Charkaoui, Re

Charkaoui, Re
Court (s) Database
Federal Court Decisions
Date
2005-02-17
Neutral citation
2005 FC 248
File numbers
DES-3-03
Notes
Reported Decision
Decision Content
Federal Court Reports Charkaoui (Re) (C.F.) [2005] 3 F.C. 389
Date: 20050217
Docket: DES-3-03
Citation: 2005 FC 248
Ottawa, Ontario, the 17th day of February, 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
IN RE a certificate pursuant to subsection 77(1)
of the Immigration and Refugee Protection Act,
signed by the Minister of Immigration and
the Solicitor General of Canada (the Ministers),
S.C. 2001, c. 27 (the I.R.P.A.);
IN RE the filing of this certificate in the
Federal Court of Canada pursuant to subsection 77(1)
and sections 78 and 80 of the I.R.P.A.;
IN RE the warrant for the arrest and detention,
and review of the reasons justifying continued detention,
pursuant to subsections 82(1) and 83(1) and (3) of the I.R.P.A.;
IN RE the fourth review of the detention of
Adil Charkaoui (Mr. Charkaoui) pursuant to
subsections 83(2) and (3) of the I.R.P.A.
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This judgment has to do with the fourth review of the detention of Mr. Charkaoui as provided for in section 83(2) of the I.R.P.A. For the purposes of this judgment, the undersigned has discussed the three preceding reviews of detention in the following judgments:
- Charkaoui (Re), 2003 FC 882 (1st review, July 15, 2003) (hereinafter Charkaoui I);
- Charkaoui (Re), 2004 FC 107 (2nd review, January 23, 2004) (hereinafter Charkaoui II);
- Charkaoui (Re), 2004 FC 1031 (3rd review, July 23, 2004) (hereinafter Charkaoui III).
For a clear understanding of the analysis of the concept of danger (which underlies the question of review of the detention), it is important to refer to these judgments.
Brief recapitulation of situation and updating of parties' evidence
[2] A certificate and a detention order were signed, issued and carried out in late May 2003 (see sections 76 and 81 of the I.R.P.A.).
[3] Although according to paragraph 78(c) the I.R.P.A. requires that a proceeding involving a certificate be handled "expeditiously" and informally, the hearing on the reasonableness of the certificate (see subsection 80(1) of the I.R.P.A.) has still not taken place (it is scheduled for the last week of February 2005), the reason being that several constitutional and other motions were filed and certain agreements made between the parties (i.e., proceeding to deal with the constitutional aspect first and then the certificate itself, a stay of proceedings, a change of counsel and so on).
[4] In view of this situation, there have been to date four hearings to review the detention (the most recent being the subject of this judgment), in addition to other hearings convened to dispose of a group of motions resulting from implementation of the record.
[5] So long as the constitutional test of the fundamental aspects of Division 9 of the I.R.P.A. has not been considered by the country's highest court, there will be challenges leading to delays and consequently several detention reviews. It will therefore be difficult to achieve the legislative objective of proceeding "expeditiously" so long as the constitutional question has not been settled.
[6] For the purposes of this detention review, the parties referred to the evidence filed at the three prior reviews and to that presented at this hearing.
[7] It is important to mention that the Ministers submitted additional evidence at a hearing on January 5, 2005 which took place in the absence of Mr. Charkaoui and his counsel (counsel for Mr. Charkaoui objected to the holding of the hearing). This additional evidence resulted in a summary of supplementary information released to Mr. Charkaoui's counsel on January 6, 2005 pursuant to paragraphs 78(e) and (h) of the I.R.P.A. In addition, counsel for Mr. Charkaoui were given a summary of interviews on January 31 and February 2, 2002 by Mr. Charkaoui with representatives of the Canadian Security Intelligence Service (C.S.I.S.), and another interview with representatives of the Federal Bureau of Investigation (the F.B.I.) on January 30, 2001, and this formed part of the Ministers' evidence. Counsel for Mr. Charkaoui objected to this additional evidence in a motion heard on January 18, 2005, but I dismissed their application to exclude it (see Charkaoui (Re), 2005 FC 149).
