Canada (Minister of Citizenship and Immigration) v. Mahjoub

Canada (Minister of Citizenship and Immigration) v. Mahjoub
Court (s) Database
Federal Court Decisions
Date
2001-10-05
Neutral citation
2001 FCT 1095
File numbers
DES-1-00
Notes
Reported Decision
Decision Content
Federal Court Reports Canada (Minister of Citizenship and Immigration) v. Mahjoub (T.D.) [2001] 4 F.C. 644
Date: 20011005
Docket: DES-1-00
Neutral Citation: 2001 FCT 1095
IN THE MATTER OF a Certificate
issued pursuant to section 40.1 of the Immigration Act
AND IN THE MATTER OF an application
pursuant to paragraph 40.1(4)(c) of the said Act
AND IN THE MATTER OF Mohamed Zeki MAHJOUB
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Applicant
- and -
MOHAMED ZEKI MAHJOUB
Respondent
REASONS FOR ORDER
NADON J.
[1] The Minister of Citizenship and Immigration (the "Minister") and the Solicitor General of Canada (the "Solicitor General") are of the opinion that the respondent is a person who there are reasonable grounds to believe will, while in Canada, engage in or instigate the subversion by force of any government and is a member of an organization that there are reasonable grounds to believe will engage in or instigate the subversion by force of any government, or engage in terrorism. The Minister and the Solicitor General are also of the opinion that the respondent is a person who there are reasonable grounds to believe has engaged in terrorism or is or was a member of an organization that there are reasonable grounds to believe was engaged in terrorism.
[2] Consequently, on June 27, 2000, pursuant to paragraph 40.1(3)(a) of the Immigration Act (the "Act"), the Minister caused a copy of a certificate, signed by the Solicitor General on May 17, 2000 and by herself on June 12, 2000, stating their aforesaid opinion, pursuant to subsection 40.1(1) of the Act, to be referred to this Court for a determination as to whether the certificate should be quashed.
[3] Specifically, the Minister and the Solicitor General stated their opinion, based on a security intelligence report received and considered by them, that the respondent is a person described in subparagraphs 19(1)(e)(ii), 19(1)(e)(iv)(B) and (iv)(C), 19(1)(f)(ii) and (iii)(B) of the Act.
[4] On June 30, 2000, pursuant to paragraph 40.1(4)(a) of the Act, I examined, in camera, the security intelligence report considered by the Minister and the Solicitor General, and heard counsel acting on their behalf with respect to the matters raised in the security intelligence report. Neither the respondent, nor his counsel, were present during the aforesaid hearing, on the ground that disclosure would be injurious to national security or to the safety of persons.
[5] At the end of the hearing, I ordered, pursuant to paragraphs 40.1(4)(b) and (c) of the Act, that a statement summarizing such information available to me as would enable the respondent to be reasonably informed of the circumstances giving rise to the issuance of the certificate, should be provided to the respondent, and that he should be given a reasonable opportunity to be heard in Toronto, commencing on Monday, September 11, 2000, at 10:00A.M. until Friday, September 15, 2000.
[6] At the end of August 2000, the respondent sought an adjournment of the hearing scheduled for the week of September 11, 2000, and requested that September 11, 2000, be set aside for applications which he intended to make.
[7] On September 11, 2000, the respondent filed a notice of motion dated September 7, 2000, seeking, inter alia, an order for the fixing of a date to hear the following pre-hearing motions:
1. for an order compelling the Minister to provide further disclosure and witnesses for examination;
2. for an order compelling the release of any tapes and/or notes of the interviews of the respondent by CSIS officers and RCMP officers upon his detention;
3. for an order releasing the security intelligence report;
4. for an order granting the respondent interim release;
5. for an order to hear certain constitutional issues, namely:
i) a declaration that section 40.1 in general, as well as subsections 40.1(1), (2), (3), (4) and (5.1) are of no force and effect in that they offend or contravene various provisions of the Constitution Act, 1867, the English Bill of Rights (1689) and the Canadian Charter of Rights and Freedoms (the "Charter");
ii) an order quashing the certificate, and
iii) costs.
