Canada (Citizenship and Immigration) v. Charkaoui

Canada (Citizenship and Immigration) v. Charkaoui
Court (s) Database
Federal Court Decisions
Date
2005-12-09
Neutral citation
2005 FC 1670
File numbers
DES-3-03
Notes
Reported Decision
Decision Content
Date: 20051209
Docket: DES-3-03
Citation: 2005 CF 1670
Ottawa, Ontario, December 9, 2005
Present: THE HONOURABLE Mr. JUSTICE SIMON NOËL
BETWEEN:
IN THE MATTER OF
a certificate filed under subsection 77(1)
and sections 78 to 80 of the
Immigration and Refugee Protection Act (IRPA);
IN THE MATTER OF
the decision of the Minister of Citizenship and Immigration
as to whether to protect a person named in a security certificate,
under paragraphs 95(1)(c), 112(3)(d) and 113(b) and (c),
subparagraphs 113(d)(i) and (ii), subsections 115(2) and 77(2),
paragraph 101(1)(f) and section 104 of the IRPA and sections 167 to 172
of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (IRPR) and the constitutional challenge
to those provisions;
AND IN THE MATTER OF
Adil Charkaoui.
REASONS FOR ORDER AND ORDER
I. INTRODUCTION
[1] The applicant, Adil Charkaoui (Mr. Charkaoui) has been named in a security certificate under section 77 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The security certificate is based on the satisfaction of the Solicitor General of Canada (now the Minister of Public Safety and Emergency Preparedness) and the Minister of Citizenship and Immigration (Minister of Immigration) (the Ministers) that Mr. Charkaoui has been and is still a member of the Osama Bin Laden network, an organization that has engaged, is engaged or will engage in acts of terrorism, that as such he has engaged, is engaged or will engage in terrorism, and accordingly that Mr. Charkaoui has been, is or will be a danger to the security of Canada (see paragraphs 34(1)(c), (d) and (f) of the IRPA).
[2] This is the second constitutional proceeding brought by Mr. Charkaoui. The first was a challenge to the constitutional validity of sections 33 and 77 to 85 (provisions relating to certificates and detention) of the IRPA. The Federal Court (Charkaoui (Re), [2004] 3 F.C.R. 32, 2003 FC 1419, [2003] F.C.J. No. 1816) and the Federal Court of Appeal (Charkaoui (Re), [2005] 2 F.C.R. 299, 2004 FCA 421, [2004] F.C.J. No. 2060) found those provisions to be constitutional. The application for leave to appeal from the judgment of the Federal Court of Appeal to the Supreme Court of Canada was allowed and the hearing is scheduled for early summer 2006.
[3] Mr. Charkaoui has made five main arguments, corresponding to the five questions he has submitted to the Court.
[4] First, Mr. Charkaoui submits that the Ministers have delegated a power contrary to subsection 6(3) of the IRPA in that they made the decision to sign the security certificate and arrest warrant regarding him without having the entire Canadian Security Intelligence Service (CSIS) file before them. In Mr. Charkaoui's submission, the decision-maker had access only to a report by CSIS.
[5] Second, Mr. Charkaoui challenges the constitutional validity of the provisions of the IRPA governing applications for protection, pre-removal risk assessment, the application of the principle of non-refoulement and national security: paragraphs 95(1)(c), 112(3)(d), 113(b) and (c) and subparagraphs 113(d)(i) and (ii), subsections 115(2) and 77(2), paragraph 101(1)(f) and section 104 (sections 101(1)(f) and 104 were not included in the constitutional question, and appear only in Mr. Charkaoui's memorandum of fact and law (Mr. Charkaoui's memorandum)) and sections 167 to 172 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR). A notice of constitutional question was served on the Attorneys General of Canada and of the provinces in accordance with section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7 (F.C.A.). The question submitted to the Court reads as follows in the notice (typographical errors in the original French not corrected):
[TRANSLATION] Do the provisions of the IRPA ... governing applications for protection, sections 95(1)(c) (final portion), 112(3)(d), 113(b),(c) and (d)(i) and (ii) and 115(2) of the IRPA, read together with sections 77(2) and the corresponding regulatory provisions, sections 167 to 172 IRPR, violate:
(i) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987, No. 36?
