Almrei v. Canada (Minister of Citizenship and Immigration)

Almrei v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2005-02-08
Neutral citation
2005 FCA 54
File numbers
A-169-04
Notes
Reported Decision
Decision Content
Federal Court Reports Almrei v. Canada (Minister of Citizenship and Immigration) (F.C.A.) [2005] 3 F.C. 142
Date: 20050208
Docket: A-169-04
Citation: 2005 FCA 54
CORAM: LÉTOURNEAU J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
HASSAN ALMREI
Appellant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
and SOLICITOR GENERAL OF CANADA
Respondents
Heard at Toronto, Ontario, on December 16, 2004.
Judgment delivered at Ottawa, Ontario, on February 8, 2005.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: SEXTON J.A.
SHARLOW J.A.
Date: 20050208
Docket: A-169-04
Citation: 2005 FCA 54
CORAM: LÉTOURNEAU J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
HASSAN ALMREI
Appellant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
and SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] This is an appeal against a decision of Blanchard J., of the Federal Court of Canada, sitting as a designated judge (judge) under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2] The learned judge dismissed an application for judicial release from detention made by the appellant, Mr. Hassan Almrei, pursuant to subsection 84(2) of the IRPA. In order to facilitate the reading of these reasons, the following table of contents is provided:
Table of Contents
Para.
Statement of the issues
3
Facts and procedure
5
Legislation
24
Preliminary issue: Whether a right of appeal exists against a decision of a designated judge rendered pursuant to subsection 84(2) of the IRPA
25
Analysis of the issues
39
1. Whether the judge erred in deciding that, on an application for judicial release pursuant to subsection 84(2) of the IRPA, the burden is on the foreign national to prove that he or she will not be removed from Canada within a reasonable time and that his or her release will not pose a danger to national security or to the safety of any person
39
2. Whether the judge erred in concluding that the time spent by an applicant seeking remedies in court is not to be counted in determining whether removal will occur within a reasonable time
53
3. Whether the judge erred when he decided that section 78 of the IRPA, which deals with the protection of information relating to national security, applies to an application for judicial release under subsection 84(2), thereby allowing a designated judge to hear ex parte and in camera evidence from the Crown
59
4. Whether the ex parte and in camera process resulted in a breach of the principles of fairness
77
5. Whether Mr. Almrei had provided evidence that his removal would not occur within a reasonable time and the judge erred in not acknowledging it
78
a) the length of detention
84
b) the conditions of detention
103
6. Whether the judge failed to articulate the basis upon which he concluded that the secret evidence that he received was reliable, credible and trustworthy, or whether he failed to properly test the reliability, credibility and trustworthiness of the evidence
107
7. Whether Mr. Almrei failed to establish that he would not be a danger to the security of Canada
107
8. Whether the judge was mistaken in concluding that the continued detention of Mr. Almrei does not violate his constitutional rights under sections 7 and 12 of the Charter
111
The decision of the House of Lords in A(FC) and others (FC) v. Secretary of State for the Home Department
115
The decision of the U.S. Supreme Court in Clark v. Martinez
131
Conclusion
134
Statement of the issues
[3] Mr. Almrei raises a number of issues that can be summarized as follows:
1 - Whether the judge erred in deciding that, on an application for judicial release pursuant to subsection 84(2) of the IRPA, the burden is on the foreign national to prove that he or she will not be removed from Canada within a reasonable time and that his or her release will not pose a danger to national security or to the safety of any person;
2 - Whether the judge erred in concluding that the time spent by an applicant seeking remedies in court is not to be counted in determining whether removal will occur within a reasonable time;
3 - Whether the judge erred when he decided that section 78 of the IRPA, which deals with the protection of information relating to national security, applies to an application for judicial release under subsection 84(2), thereby allowing a designated judge to hear ex parte and in camera evidence from the Crown;
4 - Whether the ex parte and in camera process resulted in a breach of the principles of fairness;
5 - Whether Mr. Almrei had provided evidence that his removal would not occur within a reasonable time and the judge erred in not acknowledging it;
6 - Whether the judge failed to articulate the basis upon which he concluded that the secret evidence that he received was reliable, credible and trustworthy, or whether he failed to properly test the reliability, credibility and trustworthiness of the evidence;
7 - Whether Mr. Almrei failed to establish that he would not be a danger to the security of Canada; and
8 - Whether the judge was mistaken in concluding that the continued detention of Mr. Almrei does not violate his constitutional rights under sections 7 (liberty and security of the person) and 12 (protection against cruel and unusual treatment or punishment) of the Canadian Charter of Rights and Freedoms (Charter).
[4] Pursuant to a Direction issued by the Court on December 13, 2004, the parties were invited to submit their views as to whether there is a right to appeal a decision of a designated judge dismissing an application for judicial release made pursuant to subsection 84(2). At their request, the parties were given permission to file written submissions on the issue, January 28, 2005 being the latest date upon which Mr. Almrei could file his reply submissions. They also wanted to review and address a decision rendered by the House of Lords on December 16, 2004 regarding the legality of the detention of foreign nationals under the English Terrorism Act 2000: see A(FC) and others (FC) v. Secretary of State for the Home Department, [2004] UKHL 56, on appeal from [2002] EWCA Civ 1502. Following a brief summary of the relevant facts and procedure, I will begin by addressing the question of the existence of a right of appeal.
Facts and procedure
[5] The facts in these proceedings require special attention because time and the behaviour of the parties are of the essence of a subsection 84(2) application for judicial release from detention.
[6] Mr. Almrei is a foreign national. He was granted refugee status in June, 2000.
[7] Security intelligence reports indicated that Mr. Almrei was a member of an international network of extremists supporting the views and ideas promoted by Osama Bin Laden and that he was involved in a forgery ring with international connections and ramifications that produces false documents to facilitate international travel. He had obtained and used false passports to enter and exit countries. These reports also mentioned that he participated in jihad. A more detailed account of Mr. Almrei's alleged involvement with extremist groups and with the Bin Laden network can be found at paragraphs 37 to 43 of the judge's decision. I will refer to it and to other relevant facts when reviewing some of the grounds of appeal.
[8] Mr. Almrei has been detained since October 19, 2001 on a security certificate. The certificate asserted that Mr. Almrei was a person inadmissible for the reasons stated in subparagraph 19(1)(e)(iii) and division 19(1)(e)(iv)(C) as well as subparagraph 19(1)(f)(ii) and division 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2. In a nutshell, it was alleged that there were reasonable grounds to believe that Mr. Almrei was engaged or will engage in terrorism and that he was a member of an organization that had engaged, is engaged or will engage in terrorism. The certificate was found to be reasonable by Tremblay-Lamer J. on November 23, 2001.
[9] On December 5, 2001, Mr. Almrei was informed that the Minister of Citizenship and Immigration (Minister) would be seeking an opinion that he constituted a danger to the security of Canada. The issuance of such an opinion would permit Mr. Almrei's removal to Syria, a country of which he is a citizen.