[8] On September 11, 2000, I ordered that the hearing of the respondent's notice of motion, dated September 7, 2000, be adjourned to October 26 and 27, 2000. Subsequently, the hearing was adjourned to November 9 and 10, 2000, and finally to January 16 and 17, 2001.
[9] On January 16 and 17, 2001, I heard the respondent's applications, including the viva voce evidence of a Service employee on issues pertaining to subsection 40.1(5.1) of the Act. On January 23, 2001, I made an order holding that a designated judge could not entertain and decide submissions concerning the constitutionality of legislation. As a result, the respondent's application relating to the constitutional issue was dismissed.
[10] On February 16, 2001, I also dismissed the respondent's motion for further disclosure and attendance of other witnesses for examination.
[11] On February 26, 2001, at Toronto, the hearing, initially fixed for the week of September 11, 2000, commenced and continued to March 7, 2001. A number of witnesses testified, including the respondent and his wife, Mona Elfouli, and six Service employees, namely Michel, David, Mary, George, Scott and Greg. I also heard the testimony of Mr. Abdulwahad Abdulhamib, a CIC contracted translator.
[12] After the evidence adduced by both sides was completed, the parties agreed to make their respective submissions at a later date. May 8, 9, 10 and 11, 2001, were set aside for this purpose. In the event, I heard the parties' submissions on May 8, 2001.
[13] Subsections 40.1 (1) through (7) of the Act are relevant for the present determination, and I hereby reproduce them:
40.1 (1) Notwithstanding anything in this Act, where the Minister and the Solicitor General of Canada are of the opinion, based on security or criminal intelligence reports received and considered by them, that a person, other than a Canadian citizen or permanent resident, is a person described in subparagraph 19(1)(c.1)(ii), paragraph 19(1)(c.2), (d), (e), (f), (g), (j), (k) or (l) or subparagraph 19(2)(a.1)(ii), they may sign and file a certificate to that effect with an immigration officer, a senior immigration officer or an adjudicator.
(2) Where a certificate is signed and filed in accordance with subsection (1),
(a) an inquiry under this Act concerning the person in respect of whom the certificate is filed shall not be commenced, or if commenced shall be adjourned, until the determination referred to in paragraph (4)(d) has been made; and
(b) a senior immigration officer or an adjudicator shall, notwithstanding section 23 or 103 but subject to subsection (7.1), detain or make an order to detain the person named in the certificate until the making of the determination.
(3) Where a certificate referred to in subsection (1) is filed in accordance with that subsection, the Minister shall
(a) forthwith cause a copy of the certificate to be referred to the Federal Court for a determination as to whether the certificate should be quashed; and
(b) within three days after the certificate has been filed, cause a notice to be sent to the person named in the certificate informing the person that a certificate under this section has been filed and that following a reference to the Federal Court a deportation order may be made against the person.
(4) Where a certificate is referred to the Federal Court pursuant to subsection (3), the Chief Justice of that Court or a judge of that Court designated by the Chief Justice for the purposes of this section shall
(a) examine within seven days, in camera, the security or criminal intelligence reports considered by the Minister and the Solicitor General and hear any other evidence or information that may be presented by or on behalf of those Ministers and may, on the request of the Minister or the Solicitor General, hear all or part of such evidence or information in the absence of the person named in the certificate and any counsel representing the person where, in the opinion of the Chief Justice or the designated judge, as the case may be, the evidence or information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons;
(b) provide the person named in the certificate with a statement summarizing such information available to the Chief Justice or the designated judge, as the case may be, as will enable the person to be reasonably informed of the circumstances giving rise to the issue of the certificate, having regard to whether, in the opinion of the Chief Justice or the designated judge, as the case may be, the information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons;
(c) provide the person named in the certificate with a reasonable opportunity to be heard;
(d) determine whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available to the Chief Justice or the designated judge, as the case may be, and, if found not to be reasonable, quash the certificate; and
(e) notify the Minister, the Solicitor General and the person named in the certificate of the determination made pursuant to paragraph (d).
(5) For the purposes of subsection (4), the Chief Justice or the designated judge may, subject to subsection (5.1), receive, accept and base the determination referred to in paragraph (4)(d) on such evidence or information as the Chief Justice or the designated judge sees fit, whether or not the evidence or information is or would be admissible in a court of law.