(ii) The Convention relating to the Status of Refugees, Can. T.S. 1969 No. 6, Preamble, s. 33?
(iii) Sections 7, 12 and 15 of the Canadian Charter, Canada Act, 1982, Schedule B?
(iv) The Canadian Bill of Rights, 8-9 Eliz. II, c. 44, R.S.C. 1985, App. III?
(v) The International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47?
(vi) The Universal Declaration of Human Rights, G.A. Res 217 A (III), Doc. A/810 U.N., at page 171 (1948)?
[6] Third, Mr. Charkaoui submits that the acts, omissions and decisions of the Ministers regarding him create a context in which the effects amount to treatment prohibited by sections 7, 12 and 15 of the Canadian 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 (Canadian Charter) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, 10 December 1984, Can. T.S. 1987 No. 36 (entry into force 16 June 1987) (Convention against Torture), by exposing him, since May 2003, to the possibility of removal to the Kingdom of Morocco (Morocco), a country where there is a risk of torture.
[7] Fourth, Mr. Charkaoui submits that by their decisions, the Ministers have created an appearance of bias which disqualifies them as decision-makers by preventing them from performing the functions assigned to them by the IRPA.
[8] Fifth, Mr. Charkaoui submits that the circumstances and proceedings to which he is subject justify a permanent suspension of the proceedings.
II) RELIEF SOUGHT
[9] The relief sought by Mr. Charkaoui is as follows:
- A permanent suspension of the proceedings against him;
- A declaration that the security certificate and arrest warrant signed and issued against him are invalid of no force or effect, under sections 7, 12, 15 and 24(1) of the Canadian Charter and section 50 F.C.A. (which in fact allows for a stay of proceedings and not a declaration of invalidity);
- A declaration that the provisions of the IRPA governing applications for protection, the final portion of paragraph 95(1)(c), section 98, paragraphs 112(3)(d) and 113(b) and (c) and subparagraphs 113(d)(i) and (ii), read together with subsection 77(2), paragraph 101(1)(f) and section 104 and the corresponding provisions of the regulations, sections 167 to 172 IRPR, are unconstitutional and of no force or effect against him under section 52 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (C.A. 1982);
- Such other orders as will be requested or as it may please the Court to make as remedies for the alleged violations of Mr. Charkaoui's rights, under section 24 of the Canadian Charter;
- Judgment reserving the applicant's other rights;
- Costs.
(See Mr. Charkaoui's memorandum, May 27, 2005, at para. 94, under the heading [TRANSLATION] "Nature of the Order Sought")
III. SUMMARY OF THE LEGAL SITUATION AND FACTS
(a) Provisions relating to applications for protection and national security
[10] The provisions that Mr. Charkaoui challenges are those relating to applications for protection by persons named in a security certificate. Those provisions are paragraph 95(1)(c), section 98, paragraphs 112(3)(d) and 113(b) and (c) and subparagraphs (d)(i) and (ii) and subsection 115(2) IRPA, read together with subsection 77(2), paragraph 101(1)(f), section 104, subsections 114(1), (2), and (3), 79(2) and 80(1) and paragraphs 81(a), (b) and (c) of the IRPA. The relevant sections of the IRPR are 167 to 172. All of those provisions are reproduced in Appendix 1.
[11] The IRPA provides that before a person is returned to his or her country of origin, the person may apply for a pre-removal risk assessment (PRRA application). In the case of persons who are not named in a security certificate, if the assessment shows that there is a possibility of torture or cruel or unusual treatment or punishment, refugee protection is granted and the person will not be removed.
