Najafi v. Canada (Public Safety and Emergency Preparedness)

Najafi v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2013-08-16
Neutral citation
2013 FC 876
File numbers
IMM-3103-12
Notes
Reported Decision
Decision Content
Date: 20130816
Docket: IMM-3103-12
Citation: 2013 FC 876
Ottawa, Ontario, August 16, 2013
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
BEHZAD NAJAFI
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant is a citizen of Iran of Kurdish ethnicity. He came to Canada in 1999 and made a refugee claim that was accepted. However, he did not obtain permanent resident status because the respondent sought a declaration of his inadmissibility under section 34 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA or the Act].
[2] More specifically, on March 5, 2010, the respondent issued a report under subsection 44(1) of the Act and on March 2, 2011 referred the report to the Immigration Division of the Immigration and Refugee Board [the Division], seeking to have the applicant declared inadmissible due to his involvement with the Kurdish Democratic Party of Iran [the KDPI]. The respondent claimed that there were reasonable grounds to believe that Mr. Najafi was a member of the KDPI and that the KDPI had engaged in the “subversion by force” of the Iranian government such that he was inadmissible to Canada by virtue of paragraphs 34(1)(b) and (f) of the IRPA.
[3] In a decision dated March 8, 2012, the Division agreed with the respondent and determined that Mr. Najafi was inadmissible, concluding there were reasonable grounds to believe that he was or had been a member of the KDPI and that the KDPI had engaged in subversion by force of two different governments in Iran. The Division therefore ruled that Mr. Najafi is inadmissible to Canada and issued a deportation order.
[4] In this application for judicial review, Mr. Najafi argues that the Division’s decision should be set aside for any one of the following three reasons:
i. The Division erred in basing its interpretation of the term “membership” in paragraph 34(1)(f) of the IRPA in part on Mr. Najafi’s involvement with the KDPI in Canada. He argues that in so doing the Division infringed his rights to freedom of association and freedom of expression guaranteed by sections 2(d) and 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter] because the KDPI is a legal organization in Canada;
ii. The Division erred in its interpretation of the term “subversion by force” in paragraph 34(1)(b) of the IRPA because the applicant claims that the acts of aggression committed by the KDPI against the Iranian government were authorized by international law as a justifiable use of force by a repressed people in furtherance of its right to self-determination. Mr. Najafi argues that the IRPA must be interpreted in accordance with international law and, accordingly, that basing an inadmissibility determination on a use of force that is recognized as legitimate under international law is incorrect; and
iii. The Division erred in finding that Mr. Najafi was a member of the KDPI because the evidence establishes that he had only minimal involvement with the organization and was never actually a formal member of it.
[5] The applicant submits that the correctness standard of review applies to the first two above errors and that the reasonableness standard applies to the final alleged error.
[6] The respondent, on the other hand, argues that the reasonableness standard of review applies to each of the errors alleged and that the Board’s interpretation of the terms “member” and “subversion by force” were reasonable, as was its determination that the applicant was sufficiently connected to the KDPI to be found to be a “member” of the organization within the meaning of section 34 of the IRPA. More specifically, the respondent asserts that the Division’s dismissal of the applicant’s Charter claims was reasonable, that there was no need for the Division to have resort to international law to interpret section 34 of the IRPA, that in any event, international law principles do not sanction the use of force by the KDPI and that there was a reasonable basis for the Division’s factual conclusions regarding the applicant’s membership in the KDPI.
[7] For the reasons that follow, I have determined that the Division’s decision should be upheld because it correctly determined that the applicant’s Charter rights were not infringed, reasonably determined that he was or had been a member of the KDPI and reasonably held that the KDPI had engaged in “subversion by force” of the Iranian governments. Insofar as concerns the applicant’s invocation of international law, I do not believe that the Division erred in finding there was no need to resort to international law or to depart from the settled interpretation of section 34 of the IRPA. Thus, for the reasons below, this application will be dismissed.
I. The Statutory Context
[8] Because the applicant’s Charter argument relies in part on the effect of an inadmissibility finding under the Act and because the respondent’s position on the inapplicability of international law rests on the wording of section 34 of the Act, it is necessary to review the provisions in the Act that are relevant to Mr. Najafi’s claim. Central in this regard is section 34, which sets out the basis upon which an individual may be found inadmissible due to membership in an organization that has engaged in subversion by force of a government. At all times relevant to this application, it provided:
Security
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
Exception
(2) Paragraphs (1)(b) and (c) do not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
Sécurité
34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :
a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada;
b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité du Canada;
e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada;
f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
Exception
(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national.