(5.1) For the purposes of subsection (4),
(a) the Minister or the Solicitor General of Canada may make an application, in camera and in the absence of the person named in the certificate and any counsel representing the person, to the Chief Justice or the designated judge for the admission of information obtained in confidence from the government or an institution of a foreign state or from an international organization of states or an institution thereof;
(b) the Chief Justice or the designated judge shall, in camera and in the absence of the person named in the certificate and any counsel representing the person,
(i) examine that information, and
(ii) provide counsel representing the Minister or the Solicitor General of Canada with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the person named in the certificate on the grounds that the disclosure would be injurious to national security or to the safety of persons;
(c) that information shall be returned to counsel representing the Minister or the Solicitor General of Canada and shall not be considered by the Chief Justice or the designated judge in making the determination referred to in paragraph (4)(d), if
(i) the Chief Justice or the designated judge determines
(A) that the information is not relevant, or
(B) that the information is relevant and should be summarized in the statement to be provided pursuant to paragraph (4)(b) to the person named in the certificate, or
(ii) the Minister or the Solicitor General of Canada withdraws the application; and
(d) if the Chief Justice or the designated judge determines that the information is relevant but should not be disclosed to the person named in the certificate on the grounds that the disclosure would be injurious to national security or to the safety of persons, the information shall not be summarized in the statement provided pursuant to paragraph (4)(b) to the person named in the certificate but may be considered by the Chief Justice or the designated judge in making the determination referred to in paragraph (4)(d).
(6) A determination under paragraph (4)(d) is not subject to appeal or review by any court.
(7) Where a certificate has been reviewed by the Federal Court pursuant to subsection (4) and has not been quashed pursuant to paragraph (4)(d),
(a) the certificate is conclusive proof that the person named in the certificate is a person described in subparagraph 19(1)(c.1)(ii), paragraph 19(1)(c.2), (d), (e), (f), (g), (j), (k) or (l) or subparagraph 19(2)(a.1)(ii); and
(b) the person named in the certificate shall, notwithstanding section 23 or 103 but subject to subsection (7.1), continue to be detained until the person is removed from Canada.
40.1 (1) Par dérogation aux autres dispositions de la présente loi, le ministre et le solliciteur général du Canada peuvent, s'ils sont d'avis, à la lumière de renseignements secrets en matière de sécurité ou de criminalité dont ils ont eu connaissance, qu'une personne qui n'est ni citoyen canadien ni résident permanent appartiendrait à l'une des catégories visées au sous-alinéa 19(1)c.1)(ii), aux alinéas 19(1)c.2), d), e), f), g), j), k) ou l) ou au sous-alinéa 19(2)a.1)(ii), signer et remettre une attestation à cet effet à un agent d'immigration, un agent principal ou un arbitre.
(2) En cas de remise de l'attestation visée au paragraphe (1)_:
a) l'enquête prévue par ailleurs aux termes de la présente loi sur l'intéressé ne peut être ouverte tant que la décision visée à l'alinéa (4)d) n'a pas été rendue;
b) l'agent principal ou l'arbitre doit, par dérogation aux articles 23 ou 103 mais sous réserve du paragraphe (7.1), retenir l'intéressé ou prendre une mesure à cet effet contre lui en attendant la décision.
(3) En cas de remise de l'attestation prévue au paragraphe (1), le ministre est tenu_:
a) d'une part, d'en transmettre sans délai un double à la Cour fédérale pour qu'il soit décidé si l'attestation doit être annulée;
b) d'autre part, dans les trois jours suivant la remise, d'envoyer un avis à l'intéressé l'informant de la remise et du fait que, à la suite du renvoi à la Cour fédérale, il pourrait faire l'objet d'une mesure d'expulsion.
