15, 2008 and oral submissions were presented by the parties on October 20, 2008. Extensive written submissions were also filed by the parties.
[36] Mr. Almrei tendered the affidavits and oral evidence of seven prospective sureties and the opinion evidence of a witness qualified as an expert by the Court. The Ministers called two officials representing the Canada Border Services Agency (“CBSA”) and CSIS.
[37] Further closed hearings were held on October 20, 2008 and November 10, 2008 to receive additional oral evidence from the Ministers and oral submissions from the Ministers and the special advocates. The Ministers tendered further written submissions in a classified document referencing the closed material before the Court.
[38] A series of motions were filed by Mr. Almrei. By notice dated September 30, 2008 he sought an order that (a) CSIS disclose operational notes, (b) that CSIS account for notes destroyed to date that were generated in the course of its investigation into the applicant, (c) that the Ministers review the surviving operational notes and reassess whether the security certificate should issue, and (d) that the Ministers prepare and file a revised summary of the security intelligence information respecting Mr. Almrei. An amended Notice of Motion was filed on October 31, 2008 together with a motion for an order that the security certificate be quashed and the proceedings stayed or suspended until such time as the information and intelligence previously ordered disclosed has been provided to and considered by the Ministers.
[39] The September 30, 2008 motion was addressed in part by a disclosure order issued on October 10, 2008 in which the Ministers and CSIS were directed to file all information and intelligence related to Mr. Almrei in the possession or holdings of CSIS. The remaining elements of that motion and the amended motion of October 31, 2008 were common to a motion filed in DES-7-08 (Mahjoub). Accordingly, it was referred to the case management judges. On November 28, 2008, following several conferences with counsel, the Chief Justice issued an Order that it was inopportune to schedule a hearing prior to review of the material to be disclosed as a result of the orders issued in the five ministerial certificate proceedings pursuant to the Charkaoui 2 decision.
[40] At the opening of the public hearing on October 2, 2008 Mr. Paul Copeland, special advocate, was authorized, pursuant to subsection 85.4(2) of the IRPA, to communicate with counsel for Mr. Almrei on two matters relating to the disclosure issue and continuation of the detention review. Upon receipt of that communication, Mr. Almrei elected not to proceed with the interim stay motion at that time.
[41] A Notice of Constitutional Question and Motion Record was filed by Mr. Almrei on October 31, 2008 challenging the applicability of the standard of proof of "reasonable grounds to believe" in section 33 of the IRPA to these proceedings. The Court initially set this down for argument on November 13-14, 2008. However, as this standard of proof is imported into the determination of the reasonableness of a security certificate pursuant to section 78 of the IRPA and as it was not considered necessary to decide the issue at this stage, the question was deferred for argument at the conclusion of the evidentiary hearings on that portion of the proceedings.
[42] Hearings were conducted in closed sessions on December 5 and 18, 2008 to receive additional evidence and submissions regarding motions brought by the special advocates for the disclosure of redacted information in material filed with the Court and the disclosure of information that does not presently form part of the Court’s record. Decisions on those motions are under reserve. The information in question is not required by the Court to arrive at a decision on the question of Mr. Almrei’s continuing detention.
[43] On December 23, 2008 the Ministers filed initial classified responses to undertakings to provide additional information, made on their behalf by counsel during the closed evidentiary hearings. I have read that information in the course of preparing these reasons. Certain of that information may be the subject of further disclosure to Mr. Almrei, to be determined at a later date following the reception of submissions from the Ministers and special advocates. I am satisfied that the information is relevant to reasonableness but not material to the decision reached on detention. I have also again read the classified reference material which supports the Security Intelligence Report and have determined that it is not necessary at this stage to provide private reasons respecting that information and the oral testimony heard in private.
The Legal Framework
[44] Security certificate and detention review proceedings are governed by Part 1, Division 9 of the IRPA. I will highlight the statutory provisions and jurisprudence of particular relevance to this determination.
[45] The test for release is now found at subsection 82(5). It provides:
On review, the judge
(a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or
(b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate.
---------------------------
Lors du contrôle, le juge :
a) ordonne le maintien en détention s’il est convaincu que la mise en liberté sous condition de la personne constituera un danger pour la sécurité nationale ou la sécurité d’autrui ou qu’elle se soustraira vraisemblablement à la procédure ou au renvoi si elle est mise en liberté sous condition;
b) dans les autres cas, ordonne ou confirme sa mise en liberté et assortit celle-ci des conditions qu’il estime indiquées.
[46] This language differs slightly from that of the former subsection 83(3) which provided that “[a] judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.” Under the present text, the judge may order continued detention if satisfied that release on conditions would not address the security and flight concerns. This reflects the statement in Charkaoui 1 at paragraph 119 that the judge must be satisfied that “the danger no longer exists or that it can be neutralized by conditions” [emphasis added].
[47] I note that in the English version of the new legislative text the word “injurious” has been substituted for “danger” in relation to the risk to national security. The French text continues to read « un danger pour la sécurité nationale ». I read no difference of meaning into the choice of “injurious” in the English text.
[48] The Supreme Court of Canada discussed the meaning of “danger to national security”, as the expression appeared in the former Act, in Suresh v.
Canada
(Minister of Citizenship and Immigration), 2002 SCC 1, [2002] S.C.J. No. 3 at para. 90 as follows:
These considerations lead us to conclude that a person constitutes a "danger to the security of Canada" if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be "serious", in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.