[12] Persons named in a security certificate may also make a PRRA application but they must make the application before a decisions is made as to whether the certificate is reasonable. It is thus not possible for such persons to make an application for protection once the designated judge confirms that the certificate is reasonable (ss. 80 and 81 IRPA). There is another major difference: two assessments rather than one are done. First, a pre-removal risk assessment (PRRA - a report submitted under s. 97 and para. 113(d) of the IRPA) will be done (see subs. 112(1) and paras. 97(1)(a) and (b) IRPA). Second, a restriction assessment will be prepared (report submitted under 113(d)(ii) and 112(3) IRPA), the purpose of which will be to determine whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada (see subpara. 113(d)(ii) IRPA). Those reports are then submitted to the Minister or the Minister's delegate for final decision (subs. 172(1) IRPR). Cases may arise in which files are submitted to the Minister or the Minister's delegate consisting of both a PRRA concluding that removal to the country of origin is risky and a restriction assessment concluding that the person concerned constitutes a danger to national security. The Minister or the Minister's delegate must then consider both reports and also the written response of the person concerned, if any. The Minister or the Minister's delegate must then weigh, or balance, the reports that have been submitted and reach a final decision having regard to the applicant's written response (see s. 172 IRPR). In doing this, the Minister or the Minister's delegate must follow the directives given in Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3, 2002 SCC 1, [2002] S.C.J. No. 3 and Sogi v. Canada (Minister of Citizenship and Immigration) 2004 FC 853, [2004] F.C.J. No. 1080 (F.C.). In the analysis below, we will see the principles that apply in those circumstances, as stated by the courts, in detail. In any event, if the Minister concludes that protection should be granted, the person named in the security certificate will not be entitled to refugee protection, and rather only to a stay (subs. 114(1) IRPA). Ultimately, the lawfulness of the decision of the Minister or the Minister's delegate is subject to review by a designated judge (see s. 76, definition of expression "judge", and s. 80 IRPA).
[13] To summarize, the fact that a person is named in a security certificate means that a specific procedure will apply to the person when he or she makes an application for protection. The Minister or the Minister's delegate must weigh the risk of removal against the objective of national security, in accordance with the applicable decisions of the courts. It is this procedure that is the subject of the constitutional challenge in this case.
(b) Detailed chronology of events
[14] In order to properly understand the legal issues raised by this proceeding, it is important that we review certain of the facts in the case, in chronological order:
- Mr. Charkaoui has been a permanent resident since 1995;
- On May 16, 2003, a security certificate and an arrest warrant were signed by the Ministers and the certificate was filed at the Federal Court Registry;
- On May 21, 2003, the arrest warrant was executed;
- On May 30, 2003, the notification required by s. 160 IRPA ("Notification Regarding Pre-removal Risk Assessment: Persons Named in a Security Certificate") was sent to Mr. Charkaoui by an officer of Citizenship and Immigration Canada (CIC). The notification informed Mr. Charkaoui that he had the right to make a PRRA application and stated that if Mr. Charkaoui wished to exercise that right, a form had to be sent by June 14, 2003, and written submissions sent by June 29, 2003 (the time allowed is set out in s. 164 IRPR);
- On July 15, 2003, the undersigned released a judgment finding that Mr. Charkaoui's detention was valid based on the danger to national security;
- Mr. Charkaoui obtained an extension of time for filing submissions, and sent them to the CIC at the end of July 2003 (they are dated July 31) (see ss. 162 and 163 IRPR). In his submissions, Mr. Charkaoui stressed the reasons why he fears that he will be tortured if he is returned to Morocco;
- On August 21, 2003, the officer in charge of the pre-removal risk assessment completed his assessment and concluded that there [TRANSLATION] "is a probability of torture, death threats and cruel and unusual treatment or punishment if he [Mr. Charkaoui] returns to Morocco". The PRRA was disclosed to Mr. Charkaoui on April 2, 2004, more than seven months later;