[10] A deportation order was issued against Mr. Almrei on February 11, 2002 pursuant to subsection 32(6) of the former Immigration Act on the ground that he was a member of a class inadmissible to Canada. On June 28, 2002, the Immigration and Refugee Protection Act (IRPA) came into force. Mr. Almrei applied for judicial release from detention under the IRPA on September 23, 2002. He could have applied for such release as early as June, 2002.
[11] A first danger opinion was rendered in January 2003, following which the Minister, on January 13, 2003, decided to remove Mr. Almrei to Syria. Mr. Almrei was notified, on January 16, 2003, of the decision to remove him and of the arrangements made to that effect.
[12] The following day, Mr. Almrei sought leave for judicial review of the Minister's decision and a stay against the execution of his removal order. The Minister consented to leave being granted and undertook to suspend the execution of the removal order. In return, Mr. Almrei agreed to suspend his application for judicial release from detention.
[13] The Minister admitted that serious errors were made in the first danger opinion and consented to Mr. Almrei's application for judicial review of the opinion. Consent was given on April 23, 2003. Mr. Almrei then reinstated his application for judicial release from detention and the hearing was set for June 24, 2003. It lasted two days. The parties were given until the end of August 2003 to file written submissions.
[14] While his application for judicial release was still pending before the judge, Mr. Almrei was served, on July 28, 2003, with a subsequent notice that a second danger opinion would be sought pursuant to paragraph 115(2)(b) of the IRPA. Mr. Almrei requested and obtained an extension of time, until September 2, 2003, to make submissions on the risk that he would face if a danger opinion were issued and if he were to be returned to Syria.
[15] On September 16, 2003, the parties discussed, during a telephone conference, the resumption of the hearing of the judicial release application. The earliest available date was November 24, 2003.
[16] Thereafter ensued, on October 17, 2003, an order requiring that some material be sealed and protected, and that a Canadian Security Intelligence Service (CSIS) officer be made available for examination by Mr. Almrei. On November 21 and 24, 2003, after submissions were received from the parties, orders were issued whereby the disclosure of certain portions of the evidence was forbidden.
[17] However, on October 23, 2003, the Minister's delegate made a determination, as authorized by paragraph 115(2)(b) of the IRPA, that the appellant be removed to Syria. A week later, Mr. Almrei applied for leave and for judicial review of the Minister's delegate's decision.
[18] On November 21, 2003, it was indicated in an affidavit filed on behalf of the Crown that Mr. Almrei's removal date had been fixed and that the removal would occur within two and a half weeks.
[19] The removal being imminent, Mr. Almrei requested a stay of the removal order until his application for leave and for judicial review of the Minister's delegate's decision could be heard. In the meantime, the hearing of the judicial release application was adjourned. On November 27, 2003, the deportation order dated February 11, 2003 was stayed and the judicial release proceedings resumed. They continued on the following day.
[20] At this two-day hearing, arguments were made as to the applicability of the in camera and ex parte process envisaged by section 78 of the IRPA. The debate led to written submissions made by the parties and a decision by the judge, on December 29, 2003, that section 78 applied to an application for release under subsection 84(2) of the IRPA.
[21] The judicial release hearing resumed on January 5, 2004 and concluded two days later. Submissions were filed by the parties and Mr. Almrei requested and obtained an extension of time, until February 18, 2004, to file his reply submissions. The decision on the subsection 84(2) application for judicial release was rendered on March 19, 2004. This is the decision under appeal.
[22] I should add, for the sake of completeness, that leave to seek judicial review of the second danger opinion was granted on August 3, 2004 and that the hearing on the application for judicial review itself took place on November 16 and 17, 2004. The matter was reserved. At the time of writing these reasons, the decision had not yet been rendered.
[23] As this brief summary of the facts and procedure points out, Mr. Almrei's case has generated many hearings and proceedings which, in turn, have been time consuming and have resulted in a protracted process. I now turn to the legislative framework.
Legislation
[24] I reproduce below all relevant provisions because their reading facilitates the understanding of the analysis that follows:
Division 4 - Inadmissibility
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).
Division 9 - Protection of Information
76. The definitions in this section apply in this Division.
"information" means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.
77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court, which shall make a determination under section 80.
78. The following provisions govern the determination:
(a) the judge shall hear the matter;
(b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;
(e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;
(g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;
(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;
(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and
(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.
79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).
(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Courts Act.
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.
(3) The determination of the judge is final and may not be appealed or judicially reviewed.
81. If a certificate is determined to be reasonable under subsection 80(1),
(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;
(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and
(c) the person named in it may not apply for protection under subsection 112(1).
82. (1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.
(2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.
83. (1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require.
(2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.
(3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.
(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
86. (1) The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, make an application for non-disclosure of information.
(2) Section 78 applies to the determination of the application, with any modifications that the circumstances require, including that a reference to "judge" be read as a reference to the applicable Division of the Board.
87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115.
(2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require.
Section 4 - Interdictions de territoire
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).
Section 9 - Examen de renseignements à protéger
76. Les définitions qui suivent s'appliquent à la présente section.
« _renseignements_ » Les renseignements en matière de sécurité ou de criminalité et ceux obtenus, sous le sceau du secret, de source canadienne ou du gouvernement d'un État étranger, d'une organisation internationale mise sur pied par des États ou de l'un de leurs organismes.
77. (1) Le ministre et le solliciteur général du Canada déposent à la Cour fédérale le certificat attestant qu'un résident permanent ou qu'un étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée pour qu'il en soit disposé au titre de l'article 80.
78. Les règles suivantes s'appliquent à l'affaire_:
a) le juge entend l'affaire;
b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
c) il procède, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et selon la procédure expéditive;
d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve;
e) à chaque demande d'un ministre, il examine, en l'absence du résident permanent ou de l'étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l'affaire soit si le juge décide qu'ils ne sont pas pertinents ou, l'étant, devraient faire partie du résumé, soit en cas de retrait de la demande;
g) si le juge décide qu'ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d'autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l'affaire;
h) le juge fournit au résident permanent ou à l'étranger, afin de lui permettre d'être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
i) il donne au résident permanent ou à l'étranger la possibilité d'être entendu sur l'interdiction de territoire le visant;
j) il peut recevoir et admettre en preuve tout élément qu'il estime utile - même inadmissible en justice - et peut fonder sa décision sur celui-ci.
79. (1) Le juge suspend l'affaire, à la demande du résident permanent, de l'étranger ou du ministre, pour permettre à ce dernier de disposer d'une demande de protection visée au paragraphe 112(1).
(2) Le ministre notifie sa décision sur la demande de protection au résident permanent ou à l'étranger et au juge, lequel reprend l'affaire et contrôle la légalité de la décision, compte tenu des motifs visés au paragraphe 18.1(4) de la Loi sur les Cours fédérales.
80. (1) Le juge décide du caractère raisonnable du certificat et, le cas échéant, de la légalité de la décision du ministre, compte tenu des renseignements et autres éléments de preuve dont il dispose.