[8] For information purposes, at the hearing of January 5, 2005 from which Mr. Charkaoui and his counsel were excluded, I questioned two witnesses for several hours in order to check the reliability of the facts related, taking into account the source (or sources) of such facts, the type of source(s) and analysis of the documentation. This exercise made it possible for me to identify what could be released to Mr. Charkaoui in order to enable him to have sufficient information on the facts and allegations, while ensuring confidentiality for what was covered by national security, including the safety of any person (see paragraphs 78(b) and (h) of the I.R.P.A.).
[9] In short, the new summary disclosed the following:
- the inquiry regarding Mr. Charkaoui is continuing;
- the Moroccan authorities have identified Mr. Charkaoui as a member of the Groupe Islamique Combattant Marocain (the G.I.C.M.);
- the G.I.C.M. is a group linked to Al-Qaeda and was allegedly responsible for the attacks of May 16, 2003 in Casablanca and March 11, 2004 in Madrid;
- on a trip to Afghanistan in early 1998, Mr. Charkaoui allegedly took military training and theological education at the Sharia institute in Khalden;
- the emir of the G.I.C.M., Noureddine Nafia, in prison in Morocco, disclosed that Mr. Charkaoui had been indoctrinated by a Libyan imam in Montréal;
- funds were allegedly collected to set up cells in various countries, namely Canada, Pakistan, Germany, France and the United Kingdom;
- Mr. Charkaoui maintained contact and sent the sum of $2,000 (Can.) to the G.I.C.M., and allegedly gave a member of the G.I.C.M. a laptop computer.
[10] At the public hearing, the Ministers did not call witnesses or enter any documentary evidence.
[11] Additionally, Mr. Charkaoui filed sworn statements which essentially expressed the desire of the signatories that Mr. Charkaoui be released and included the offer of a sum of money as a contribution to bail. Mr. Charkaoui's evidence included some thirty sworn statements, the content of which varied with the signatories. Examples of these are Mr. Charkaoui's family, his teachers, his classmates, his friends and persons supporting his cause. Some signatories offered to supervise him if the Court decided to release him on conditions. Additionally, he entered in evidence newspaper articles regarding the present proceedings. This brief summary does not indicate all of the evidence. To see all the evidence it is important to refer to the judgments in Charkaoui I, II and III.
[12] Additionally, and for the first time, Mr. Charkaoui testified briefly through questions from his counsel and in response to questions in cross-examination by counsel for the Ministers. Mr. Charkaoui's testimony resulted largely from answers to questions put by the Court.
[13] Mr. Charkaoui told the Court that the various lawyers he had consulted had recommended that he not testify where the situation involved a tribunal proceeding in secret, as his testimony would allow the opposing party to claim he was lacking in credibility or lying. This is the reason he decided not to testify at the first three preceding detention reviews, and instead asked other individuals (his teachers, his friends, his family and so on) to do so for him. Recently, after the Federal Court of Appeal's judgment on the constitutionality of the security certificates - see Charkaoui (Re), 2004 FCA 421 (hereinafter Charkaoui IV) - he decided to testify to show his good faith.