[9] Section 34 is but one of the bases upon which individuals may be found to be inadmissible to Canada; other similar provisions include section 35, which renders those complicit in human or international rights violations inadmissible, and sections 36 and 37, which render inadmissible those who have engaged in serious criminality or who are involved in organized criminality. As Justice de Montigny noted in Stables v Canada (Minister of Citizenship and Immigration), 2011 FC 1319 at para 14 [Stables], “The inadmissibility provisions of IRPA (s. 34, 35 and 37) aim to protect the safety of Canadian society by facilitating the removal of permanent residents or foreign nationals who constitute a risk to society on the basis of their conduct.”
[10] In Mr. Najafi’s case, the inadmissibility finding did not make him subject to immediate deportation from Canada. Because he has been granted refugee status, Mr. Najafi cannot be deported to Iran unless and until the respondent Minister (or one of his delegates) issues an Opinion under subsection 115(2) of the IRPA, to the effect that Mr. Najafi “should not be allowed to remain in Canada” in light of “the nature and severity of [the] acts [he] committed” or in light of the “danger” his continued presence in Canada would pose to “the security of Canada” when balanced with the risk he might face if returned to Iran.
[11] That said, the inadmissibility determination is not without impact on Mr. Najafi. In this regard, he is not entitled to obtain permanent residency on the same basis as other Convention refugees, but, rather, must instead seek a ministerial exemption to obtain permanent resident status in Canada. A ministerial exemption may be sought either through a humanitarian and compassionate [H&C] application under section 25 of the Act or through an application for ministerial relief under subsection 34(2) of the Act. (After the June 19, 2013 amendments, the ministerial relief provision is contained in subsection 42.1(1) of the IRPA.) The parties concur that the average processing time for an H&C application is currently approximately 32 to 40 months and that ministerial relief applications take on average 5 to 8 years to be processed. Mr. Najafi has no right to obtain ministerial relief under either section 25 or subsection 42.1(1) of the IRPA, but the Minister is bound to exercise his discretion under these provisions in accordance with Charter values, as is more fully discussed below.
[12] As a protected person without permanent residence status, Mr. Najafi cannot apply for citizenship or sponsor other family members for permanent residency (see the IRPA, s 13). His rights to work, study and enter and leave Canada are also different from those of a permanent resident. In order to work or study, he must apply for a permit (see Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations], ss 206, 212). If entitled to work, he will have a social insurance number beginning with a “9” (and be easily identifiable as lacking permanent resident status or citizenship), and if entitled to study, Mr. Najafi may be required to pay international student fees. In order to travel as a protected person, Mr. Najafi must obtain a travel document and an authorization to re-enter Canada from Citizenship and Immigration Canada (see the IRPA, s 52(1); Regulations at para 39(c)).[1]
[13] Thus, while the inadmissibility determination will not automatically result in Mr. Najafi’s deportation, it does nonetheless negatively impact him.
II. The Charter Claims
[14] With this background in mind, it is now possible to turn to the first issue, namely, the claim that the Division’s decision violates Mr. Najafi’s Charter rights.
A. Basis of the Claims
[15] As noted, Mr. Najafi asserts that the decision violates both his freedom of expression and freedom of association because the above-described consequences flow solely from his association with the KDPI. He notes that the KDPI is not a terrorist or criminal organization but, rather, is a perfectly legal group in Canada. This fact is not disputed by the respondent.
[16] In light of KDPI’s legal status, Mr. Najafi claims that his case is distinguishable from all the decided cases where similar Charter claims were dismissed because in those cases, unlike his, the applicants were members of a terrorist or criminal organization but the KDPI is neither. (The cases so distinguished by Mr. Najafi are Stables; Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3 [Suresh]; and Al Yamani v Canada (Minister of Citizenship and Immigration), 2006 FC 1457, 304 FTR 222 [Al Yamani 2]). He further argues that while it might have been permissible for the Division to premise its inadmissibility determination on his actions in Iran (as the Charter does not have extra-territorial reach), the Division’s reliance on his involvement with the KDPI in Canada violates his Charter rights because the mere fact of his association with the KDPI – a legal organization – has been used by the Division to deprive him of important advantages under the IRPA that other refugees are afforded. He argues that the Division is bound to comply with the Charter and that its decision does not do so because his legal association with the KDPI in Canada has been used to ground the inadmissibility finding. He asserts that this erroneous finding is reviewable on the correctness standard.