(4) Lorsque la Cour fédérale est saisie de l'attestation, le juge en chef de celle-ci ou le juge de celle-ci qu'il délègue pour l'application du présent article_:
a) examine dans les sept jours, à huis clos, les renseignements secrets en matière de sécurité ou de criminalité dont le ministre et le solliciteur général ont eu connaissance et recueille les autres éléments de preuve ou d'information présentés par ces derniers ou en leur nom; il peut en outre, à la demande du ministre ou du solliciteur général, recueillir tout ou partie de ces éléments en l'absence de l'intéressé et du conseiller le représentant, lorsque, à son avis, leur communication porterait atteinte à la sécurité nationale ou à celle de personnes;
b) fournit à l'intéressé un résumé des informations dont il dispose, à l'exception de celles dont la communication pourrait, à son avis, porter atteinte à la sécurité nationale ou à celle de personnes, afin de permettre à celui-ci d'être suffisamment informé des circonstances ayant donné lieu à l'attestation;
c) donne à l'intéressé la possibilité d'être entendu;
d) décide si l'attestation est raisonnable, compte tenu des éléments de preuve et d'information à sa disposition, et, dans le cas contraire, annule l'attestation;
e) avise le ministre, le solliciteur général et l'intéressé de la décision rendue aux termes de l'alinéa d).
(5) Pour l'application du paragraphe (4), le juge en chef ou son délégué peut, sous réserve du paragraphe (5.1), recevoir et admettre les éléments de preuve ou d'information qu'il juge utiles, indépendamment de leur recevabilité devant les tribunaux, et peut se fonder sur ceux-ci pour se déterminer.
(5.1) Pour l'application du paragraphe (4)_:
a) le ministre ou le solliciteur général du Canada peuvent présenter au juge en chef ou à son délégué, à huis clos et en l'absence de l'intéressé et du conseiller le représentant, une demande en vue de faire admettre en preuve des renseignements obtenus sous le sceau du secret auprès du gouvernement d'un État étranger, d'une organisation internationale mise sur pied par des États étrangers ou de l'un de leurs organismes;
b) le juge en chef ou son délégué, à huis clos et en l'absence de l'intéressé et du conseiller le représentant_:
(i) étudie les renseignements,
(ii) accorde au représentant du ministre ou du solliciteur général la possibilité de lui présenter ses arguments sur la pertinence des renseignements et le fait qu'ils ne devraient pas être communiqués à l'intéressé parce que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes;
c) ces renseignements doivent être remis au représentant du ministre ou du solliciteur général et ne peuvent servir de fondement à la décision visée à l'alinéa (4)d), si_:
(i) soit le juge en chef ou son délégué détermine que les renseignements ne sont pas pertinents ou, s'ils le sont, devraient faire partie du résumé mentionné à l'alinéa (4)b),
(ii) soit le ministre ou le solliciteur général retire sa demande;
d) si le juge en chef ou son délégué décide qu'ils sont pertinents mais que cette communication porterait atteinte à la sécurité nationale ou à celle de personnes, les renseignements ne font pas partie du résumé mais peuvent servir de fondement à la décision visée à l'alinéa (4)d).
(6) La décision visée à l'alinéa (4)d) ne peut être portée en appel ni être revue par aucun tribunal.
(7) Toute attestation qui n'est pas annulée en application de l'alinéa (4)d) établit de façon concluante le fait que la personne qui y est nommée appartient à l'une des catégories visées au sous-alinéa 19(1)c.1)(ii), aux alinéas 19(1)c.2), d), e), f), g), j), k) ou l) ou au sous-alinéa 19(2)a.1)(ii) et l'intéressé doit, par dérogation aux articles 23 ou 103 mais sous réserve du paragraphe (7.1), continuer d'être retenu jusqu'à son renvoi du Canada.
[14] The sole issue in these proceedings, pursuant to paragraph 40.1(4)(d) of the Act, is whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available to me as the judge designated by the Chief Justice of the Federal Court. In Ahani v. Canada (1995), 100 F.T.R. 261, at page 268, Madam Justice McGillis[1] puts the matter as follows:
[22] The proceedings under s. 40.1 of the Immigration Act are directed solely and exclusively to determining the reasonableness of the ministerial certificate identifying the named person as a member of certain inadmissible classes of persons. This section of the legislation does not deal with the question of deportation. [...]