[14] For the purposes of this detention review (see subsections 83(2) and (3) of the I.R.P.A.), Mr. Charkaoui's testimony can be summarized as follows:
[15] His travels:
- In 1996 he went to a suburb of New York for a martial arts competition with his Montréal North karate team;
- In 1996 he went to Morocco to visit his fiancé, whom he had known since 1989, as well as childhood friends, friends in his neighbourhood and relatives;
- In 1997 he did not travel since he was taking additional courses to finish his B.A. degree at the University of Montréal;
- From February to July 1998 he went to Pakistan, where among other things he attended an annual meeting of a Muslim group, "Adawaa Wa Tabligh", which often preached in the Montréal area. He travelled with someone from Alberta, whose name he does not remember and whom he has never seen again since his return to Canada;
- A few weeks after his return from Pakistan, Mr. Charkaoui went to Morocco to get married (in August and September, for about a month);
- In the spring of 1999, he went to Turkey for a martial arts competition and to visit the region;
- Later that year, he went to the U.S. for two or three days. He stayed with his aunt's husband, who was living in Astoria, near New York;
- In 1999 he went back to Morocco. His wife was still there since she was waiting to receive her Canadian permanent residence permit. He stayed in Morocco for a few months, and then left for Europe in order to buy fabrics and clothing for resale in Morocco to finance his return trip to Canada. He first went to Turkey, and then to Germany by plane. He then toured France and Spain by bus and train, before returning to Morocco in early January 2000. He returned to Canada with his wife in late February 2000;
- His last trip was in 2000-2001: in December 2000 he went back to Morocco with his wife, who was pregnant at the time (she subsequently had a miscarriage), for a few months to visit her family. It was at this time that Mr. Charkaoui began having problems with airport security services. Before leaving Canada, he was stopped by a corporal of the Royal Canadian Mounted Police (the R.C.M.P.), who told him that his name appeared on a list of alleged terrorists. When he arrived in Morocco, he had other problems. He also said that a car of the D.S.T. (the Moroccan security service) was always parked in front of the house of his parents-in-law while he was there. On his return trip, he was detained by the F.B.I. for a night in New York (where his plane had made a one-hour layover) and he was asked the names of all the persons he knew in the Montréal mosques and cafés (Mr. Charkaoui refused to accede to their request). The F.B.I. agents also told him that "Ottawa" wanted to get in touch with him;
- Finally, Mr. Charkaoui said he had never been to Afghanistan.
[16] His contacts:
- Mr. Charkaoui knows no one by the name [TRANSLATION] "Abdeslam the Canadian";
- He knows Samir Ezzine (hereinafter Mr. Ezzine); he often saw him in the Montréal Muslim community and at the mosques, but did not know him very well before he financed the purchase of Mr. Charkaoui's pizzeria in 2001 (Mr. Ezzine gave him about $9,000 equipment on credit and later worked with him for about a month and a half, until just after September 11, 2001). Mr. Charkaoui knows that Mr. Ezzine had been to Bosnia some years earlier with a humanitarian group (with Karim Saïd Atmani (hereinafter Mr. Atmani), and Mr. Abdallah Ouzghar (hereinafter Mr. Ouzghar), amongst others), but did not know any more about this trip;
- Mr. Charkaoui knows Moroccans and Algerians who are information technology consultants in Ottawa. He has been to Ottawa once or twice, in 2001 and 2002, and stayed with them when he was having interviews in the area;
- Mr. Charkaoui knows Raouf Hannachi (hereinafter Mr. Hannachi) since he did the call to prayers at the Assuna mosque in Montréal; however, he said he only knows him slightly. He knows Mr. Hannachi had been tortured in Tunisia, his country of origin, and he knew Mr. Hannachi was currently imprisoned by the Tunisian authorities, but he did not know whether Mr. Hannachi had been convicted of terrorist activity;
- Mr. Charkaoui had heard mention of an Arab man in Montréal who went to Bosnia with a humanitarian group (with Mr. Ezzine and Mr. Ouzghar), but had never met him. This man took Bosnian citizenship and stayed there to fight. He knows that after September 11, 2001, the man was deported from Bosnia to France, where he is currently being held as a terrorist. He believes this man was called "Karim" and agreed that it could be Karim Saïd Atmani, the name recognized by C.S.I.S.;
- All Mr. Charkaoui said about Samir Ait Mohammed was that he did not attend Montréal mosques;
- Mr. Charkaoui does not know Noureddine Nafia (hereinafter Mr. Nafia) and says he first saw this name when consulting documentary evidence C.S.I.S. had against him;
- Mr. Charkaoui knows Mr. Ouzghar and knows that he went to Bosnia with Mr. Atmani and Mr. Ezzine. He also read in the newspapers that France was requesting his extradition from Canada because he was being charged with trafficking in forged papers, but this application had been dismissed by an Ontario Superior Court judge;
- Abousfiane Abdelrazik (hereinafter Mr. Abdelrazik) is an acquaintance of Mr. Charkaoui. He saw him everywhere in Montréal, since he was a man connected to the Montréal mosques, but did not know him very well before 2001. Mr. Charkaoui knows Mr. Abdelrazik was acquainted with Ahmed Ressam (hereinafter Mr. Ressam), and they in fact discussed the Ressam case together;
- Mr. Charkaoui does not know Mr. Ressam personally; however, he knows people who know him, and admits it was possible Mr. Ressam had seen him in Montréal without their meeting (for example, in a café). Mr. Ressam did not attend the Montréal mosques. In the Montréal Muslim community, many people think Mr. Ressam was recruited by the secret services to embarrass Canada and that Mr. Ressam was never part of the Al-Qaeda network;
- Hicham Tahir (hereinafter Mr. Tahir) worked at Mr. Charkaoui's pizzeria. They met in 1995 or 1996 when Mr. Charkaoui first arrived in Montréal, since they often went to the same mosque and played soccer together;
- Mr. Charkaoui never met Abu Zubaida (hereinafter Mr. Zubaida), never used his services, money, clothing or anything else. He knows no one who knows him personally. He did not hear of Mr. Zubaida until after the September 11, 2001 attacks, and that was in the newspapers. He believes Mr. Zubaida had in fact died without ever being captured by the Americans, but that the American authorities use him to make accusations against other people;
- Mr. Charkaoui insists there is no Libyan imam in Montréal, something alleged by Mr. Nafia.
