Charkaoui v. Canada (Minister of Citizenship and Immigration)

Charkaoui v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2004-12-10
Neutral citation
2004 FCA 421
File numbers
A-603-03
Notes
Reported Decision
Decision Content
Date: 20041210
Docket: A-603-03
Citation: 2004 FCA 421
CORAM: RICHARD C.J.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
ADIL CHARKAOUI
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND
THE SOLICITOR GENERAL OF CANADA
Respondents
Hearing held at Ottawa, Ontario, November 8, 2004.
Judgment delivered at Ottawa, Ontario, December 10, 2004.
REASONS FOR JUDGMENT: DÉCARY J.A.
LÉTOURNEAU J.A.
CONCURRING REASONS: RICHARD C.J.
Date: 20041210
Docket: A-603-03
Citation: 2004 FCA 421
CORAM: RICHARD C.J.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
ADIL CHARKAOUI
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
DÉCARY AND LÉTOURNEAU JJ.A.
[1] By an extensive 77-page decision, dated December 5, 2003, Mr. Justice Simon Noël of the Federal Court, sitting as a designated judge, dismissed the application by the applicant to have sections 33 and 77 to 85 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) declared unconstitutional. That decision is now the subject of this appeal. To facilitate the reading of these reasons, we include a table of contents of the topics that are discussed.
Table of Contents
Para.
Legislation
2
Issues
3
Facts and proceedings
9
Analysis of the decision and the issues
21
Question 1.
Does the designated judge have jurisdiction to examine constitutional questions raised in the context of a judicial examination under sections 76 to 85 of the IRPA?
21
Jurisdiction of the designated judge and the appropriate procedure
21
(a) Jurisdiction
23
(b) Procedure
51
Question 2.
Do sections 77 and 78 of the IRPA contravene the rights under the Charter with respect to a fair trial before an independent and impartial tribunal, when, for example, the designated judge must determine the "reasonableness" of the security certificate issued by the ministers and not the merits of the case?
63
Factors to be considered and their cumulative impact
64
(a) the decision that leads to inadmissibility is taken by the executive and not by a judge
65
(b) the judge's role is improperly and unjustly limited to verifying the reasonableness of the security certificate when he should be assessing its merits
69
(c) the decision of the designated judge is made on the basis of secret evidence to which the appellant does not have access
75
(d) the appellant does not obtain a summary of the information that is not disclosed to him
75
(e) there is no means for the appellant to test the validity and credibility of this information and thus it is difficult if not impossible for him to refute it
75
(f) the standard of evidence adopted by Parliament to justify the issuance of a security certificate is too minimal, since it is enough to have reasonable grounds to believe that the acts described in section 34 have occurred, are occurring or may occur when this standard should have been more stringent and require that the acts be proved according to the standard of the balance of probabilities
102
(g) under paragraph 78(j), the designated judge may admit, and base his decision on, any evidence that he considers useful, even if it is inadmissible at trial
108
(h) the notions of "reasonable grounds" and "danger to the security of Canada" are vague and overly broad
109
(i) the decision of the designated judge has far-reaching implications for a permanent resident like the appellant, who will be deported from the territory, this decision being final and without appeal
110
(j) the appellant is deprived of the right to be released on bail
114
Question 3.
Does the judicial examination procedure under sections 76 et seq. of the IRPA derogate from the appellant's status as a permanent resident and does it ensure equal treatment to all permanent residents declared inadmissible on security grounds?
128
Question 4.
Are the IRPA provisions for detention of the person in question during the judicial examination of the security certificate consistent with the Charter and the Bill of Rights?
130
Question 5.
Are the expressions "reasonable grounds to believe" and "danger to the security of Canada" used in section 33 and subsection 34(1) of the IRPA vague, overly broad or discriminatory?
133
Question 6.
Does the public nature of the ministers' security certificate that is referred to the Federal Court violate the Charter insofar as it would preclude a return of the person to his or her country of origin without risk?
134
Question 7.
Does the absence of a right of appeal or judicial review of the decisions concerning the reasonableness of the certificate and, where applicable, the lawfulness of the Minister's decision in the context of the pre-removal risk assessment (section 112 of the IRPA) breach section 96 of the Constitution Act, 1867?