[15] Subsection 40.1(1) provides that where in the opinion of the Minister and the Solicitor General, based on security or criminal intelligence reports received and considered by them, a person, other than a Canadian citizen or permanent resident, is a person described in subparagraph 19(1)(c.1)(ii), paragraph 19(1)(c.2), (d), (e), (f), (g), (j), (k) or (l) or subparagraph 19(2)(a.1)(ii), they may sign and file a certificate to that effect with an immigration officer, a senior immigration officer or an adjudicator.
[16] In the present case, as I have already indicated, the Minister and the Solicitor General have signed and filed a certificate stating that in their opinion, the respondent is a person described in subparagraphs 19(1)(e)(ii), 19(1)(e)(iv)(B) and (iv)(C), 19(1)(f)(ii) and (iii)(B) of the Act. Theses provisions read as follows:
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
(ii) will, while in Canada, engage in or instigate the subversion by force of any government,
(iv) are members of an organization that there are reasonable grounds to believe will
(B) engage in or instigate the subversion by force of any government, or
(C) engage in terrorism;
(f) person who there are reasonable grounds to believe
(ii) have engaged in terrorism, or
(iii) are or were members of an organization that there are reasonable grounds to believe was engaged in
(B) terrorism,
19 (1) Les personnes suivantes appartiennent à une catégorie non admissible:
e) celles dont il y a des motifs raisonnables de croire qu'elles:
(ii) soit, pendant leur séjour au Canada, travailleront ou inciteront au renversement d'un gouvernement par la force,
(iv) soit sont membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle:
(B) soit travaillera ou incitera au renversement d'un gouvernement par la force,
(C) soit commettra des actes de terrorisme;
f) celles dont il y a des motifs raisonnables de croire qu'elles:
(ii) soit se sont livrées à des actes de terrorisme,
(iii) soit sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée :
(B) soit à des actes de terrorisme,
[17] It is clear from the wording of the above provisions that the Act requires the Minister and the Solicitor General to prove, to the satisfaction of this Court, that "there are reasonable grounds to believe" the following:
1. that the person, while in Canada, will engage in or instigate the subversion by force of any government;
2. that the person has engaged in terrorism;
3. that the person is a member of an organization that there are reasonable grounds to believe will engage in or instigate the subversion by force of any government or will engage in terrorism;
4. that the person is or was a member of an organization that there are reasonable grounds to believe was engaged in terrorism.
It goes without saying that the grounds alleged in the certificate must be read disjunctively. As long as the Ministers succeed in proving one of their grounds, the certificate will be declared reasonable.
[18] In Attorney General v. Jolly, [1975] F.C. 216 (F.C.A.), Thurlow J.A. (as he then was), for the Federal Court of Appeal, explains the burden resting upon the Minister with regard to the expression "reasonable grounds to believe", in the following terms, at pages 225 and 226:
[...] But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression "reasonable grounds for believing" implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. In a close case the failure to observe this distinction and to resolve the precise question dictated by the statutory wording can account for a difference in the result of an inquiry or an appeal.
Then, at pages 228 and 229, he adds the following:
[...] Subsection 5(l) does not prescribe a standard of proof but a test to be applied for determining admissibility of an alien to Canada, and the question to be decided was whether there were reasonable grounds for believing, etc., and not the fact itself of advocating subversion by force, etc. No doubt one way of showing that there are no reasonable grounds for believing a fact is to show that the fact itself does not exist. But even when prima facie evidence negativing the fact itself had been given by the respondent there did not arise an onus on the Minister to do more than show that there were reasonable grounds for believing in the existence of the fact. In short as applied to this case it seems to me that even after prima facie evidence negativing the fact had been given it was only necessary for the Minister to lead evidence to show the existence of reasonable grounds for believing the fact and it was not necessary for him to go further and establish the fact itself of the subversive character of the organization. This, in the circumstances of this case, in my opinion, invalidates the Board's decision.