[17] His personal life:
- Mr. Charkaoui completed his B.A. studies at the University of Montréal in the spring of 1997. In September 1997, he began his Master's degree at the same faculty. During the first semester of his Master's degree (before he left for Pakistan), he held two jobs, trained in the martial arts and gave karate courses;
- In 2001, since he had found no employment in his field (teaching), he bought a pizzeria with his father's help. He sold it in March 2003 since he was in debt and found someone who was ready to buy it, and take over the debts which he owed. He found it too difficult to work at the pizzeria and do his Master's degree at the same time. His professor had also offered him part-time work as a researcher;
- Mr. Charkaoui prayed at several Montréal mosques, not one only;
- Mr. Charkaoui said he had never committed a crime. However, in March 1999, he pleaded guilty to attempted theft, for which he received an unconditional discharge. He says he was innocent, he had never tried to steal anything and could not defend himself since it cost too much;
- In 1999, on his trip to Morocco, he sold a laptop computer, which he had taken with him from Canada, to a neighbour who was an information technology consultant, since it was cheap for the neighbour. He did not take it with him on his travels to Europe.
[18] In addition, Mr. Charkaoui told the Court about his meeting with C.S.I.S. officers in the spring of 2001, at which time the officers told him they were conducting a security investigation concerning him in connection with his citizenship application. After that meeting he decided, out of [TRANSLATION] "pure curiosity", to find out more about the people whose names had been mentioned by C.S.I.S. as well as by the F.B.I. (at the meeting earlier that year).
[19] Finally, Mr. Charkaoui opined at length about terrorism. He found it deplorable that a [TRANSLATION] "terrorist" prototype had developed over the years, that of a young Arab Muslim male who travelled a lot, and studied languages and the martial arts. He said he knew many innocent people who had been suspected of being terrorists, often on account of this prototype. He also told the Court that he found it difficult to understand how anyone [TRANSLATION] "who was in a medieval country in a cave" (namely, Osama bin Laden in Afghanistan) could have perpetrated an attack on the scale of September 11, 2001 in the U.S. Mr. Charkaoui noted that in December 2000 he was searched by the F.B.I. at JFK airport when he was accompanied by his pregnant wife, but nineteen young Arab men were able to board aircraft on September 11, 2001 without difficulty. He found it strange that the 19 passports of these men had been found but the black boxes of the four aircraft were still missing. From his reading, his study on the Internet and the newspapers, Mr. Charkaoui is not convinced that the attacks were committed by Muslims; he says it is equally likely they were carried out by neo-conservatives and religious authorities in the U.S.
[20] Mr. Charkaoui called a polygraphist, John Galianos (hereinafter Mr. Galianos). However, Mr. Galianos was never recognized as an expert witness for the purposes of his testimony. Briefly, Mr. Galianos prepared five questions with Mr. Charkaoui's counsel which they felt identified the principal concerns in the case. Mr. Charkaoui subsequently took the polygraph test. The questions and answers were as follows:
[TRANSLATION]
(a) On the allegations in the security certificate filed against you, do you intend to speak the truth in answering each question in this test?