(2) Il annule le certificat dont il ne peut conclure qu'il est raisonnable; si l'annulation ne vise que la décision du ministre il suspend l'affaire pour permettre au ministre de statuer sur celle-ci.
(3) La décision du juge est définitive et n'est pas susceptible d'appel ou de contrôle judiciaire.
81. Le certificat jugé raisonnable fait foi de l'interdiction de territoire et constitue une mesure de renvoi en vigueur et sans appel, sans qu'il soit nécessaire de procéder au contrôle ou à l'enquête; la personne visée ne peut dès lors demander la protection au titre du paragraphe 112(1).
82. (1) Le ministre et le solliciteur général du Canada peuvent lancer un mandat pour l'arrestation et la mise en détention du résident permanent visé au certificat dont ils ont des motifs raisonnables de croire qu'il constitue un danger pour la sécurité nationale ou la sécurité d'autrui ou qu'il se soustraira vraisemblablement à la procédure ou au renvoi.
(2) L'étranger nommé au certificat est mis en détention sans nécessité de mandat.
83. (1) Dans les quarante-huit heures suivant le début de la détention du résident permanent, le juge entreprend le contrôle des motifs justifiant le maintien en détention, l'article 78 s'appliquant, avec les adaptations nécessaires, au contrôle.
(2) Tant qu'il n'est pas statué sur le certificat, l'intéressé comparaît au moins une fois dans les six mois suivant chaque contrôle, ou sur autorisation du juge.
(3) L'intéressé est maintenu en détention sur preuve qu'il constitue toujours un danger pour la sécurité nationale ou la sécurité d'autrui ou qu'il se soustraira vraisemblablement à la procédure ou au renvoi.
84. (1) Le ministre peut, sur demande, mettre le résident permanent ou l'étranger en liberté s'il veut quitter le Canada.
(2) Sur demande de l'étranger dont la mesure de renvoi n'a pas été exécutée dans les cent vingt jours suivant la décision sur le certificat, le juge peut, aux conditions qu'il estime indiquées, le mettre en liberté sur preuve que la mesure ne sera pas exécutée dans un délai raisonnable et que la mise en liberté ne constituera pas un danger pour la sécurité nationale ou la sécurité d'autrui.
86. (1) Le ministre peut, dans le cadre de l'appel devant la Section d'appel de l'immigration, du contrôle de la détention ou de l'enquête demander l'interdiction de la divulgation des renseignements.
(2) L'article 78 s'applique à l'examen de la demande, avec les adaptations nécessaires, la mention de juge valant mention de la section compétente de la Commission.
87. (1) Le ministre peut, dans le cadre d'un contrôle judiciaire, demander au juge d'interdire la divulgation de tout renseignement protégé au titre du paragraphe 86(1) ou pris en compte dans le cadre des articles 11, 112 ou 115.
(2) L'article 78 s'applique à l'examen de la demande, avec les adaptations nécessaires, sauf quant à l'obligation de fournir un résumé et au délai.
Preliminary issue: Whether a right of appeal exists against a decision of a designated judge rendered pursuant to subsection 84(2) of the IRPA
[25] Rights of appeal are statutory rights. As a general rule, they do not exist unless they are created by statute. Subsection 27(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 gives a right of appeal against an interlocutory or final decision of the Federal Court. This Court held in Charkaoui v. The Minister of Citizenship and Immigration and The Solicitor General of Canada, 2004 FCA 421, [2004] FCJ No. 2060 (QL) (Charkaoui, 2004 FCA 421) at paragraphs 40 to 42, that a decision of a designated judge under the IRPA is a decision of the Court. Therefore, a decision rendered by a designated judge pursuant to subsection 84(2) can be appealed unless the right of appeal has been expressly or implicitly denied.
[26] Counsel for the respondents (the Crown) contends that the right of appeal conferred by the Federal Courts Act has been implicitly denied by the regime put in place under the IRPA. He relies upon another decision of this Court involving Mr. Charkaoui, Charkaoui v. The Minister of Citizenship and Immigration and The Solicitor General of Canada, [2004] 1 F.C.R. 451 (C.A.) (Charkaoui, [2004] 1 F.C.R. 451) where it was found that the decision of a designated judge regarding the detention of a permanent resident is not subject to appeal mainly because of the continuous detention review process for permanent residents established by section 83 of the IRPA. With respect, I believe that the situation is factually and legally different in the present instance where the detention of a foreign national occurs under sections 82 and 84.
[27] The review of the detention of a permanent resident under section 83 takes place before a judge makes a determination on the reasonableness of the certificate, and thus before the judicial determination that would result in the permanent resident being found conclusively to be inadmissible to Canada. A decision by our Court of Appeal, to whom, by way of appeal, the question of detention would be submitted, if it were to conclude that the detainee poses no risk to the security of Canada, would, for all practical purposes, preempt the decision of the judge on the reasonableness of the security certificate while such decision has been reserved to the designated judge and is final and without appeal or judicial review: see subsection 80(3) of the IRPA. By contrast, a review of the detention of a foreign national under subsection 84(2) happens after the determination on the reasonableness of the certificate has been made and in the different context of a delayed removal from Canada. At that stage, an appeal on the question of detention bears no impact on the finding regarding the reasonableness of the certificate and on the designated judge's exclusive jurisdiction to make such a finding.
[28] Secondly, nothing indicates, in subsection 84(2) of the IRPA, that the appeal permitted under subsection 27(1) of the Federal Courts Act, is prohibited. A right of appeal of a decision rendered pursuant to subsection 84(2) is not incompatible with the objective of that subsection which, broadly stated, is to ensure that due diligence will be exercised by the authorities in removing a foreign national who has been detained for security reasons. Contrary to section 83 which applies to permanent residents whose continuous and mandatory periodical revision of detention by a designated judge makes a right of appeal impracticable and impractical, subsection 84(2) does not afford this kind of protection. In these circumstances, a review by way of appeal is likely to ensure better compliance with the provision and the obligation that it contains to proceed with the removal within a reasonable time.
[29] Thirdly, the issue of detention or release is an important and significant one in the context of an unreasonable delay by the authorities that unduly and unjustifiably prolongs the detention of a person in violation of his or her constitutional right to liberty and security of the person. I can see no benefit to society in either the illegal, unconstitutional or unwarranted detention of a foreign national or his or her illegal or unwarranted release from detention resulting from legal errors or arbitrary findings, by a designated judge, that cannot be corrected. If Parliament's intent was to leave undisturbed erroneous or arbitrary decisions leading to an unlawful detention or release, it would have either expressly made these decisions under subsection 84(2) final and exempt from appeal, as it did with respect to the reasonableness of the security certificate, or it would have somehow indicated, at least impliedly as it did in section 83, that this is what it wished.
[30] Fourthly, as will become apparent when I review Mr. Almrei's grounds of appeal, subsection 84(2) is a provision which, in the public interest, requires binding interpretations and directions as to its scope, meaning, the factors to be taken into account in its application and the burden and onus of proof, a result which can only be obtained from an appellate power since a designated judge is not bound by the decisions of other designated judges. Consistency and uniformity in the interpretation and application of this provision is most desirable when the constitutional right to liberty and the government's obligation to prevent a violation of that constitutional right are at stake.