135
Question 8.
Does the judicial examination procedure under sections 76 to 85 of the IRPA comply with Canada's international obligations, particularly in light of paragraph 3(3)(f) of the IRPA and the Covenant?
137
Conclusion
144
Legislation
[2] We reproduce the statutory provisions that are relevant to the analysis of this appeal:
Rules of interpretation
33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
Interprétation
33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.
Security
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
Sécurité
34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :
a) être l'auteur d'actes d'espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s'entend au Canada;
b) être l'instigateur ou l'auteur d'actes visant au renversement d'un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité du Canada;
e) être l'auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d'autrui au Canada;
f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c).
Exception
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
Exception
(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national.
Examination on Request by the Minister and the Solicitor General of Canada
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.
"judge" means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.
Examen à la demande du ministre et du solliciteur général
76. Les définitions qui suivent s'appliquent à la présente section.
« juge » Le juge en chef de la Cour fédérale ou le juge de cette juridiction désigné par celui-ci.
« 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.
Referral of certificate
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.
Dépôt du certificat
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.
Effect of referral
(2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.
Effet du dépôt
(2) Il ne peut être procédé à aucune instance visant le résident permanent ou l'étranger au titre de la présente loi tant qu'il n'a pas été statué sur le certificat; n'est pas visée la demande de protection prévue au paragraphe 112(1).
Judicial consideration
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.
Examen judiciaire
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.
Proceedings suspended
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).
Suspension de l'affaire
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).
Proceedings resumed
(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.
Reprise de l'affaire
(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.
Determination that certificate is reasonable
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.
Décision
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.
Determination that certificate is not reasonable
(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.
Annulation du certificat
(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.
Determination not reviewable
(3) The determination of the judge is final and may not be appealed or judicially reviewed.
Caractère définitif de la décision
(3) La décision du juge est définitive et n'est pas susceptible d'appel ou de contrôle judiciaire.
Effect of determination - removal order
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).
Effet du certificat
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).
Detention
Detention of permanent resident
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.
Détention
Arrestation et détention facultatives
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.
Mandatory detention
(2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.
Détention obligatoire
(2) L'étranger nommé au certificat est mis en détention sans nécessité de mandat.
Review of decision for detention
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.
Contrôle des motifs de la détention
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.
Further reviews
(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.
Comparutions supplémentaires
(2) Tant qu'il n'est pas statué sur le certificat, l'intéressé comparaît au moins une fois dans les six mois suivant chaque contrôle, ou sur autorisation du juge.
Order for continuation
(3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
Maintien en détention
(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.
Release
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.
Mise en liberté
84. (1) Le ministre peut, sur demande, mettre le résident permanent ou l'étranger en liberté s'il veut quitter le Canada.
Judicial release
(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.
Mise en liberté judiciaire
(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.
Inconsistency
85. In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency.
Incompatibilité
85. Les articles 82 à 84 l'emportent sur les dispositions incompatibles de la section 6.
Issues
[3] The appellant raised a plethora of constitutional questions before the designated judge: in fact, no fewer than forty questions. He alleged a breach of:
(a) sections 7, 9, 10 and 15 and paragraph 11(e) of the Canadian Charter of Rights and Freedoms (Charter);
(b) section 96 of the British North America Act, now the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.);
(c) sections 1 and 2 of the Canadian Bill of Rights, S.C. 1960, c. 44 (Bill of Rights);
(d) some common law rules;
(e) the Bill of Rights of the United Kingdom of 1689, the title of which is An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, 1 Will & M., sess. 2, c. 2;
(f) clause 14(1) of the International Covenant on Civil and Political Rights of December 19, 1966 (Covenant); and
(g) article 10 of the Universal Declaration of Human Rights of 1948 (Universal Declaration).