[49] Subsection 83(1) requires that the judge shall proceed as informally and expeditiously (“…sans formalisme et selon la procédure expéditive”) as the circumstances and considerations of fairness and natural justice permit. The Ministers bear the initial burden of establishing that the criteria for detention in section 83 are met: Charkaoui 1, para.100. Once the Ministers have made out a prima facie case, the named person must submit some evidence or risk continued detention: Zündel (Re), 2004 FC 1295, [2004] F.C.J. No. 1564 at para. 23.
[50] The Court may, and on the application of the Ministers, shall hear information or other evidence in the absence of the public and of the named person and his counsel if, in the opinion of the judge, its disclosure could be injurious to national security or endanger the safety of any person: paragraph 83(1)(c) of IRPA.
[51] The Court shall ensure that the named person is provided with a summary of the information and other evidence that enables them to be reasonably informed (“…suffisamment informé…”) of the Minister’s case but that does not include anything that the judge believes would be injurious to national security or put someone in danger: paragraph 83(1)(e). A decision can be rendered on the information and evidence even if a summary has not been provided to the named person: paragraph 83(1)(i).
[52] For the purposes of this division of the Act, “information” means security or criminal intelligence information and information that is obtained in confidence from a source in
Canada
, the government of a foreign state or an international organization: section 76.
[53] The Court is authorized under paragraph 83(1)(h) to receive into evidence anything that, in the judge’s opinion, is reliable and appropriate (“…digne de foi et utile”), even if it is inadmissible in a court of law, and may base a decision on that evidence. This permits the reception of hearsay evidence such as that which may be provided by a confidential informant or a foreign intelligence service.
[54] In a detention review under the revised legislation, the Court must also consider that the Supreme Court held in Charkaoui 1 that extended detention in the security certificate context did not contravene the guarantees in sections 7 and 12 of the Charter only so long as there is a regular process of review that takes into account all relevant factors. The Supreme Court referred to thefollowing, non-exclusive set of factors, drawn in part from section 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227, at paragraphs 111 through 116 of the decision:
(a) Reasons for Detention
The criteria for signing a certificate are "security, violating human or international rights, serious criminality or organized criminality" (s. 77). Detention pursuant to a certificate is justified on the basis of a continuing threat to national security or to the safety of any person. While the criteria for release under s. 83 of the IRPA also include the likelihood that a person will appear at a proceeding or for removal, a threat to national security or to the safety of a person is a more important factor for the purpose of justifying continued detention. The more serious the threat, the greater will be the justification for detention.
(b) Length of Detention
The length of the detention to date is an important factor, both from the perspective of the individual and from the perspective of national security. The longer the period, the less likely that an individual will remain a threat to security: "The imminence of danger may decline with the passage of time": Charkaoui (Re), [2005] F.C.J. No. 269, 2005 FC 248, at para. 74. Noël J. concluded that Mr. Charkaoui could be released safely from detention because his long period of detention had cut him off from whatever associations with extremist groups he may have had. Likewise, in Mr. Harkat's case, Dawson J. based her decision to release Mr. Harkat in part on the fact that the long period of detention meant that "his ability to communicate with persons in the Islamic extremist network has been disrupted": Harkat, at para. 86.
A longer period of detention would also signify that the government would have had more time to gather evidence establishing the nature of the threat posed by the detained person. While the government's evidentiary onus may not be heavy at the initial detention review (see above, para. 93), it must be heavier when the government has had more time to investigate and document the threat.
(c) Reasons for the Delay in Deportation
When reviewing detentions pending deportation, judges have assessed whether the delays have been caused by the detainees or the government: Sahin, at p. 231 . In reviewing Mr. Almrei's application for release, the Federal Court of Appeal stated that a reviewing judge could "discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time": Almrei, [2005] F.C.J. No. 213, 2005 FCA 54, at para. 58; see also Harkat, at para. 30. Recourse by the government or the individual to applicable provisions of the IRPA that are reasonable in the circumstances and recourse by the individual to reasonable Charter challenges should not count against either party. On the other hand, an unexplained delay or lack of diligence should count against the offending party.
(d) Anticipated Future Length of Detention
If there will be a lengthy detention before deportation or if the future detention time cannot be ascertained, this is a factor that weighs in favour of release.
(e) Availability of Alternatives to Detention
Stringent release conditions, such as those imposed on Mr. Charkaoui and Mr. Harkat, seriously limit individual liberty. However, they are less severe than incarceration. Alternatives to lengthy detention pursuant to a certificate, such as stringent release conditions, must not be a disproportionate response to the nature of the threat.
[55] In Almrei 6, above, at paragraph 23, it was stated that “the determination of whether the terms and conditions of release will mitigate the danger to [the] national security of
Canada
posed by a detainee is to be gauged on the balance of probabilities.”
[56] In reviewing the role of the designated judge in certificate cases the Supreme Court noted that as subsection 82(1) of the Act, as it then read, provided that the Ministers’ decision to detain a permanent resident was based on “reasonable grounds to believe”, it is “…logical to assume…” that the same standard would be used by the reviewing judge: Charkaoui 1, para. 39 [emphasis added].
[57] “Reasonable grounds to believe” requires something more than mere suspicion but less than the standard applicable in civil matters of proof on the balance of probabilities. The Court must consider whether there is an objective basis for the finding based on compelling and credible information: Mugesera v.
Canada
(Minister of Citizenship and Immigration), 2005 SCC 40, [2005] S.C.J. No. 39 at para. 114.