[19] I am of the view that in determining whether the Minister and the Solicitor General have proved that there are reasonable grounds to believe that a person is a person described in subparagraph 19(1)(c.1)(ii), paragraph 19(1)(c.2), (d), (e), (f), (g), (j), (k) or (l) or subparagraph 19(2)(a.1)(ii), the applicable standard is that of the balance of probability. In Canada (Minister of Citizenship and Immigration) et al v. Singh (Iqbal) (1998), 151 F.T.R. 101, Rothstein J. (as he then was) makes the following remarks at page 103, with which I agree entirely:
[2] In s. 40.1 proceedings, determinations involving s. 19(1)(e) and (f) require proof of the existence of "reasonable grounds to believe certain facts" as opposed to the existence of the facts themselves. Where there are reasonable grounds to believe that a person is a member of an organization, there must also be reasonable grounds to believe that the organization is engaged in subversion or terrorism. See Farahi-Mahdavich, Re (1993), 63 F.T.R. 120 (T.D.) at paras. 11 and 12. Proof of reasonable grounds to believe requires that the evidence demonstrates an objective basis for the reasonable grounds. See R. v. Zeolkowski, [1989] 1 S.C.R. 1378; 95 N.R. 149, at p. 1385 (S.C.R.).
[3] The standard of proof is proof on a balance of probabilities. See. Farahi-Mahdavich, supra, and Al Yamani v. Canada (Solicitor General) et al. (1995), 103 F.T.R. 105 (T.D.), at paras 64 and 65.
[20] In addressing the issue before me, which arises by reason of the opinion reached by the Minister and the Solicitor General, pursuant to sub-section 40.1(1) of the Act, regard must be had to the purpose of the section 40.1 provisions. Section 38.1 of the Act, under the heading "Safety and Security of Canada", states the purpose of these proceedings in the following terms:
38.1 Recognizing that persons who are not Canadian citizens or permanent residents have no right to come into or remain in Canada and that permanent residents have only a qualified right to do so, and recognizing the necessity of cooperation with foreign governments and agencies in maintaining national security, the purposes of sections 39 to 40.2 are
(a) to enable the Government of Canada to fulfil its duty to remove persons who constitute a threat to the security or interests of Canada or whose presence endangers the lives or safety of persons in Canada;
(b) to ensure the protection of sensitive security and criminal intelligence information; and(c) to provide a process for the expeditious removal of persons found to be members of an inadmissible class referred to in section 39 or 40.1.
38.1 Attendu que les personnes qui ne sont ni citoyen canadien ni résident permanent ne peuvent prétendre au droit de venir ou de demeurer au Canada, que les résidents permanents ne peuvent y prétendre que de façon limitée et que la coopération avec les gouvernements et organismes étrangers est essentielle au maintien de la sécurité nationale, les articles 39 à 40.2 ont pour but:
a) de permettre au gouvernement fédéral de s'acquitter de son obligation de renvoyer les personnes qui menacent la sécurité du Canada ou dont la présence au pays est contraire à ses intérêts ou met en danger la vie ou sécurité de personnes au Canada;
b) d'assurer la protection des renseignements secrets en matière de sécurité ou de criminalité;
c) de permettre le renvoi rapide des personnes dont il a été décidé qu'elles appartiennent à une catégorie non admissible visée aux articles 39 ou 40.1.
[21] It cannot be doubted that Parliament intended that national security should prevail in the determination of whether certain persons should be removed from Canada on the grounds that these persons constitute a threat to the security or interests of Canada, or whose presence endangers the lives or safety of persons in Canada.
[22] This concern on the part of Parliament fully explains why, in my view, section 40.1 is drafted in the way it is. Parliament was prepared to curtail the rights of those persons suspected to be a threat to the security or interests of Canada, or whose presence endangers the lives or safety of persons in Canada. In regard thereto, Robertson J.A., in Suresh v. M.C.I. and Attorney General of Canada, [2000] 2 F.C. 592, for the Court of Appeal, makes the following remarks at pages 639 and 640:
[61] Applying a contextual analysis, it is clear that what presents a danger to the security of Canada is informed by the provisions of the Immigration Act and the Canadian Intelligence Service Act, R.S.C. c. C-23. Generally stated, the purpose of this legislation is to exclude from Canada persons who are or were members of a terrorist organization and who may engage in nefarious activities either in Canada or abroad using Canada as a base. That terrorist acts have been committed in Canada is a matter of public record; e.g. Air India disaster. That terrorist organizations might use Canada as a base from which to operate is not simply a theoretical possibility as will be explained below; see discussion, infra, para. 109. Moreover, the "security of Canada" cannot be limited to instances where the personal safety of Canadians is concerned. It should logically extend to instances where the integrity of Canada's international relations and obligations are affected. It must be acknowledged that only through the collective efforts of nations will the threat of terrorism be diminished. The efficacy of those collective efforts is undermined each time a nation provides terrorist organizations with a window of opportunity to operate off-shore and achieve indirectly what cannot be done as efficiently and effectively in the country targeted for terrorist attacks.