[17] Mr. Najafi relies principally on the decision of this Court in Al Yamani v Canada (Solicitor General), [1996] 1 FC 174, 103 FTR 105 (TD) [Al Yamani 1] in support of this Charter argument. In that case, Justice MacKay held that a decision of the Security Intelligence Review Committee and an Order in Council, issued under predecessor legislation to the IRPA, violated that applicant’s freedom of association as the deportation order was based solely on Mr. Al Yamani’s association with the Popular Front for the Liberation of Palestine [PFLP], an affiliate of the Palestine Liberation Organization.
[18] The provision in issue in that case – paragraphs 19(1)(e) and (g) of the Immigration Act, RSC 1985, c I-2 – are somewhat similar to paragraph 34(1)(f) of the IRPA. They provided:
19. (1) No person shall be granted admission who is a member of any of the following classes:
[…]
(e) persons who there are reasonable grounds to believe
[…]
(iv) are members of an organization that there are reasonable grounds to believe will
(A) engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada,
(B) engage in or instigate the subversion by force of any government, or
(C) engage in terrorism;
[…]
(g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence;
[…]
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible:
[…]
e) celles dont il y a des motifs raisonnables de croire qu'elles:
[…]
(iv) soit sont membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle:
(A) soit commettra des actes d'espionnage ou de subversion contre des institutions démocratiques, au sens où cette expression s'entend au Canada,
(B) soit travaillera ou incitera au renversement d'un
gouvernement par la force,
(C) soit commettra des actes de terrorisme.
[…]
g) celles dont on peut penser, pour des motifs raisonnables, qu'elles commettront des actes de violence de nature à porter atteinte à la vie ou à la sécurité humaines au Canada, ou qu'elles appartiennent à une organisation susceptible de commettre de tels actes ou qu'elles sont susceptibles de prendre part aux activités illégales d'une telle organisation;
[…]
[19] In finding that the former provision in the Immigration Act violated Mr. Al Yamani’s freedom of association, Justice MacKay wrote (at para 94):
[…] by providing ultimately for deportation of permanent residents who are members of an organization loosely defined, the statute does infringe on the freedom of permanent residents to associate together in organizations. Often such persons, at least those comparatively new to this country, may maintain association or membership with organizations, associated with their homelands, many of which may have had some historic record of violence but which serve a variety of purposes, as the PFLP was found to do in this case. To expose all permanent residents to the possibility of deportation because of their membership in such organizations, in my view clearly infringes on their freedom of association.
[20] The applicant urges that a similar finding be made in this case. However, as is more fully discussed below, Al Yamani I has been overtaken by subsequent jurisprudence of the Supreme Court of Canada and this Court.
B. Analysis
i. Freedom of Expression
[21] Turning, first, to the alleged violation of the right to freedom of expression guaranteed by section 2(b) of the Charter, this claim may be disposed of quickly as Mr. Najafi did not advance it before the Division and this, in and of itself, warrants the dismissal of the claim (Stables at para 30; Toussaint v Canada (Labour Relations Board), 160 NR 396 at para 6, 42 ACWS (3d) 288 (FCA); Poirier v Canada (Minister of Veterans Affairs), 58 DLR (4th) 475 at para 16, [1989] 3 FC 233, 96 NR 34 (CA)).
[22] Moreover, even if this were not the case, it is unlikely that Mr. Najafi’s activities with the KDPI in Canada (which are the only activities he alleges are deserving of Charter protection) would constitute an expressive act to which the Charter’s guarantee of freedom of expression could apply. In this regard, in Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, the Supreme Court of Canada defined an expressive activity to which section 2(b) of the Charter applies as one that “attempts to convey meaning.” It is unlikely that Mr. Najafi’s actions with the KDPI in Canada would fall into this category as he testified that the organization was a social and cultural one and that he participated in its activities to meet others of Kurdish ethnicity. It is difficult to see how such actions have any expressive content. Indeed, that is precisely what Justice MacKay determined in Al Yamani 1, where he held that section 2(b) of the Charter was not engaged by a similar claim.