[4] As experience shows, one who seeks too much risks losing everything. The appellant's position before the designated judge, who had to request some particulars concerning the constitutional questions, was characterized by virtuous statements of general, rather unfocused principles, often irrespective of the possible relationship to the facts of the case, and without any genuine effort to strike a balance between divergent individual and collective interests. While the appellant primarily criticizes the designated judge for focussing excessively on national security and thereby assigning undue weight to the interests of the collectivity, it is no exaggeration to say that the appellant's position completely ignores the issue of national security. Thus, for example, the appellant claims, in the proceedings on the security certificate that was issued against him, a right of access to all the relevant information, including information that might be injurious to national security, and the right to be present and participate at all times in the hearings that concern him, even when evidence involving national security in regard to which he is considered a threat is being discussed. Hence his repeated constitutional attacks on a number of sections of the IRPA based on both national and international instruments protecting and promoting human rights.
[5] The appellant essentially repeated before us the arguments he raised before the designated judge, often making do in his memorandum of fact and law with a reference to his submissions to the designated judge.
[6] In an effort at synthesis, the respondents, like the designated judge, grouped the position of the appellant and their own position around the following eight questions which, with one exception, we intend to analyse for the purpose of disposing of this appeal:
(1) Does the designated judge have jurisdiction to examine the constitutional questions that are raised in the context of the judicial review procedure in sections 76 to 85 of the IRPA?
(2) Do sections 77 and 78 of the IRPA contravene the rights under the Charter with respect to a fair trial before an independent and impartial tribunal, when, for example, the designated judge must determine the "reasonableness" of the security certificate issued by the ministers and not the merits of the case?
(3) Does the judicial review procedure under sections 76 et seq. of the IRPA derogate from the appellant's status as a permanent resident and does it ensure equal treatment to all permanent residents declared inadmissible on security grounds?
(4) Are the IRPA provisions for detention of the person in question during the judicial review of the security certificate consistent with the Charter and the Bill of Rights?
(5) Are the expressions "reasonable grounds to believe" and "danger to the security of Canada" used in section 33 and subsection 34(1) of the IRPA vague, overly broad or discriminatory?
(6) Does the public nature of the ministers' security certificate that is referred to the Federal Court violate the Charter insofar as it would preclude a return of the person to his or her country of origin without risk?
(7) Does the absence of a right of appeal or judicial review of the decisions concerning the reasonableness of the certificate and, where applicable, the lawfulness of the Minister's decision in the context of the pre-removal risk assessment (section 112 of the IRPA) breach section 96 of the Constitution Act, 1867? and
(8) Does the judicial review procedure under sections 76 to 85 of the IRPA comply with Canada's international obligations, particularly in light of paragraph 3(3)(f) of the IRPA and the Covenant?
[7] At the hearing, the appellant's counsel stated that she was abandoning the ground of appeal found in question 6. This concerns the deprivation of the appellant's life and security resulting, so it is alleged, from the fact that the security certificate is made public through being referred to the Federal Court. We will not discuss that ground, therefore.
[8] By proceeding in this way from a plethora to a synthesis of the constitutional issues, we think that none of the appellant's contentions has been omitted. In fact, the hearing in this Court was addressed to these points grouped accordingly.
Facts and proceedings
[9] The appellant, Adil Charkaoui, has been a permanent resident of Canada since 1995, awaiting his Canadian citizenship. On May 21, 2003, he was arrested and placed under detention. The arrest warrant was issued under section 82 of the IRPA, pursuant to a security certificate referred to the Federal Court that day in accordance with section 77 of that Act.
[10] The security certificate is signed by the Minister of Citizenship and Immigration and by the Solicitor General of Canada. It attests that the appellant is inadmissible on security grounds within the meaning of sections 33, 34 and 77 of the IRPA.
[11] The appellant has been detained since that date. The merits of his detention have been reviewed three times as required by the principle of ongoing review contained in section 83 of the IRPA: concerning the ongoing nature of the review, see Charkaoui v. The Minister of Citizenship and Immigration and The Solicitor General of Canada, [2004] 1 F.C.R. 451.
[12] Sparing the details, suffice it to say that the respondents have reasonable grounds to believe that the appellant is a member of the terrorist organization of Osama Bin Laden and that he has engaged, is engaging or will engage in terrorist activities. By referring the security certificate to the Federal Court, the Ministers asked a designated judge of this Court to hold a hearing to determine whether the certificate is reasonable. Sections 76 to 81 describe the judicial process that follows and the powers and duties of the designated judge.