- On December 5, 2003, the undersigned released a judgment declaring the provisions relating to the security certificate to be constitutional (see Charkaoui (Re), [2004] 3 F.C.R. 32, 2003 FC 1419, [2003] F.C.J. No. 1816);
- On December 23, 2003, Mr. Charkaoui's counsel sent a demand to the CIC pointing out that five months had passed since the PRRA application was filed. In that demand, Mr. Charkaoui asked that he be provided with the PRRA without delay;
- By order dated January 8, 2004, the undersigned held that the hearing to determine whether the certificate was reasonable would be held on April 5 to 8, 2004;
- On January 23, 2004, the Court released a second judgment upholding the detention;
- On January 31, 2004, Mr. Charkaoui was granted an initial suspension of proceedings, under subsection 79(1) IRPA. The hearing to decide whether the certificate was reasonable, which had been scheduled for early April (see the order dated January 8, 2004), was cancelled;
- On February 18, 2004, the Department of Foreign Affairs and International Trade (Foreign Affairs Canada) sent a diplomatic note (diplomatic note) informing the Ministry of Foreign Affairs and Cooperation of Morocco (Foreign Affairs Morocco) of the proceedings against Mr. Charkaoui [TRANSLATION] "... for the purpose of removing him from Canada and returning him to Morocco because he constitutes a threat to the security of Canada". In that note, Foreign Affairs Canada asked Morocco to undertake, in the event that Mr. Charkaoui was returned, to treat him humanely and not to subject him to torture or to other cruel, inhuman or degrading acts. That letter was disclosed to Mr. Charkaoui on June 8, 2004;
- On March 10, 2004, Mr. Charkaoui filed a motion for recusal. That motion was dismissed by order of the undersigned on April 28, 2004;
- On April 24, 2004, CIC sent Mr. Charkaoui a letter to which three reports were attached:
- The PRRA dated August 21, 2003;
- A restriction assessment dated February 24, 2004, which would not be submitted to the Minister's delegate because it was incomplete;
- A second restriction assessment dated April 1, 2004.
In the letter, Mr. Charkaoui was invited to comment on the reports, and he did so on April 17, 2004;
- On April 18, 2004, Morocco replied to the diplomatic note from Foreign Affairs Canada. In its letter, Morocco stated that there were no judicial proceedings against Mr. Charkaoui, that there was no request for his extradition, that protection against violence, torture, and so on is guaranteed by the constitution of Morocco and that Morocco has ratified a number of international human rights conventions, including the International Covenant on Civil and Political Rights, 19 December 1966, Can. T.S. 1976 No. 47 (entry into force March 23, 1976) (International Covenant) and the Convention against Torture;
- On June 8, 2004, the Canada Border Services Agency sent Mr. Charkaoui the diplomatic note from Foreign Affairs Canada dated February 18, 2004, and the reply by Morocco dated April 18, 2004, so that he could comment on them and so that everything could be submitted to the Minister's delegate. Mr. Charkaoui filed his submissions in late July 2004, after obtaining an extension of time;
- By order dated July 23, 2004, the undersigned upheld Mr. Charkaoui's detention for the third time;
- On August 6, 2004, the Minister's delegate made a decision (decision of August 6, 2004) denying the protection application. She concluded that under para. 113(d) of the IRPA, Mr. Charkaoui was not a person in need of protection within the meaning of section 97 of the IRPA and that he was a danger to the security of Canada. There was an addendum to that decision dated August 20, 2004 (addendum of August 20, 2004);
- On September 10, 2004, Morocco signed an international arrest warrant for Mr. Charkaoui (arrest warrant) stating, inter alia, that he was an active member of the Moroccan Islamic Combatant Group (G.I.C.M.). The warrant was amended on March 17, 2005, and remains in effect;
- On or about December 23, 2004, Mr. Charkaoui's father met with the Consul of Morocco in Montreal and was informed that Mr. Charkaoui was not wanted in Morocco;