ii. The Division’s Treatment of the Claimed Violation of Freedom of Association
[23] In terms of the alleged violation of his freedom of association, Mr. Najafi did make this claim to the Division, which rejected it. In this regard, the Division held that the inadmissibility finding did not have sufficient negative consequences for Mr. Najafi to constitute a breach of his Charter right to freedom of association as guaranteed by section 2(d). The Division reasoned that this was so because it was unlikely that a Danger Opinion would be issued under subsection 115(2) of the Act, given that the evidence indicated that Mr. Najafi had not engaged in any behavior that might give rise to such an opinion. Thus, the Division concluded that it was unlikely that he would be deported. As for any inconvenience associated with his possessing only protected person – as opposed to permanent resident – status, the Division held that Mr. Najafi could apply for ministerial relief under subsection 34(2) of the IRPA, which could well be granted and, therefore, that one could not assume that the inadmissibility finding would have any significant negative consequences for Mr. Najafi. The Division thus held that premising its inadmissibility determination in part on Mr. Najafi’s legal activities in Canada did not violate his freedom of association.
[24] Assessment of whether the Division’s decision on this point should be upheld requires, first, determination of the applicable standard of review and second, assessment of the Division’s ruling against that standard.
iii. The Standard of Review Applicable to the Division’s Charter Determination
[25] As noted, the respondent asserts that the reasonableness standard of review is applicable to the Division’s consideration of Mr. Najaifi’s Charter claim. In support of this argument the respondent relies on the recent decision of the Supreme Court of Canada in Doré v Barreau de Québec, 2012 SCC 12, [2012] 1 SCR 395 [Doré], where Justice Abella, writing for the Court, held that the reasonableness standard of review was to be applied to the assessment of Mr. Doré’s claim that the decision of the Disciplinary Council of the Barreau du Québec violated his right to freedom of expression. In that case, the Council sanctioned Mr. Doré for writing an intemperate letter to a judge and imposed a 21-day suspension of his ability to practice law. In so deciding, the Council exercised the discretion it was provided under legislation governing the legal profession in Québec, which affords it the duty to govern the profession and impose sanctions as it deems necessary for failure to meet appropriate professional standards.
[26] In her analysis, Justice Abella first noted that the Council, as an administrative decision-maker, was bound to “[…] act consistently with the values underlying the grant of discretion, including Charter values” (at para 24). She then considered both the analytical framework to be applied by a reviewing court to the Charter breach claimed by Mr. Doré and the standard of review to be used by a court in applying that framework.
[27] In terms of the former, Justice Abella noted that the customary test from R v Oakes, [1986] 1 SCR 103 [Oakes] for assessing whether a prima facie Charter breach is justified under section 1 of the Charter (the so-called “Oakes test”), does not fit well when what is being reviewed is a discretionary decision as opposed to a claim that legislation violates the Charter. The Oakes test requires assessment of four criteria to determine if a prima facie breach of a guaranteed right is nonetheless allowable as a “reasonable [limit] prescribed by law as can be demonstrably justified in a free and democratic society,” and thus permitted by virtue of section 1 of the Charter. First, the court must assess whether the law being challenged pursues a valid objective that is sufficiently important (or “pressing and substantial”) so as to warrant overriding a Charter right. Second, the court must assess whether the impugned law is rationally connected to that valid objective. Third, the court is called upon to assess whether the means adopted by the legislator to address the valid objective impair the rights in question as little as possible. Finally, the law must not have a disproportionately severe effect on those to whom it applies (see Oakes at 138-140).
[28] In Doré, Justice Abella rejected the foregoing analysis in favour of a less structured approach for discretionary administrative decisions that are alleged to affect an individual’s Charter rights. She held in this regard that, as opposed to applying the Oakes test, an administrative tribunal is instead required to balance Charter values with the statutory objectives enshrined in the statute it is called upon to apply. This, in turn, requires the decision-maker to, first, consider the statutory objectives and, second, assess “how the Charter values at issue will best be protected in view of the statutory objectives” (at para 56).