[62] In determining whether a person represents a threat to the security of Canada, the first step is to assess whether he or she falls within one of the inadmissible classes set out in section 19 of the Immigration Act. That is a threshold test. In the present case the appellant falls within the class of "suspected terrorist". I pause here to emphasize the fact that, simply because a person falls within an inadmissible class, it does not follow that he or she represents a danger to Canadian security. If the law were otherwise, there would be no need for the Minister to issue an opinion letter under paragraph 53(1)(b). Assuming a person falls within an inadmissible class outlined in section 19, the next step is to determine whether such a person can be said to be a danger to the security of Canada.
Robertson J.A. further states, at pages 661 and 662:
[109] In Kindler, supra, the majority of the Supreme Court maintained that to permit fugitives to remain in Canada because they may face the death penalty in a foreign jurisdiction would be to create a haven for such persons. The minority took the position that there was no evidence to support such a belief. In the present case there is evidence to support the belief that Canada has in fact become a haven for terrorist organizations. According to the evidence adduced by the Attorney General, most of the major international terrorist organizations have already established a presence in Canada. Presumably, this is due to the low threshold test for gaining admission to this country as a Convention refugee. According to the evidence submitted by CSIS to the Special Committee of the Senate on Security and Intelligence there are, with the exception of the United States, "more international terrorist groups active here than any other country in the world". [Submission to the Special Committee of the Senate on Security and Intelligence by Director Ward Elcock, June 24, 1998, Appeal Book at page 544]. At page 2 of its Report the Special Committee stated [Appeal Book at page 634]:
Overall, Canada and Canadians are not a major target for terrorist attacks. Canada remains, however, a "venue of opportunity" for terrorist groups: a place where they may raise funds, purchase arms and conduct other activities to support their organizations and their terrorist activities elsewhere. Most of the major international terrorist organizations have a presence in Canada. Our geographic location also makes Canada a favourite conduit for terrorists wishing to enter the United States, which remains the principal target for terrorist attacks world-wide. In 1997, over one-third of all terrorist attacks were against United States targets.
[23] In Suresh, supra, the issue was whether it was contrary to the Charter to deport Mr. Suresh to a country in circumstances where there were substantial grounds for believing that refoulement would expose him to the risk of torture. Specifically, the issue was whether the government could deport Mr. Suresh, a Convention refugee, to the very country from which he had sought refuge, i.e. Sri Lanka. The Minister, pursuant to paragraph 53(1)(b) of the Act[2], had reached the opinion that Mr. Suresh constituted a danger to the security of Canada.
[24] In the present matter, the Minister and the Solicitor General are of the opinion, inter alia, that the respondent is a person in respect of whom there are reasonable grounds to believe has engaged in terrorism or in respect of whom there are reasonable grounds to believe is or was a member of an organization that there are reasonable grounds to believe has engaged in terrorism or will engage in terrorism. Although the Act does not attempt to define the term "terrorism", nor has this Court arrived at a consensus regarding the meaning of the term, a number of judges of this Court have discussed its meaning. In Baroud, Re (1995), 98 F.T.R. 99 (F.C.T.D.), Denault J., at pages 109 and 110, makes the following comments:
[28] Turning now to the question of whether there are reasonable grounds for believing that Fatah and Force 17 are or were engaged in terrorism, I am mindful of the fact the terms "terrorism" and "terrorist" are not defined in the Act. Counsel for the Ministers affirmed in her written memorandum that "Like beauty, the image of a terrorist is, to some extent, in the eye of the beholder". While I accept this statement in general terms, it cannot prevent this court from examining whether, in the circumstances of this case, there are reasonable grounds to believe that a person or organizations have engaged in terrorism. Furthermore, I do not accept counsel for the Ministers' contentions that the definition of "threats to the security of Canada" found in s. 2 of the Canadian Security Intelligence Act, R.S.C. 1985, c. C-23, should apply to describe a terrorist organization in this case. While it may be appropriate, in some instances, to refer to a definition contained in a different act in order to properly discern Parliament's meaning and intention with respect to a specific term or word, I do not see fit to do so in the present case.