Answer: "YES".
(b) Have you ever participated in a terrorist training camp?
Answer: "NO".
(c) Have you ever been a member of a terrorist network?
Answer: "NO".
(d) Are you a member of a terrorist network?
Answer: "NO".
(e) Have you ever planned to commit a crime with one or more members of Al-Qaeda?
Answer: "NO".
Two polygraphists (Donald Bourque and Jacques Gagné) reviewed and analysed the procedure, the technique used and the computerized polygraph tracing. They concluded Mr. Charkaoui was telling the truth. They were not present at the polygraph test and did not testify.
[21] Briefly, and for information purposes, Mr. Galianos testified as follows: He became a member of the Sûreté du Québec in 1968. In 1976, he was chosen to take a course to become a polygraphist (previously, there was no polygraphist in the Sûreté du Québec), a position which he held until his retirement in 1993. He subsequently formed his own company, Galianos Polygraphe Expert Inc., which conducts polygraph tests in the private sector. In the 1980s, he helped form the first polygraph school in Ottawa and on several occasions helped with the training of officers of the R.C.M.P., the Sûreté du Québec and various police colleges in Canada, among others.
[22] According to Mr. Galianos, the polygraph gives a more exact idea of whether someone is lying, since when a person lies there are psycho-physiological reactions which the polygraph can record. Mr. Galianos said the margin of error was between 5 and 10 percent.
[23] Mr. Galianos was approached by Mr. Charkaoui's counsel, who gave him a one-page document regarding the security certificate and told him a little about the background to the matter. He also did a little research on the Internet. As is customary, he prepared the five questions for the test with Mr. Charkaoui's counsel.
[24] Subsequently, on November 17, 2003, he went to Rivière-des-Prairies to meet Mr. Charkaoui and administer the polygraph test. He asked for Mr. Charkaoui's version of the facts and put several questions to him regarding terrorism and the allegations against him. He showed him the five questions so he could be prepared. In all, Mr. Galianos said he spent three hours with Mr. Charkaoui, most of the time being used for the informal discussion before the test, or the "pre-test", an important stage to ensure that the polygraph test produces the best possible result.
[25] That is a summary of the parties' evidence as submitted, and it will be assessed in light of the obligations imposed by subsection 83(3) of the I.R.P.A.
Parties' arguments
[26] The Ministers argued that the standard applicable to determining ongoing danger involves applying that of "reasonable grounds" (see Charkaoui IV, paragraph 103, and Charkaoui I, paragraph 39). In their submission, the ongoing danger found to exist three times (see Charkaoui I, II and III) is still present, even in view of the new evidence submitted by Mr. Charkaoui.
[27] Counsel for the Ministers maintained that, in view of the evidence heard at the hearings when he and his counsel were not present, Mr. Charkaoui perjured himself in his testimony. At the public hearings, counsel could not be more specific for reasons of national security. Also, the testimony of the polygraphist Galianos could not be accepted for several reasons: the questions chosen did not reflect the Court's concerns, they were not appropriate for a polygraph test, they contained duplications and the control question was not relevant. Additionally, Mr. Galianos did not have the necessary knowledge to understand the content of such a test (he could not explain why the changes in the sweat glands were recorded in ohms, not in pH, or why it was important to record them; he did not know when he measured breathing whether it was the rhythm or volume of air that was important; he did not know the blood pressure of a normal person or whether pressure was measured in millimeters or some other measure, and did not check Mr. Charkaoui's blood pressure before administering the test). Finally, counsel for the Ministers filed precedents (Gauthier v. Assurances générales Desjardins Inc., [2004] J.Q. No. 3939 (S.C.) and Services financiers DaimlerChrysler v. Hébert, [2003] J.Q. No. 13864 (C.Q.)), in which Mr. Galianos' credibility was questioned. Consequently, the Ministers submitted that no credibility should be accorded to Mr. Galianos. Further, the Ministers submitted that the concerns identified in Charkaoui I and restated in Charkaoui II and III continue to exist, and the new evidence does not diminish them. Lastly, the Ministers added that conditional release was not an option in view of the danger associated with Mr. Charkaoui and that no supervision plan or conditions had been submitted on the basis of which the Court could decide whether to release him.