[31] Fifthly, as a purely practical reason to be acknowledged as this Court did in Charkaoui, 2004 FCA 421, supra, at paragraph 60, parallel challenges could have been or could be initiated before the Federal Court and possibly the same designated judge regarding Charter breaches of sections 7 and 12 and the scope of the jurisdiction of a judge hearing a subsection 84(2) application, be it a question of lack, abuse or excess of jurisdiction or refusal to exercise it. The ensuing decisions of the Federal Court on these constitutional challenges, Charter breaches or jurisdictional questions would be subject to appeal. Two of Mr. Almrei's grounds of appeal raise these questions and it would be a waste of time and judicial resources to ask him to start new proceedings in the Federal Court.
[32] The granting of a right of appeal does raise a practical concern with the handling and review of the secret evidence that was before the designated judge. This concern was discussed in Charkaoui, [2004] 1 F.C.R. 451, supra, especially in respect of new evidence concerning the issue of national security that may be obtained after a decision on the issue of detention has been rendered. I believe that such a concern, while still a proper one, is not as serious in the present instance for the following reasons.
[33] As these very proceedings reveal and as it will become apparent when I discuss grounds of appeal nos. 6 and 7, the primary focus of a section 84(2) application for judicial release is whether or not the foreign national will be removed within a reasonable time. The secret evidence is not needed for that purpose. It is only if there is evidence that the removal will not take place within a reasonable time that it is necessary to consider whether the release of the foreign national would pose a danger to national security or to the safety of any person. At that time, a review of the order maintaining detention may require a review of the secret evidence, but, again, this is necessary only if the evidence on the public record appears insufficient to support the order. Thus, the filing of the secret evidence may not be necessary in each case of a section 84(2) application for judicial release.
[34] The situation is obviously quite different when it is a detention review under section 83 because it is done primarily, indeed almost exclusively, on grounds of national security in the context of proceedings to determine the reasonableness of security certificates (the other ground being the likelihood of not appearing at a proceeding or for removal). Thus, in section 83 detention reviews, national security is at the forefront of the review while, in a section 84(2) application for judicial release, removal within a reasonable time, after the security proceedings are completed, is the central question.
[35] In addition, for the reasons that I just stated above, the question of admissibility and evaluation of new evidence relating to national security is less likely to occur in the context of a section 84(2) application for judicial release than in the course of a detention review under section 83. The section 84(2) application comes late in the process, indeed at the enforcement stage of the decision confirming the reasonableness of the security certificate, that is to say at least four months after that decision. The section 83 detention reviews take place early on and throughout the process leading to the adjudication on the security certificate. During these proceedings, disclosure of evidence occurs on a continuing basis: see Charkaoui, [2004] 1 F.C.R. 451, supra, at paragraph 79. The addition of new evidence relating to national security, at various stages of the process, is almost a hallmark of these proceedings. That is less likely to be the case in subsection 84(2) applications where evidence of removal within a reasonable time is the key element.
[36] The Crown conceded at the hearing that a renewal of a section 84(2) application is possible if new facts are discovered or if there is a substantial change in circumstances since the previous application. It submitted, in its supplementary memorandum of facts and law, that this expansive interpretation of subsection 84(2) is warranted and supported by a purposive interpretation of the section whose objective is to ensure judicial examination of detention and judicial protection against indeterminate or indefinite detention. In such a case, in my respectful view, the procedure to follow is not to bring an appeal from the earlier decision, but to make a new application on the basis of new evidence or of a change in circumstances. Should new evidence be discovered when an appeal in relation to a section 84(2) application is pending and should new evidence pose practical difficulties, this Court can send the matter back to a designated judge for a new determination on the basis of the new evidence.
[37] In conclusion, I do not expect the same kind and level of practical difficulties on a section 84(2) application for judicial release as those that are encountered on a section 83 detention review.
[38] For these reasons, I am of the view that subsection 27(1) of the Federal Courts Act is still operative and gives Mr. Almrei a right of appeal against the decision of the judge on the subsection 84(2) application for judicial release. If I am wrong in my conclusion, I nonetheless believe that, in view of all the time, expense and energy spent, I should answer Mr. Almrei's grounds of appeal.
Analysis of the issues
Ground no. 1: Whether the judge erred in deciding that, on an application for judicial release pursuant to subsection 84(2) of the IRPA, the burden is on the foreign national to prove that he or she will not be removed from Canada within a reasonable time and that his or her release will not pose a danger to national security or to the safety of any person
[39] The issue of the burden of proof on a subsection 84(2) application for judicial release was conclusively determined by this Court in Ahani v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1114. Linden J.A., for a unanimous Court, decided that the onus of proof rests with the person who brings the application for judicial release and that it has to be discharged on a balance of probabilities. At issue was an application for judicial release pursuant to subsections 40.1(8) and (9) of the former Immigration Act. These subsections have now been replaced by subsection 84(2) of the IRPA. Mr. Almrei wants us to revisit that decision. He submits that it is an impossible burden, especially in view of the fact that it has to be discharged according to the standard of a balance of probabilities.
[40] Apart from the fact that I agree with my colleague Linden J.A. that his conclusion regarding the onus of proof is warranted by the text of subsection 84(2), I do not share Mr. Almrei's concern that it puts an impossible burden on him for the following reasons.
[41] The issue of burden of proof has given rise to a nice theoretical debate in the abstract. However, in practice, the reality is much simpler and rarely does the theoretical problem arise. A person who applies for judicial release under subsection 84(2) must establish four things:
a) that he or she has not been removed from Canada;
b) that at least 120 days have elapsed since the Federal Court determined the security certificate to be reasonable;
c) that he or she will not be removed from Canada within a reasonable time; and
d) that the release would not pose a danger to national security or to the safety of any person.
[42] The first two conditions for the application of subsection 84(2) are straightforward and certainly not difficult to prove. As for the last two conditions, the person applying for judicial release is faced with an evidentiary burden. This means that he has to file some evidence that he has reasonable grounds to believe that the removal will not be effected within a reasonable time and that his release will not pose a danger to national security or to the safety of any person. That evidence has to be answered. Otherwise, the applicant will be entitled to release. This means that the burden then shifts to the party that opposes the release. In practice, the Crown cannot sit idle. It also bears an evidentiary burden, i.e. the burden of introducing evidence that the removal will occur within a reasonable time and, if necessary, that the applicant is still a threat within the terms of subsection 84(2) of the IRPA. The judge will then assess the evidence adduced by both parties and determine whether the conditions of subsection 84(2) are met.
[43] Counsel for Mr. Almrei conceded that if this is what the Ahani decision means, as I think it does, he has no difficulty with the onus of proof thus defined resting on an applicant for judicial release under subsection 84(2) and with the standard of proof being that of the balance of probabilities.