- On February 17, 2005, the undersigned released Mr. Charkaoui, finding that the danger had been neutralized, given the circumstances. The order also imposed fifteen preventive conditions on Mr. Charkaoui (see Charkaoui (Re),[2005] 3 F.C.R. 389, 2005 FC 248, [2005] F.C.J. No. 269 and the update to the conditions of release, Charkaoui (Re) (November 10, 2005), Ottawa DES-3-03);
- On March 16, 2005, the Ministers filed a motion to set aside the decision of the Minister's delegated dated August 6, 2004 (including the addendum of August 20, 2004) refusing Mr. Charkaoui protection. The Ministers' motion was based on the occurrence of new facts that made the request necessary (issuance of the arrest warrant). By judgment dated March 22, 2005, the decision was set aside;
- On March 16, 2005, Mr. Charkaoui made a second application to suspend the proceedings, under subs. 79(1) of the IRPA. That application was allowed by order dated March 22, 2005. The order also set aside the decision of the Minister's delegate and cancelled the hearing scheduled for April 4 to 8, 2005 (see order of November 9, 2004), which was to have been held for the purpose of determining whether the security certificate was reasonable;
- On April 6 and 21, 2005, Mr. Charkaoui sent two demands to the CIC in which it was asked to make a decision granting him protection as soon as possible;
- On May 11, 2005, Mr. Charkaoui instituted this proceeding. By order dated June 30, 2005, the hearing was scheduled for October 4, 5 and 6, 2005;
- On May 11, 2005, Citizenship and Immigration Canada informed Mr. Charkaoui that a new Minister's delegate would [TRANSLATION] "shortly" be assigned the case and that he would be kept informed. To date, the undersigned has not been informed that a new Minister's delegate has been named;
- This application was heard on October 4 and 5, 2005.
IV. FIVE QUESTIONS IN ISSUE AND OUTLINE OF ANALYSIS
[15] Counsel for Mr. Charkaoui submitted a large number of arguments to the Court on constitutional, international law and procedural grounds and in relation to the interpretation of the facts. Some arguments have been intermingled in Mr. Charkaoui's memorandum. Given that situation, it is not an easy matter for the Court to ensure that all components of the case have been set out and addressed. So that I can be satisfied, to the extent possible, that I will respond to all of the concerns raised, I will reproduce the questions as they were stated by Mr. Charkaoui in his memorandum.
[16] The five questions in issue are as follows. They will be addressed in this order:
[TRANSLATION]
(i) Did the Ministers and the Government of Canada exceed their jurisdiction or otherwise act illegally and unconstitutionally when they signed and filed an arrest warrant and security certificate against the applicant based on a CSIS report and without themselves having regard to the evidence concerning the applicant?
(ii) Does the IRPA, paragraph 95(1)(c) (final portion), section 98, paragraphs 112(3)(d) and 113(b) and (c) and subparagraphs (d)(i) and (ii) and subsection 115(2), read together with subsection 77(2), paragraph 101(1)(f) and section 104 and the corresponding provisions of the Regulations, sections 167 to 172 IRPR, violate sections 7, 12 and 15 of the Canadian Charter and the Canadian Bill of Rights and the international conventions to which Canada is a signatory?
(iii) Did the Ministers and the Government of Canada, by their acts or omissions, treat the applicant in a manner prohibited by sections 7, 12 and 15 of the Canadian Charter of Rights and by the Convention against Torture when they, as they have done and continue to do, exposed him to being returned to a country where he is at risk of being tortured in the circumstances referred to in sections 77 to 85 of the IRPA?
(iv) Did the Ministers and the Government of Canada, by their acts, create an appearance of bias that disqualifies them as decision-makers and prevents them from performing the functions assigned to them by the Act?
(v) Do the treatment to which the applicant has been exposed and continues to be exposed, and the acts of the Government of Canada toward him, justify a permanent suspension of the proceedings against the applicant and the other orders sought?
(See Mr. Charkaoui's memorandum, paras. 16, 14, 13, 15, and 17)
V. ANALYSIS
(i) Did the Ministers and the Government of Canada exceed their jurisdiction or otherwise act illegally and unconstitutionally when they signed and filed an arrest warrant and security certificate against the applicant based on a CSIS report and without themselves having regard to the evidence concerning the applicant?