[29] On review of this sort of discretionary decision, Justice Abella held that the reviewing court is to apply the reasonableness standard and assess whether, under that standard, “[…] the decision reflects a proportionate balancing of the Charter protections at play … [which] calls for integrating the spirit of s. 1 into judicial review” (at para 57). Under the reasonableness standard, the court is required to assess whether the result reached by the administrative tribunal falls “within a range of reasonable alternatives” or “possible acceptable outcomes” (at para 56).
[30] The respondent argues that the foregoing analysis is applicable to the assessment of the Division’s ruling on Mr. Najafi’s Charter claim. I disagree because I believe the framework set out by Justice Abella in Doré applies only to discretionary decisions of administrative tribunals (which must reflect Charter values) and not to cases where tribunals are called upon to make substantive rulings on Charter rights. I am of this view for two reasons.
[31] First, the language used by Justice Abella in Doré consistently states that the types of administrative decisions to which the framework she posits applies are discretionary decisions. Thus, there is nothing in that case which would mandate its extension to situations where administrative tribunals are making substantive decisions on a Charter claim.
[32] Second, it has long been considered settled law that in situations where, as opposed to making a discretionary decision, an administrative tribunal is instead called upon to rule upon a substantive Charter claim (like a claim that legislation is invalid due to its infringement of a Charter right), the correctness standard of review is applicable to the judicial review of that decision. This was recognized by Justice Abella in Doré, relying on Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]: “There is no doubt that when a tribunal is determining the constitutionality of a law, the standard of review is correctness (Dunsmuir, at para. 58)” (Doré at para 43).
[33] Recently, in Saskatchewan (Human Rights Tribunal) v Whatcott, 2013 SCC 11 [Whatcott], which was issued after Doré, Justice Rothstein, writing for a unanimous Supreme Court, applied a correctness review to the Saskatchewan Human Rights Tribunal’s decision that the hate speech provisions in the Saskatchewan Human Rights Code did not violate Mr. Whatcott’s freedom of expression.
[34] Thus, the Doré analysis does not apply to non-discretionary decisions of administrative tribunals where the tribunal adjudicates a Charter claim. In those cases, the applicable standard of review is correctness.
[35] Turning, then, to this case, to determine whether the Division made a discretionary decision, regard must be given both to the nature of the Division’s decision-making powers under the IRPA and to the type of decision it made in the present case.
[36] In terms of the former, the wording of subsection 34(1) of the Act makes it clear that the Division is not charged with making discretionary decisions but, rather, with adjudicating as a matter of right. If the claimant falls within the statutory definitions, the Division must issue a removal order. It has no discretion in this regard (see the IRPA at para 45(d)). The Division’s role is thus entirely different from that of the Minister under subsection 34(2) (now 42.1(1)) of the Act; the Minster, unlike the Division, is exercising a statutory discretion and, thus, his decisions are reviewable under the reasonableness standard for compliance with the Charter in accordance with Doré, but the Division’s decisions are not.
[37] In the second place, Mr. Najafi’s claim before the Division called for an adjudication of his Charter rights as opposed to an exercise of discretion. He argued that he could not be found to be a “member” of the KDPI, within the meaning of subsection 34(1) of the IRPA, due to his activities in Canada because such a holding would violate his Charter rights. This claim is conceptually indistinguishable from a claim that the statutory provisions are invalid as being overly broad: in both cases the argument is the same, namely, that the applicant’s Charter rights prevent the application of the statutory definition to him. This is not a matter for the Division’s discretion – the applicant either possesses the claimed rights or he does not.
[38] Thus, both in light of the nature of the tasks assigned to the Division under the IRPA and in light of the nature of the question it was called upon to decide, the Division’s decision in respect of Mr. Najafi’s Charter claim was not a discretionary one. And it follows from the previous discussion that in light of this conclusion the correctness standard of review applies to this portion of the Division’s decision.
iv. Freedom of Association
[39] In terms of the merits of the Charter claim, as noted, Mr. Najafi relies principally on Al Yamani 1 in support of his assertion that the Division’s decision violated his freedom of association. The respondent attempts to find a material distinction between the wording of the Immigration Act and the IRPA, which I do not find convincing. However, the respondent also argues that Al Yamani 1 has been overtaken by subsequent case law, notably by the decision of the Supreme Court of Canada in Suresh and by Justice Snider’s subsequent decision in Mr. Al Yamani’s case in Al Yamani 2. The respondent further asserts that application of subsection 34(1) of the IRPA to Mr. Najafi does not violate his freedom of association as he was not prevented from joining the KDPI but rather all that flowed from the association was loss of the opportunity to gain permanent residence on the same basis as other refugee claimants. The respondent argues, in reliance on Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 [Reference Re PSERA] and R v Advance Cutting & Coring Ltd, 2001 SCC 70, [2001] 3 SCR 209 [Advance Cutting & Coring], that freedom of association extends only to protecting the right of individuals to join an organization to pursue collectively common goals and that there is nothing in section 34 of the IRPA which prevented Mr. Najafi from joining the KDPI.