[28] Mr. Charkaoui's counsel asked the Court to analyse the evidence as a whole in the four detention reviews, and added that with the testimony of Mr. Charkaoui and the polygraphist Mr. Galianos the evidence was conclusive that their client presented no danger. Further, the financial commitments (for contribution toward bail) and supervision by the signatories should be taken into account to determine satisfactory conditions of release. They added that the detention prevented Mr. Charkaoui from looking after his two young children and he was unable to earn any income to discharge his responsibilities as the father of a family. They mentioned that he had undertaken under oath to comply with [TRANSLATION] "any conditions of release it shall please the Court to order". Finally, he argued that continuing the detention without release on bail contravened sections 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 (hereinafter the Charter).
Points at issue
[29] There are two questions to be answered:
(1) In light of the evidence submitted by the Ministers in the hearings held at the four detention reviews, the finding by the Court on three occasions that Mr. Charkaoui was still a danger to national security or the safety of any person or was unlikely to appear at a proceeding or for removal, and the evidence submitted by the latter since the first review, including the recent evidence, is Mr. Charkaoui still a danger to national security or the safety of any person, or is he unlikely to appear at a proceeding or for removal?
(2) Assuming that the danger has been neutralized and that, based on the most recent evidence, Mr. Charkaoui is not unlikely to appear at a proceeding or for removal, should conditional release as provided for in section 85 and Division 6 of the I.R.P.A. be considered?
APPLICABLE LAW
Standard of review
[30] In a detention review, the Court assesses the evidence on the basis of the reasonable grounds standard. At the time of the decision by the Ministers to issue a warrant for the
arrest and detention of the person mentioned in the certificate, the said decision by the Ministers must be taken provided the latter have reasonable grounds to believe that the person in question is a danger to national security or the safety of any person, or is unlikely to appear at a proceeding or for removal (see subsection 82(1) of the I.R.P.A.). It is logical to assume that in subsequent reviews by a designated judge, the same standard will be used. This is what was found in Charkaoui I, at paragraph 39, and what the Court of Appeal confirmed in Charkaoui IV, at paragraph 103, per Létourneau J.A.:
The "reasonable grounds" standard requires more than suspicions. It also requires more than a mere subjective belief on the part of the person relying on them. The existence of reasonable grounds must be established objectively, that is, that a reasonable person placed in similar circumstances would have believed that reasonable grounds existed, in the case of an arrest, to make the arrest: R. v. Storrey, [1990] 1 S.C.R. 241, at page 250.
The reasonable grounds standard is the one applicable to reviewing the decision by the Ministers to issue an arrest warrant and to proceed to arrest the person concerned.
[31] However, at detention reviews every six months after the first review (provided for in subsection 83(1) of the I.R.P.A.), the designated judge must analyse the old and new evidence as he is in a better position to do so than the Ministers, since he has received new evidence from the parties. He does so by applying the same "reasonable grounds" standard, but this is similar to the
balance of probabilities. In Charkaoui (Re) (F.C.), 2003 FC 1419 (hereinafter Charkaoui V), this point was dealt with exhaustively in paragraphs 125, 126 and 128:
125. With respect, I believe that a designated judge assessing the reasonableness of a certificate or the necessity of continued detention could well be in a more advantageous position than the Ministers are in when they make the initial decisions. In addition to examining the information that the Ministers had when they made their decisions, the designated judge has access to any other evidence (paragraphs 78(d) and 78(e) of the IRPA), can hear and see witnesses called by the Ministers and the person concerned, can examine additional documentation that might even be unfavourable to the Ministers' case (Ruby, supra) and can hear each party's arguments at the hearing. At the request of a party, the designated judge can even receive into evidence anything he believes is appropriate, even if normally inadmissible, and may base the decision on that evidence (paragraph 78(j) of the IRPA). In short, depending on the evidence tendered, a designated judge may be in a better position than the Ministers were in when they made their decisions.