[17] Mr. Charkaoui submits that when the Ministers signed the security certificate and arrest warrant in May 2003, they had before them only a CSIS report and not all of the evidence. To establish this, Mr. Charkaoui introduced an excerpt from the testimony of Robert Batt, counsel for CSIS, into evidence. The words reported in it were spoken by Mr. Batt in his presentation to the members of the Standing Committee of the House of Commons on Citizenship and Immigration (C.I. Committee) on May 27, 2003 (see Canada, Parliament, Standing Committee on Citizenship and Immigration, 2nd Sess., 37th Parl., Evidence: Meeting 62, May 27, 2003 ("Mr. Robert Batt"). Mr. Batt explained the procedure in relation to a security certificate as follows at that time:
The starting point for these cases is basically that intelligence is available that an individual is a member of a terrorist group, an organized crime group, or whatever or that he or she is otherwise inadmissible. This information is put together in the form of a security intelligence report, and then it is presented to the two ministers, the Minister of Citizenship and Immigration and the Solicitor General of Canada. It has to go to these two political ministers before it goes anywhere else. If these two ministers agree, they sign a certificate indicating that in their opinion the information is reasonable and that the person is inadmissible to Canada.
The certificate and the security intelligence report, which is a classified document, are then filed with the Federal Court, and the chief justice of the Federal Court appoints a designated judge to review the information. ...
[18] In Mr. Charkaoui's submission, that excerpt shows that the Ministers' decision was made solely on the basis of a report, and not having regard to all of the evidence concerning him. In his submission, this was an illegal delegation of the authority assigned to the Ministers (subs. 6(3) of the IRPA) to CSIS that must result in the security certificate and arrest warrant being quashed. Subs. 6(3) of the IRPA reads as follows:
6 (3) Notwithstanding subsection (2), the Minister may not delegate the power conferred by subsection 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a).
6(3) Ne peuvent toutefois être déléguées les attributions conférées par le paragraphe 77(1) et la prise de décision au titre des dispositions suivantes: 34(2), 35(2) et 37(2)a).
[19] The Ministers submit that there is no evidence to show that the information provided to the Minister was incomplete. They submit that they had before them all of the available evidence when they signed the security certificate and that in acting as they did, they fully exercised their jurisdiction.
[20] In my opinion, Mr. Charkaoui's position cannot be accepted. There is no evidence showing that the Ministers had before them only the CSIS report, and did not have the evidence on which the report was based. A report that includes numerous appendices in several volumes was filed at the Court Registry with the security certificate in May 2003. As well, the public portion of the report was given to Mr. Charkaoui and was accompanied by a summary of the evidence that could not be disclosed for reasons of national security, in accordance with subsection 77(1) and paragraphs 78(g) and (h) of the IRPA. I do not have any evidence before me showing that the Ministers had before them only an incomplete report for the purpose of deciding whether or not to sign the security certificate. I cannot base a finding of law on hypotheses or suppositions.
[21] The answer to the first question is therefore "no", there being no evidence.
(ii) Does the IRPA, paragraph 95(1)(c) (final portion), section 98, paragraphs 112(3)(d) and 113(b) and (c) and subparagraphs (d)(i) and (ii) and subsection 115(2), read together with subsection 77(2), paragraph 101(1)(f) and section 104 and the corresponding provisions of the Regulations, sections 167 to 172 IRPR, violate sections 7, 12 and 15 of the Canadian Charter and the Canadian Bill of Rights and the international conventions to which Canada is a signatory?