[44] Mr. Almrei also objects to the following statement at paragraphs 14 and 15 of the Ahani decision on the basis that it imposes an unfair and arduous requirement upon him:
Normally one would expect that an individual would have to show some significant change in circumstances or new evidence not previously available to obtain his release.
To hold otherwise would be to accord the appellant a hearing de novo, something the legislation does not envision.
[45] This statement of the Court now has to be read in the context of sections 82 and 84, especially subsections 82(2) and 84(2).
[46] Indeed, pursuant to subsection 82(2) of the IRPA, the detention of a foreign national is mandatory and does not require a warrant. This situation has to be contrasted with that which prevails when the person who is detained is a permanent resident who is the subject of a security certificate.
[47] The legality of a permanent resident's detention is governed by section 83. Under subsection 83(3), his detention is the subject of constant judicial supervision and protection until a determination is made on the reasonableness of the certificate: see Charkaoui, [2004] 1 F.C.R. 451, supra, and Charkaoui, 2004 FCA 421, supra, at paragraph 131. I note in passing that the law appears to be silent on the question of the judicial examination of the detention of a permanent resident after the certificate has been found to be reasonable. Such a resident cannot resort to the subsection 84(2) application for judicial release which, by its wording, is limited to foreign nationals while subsection 84(1), which governs a release from detention ordered by the Minister, applies to either a permanent resident or a foreign national.
[48] By contrast, the detention of a foreign national, which is mandated by law, will not have been the subject of a judicial examination until 120 days have elapsed since the determination of the reasonableness of the certificate and until an application pursuant to subsection 84(2) is brought. Thus, the said application is the first opportunity given to a foreign national to have the legality of his or her detention examined by the judiciary. Therefore, the possibility of a subsection 84(2) application turning into a hearing de novo no longer exists since, as curious as it may seem, it is now known that a decision on the reasonableness of the security certificate is not a decision that is conclusive proof that the person is a danger to the security of Canada: see Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3, at paragraph 83. To put it in different terms, the decision on the security certificate is not determinative of the merit, opportunity and legality of the detention of that person, although it may be grounded on a finding that the person is a danger to the security of Canada pursuant to paragraph 34(1)(d) of the IRPA.
[49] In this context of a first hearing, there is no requirement that an applicant seeking judicial release under subsection 84(2) of the IRPA show a change in circumstances or that new evidence not previously available be submitted. It may be that the judge hearing the application can be satisfied on the basis of the existing evidence that the detention which was legally mandated throughout and never reviewed is not warranted by any concerns about national security or the safety of any person.
[50] Of course, there may have been a change in circumstances which may be either of assistance or of detriment to an applicant. New facts may have been discovered which constitute new evidence of the need to detain or to release. The lapse of time may have shed a different and unfavourable light on the grounds invoked for detention. These are all elements that, if adduced in evidence, the judge will consider in reaching his decision as to whether the balance of probabilities has tipped in favour of one party or the other.
[51] Mr. Almrei asked us to reconsider a statement found at paragraph 13 of the Ahani decision where my colleague, Linden J.A., wrote "that release under subsection 40.1(9) cannot be an automatic or easy thing to achieve. It is meant to be available 'only in the very limited circumstances' outlined in the legislation". Mr. Almrei's counsel submits that this statement unduly restricts and narrows the scope of a subsection 84(2) application for judicial release.
[52] With respect, I see nothing wrong with the statement. The conditions of subsection 84(2) have to be met before release can be obtained, thus release is not automatic. Whether it is an easy thing to achieve will depend on the evidence adduced at the hearing on the application. As for the circumstances under which release can be obtained, they are determined by the four conditions found in subsection 84(2) of the IRPA which, in fact, limit the scope of review, although I believe that an application under subsection 84(2), like other applications, can be renewed if new facts are discovered or the situation has evolved to a point where detention is no longer necessary or justified.
Ground no. 2: Whether the judge erred in concluding that the time spent by an applicant seeking remedies in court is not to be counted in determining whether removal will occur within a reasonable time
[53] In support of this ground of appeal, Mr. Almrei relies on the excerpts from the Ahani decision that I have analysed above. He adds to them the following statement of the judge, found at paragraph 93 of his decision, in which the judge quotes from Ahani:
Mr. Almrei's efforts to resist removal by initiating numerous Court proceedings have contributed significantly to the total time he has been held in detention. While he has the right to bring lawful proceedings, he cannot argue: "...that the removal is not taking place in a reasonable time, when the time necessary to hear all of the applications and appeals stretches into months and years". (Ahani (2000)).
[54] The gist of Mr. Almrei's argument appears in paragraph 33 of his memorandum of facts and law where he asserts that "in the absence of any indication in the statute that would permit a judge to discount delay in removal caused by any steps taken by the person to access effective remedies, it is not open to a court to read in limitations to the provision". His challenge goes to the judge's jurisdiction to discount such delay as he did in this instance. As we will see later, Mr. Almrei submits, as an alternative ground of appeal, that the judge, if he possesses such jurisdiction, improperly exercised it: see ground no. 5.
[55] A subsection 84(2) application requires the judge to determine whether the foreign national will or will not be removed from Canada "within a reasonable time". This concept of "removal within a reasonable time" requires a measurement of the time elapsed from the moment the certificate was found to be reasonable and an assessment of whether that time is such that it leads to a conclusion that removal will not occur within a reasonable time. Concerns about a possible violation of the "reasonable time" requirement emerge after the 120 days mentioned in subsection 84(2) have elapsed and removal has not yet occurred.
[56] At this point, I must point out that the notion of a "reasonable time" requirement" is not to be confused with the test itself for judicial release under subsection 84(2) of the IRPA although, of course, the two are closely related. That relationship will be discussed when I analyse Mr. Almrei's fifth ground of appeal. Here we are concerned simply with the notion of delay and the role and power of the judge in computing it.
[57] Where the removal of a foreign national is delayed so as to bring into play the "reasonable time" requirement, the judge hearing the judicial release application must consider the delay and look at the causes of such delay. Judicial remedies have to be pursued diligently and in a timely fashion. The same goes for the Government's responses and the judicial hearing of these remedies. Courts, as they must do, have given priority to the hearing of challenges to the legality of a detention. The Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at paragraphs 115, 121 and 122, found that a delay, in order to be abusive or to amount to unfairness, has to be unreasonable or inordinate. In determining whether a delay has become unreasonable, one has to look at "the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case" (emphasis added): see paragraph 122 of the Blencoe decision, supra.
[58] Thus, in determining whether there will be execution or enforcement of the removal order within a reasonable time, a judge must look at the delay generated by the parties as well as at the institutional delay which is inherent in the exercise of a remedy. I am satisfied that the jurisdiction conferred by subsection 84(2) of the IRPA authorizes a judge to discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time, as required by the provision. In other words, where an applicant, rightly or wrongly, tries to prevent his removal from Canada and delay ensues as a result of his action, he cannot be heard to complain that his removal has not occurred within a reasonable time, unless the delay is unreasonable or inordinate and not attributable to him. The judge did not err when, relying upon the authority of the Ahani decision, he discounted the delay generated by Mr. Almrei's challenge to his removal order.