[29] As Parliament did not define the term "terrorism" with respect to the Immigration Act, it is not incumbent upon this court to define it. However, for the purpose of this case, I must determine whether there are reasonable grounds to believe that the two organizations in question have engaged in terrorism. According to Dr. Graff, one method of defining "terrorism" would be to examine every act alleged to be terrorist and determine whether the objective, the use of violence, the modes of violence and the targets are legitimate or not. Although Dr. Graff's concerns regarding the labelling of an organization as terrorist are legitimate, it is not within the purview of these proceedings to define the word "terrorism" in those terms.
[30] I am of the view that the purpose of ss. 19(1)(f)(ii) and 19(1)(f)(iii) of the Act, in very general terms, is to prevent the arrival of persons considered to be a danger to this society. The term "terrorism" must therefore receive an unrestrictive interpretation and will unavoidably include the political connotations which it entails. In this regard, I do not accept counsel for the respondent's argument that the disclosed information relied upon by the Service are unreliable and biased. I am satisfied that, in light of the evidence and information presented to me, there exist reasonable grounds to believe that Fatah and Force 17 were engaged in terrorism.
[25] Also, in Suresh, supra, Robertson J.A., in addressing the issue as to whether the term "terrorism" used in section 19 of the Act was so vague as to be unconstitutional, makes the following comments at pages 641 to 643:
[65] The appellant also contends that the term "terrorism" used throughout section 19 of the Immigration Act is so vague as to be unconstitutional. If that were so then paragraph 53(1)(b) would have to fall in so far as the latter is dependent on the former. In my respectful view this argument amounts to yet another collateral attack on Judge Teitelbaum's finding that the LTTE is a terrorist organization. I pause here to note that the United States Court of Appeals for the District of Columbia upheld the Secretary of State's designation of the LTTE as a terrorist organization on an application for judicial review: Liberation Tigers of Tamil Eelam v. United States, Department of State, No. 97-1670 (D.C. Cir. June 25, 1999) [1999] CADC - QL 156]. But in the eyes of the appellant if you cannot define terrorism, it necessarily follows that you cannot label an organization as terrorist in nature. Once again for the sake of completeness I shall deal with this argument.
[66] The appellant maintains that there is no international consensus as to the meaning of the term "terrorism". He also maintains that the United Nations has abandoned efforts to define terrorism in favour of creating conventions which proscribe specific and defined misconduct of a type which the international community believes requires an international response. Thus, in the appellant's opinion, this is evidence that the notion of terrorism is incapable of legal definition. I disagree.
[67] I accept that nations may be unable to reach a consensus as to an exact definition of terrorism. But this cannot be taken to mean that there is no common ground with respect to certain types of conduct. At the very least, I cannot conceive of anyone seriously challenging that belief that the killing of innocent civilians, that is crimes against humanity, does not constitute terrorism. As stated earlier, it is one matter for an organization to pursue political goals such as self-determination and quite another to pursue those goals through the use of violence directed at the civilian population. International human rights codes might not condemn deaths resulting from a civil war, that is to say as between two armed factions. But I know of no authority, international or otherwise, which condones the indiscriminate maiming and killing of innocent civilians. The materials presented to this Court are rife with examples of such terrorist acts committed by the LTTE, a matter addressed earlier in these reasons.
[68] Further, the Supreme Court states that one of the objectives of the vagueness doctrine is to ensure that individuals have adequate notice or an understanding that certain conduct is the subject of legal restrictions. Clearly, in the present case, the appellant - and ideally Canadians at large - should be taken to have fair notice that the direct or indirect support of violence aimed at innocent civilians, regardless of the ultimate objective, is simply unacceptable.
[69] In summary. I do not accept the submission that the term terrorism is inherently ambiguous such that its meaning cannot be arrived at