[22] Mr. Charkaoui submits that the proceedings against him infringe his constitutional rights. In his submission, the provisions of the IRPA relating to protection applications are contrary to the principles protected by sections 7, 12 and 15 of the Canadian Charter, by the Canadian Bill of Rights, R.S.C. 1985, c. 44 ("CBR") and by certain international law instruments. More specifically, Mr. Charkaoui submits that those provisions are a bar to any consideration of danger to national security and in any event do not allow a person to be returned to a country where torture is practised or tolerated. In Mr. Charkaoui's view, the statutory and regulatory rules governing protection applications allow individuals to be returned to be tortured when they allow the decision-maker to have regard to the restriction assessment and to the PRRA.
[23] In reply, the Ministers submit that the protection application involves a two-pronged procedure, the validity of which has been confirmed by the Supreme Court of Canada. In their submission, the decision-maker must assess both the risk associated with returning a person named in a security certificate to his or her country of origin and the danger that the person may constitute to national security. In their submission, the Minister must weigh these two factors before reaching a conclusion. The Ministers further suggest that although returning a person to be tortured is condemned in Canada, such a return has not been ruled out by the Supreme Court of Canada, as long as there are extraordinary circumstances in the nature of an act of God. In their submission, each case must be considered on an individual basis and only the illegal exercise of the decision-making power by the Minister or the Minister's delegate may, based on the facts, result in a declaration of unconstitutionality. The Ministers rely on Suresh, supra, and on paragraph 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2 (former Act), and also point out that that paragraph is similar to the new section 113 of the IRPA. The Ministers are further of the opinion that the weighing process set out in the IRPA and the IRPR has already withstood constitutional scrutiny, and that the Supreme Court upheld it in Suresh, supra. For the reasons set out below, I agree with the position taken by the Ministers.
[24] I will address the arguments based on the Canadian Charter and international law first, because the two arguments are closely related. I will conclude by briefly addressing the CBR.
The Canadian Charter and International Law Instruments
[25] Suresh, supra, deals with section 53(1)(b) of the former Act. That section prohibited returning a person (a refugee or a person who had been denied refugee status for one of the reasons listed in the former Act) to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion, unless:
53(1)(b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada;
[26] The equivalent of subsection 53(1)(b) of the former Act is now found in subparagraph 113(d)(ii) and section 115 of the IRPA:
113. (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
...
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
(2) Subsection (1) does not apply in the case of a person
...
(b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.
113. d) s'agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l'article 97 et, d'autre part :
...
(ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu'il constitue pour la sécurité du Canada.
115. (1) Ne peut être renvoyée dans un pays où elle risque la persécution du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusités, la personne protégée ou la personne dont il est statué que la qualité de réfugié lui a été reconnue par un autre pays vers lequel elle peut être renvoyée.
(2) Le paragraphe (1) ne s'applique pas à l'interdit de territoire :
...
b) pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée si, selon le ministre, il ne devrait pas être présent au Canada en raison soit de la nature et de la gravité de ses actes passés, soit du danger qu'il constitue pour la sécurité du Canada.
(See also section 172 of the IRPR)
[27] The weighing process provided for in subsection 53(b) of the former law was upheld in Suresh, supra. In that unanimous decision, signed by "the Court", the following appears at para. 58:
Canadian jurisprudence does not suggest that Canada may never deport a person to face treatment elsewhere that would be unconstitutional if imposed by Canada directly, on Canadian soil. To repeat, the appropriate approach is essentially one of balancing. The outcome will depend not only on considerations inherent in the general context but also on considerations related to the circumstances and condition of the particular person whom the government seeks to expel. On the one hand stands the state's genuine interest in combatting terrorism, preventing Canada from becoming a safe haven for terrorists, and protecting public security. On the other hand stands Canada's constitutional commitment to liberty and fair process. This said, Canadian jurisprudence suggests that this balance will usually come down against expelling a person to face torture elsewhere torture.
[28] Having upheld the weighing or balancing process, the Court considered the possibility of possibility of return to a country where there was a risk of torture, in exceptional circumstances. At para. 78, the Court wrote:
We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 "only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like": see Re B.C. Motor Vehicle Act, supra, at p. 518; and New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99.) Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.