Ground no. 3: Whether the judge erred when he decided that section 78 of the IRPA, which deals with the protection of information relating to national security, applies to an application for judicial release under subsection 84(2), thereby allowing a designated judge to hear ex parte and in camera evidence from the Crown
[59] The judge found, as two other designated judges had before him (Dawson J. in Canada v. Mahjoub, [2001] 4 F.C. 644; and MacKay J. in Jaballah v. Canada (Minister of Citizenship and Immigration), 2004 FC 299, [2004] F.C.J. No. 420 (QL), that the procedure authorized by section 78 of the IRPA applies to a subsection 84(2) application for judicial release. Mr. Almrei contends that this is an error of law because subsection 84(2) does not incorporate section 78 unlike other provisions which specifically mention that section 78 applies: see subsections 83(1), 86(2) and 87(2).
[60] Therefore, the argument goes, Parliament did not intend this unfair secret process, which only benefits the Crown, to apply to the release application because the Crown has already had its opportunity to present secret evidence at the hearing held to determine the reasonableness of the security certificate. Thus, the Crown cannot claim that national security interests are not protected because the security certificate has already been found to be reasonable and is conclusive proof of the person's inadmissibility: see the appellant's memorandum of facts and law at paragraphs 38 to 40. I cannot agree with Mr. Almrei's contention.
[61] First, this position assumes that the need to protect national security ceases to exist with a finding that the security certificate is reasonable and that, thereafter, the question of protection of national security is either not relevant to the issue of release or, if relevant, ought to be decided, as the Crown puts it, on an incomplete record, without regard to the reasons for which an applicant was detained in the first place.
[62] Second, as previously stated, the fact that the security certificate has been found to be reasonable is not conclusive proof that the subject of the certificate is a danger to national security or to the safety of any person: see Suresh, supra, at paragraph 83. So it leaves this question open for determination, as well as that of whether the subject ought to be detained as a result. Therefore, it cannot be said that the need for the Ministers to adduce evidence, whether confidential or not, on the issue of detention is preempted by the opportunity that they had to do so on the question of the reasonableness of the certificate.
[63] Third, the subsection 84(2) application for judicial release by a foreign national raises the very question of the need to detain in order to protect national security and does so, as noted above, for the first time. The issue of threat to national security is brought up for the purpose of determining whether a foreign national found to be inadmissible, such as Mr. Almrei, ought to be detained while removal arrangements are made. The judge who hears the judicial release application, as the present proceedings illustrate, is not necessarily the judge who adjudicated upon the reasonableness of the security certificate. Thus, he or she may be considering for the first time evidence which, if publicly released as required by Mr. Almrei's contention, could be prejudicial to national security.
[64] In this respect, it is Mr. Almrei's view that the subsection 84(2) application for judicial release, as drafted, leaves the Crown with two options. One is to release, to Mr. Almrei and to the public, all information, including any information prejudicial to national security, if it wants to make use of that information. The other is not to use such information if it wants to keep it secret or confidential.
[65] The option advocated by Mr. Almrei simply leaves no room for the protection of national security in the context of an inquiry which may necessitate the assessment of the threat posed to national security by a person who seeks to be released from detention. I have no doubt that this is not what Parliament envisaged.
[66] Moreover, Mr. Almrei's position leads to a number of incongruities and inconsistencies, not to say absurdities, that Parliament cannot have intended. The Ministers would now have to reveal, at the stage of the threat assessment for the purpose of release or detention, information prejudicial to national security that was kept confidential throughout the process. To put it differently, while this information was appropriately kept confidential on the principal and, in terms of consequences, far-reaching issue of the reasonableness of the security certificate and the need to remove Mr. Almrei from Canada, such information would now have to be publicly revealed on the secondary issue of detention while awaiting removal.
[67] Furthermore, a foreign national would gain access to information prejudicial to national security in the context of his application for judicial release while a permanent resident is denied such access when his detention is reviewed pursuant to subsection 83(3) of the same IRPA. He would gain access to information that a Canadian citizen, charged with a criminal offence, could not even obtain: see Canada (Attorney General) v. Ribic, 2003 FCA 246, leave to appeal to the Supreme Court of Canada denied, October 22, 2003.
[68] This Court ruled in Charkaoui, 2004 FCA 421, supra, at paragraph 98, that the right of access to information that could be harmful to national security does not depend on a person's legal status because the risk to national security is no less serious, present and genuine if the person seeking access is a permanent resident as opposed to a Canadian citizen or a foreign national. It wrote:
In other words, whether the hat worn by a person is that of a Canadian citizen, permanent resident, temporary resident or mere visitor, his inability to access information that might jeopardize or is jeopardizing national security depends on his deeds and on the State's need to protect itself from attacks and breaches of its security or the safety of the individuals who make up that state, irrespective of their legal or social status.
[69] I cannot see how Parliament would have intended to give a foreign national access to information harmful to national security, let alone one who was alleged by the Crown, in a security certificate, to be inadmissible to Canada on account of the need to protect national security and whose certificate had been judicially found to be reasonable.
[70] Finally, as past and present experience reveal, the situation in matters of national security is susceptible of evolution, although, as we said in relation to the right of appeal, this is less likely in the context of removal. New evidence of the extent, seriousness and imminence of the threat and prejudice to national security may be gathered or uncovered. The position taken by Mr. Almrei means that, if the Crown wanted to adduce that evidence, it would have to publicly reveal its content. This would be the case whether it was forced to use it in rebuttal of the evidence adduced by Mr. Almrei on his application for judicial release or whether it intended such evidence to serve as a complement to the evidence that was filed in the hearing to determine the reasonableness of the certificate. Yet, this evidence already filed in relation to the certificate would, and would have to, remain confidential as required by section 78 of the IRPA while the new supplementary evidence would be publicly released. To ensure and protect the confidentiality of the previous information while having to release the new complementary and related evidence would be an almost impossible task. This cannot be what Parliament intended.
[71] Unfortunately and regrettably, there are such things in the field of legislative drafting as oversights. I believe that Parliament has forgotten to expressly make applicable to subsection 84(2) the procedural regime devised in section 78 of the IRPA to ensure the necessary protection of national security. That being said, the search for Parliament's intent in enacting subsection 84(2) does not end there. This Court must also look at the impugned provision, its purpose, the Division in which it is located, the purpose of that Division and the overall objective of the legislation in order to ascertain whether Parliament's intent can be presumed or is necessarily implied.
[72] In the present instance, the very purpose of the subsection 84(2) application, the reference to an absence of threat to national security as an essential condition of release, the context of the detention in the first place, the nature of the security certificate and the procedure to determine its reasonableness, the purpose of Division 9 in which subsection 84(2) is located, which is to ensure the protection of confidential information or information that could be prejudicial to national security, the definition of information in section 76, the similarity between the detention review proceeding of a permanent resident pursuant to subsection 83(3) and an application for judicial release by a foreign national under subsection 84(2), are all factors which, in my respectful view, lead me to conclude that Parliament presumed or implicitly intended that the safeguards contained in section 78 in favour of national security would apply to a subsection 84(2) application for judicial release by a foreign national whose removal from Canada has been ordered in the interests of national security or the safety of any person.