126. Parliament has chosen standards other than the preponderance of evidence standard because this is what national security demands. Cases involving national security must be approached differently from others. In this case, the security of Canada, the safety of its citizens and the protection of its democratic system are at stake. The state must therefore use extraordinary methods of protection and inquiry, as illustrated by the schemes established by the Canadian Security Intelligence Service Act and other statutes. Situations and entities that pose a threat to national security are often difficult to detect and are designed to strike where society is most vulnerable. Attacks against national security can have tragic consequences. People who pose a danger to national security are often on a "mission" for which they are prepared to die. They are difficult to identify and their borderless networks are often difficult to infiltrate. They strike when least expected. Where national security is involved, we must do everything possible to avert catastrophe. The emphasis must be on prevention. After all, the security of the state and the public are at stake. Once certain acts are perpetrated, it could be too late. In my opinion, national security is such an important interest that its protection warrants the use of standards other than the preponderance of evidence standard. Having said this, we will see that the "reasonableness" and "reasonable grounds to believe" standards comport [sic] requirements that come close to the preponderance of evidence standard.
. . . . .
128. These standards do not require that the designated judge seek proof of the existence of the facts. Rather, they require that the judge analyse the evidence as a whole and determine whether it provides reasonable grounds to believe there are reasons justifying the inadmissibility, arrest warrant and continued detention. While the preponderance of the evidence is not the standard, there must nevertheless be a serious possibility that the facts exist based on reliable, credible evidence. In Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.) at paragraph 60, the standards contemplated in the IRPA are compared to the preponderance of evidence standard:
As for whether there were "reasonable grounds" for the officer's belief, I agree with the Trial Judge's definition of "reasonable grounds" (supra, at paragraph 27, page 658) as a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes "a bona fide belief in a serious possibility based on credible evidence." See Attorney General of Canada v. Jolly, [1975] F.C. 216 (F.C.A.).
[32] As mentioned above, the logic followed in that judgment was affirmed by the Court of Appeal (see the quotation contained in paragraph 30 hereof).
[33] Accordingly, from the outset of the detention review and thereafter, the standard of review has been that of reasonable grounds to believe. It is on the basis of that standard that I will analyse the evidence to make the appropriate findings.
Legal duties arising from detention review (subsection 83(3) of I.R.P.A.)
[34] The first detention review is subject to subsection 83(1) of the I.R.P.A. Subsections 83(2) and (3) of the I.R.P.A. set out the basic duties applicable to subsequent appearances by the detainee. For the purposes of analysis, they are set out here:
Further reviews:
83(2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.
Comparution supplémentaires :
83(2) Tant qu'il n'est pas statué sur le certificat, l'intéressé comparaît au moins une fois dans les six mois suivant chaque contrôle, ou sur autorisation du juge.Order for continuation:
83(3) 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.
Maintien de la détention :
83(3) L'intéressé est maintenu en détention sur preuve qu'il constitue toujours un danger pour la sécurité nationale ou la sécurité d'autrui ou qu'il se soustraira vraisemblablement à la procédure ou au renvoi.
For the sake of completeness, I add the next subsection, 84(1): "The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada".
[35] The key function of the designated judge under subsection 83(3) is to analyse the evidence and decide whether the person concerned is still a danger to national security or the safety of any person or whether he or she is unlikely to appear at a proceeding or for removal. This requires evidence based on reasonable grounds. (For argument's sake, it might be that the form of detention could change despite the existence of danger, but the point does not have to be dealt with in this proceeding. It will probably be the subject of another judgment.)
[36] The courts have previously had to discuss and interpret the phrase "danger to the security of Canada" in connection with the deportation provisions of the Immigration Act, R.S.C. 1985, c. I-2 (the old Act) and the application of section 53. In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraph 90, the Supreme Court concluded:
. . . 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.
There does not seem to be any reason whatever why this definition would not apply to subsection 83(3) of the I.R.P.A., which uses similar wording, namely "danger to national security".