[40] I disagree with the last point advanced by the respondent for two reasons. First, the narrow definition of freedom of association offered by the Supreme Court of Canada in Reference Re PSERA and Advance Cutting & Coring has been abandoned by the Supreme Court in subsequent jurisprudence. Notably, in Dunmore v Ontario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016 [Dunmore], Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391 [BC Health Services], and Ontario (Attorney General) v Fraser, 2011 SCC 20, [2011] 2 SCR 3 [Fraser], the Supreme Court held that freedom of association extends not only to the bare right of an individual to join an association and participate in its activities but also to certain of the collective activities of the association itself, like pursuit of labour negotiations on a collective basis. Secondly, the removal of legislated benefits – as opposed to the imposition of a penal sanction for the act of association – may well violate section 2(d) of the Charter. Indeed, the violations found in Dunmore and BC Health Services were premised on a disentitlement to legislative benefits that others were afforded. Thus, the second argument of the respondent is without merit.
[41] The same, however, cannot be said of the respondent’s first argument as the respondent is correct in asserting that Al Yamani 1 has been overtaken by subsequent jurisprudence. In this regard, the Supreme Court of Canada’s decision in Suresh, in my view, firmly forecloses Mr. Najafi’s claim to a violation of his section 2(d) Charter rights. In Suresh, the Court held, in very clear terms, that freedom of association does not extend to protect the act of joining or belonging to an organization that engages in violence, noting that “[…] s. 2 of the Charter does not protect expressive or associational activities that constitute violence” (at para 107).
[42] The Court also dealt with and squarely dismissed a claim similar to that made by Mr. Najafi regarding the legality of his actions in Canada: Mr. Suresh argued that all he had done in Canada was raise funds, which is a perfectly legal activity. The Supreme Court gave short shrift to this argument, finding that constitutional protection was not warranted in light of the violent activities of the organization for which Mr. Suresh raised funds. That organization was the Liberation Tigers of Tamil Eelam [LTTE], which the Canadian Security Intelligence Service had determined to be a terrorist organization. In addition, the Court noted that any over-breadth in the exclusion provisions, which could be read as extending to those who innocently joined a terrorist organization without knowledge of its activities, was addressed through a provision similar to section 34(2) of the IRPA, under which the Minister, if acting constitutionally, would be prevented from deporting such an individual. The Court stated in this regard (at para 110):
We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes "persons who have satisfied the Minister that their admission would not be detrimental to the national interest". Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds.
[43] Following the release of the Supreme Court’s decision in Suresh, in Al Yamani 2, Justice Snider was faced with the adjudication of a judicial review application of Mr. Al Yamani in respect of a subsequent exclusion decision, this time made under section 34(1) of the IRPA. (The matter was heard following the first successful judicial review of the initial decision through Justice MacKay’s decision in Al Yamani 1, discussed above.)
[44] Before Justice Snider, Mr. Al Yamani made arguments similar to those raised by Mr. Najafi in this case. He asserted that the exclusion finding violated his right to freedom of association (and expression) as well as his right to participate in the Palestinian people’s self-determination, arguing that “[…] the right to self-determination is protected internationally and that there is an internationally recognized right to belong to an organization that asserts self-determination, even where one or more of the organizations within the umbrella organization may be classified as terrorist” (at para 41). Justice Snider found this argument to be foreclosed by Suresh, reasoning that Mr. Al Yamani’s case was “completely on all fours with the issue before the Supreme Court of Canada in Suresh” (at para 43). She thus dismissed Mr. Al Yamani’s Charter claims.