[73] I should add, before concluding, that the same result as the one intended by section 78 of the IRPA could and would be achieved through section 38 of the Canada Evidence Act, R.S., c. C-5 which, as a provision of general application, ensures that, in the course of a proceeding, sensitive or potentially injurious information is not publicly released. The elaborate process put in place by section 38 to prevent the disclosure of such information is mandatory. Sensitive or potentially injurious information is defined as information relating to national security or whose disclosure could injure national security. Resorting to section 38 would simply add another procedural layer before the same court and most likely the same judge. In the end, the result would not be different: an ex parte and in camera hearing to ensure that information prejudicial to national security is not publicly released. Only additional delays would stem from this process.
[74] Section 38 of the Canada Evidence Act seeks to prevent the public release of information relating to or potentially injurious to national security in the course of a proceeding before a court (see the definition of proceeding in section 38). It reinforces my view that the failure by Parliament to mention that section 78 of the IRPA applies to a subsection 84(2) application for judicial release is an oversight, because the subsection 84(2) application, like the subsection 83(3) detention review to which section 78 applies, is a proceeding before a court during which sensitive or potentially injurious information could be publicly released.
[75] Often, the information relating to national security in Canada's possession is received in confidence from foreign states or foreign intelligence services. It would not take long for such valuable sources to 'dry up' if the information thus received in confidence had to be publicly released at each and every detention hearing involving a foreign national who had been found to be inadmissible and ordered to be removed from this country on account of national security. Is this what Parliament intended? To ask the question is to answer it.
[76] In conclusion, the judge made no error when he ruled that section 78 applies to an application for judicial release pursuant to subsection 84(2).
Ground no. 4: Whether the ex parte and in camera process resulted in a breach of the principles of fairness
[77] This ground of appeal was not pursued by Mr. Almrei in view of this Court's recent finding that the section 78 process respects the principles of fundamental justice: see Charkaoui, 2004 FCA 421, supra.
Ground no. 5: Whether Mr. Almrei had provided evidence that his removal would not occur within a reasonable time and the judge erred in not acknowledging it
[78] Mr. Almrei submits that the judge erred when he rejected his argument that he will not be removed from Canada within a reasonable time. In his view, the judge misapprehended and, therefore, misapplied the notion of "reasonable time".
[79] More specifically, Mr. Almrei contends that a determination of the meaning of the words "within a reasonable time" found in subsection 84(2) requires a consideration of both the time already spent in detention from the moment of arrest and the conditions of that detention. The harsher these conditions, he says, the 'harder' and 'longer' the time actually served is. He refers us to a number of decisions which have held that the pre-sentencing custody in a remand centre, often referred to as "dead time", where no training, vocational or educational programs are available, is worth double the time served in normal penal institutions: see, for example, R. v. Wust, [2000] 1 S.C.R. 455, at paragraphs 28 to 30, 41 and 45. Detention in solitary confinement, of course, aggravates the situation because most of the time is spent in a cell under severe restrictions, with limited contact with people both inside and outside, and without much possibility of physical exercise: see the statement of Cory J., dissenting in R. v. Shubley, [1990] 1 S.C.R. 3, at paragraph 8, where he stated that solitary confinement must be treated as a distinct form of punishment and that its imposition within a prison constitutes a true penal consequence. I shall come back to these contentions and to the actual situation in which Mr. Almrei finds himself when I discuss his claim that his detention amounts to cruel and unusual treatment or punishment.
[80] I agree with Mr. Almrei that, to a limited extent that I will explain, the length of the past detention and the conditions of detention are relevant factors to be taken into account in considering an application for judicial release under subsection 84(2) of the IRPA. However, these two factors are far from being determinative of the application.
[81] Indeed, the test for granting or refusing a subsection 84(2) application is future-oriented. Evidence has to be provided that the applicant will not be removed within a reasonable time. If the government produces, at the hearing, credible and compelling evidence of an imminent removal from Canada, the time already served and the conditions of detention lose much of their significance because what is at issue on the application is either more detention, release or removal. Since a planned removal within a reasonable time is compliance with the law, judicial release under subsection 84(2) ceases to be an option. Past delays, conditions of detention and even abuses, while they might give rise to other remedies, are no longer operative factors within the terms of subsection 84(2) since there is then no evidence that the applicant will not be removed within a reasonable time. There is, on the contrary, evidence that the applicant will be removed shortly. I believe this is what MacKay J. had in mind in Jaballah, supra, when at paragraph 35 he wrote:
I should note two considerations relevant in determining whether release will not be in a reasonable time. The first is that the 120 day period of detention before this application for release could be initiated by Mr. Jaballah is measured from the date the Ministers' certificate is found to be reasonable so that time spent in detention before that is not ordinarily a factor, nor is the 120 days, after the certificate is upheld, a factor in assessing whether release in the future will not be in a reasonable time. The 120 day delay is not a measure in itself of a reasonable time, except as a necessary condition of application under s-s. 84(2).
I agree with these two considerations, subject to the following caveat.
[82] The length and conditions of past detention may be relevant in assessing the credibility of the evidence submitted that the removal is imminent. The history of events may cast doubt on the reliability of the assertion and evidence submitted that the moment of removal is close or that removal is a 'done deal'. As for the conditions of detention, they may be such, especially when coupled with a lengthy detention, that the phrase "within a reasonable time" takes another significance, one of urgency. The removal must then be effected even more expeditiously in order to be in compliance with the requirements of subsection 84(2).
[83] It is in this light that, where necessary, the length and conditions of past detention must be looked at by the judge along with the operative causes of delay. With these considerations in mind, I now turn to the merit of Mr. Almrei's ground of appeal.
a) the length of detention
[84] Mr. Almrei has now been detained for more than three years. I hereafter reproduce a timeline which provides a history of the proceedings, indicates the dates of various stages of the proceedings, and, in the right-hand column, where relevant, the time elapsed between procedural stages:
Timeline
2001
October 19
Mr. Almrei is detained.
November 23
Tremblay-Lamer J. issues a decision upholding the reasonableness of the security certificate.
Mr. Almrei has been detained for 35 days.
December 5
Mr. Almrei is served with notice that the Minister intends to seek an opinion that he constitutes a danger to the security of Canada, which would permit his removal to Syria.
13 days since certificate was upheld.
2002
January 28
Mr. Almrei replies to the December 5 notice.
February 11
A deportation order is issued against Mr. Almrei under subsection 32(6) of the former Act, following a determination that he is a person described under paragraph 27(2)(a). Under the former Act, a security certificate was not automatically deemed a removal order as under IRPA (see paragraph 40.1(3)(b) of the former Act).
82 days since certificate was upheld.