[37] The other phrase in subsection 83(3), "danger . . . to the safety of any person", does not appear to have been dealt with specifically. Suresh, supra, makes a distinction at paragraph 84 between "danger to the security of Canada" and "danger to the public", found in section 53 of the old Act. The latter concept is similar to the phrase "danger . . . to the safety of any person" contained in subsection 83(3) of the I.R.P.A. In Suresh, the Supreme Court limited the phrase "danger to the public" to persons who had been convicted of a serious offence.
[38] Having noted that, it appears that the concept "danger to any person", for the purposes of a detention review, applies when the evidence discloses facts to support a serious likelihood of direct or indirect participation in the design and/or planning of terrorist activities. One of the purposes of Division 9 and paragraph 3(h) of the I.R.P.A. is "to protect the health . . . of Canadians and to maintain the security of Canadian society". In order to carry out these obligations, it is important to be forewarned of situations which have a serious likelihood of occurrence, rather than to suffer the painful consequences of an actual occurrence. Danger to the safety of any person includes awareness before the act occurs, which in itself broadens the concept of "danger to the public" to more than persons who have been convicted of a serious offence. This seems to me to be the meaning that should be given to the phrase "danger . . . to the safety of any person" included in subsection 80(3) of the I.R.P.A.
[39] The point which these two phrases have in common is determining whether the danger to national security or the safety of any person still exists. Parliament has asked the designated judge to analyse the evidence by considering whether the danger still exists. Accordingly, this means that it may exist at one moment and not at another. The designated judge must therefore weigh the evidence with this concern in mind. There is thus a possibility that danger may be imminent but subsequently be neutralized. It seems to the Court that this is what Parliament intended to be the role of the designated judge.
[40] The other phrase in subsection 83(3) of the I.R.P.A. that should be taken into account in analysing the evidence is whether the person in question "is unlikely to appear at a proceeding or for removal". Use of the wording "vraisemblablement" in the French version and "is unlikely to appear" in the English indicates that Parliament intended a certain degree of probability, or improbability, to be taken into account in weighing the evidence.
The possibility of imposing conditions for preventive purposes
[41] Section 85 of the I.R.P.A. reads as follows:
Inconsistency:
85. In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency.
Incompatibilité :
85. Les articles 82 à 84 l'emportent sur les dispositions incompatibles de la section 6.
[42] Division 6 of the I.R.P.A., under the heading "Detention and Release", provides in subsection 58(3) for the possibility of release on conditions thought necessary, including a guarantee of compliance. The same point was discussed in Charkaoui I, at paragraph 66:
There is provision in subsection 58(3) of Division 6 of the Act (Detention and release) for release with the posting of a guarantee for compliance. This division applies through section 85 of the Act, which states that in the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency. Thus, since sections 82 to 84 do not cover any terms that may be linked to a release prior to the hearing on the certificate, a contrario, that are not inconsistent on this specific point, subsection 58(3) m ay serve as a base reference n release and the conditions therefor.
The legislative situation has not altered since this provision was drafted, and no other argument was submitted to support reconsideration of the proposed approach.
[43] In considering a conditional release, the designated judge must be satisfied, on reasonable grounds, that the person concerned is not a danger to national security or the safety of any person. If there is a danger, he cannot consider release, even with exceptional conditions. He does not have that discretion. In Charkaoui IV, Létourneau J.A., concluding that the detention referred to in sections 82 to 84 of the I.R.P.A. was justified, noted at paragraphs 120 and 121:
120. . . . Finally, the lack of discretion of the designated judge when there is a danger to national security or the safety of any person may be justified by the nature of the activities contemplated in section 34 of the IRPA, including terrorist activities.
121. Whatever the case, the detention of a permanent resident awaiting the determination of the reasonableness of the security certificate issued against him is not an unjustified measure where there is proof of a danger to national security or that he might not appear at the proceedings taken against him.
[44] It is within this legal framework that I intend to analyse and make the appropriate findings.
Analysis
[45] In order to fully cover the issues arising from this detention review, I intend to answer the following questions:
- From the start of the proceedings to the finding on the third detention review, was there a danger to national security or the safety of any person, or was Mr. Charkaoui unlikely to appear at a proceeding or for removal, if applicable?
- In connection with the fourth detention review, is there still a da