[45] A very similar ruling was made by Justice de Montigny in Stables. There, the applicant was excluded under paragraph 37(1)(a) of the IRPA for organized criminality by reason of his membership in the Hell’s Angels. He argued that he had not committed any crimes and that the exclusionary provision violated his freedom of association. He also noted that ministerial relief was increasingly difficult to obtain in the years following Suresh and that this provided a basis for distinguishing his situation from the holding in Suresh, echoing some of the arguments advanced by Mr. Najafi in this case. Justice de Montigny disagreed, and, based on Suresh, held that Mr. Stables’ right to freedom of association guaranteed by the Charter was not violated by the inadmissibility finding, holding in this regard that “[…] freedom of association has been found to encompass only lawful activities and cannot protect a person who chooses to belong to a criminal organization” (at para 33).
[46] The applicant argues that Suresh, Al Yamani 2 and Stables are distinguishable. He asserts that the organizations in those cases were found to have been engaged in terrorism or in criminality but that the KDPI has only engaged in attempts to subvert the Iranian governments of the Shah and Islamic Republic by force. In my view, this is not a meaningful distinction, especially on the facts of this case. Suresh turns not so much on the LTTE being a terrorist organization but, rather, on the fact that it had engaged in violence. And, as concerns freedom of association, the case stands for the proposition that the Charter does not extend protection to the right to join or participate in associations that engage in violence.
[47] That the KDPI is such an organization is not disputed. Indeed, the evidence before the Division established that the KDPI had engaged in years of violent actions, including a violent insurrection against the Shah in 1967-1968 and armed struggle with the Iranian government in the 1980s and 1990s.
[48] The notion of “subversion by force” may well include a broader range of activities than engaging in violence to overthrow a regime. In Oremade v Canada (Minister of Citizenship and Immigration), 2005 FC 1077, [2006] 1 FCR 393, Justice Phelan held (at para 27):
[T]he term ‘by force’ is not simply the equivalent of ‘by violence’. ‘By force’ includes coercion or compulsion by violent means, coercion or compulsion by threats to use violent means, and … reasonably perceived potential for the use of coercion by violent means.
This expanded definition has been accepted in other cases, which have indicated that the notion that subversion by force includes accomplishing governmental change by illicit or improper means (see e.g. Suleyman v Canada (Minister of Citizenship and Immigration), 2008 FC 780 at paras 62-64, 330 FTR 205 [Suleyman]; Eyakwe v Canada (Minister of Citizenship and Immigration), 2011 FC 409 at paras 30-31, 200 ACWS (3d) 1123 [Eyakwe]; Maleki v Canada (Minister of Citizenship and Immigration), 2012 FC 131 at para 8, 211 ACWS (3d) 172).
[49] I need not decide in this case whether this broader definition of “subversion by force” might violate some other claimant’s section 2(d) Charter rights if the association to which he or she belonged was found to come within the scope of the paragraph 34(1)(f) of the IRPA by reason only of having made a threat to use violence or the perception that it might use violence. These issues simply do not arise here because, as noted, the KDPI did engage in violent acts as part of its campaign to overthrow two different regimes in Iran. Thus, the holding in Suresh applies to the applicant, who was associated with an organization that engaged in violence.
[50] It follows, then, that the Division did not err in finding that the Charter did not preclude an exclusion finding based on Mr. Najafi’s association with the KDPI in Iran and Canada. This finding is correct but not necessarily for the reasons offered by the Division. As indicated, I have determined there was no violation of Mr. Najafi’s Charter guarantee of freedom of association because the KDPI is an organization that has engaged in violence and the Charter does not extend a constitutional right to belong to or participate in the affairs of organizations that engage in violence.
[51] I make no finding as to whether the rationale offered by the Division for its Charter determination is correct. As noted, the Division premised its finding on the conclusion that the impact of the exclusion decision on Mr. Najafi was too minimal to warrant Charter protection. This may well be incorrect as the impacts of the decision on Mr. Najafi are not trivial, as noted above. However, whether such negative impacts are sufficiently important to warrant Charter protection is more appropriately determined in a case where, unlike here, the issue squarely arises. Thus, I decline to comment on this issue and instead uphold the Division’s Charter determination for the reasons set out above.
III. The International Law Claims
[52] Turning to the second argument advanced by Mr. Najafi, as indicated, this argument involves the claim that the Division erred in failing to appropriately apply international law principles to its interpretation of “subversion by force” in paragraph 34(1)(b) of the IRPA.
A. Basis of the Claims
[53] More sp