March 21
Although 120 days have elapsed since Tremblay-Lamer J.'s decision upholding the reasonableness of the certificate, under the former Act, a foreign national had to count 120 days from the date of the deportation or removal order (from February 11) before filing an application for judicial release.
120 days since certificate was upheld.
June 10
Mr. Almrei is eligible to apply for judicial release under the former Act.
120 days since removal order issued.
June 28
IRPA comes into force.
September 23
Mr. Almrei files a motion for review of his detention under subsection 84(2) IRPA. At this stage, there is still no danger opinion that would allow the Minister to remove Mr. Almrei to Syria.
October 15
Further disclosure is made regarding the December 5, 2001 notice.
November 12
Mr. Almrei replies to the October 15 disclosure.
November 18
An ex parte and in camera hearing is held before Blanchard J. to review the Crown's submissions in response to Mr. Almrei's September 23 application under subsection 84(2) IRPA.
November 19
A summary of the protected information is issued to Mr. Almrei.
November 25
The public hearing on the subsection 84(2) application for judicial release begins.
Mr. Almrei has been detained for 13 months.
2003
January 13
The Minister's delegate forms the opinion under paragraph 115(2)(b) IRPA that Mr. Almrei is a danger to the security of Canada. This opinion allows Minister to order Mr. Almrei's removal to Syria.
Over 13 months since notice of intent to seek danger opinion.
January 16
Mr. Almrei is notified of the Minister's decision.
January 17
Mr. Almrei files an application for leave and for judicial review as well as a motion to stay his removal until such applications are determined.
January 21
The Minister consents to leave being given on the application for judicial review. Mr. Almrei agrees to suspend the application for judicial release under subsection 84(2) IRPA on condition that the hearing can resume within 7 days at his request.
April 23
The Minister consents to the application for judicial review by letter, acknowledging that "serious errors" were made in forming the first danger opinion.
May 16
Blanchard J. orders that judicial review be granted and that review of Mr. Almrei's detention resume on June 24, 2003.
June 24
Detention review under subsection 84(2) is scheduled to resume. At this time, there is no danger opinion in effect to suggest Mr. Almrei's removal is imminent.
Mr. Almrei has been detained for over 20 months.
July 28
Mr. Almrei receives notice that the Minister will seek a second danger opinion under paragraph 115(2)(b) IRPA.
2.5 months since judicial review of 1st danger opinion was granted.
August 5
Mr. Almrei files submissions on a motion to seal evidence to permit him to testify in camera and compel a CSIS representative or RCMP officer to testify.
August 18
Mr. Almrei requests by letter (and is later granted) an extension to September 2, 2003 to make submissions on the risk he would face if returned to Syria.
August 27
The Crown files responses to the August 5 motion to seal evidence.
September 2
Deadline for Mr. Almrei's submissions on the risk he would face if returned to Syria.
October 17
Blanchard J. orders that certain information be sealed and that a CSIS officer be provided for examination by Mr. Almrei. Mr. Almrei is given 20 days to file submissions as to which portions of the order should be protected and which parts of the declarations made by him and by one other individual should be expunged from the record. The Crown is given 5 days to reply.
October 23
The Minister's delegate forms a second opinion under paragraph 115(2)(b) that Mr. Almrei would not be at risk of torture if removed to Syria, and, in the alternative, that if he were at risk, such risk would be justified due to the risk Mr. Almrei presents to the security of Canada.
Less than 3 months since notice given of intent to seek 2nd danger opinion.
October 30
Mr. Almrei files an application for leave and for judicial review of the second danger opinion.
November 21
Evidence is filed by the Minister indicating that removal is scheduled to take place within two and one-half weeks. Mr. Almrei requests a stay of removal pending the determination of the applications for leave and for judicial review of the danger opinion. An order is also issued relating to non-disclosure.
November 24
An additional order is issued relating to non-disclosure.
November 27
Blanchard J. stays the February 11, 2003 deportation order, pending the outcome of the applications for leave and for judicial review.
The subsection 84(2) detention review resumes.
December 19
Gans J., of the Ontario Superior Court, issues an order relating to Mr. Almrei's conditions of detention. Some issues are resolved voluntarily by staff at the Toronto West Detention Centre. Gans J. orders that Mr. Almrei be given shoes and states that he remains seized of the issues should conditions again deteriorate.
December 29
Blanchard J. orders that section 78 IRPA applies to a subsection 84(2) application for judicial release.
2004
March 19
Blanchard J. releases his decision dismissing Mr. Almrei's subsection 84(2) application.
December 16
Federal Court of Appeal hears the appeal from Blanchard J.'s dismissal of the subsection 84(2) application.
Mr. Almrei has been detained for over 3 years.
[85] This timeline shows that the initial proceedings were conducted rapidly. A deportation order was issued less than three months after the decision was rendered on the reasonableness of the certificate. However, 13 months elapsed before the danger opinion was issued by the Minister. Why did it take so much time? Was the delay reasonable and who is accountable for it?
[86] In evaluating future risks and security concerns, the Minister must also take into account the fact that removal of a detainee may be to a country where the detainee may face torture and serious violations of human rights: see Suresh, supra, at paragraphs 117 to 122. This possibility requires that more substantial procedural protections and safeguards be given in the preparation of the danger opinion. The person facing deportation to torture must be informed of the case to be met and be given an opportunity to respond to the case presented by the Minister. He or she is entitled to disclosure, subject to privilege and other lawful exceptions. He or she also has the right to present evidence both on the issue of lack of danger to the security of Canada and on the risk of torture. Consultations with other government departments and with the countries to which the person could be removed may be necessary to obtain and implement safeguards for the life and integrity of the individual whose removal is being ordered. Landing rights may have to be negotiated and obtained. In short, as both the judge in the present case and Dawson J. in the Mahjoub case, supra, at paragraph 55, pointed out, "more time, rather than less, will reasonably be required to ensure that the principles of fundamental justice are not breached".
[87] Mr. Almrei submits that the delay in preparing the first danger opinion is unreasonable and is due to under-staffing in the Minister's department. He referred us to the testimony of Mr. Foley who said that on June 24, 2003, there were six employees assigned to the national security cases for "the whole country and the whole world": see Appeal Record, vol. 5, pages 1338-1339. The witness acknowledged that there were delays in some cases, but not in Mr. Almrei's case which received priority, with strict time frames to be adhered to for the second danger opinion: ibidem, pages 1336, 1339 and 1940. I am willing to accept that some of the delay in preparing the first danger opinion may have been attributable to limited institutional resources. However, the major sources of delay during that period originated with Mr. Almrei.
[88] Indeed, once Mr. Almrei was informed that a danger opinion would be sought from the Minister, with a view to deporting him to Syria, he recanted his story, claiming that he did not have the opportunity to do it at the Federal Court hearing on the reasonableness of the certificate: see his affidavit, Appeal Record, vol. 8, page 2849, at paragraph 4.
[89] In an affidavit given on November 8, 2002, Mr. Almrei divulged information that, since his arrival in Canada in January 1999, he had concealed from