[29] Mr. Charkaoui pointed out that there is a new Act, the IRPA, which contains new sections, new wording and an interpretation section that provides that the Act is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory (see paragraph 3(3)(f) of the IRPA). For that reason, in Mr. Charkaoui's submission, Suresh, supra, is not applicable. Article 3 of the Convention against Torture, which Canada has signed and ratified, reads as follows:
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Article 3
1. Aucun Etat partie n'expulsera, ne refoulera, ni n'extradera une personne vers un autre Etat où il y a des motifs sérieux de croire qu'elle risque d'être soumise à la torture.
2. Pour déterminer s'il y a de tels motifs, les autorités compétentes tiendront compte de toutes les considérations pertinentes, y compris, le cas échéant, de l'existence, dans l'Etat intéressé, d'un ensemble de violations systématiques des droits de l'homme, graves, flagrantes ou massives.
Mr. Charkaoui adds that the directives given in Suresh, supra, do not apply to his situation because that decision dealt with the Minister's discretion, while here it is the provisions of the IRPA that are being challenged.
[30] In my opinion, Suresh, supra, upheld the weighing exercise provided for in section 53(1)(b) of the former Act. The same weighing exercise is now found in subparagraph 113(d)(ii) and subsection 115(2) of the IRPA and section 172 of the IRPR. In both the former Act and the IRPA, the Minister is asked to balance the possibility of return to a country where there is a risk of torture against the assessment of danger to national security. In both cases, the person was named in a security certificate. I do not believe that Suresh, supra, should be distinguished, and I do not see how I could not be bound by what the Supreme Court decided in that decision.
[31] Protection applications are indeed now governed by new provisions in the IRPA and the IRPR, and those provisions are worded differently. However, the weighing principle is still present in the new Act, and was not materially altered by the IRPA. There are therefore no grounds for considering a different approach from the one set out in Suresh. I also note that in Suresh, supra, the Court was careful to state, at para. 78, that "the ambit of an exceptional discretion to deport to torture, if any, must await future cases".
[32] I believe that we must keep that passage in mind in deciding whether the balancing process is constitutional. We must also remember that possibilities may arise other than return when a person both represents a danger and faces a risk of torture if returned. While there may be a risk of torture in a country, a person might nonetheless be returned because the country in question had negotiated a return protocol that included a satisfactory plan for supervision of detention. In such a case, it would have to be decided whether there was a violation of the Canadian Charter. While I state no opinion as to the constitutional validity of such alternatives to return, the following example illustrates that there are solutions other than simple deportation.
[33] In Agiza, for example, the Swedish government returned a person convicted ex parte, in Egypt, of terrorist activities. In that case, the government had given assurances that were considered by the Swedish government to be sufficient. A mechanism providing for regular visits and diplomatic supervision was arranged. The United Nations (U.N.) Committee against Torture decided that, having regard to the very specific circumstances of the case, article 3 of the Convention against Torture had been violated (see Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003, at para. 13.4). The mechanism itself, on the other hand, was not regarded by the Committee against Torture as violating the Convention against Torture. I mention this only as an example of the efforts made at the international level to find an alternative to simple deportation.
[34] That example shows that it is conceivable, having regard to the decision of the Supreme Court in Suresh, supra, that there could be special treatment for persons named in a security certificate but who cannot be returned, given the risk of torture. Such treatment might or might not withstand constitutional scrutiny. It is not the role of this Court, in this case, to decide whether such treatment would comply with the Canadian Charter or with Canada's international commitments. At this stage of these proceedings, that is a hypothetical question. I must have regard to the passage from Suresh quoted above. Mr. Charkaoui is awaiting a PRRA and no effort to deport him to a country where there is a risk of torture has been made. No particular weighing exercise, and no decision in which the resulting discretion is exercised, is being considered. Nor is it the role of the Federal Court to propose solutions that comply with the Canadian Charter. Under Suresh, supra, the Court cannot consider whether there has been a violation of the Canadian Charter until the exercise of discretion has resulted in a decision, and that is not the