[13] After reviewing the materials provided by the Ministers, the designated judge concluded that the request that he hold a hearing ex parte and in camera was justified by questions of national security. The hearing was therefore held in the absence of the appellant and his counsel pursuant to paragraphs 78(d) and (e) of the IRPA.
[14] Following this hearing, specifically on May 26, 2003, as required by paragraphs 78(g) and (h) of the IRPA, the designated judge provided the appellant with some information, the disclosure of which would not be injurious to national security or to the safety of any person.
[15] A new hearing was held in early July 2003, at which the appellant called witnesses and filed affidavit evidence. A few days later, a new hearing was held in the absence of the appellant and his counsel. Needless to say, the latter objected to each of the hearings held in their absence.
[16] In an order dated July 15, 2003, the designated judge informed the appellant of his concerns arising out of the review of the information he had received, in order to allow him to respond to it. To date, the appellant has not deigned to do so. More precisely, the designated judge hoped to receive from the appellant clarifications concerning his contacts with certain individuals and information about his life in Morocco from 1992 to 1995 and in Canada from 1995 to 2000, including his trips. Finally, he urged the appellant to provide some particulars about his trip to Pakistan from February to July 1998.
[17] Because of the possibility of fluctuations in national security matters and the discovery of new information, the designated judge adopted a policy of ongoing disclosure of evidence and information to the appellant. That is why, on July 17, 2003, he allowed some information that until then had been protected to be given to the appellant. This information informed the appellant that Abou Zubaida, considered a close collaborator of Osama Bin Laden, had recognized him in a photograph and designated him as a person he had seen in Afghanistan in 1993 and in 1997-98.
[18] On August 14, 2003, further protected information was given to the appellant with the authorization of the designated judge. First of all, the photograph that Abou Zubaida had been shown for identification purposes was given to the appellant on July 17, 2003. Secondly, he was informed that Ahmed Ressam had also recognized him in two photos, adding that he had met him in Afghanistan in the summer of 1998 when the two were training in the same camp. Upon seeing the appellant's photograph, Mr. Ressam identified the appellant under the name of Zubeir Al-Maghrebi, just as Abou Zubaida had done one month previously.
[19] The appellant's application for a declaration of unconstitutionality first appeared in the context of an application for release made on July 2, 2003: see the Appeal Record, vol. 5, at page 913. A Notice of Constitutional Questions under Rule 69 of the Federal Court Rules, 1998 was signed on September 17, 2003 and served on the parties concerned. The scope of the constitutional issues was somewhat expanded in this notice since sections 33, 84 and 85 were added to the list of those previously indicated, 77 to 83: see the Appeal Record, vol. 6, at pages 1169 to 1174.
[20] It is therefore in the particular context of a motion relating to the detention that an expanded application for review of the constitutional validity of the process of determination of the reasonableness of the security certificate was submitted to the designated judge.
Analysis of the decision and the issues
1. Does the designated judge have jurisdiction to examine constitutional questions raised in the context of a judicial examination under sections 76 to 85 of the IRPA?
Jurisdiction of the designated judge and the appropriate procedure
[21] The respondents contend that the judge designated under section 76 of the IRPA, on a review of the reasons for detention, does not have jurisdiction to determine the constitutional validity of certain provisions of the Act. They rely on the case law established under the former Immigration Act, R.S.C. 1985, c. I-2, as amended (the former Act), and argue that these precedents have survived the changes made by the new Act. They submit, in the alternative, that if the designated judge had jurisdiction, he did not exercise it in accordance with the appropriate procedure. They are asking that we set aside the impugned decision and order that the matter be heard de novo by a different judge in the context of a distinct file that would take the form of an action for a declaration of constitutional invalidity.
[22] To appreciate more clearly the comparison with the former Act, it will be useful to reproduce the relevant provisions:
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.
...
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 aux 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.
[...]
(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.
(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) 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).
...
(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 autre 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 la 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).
[...]
(6) A determination under paragraph (4)(d) is not subject to appeal or review by any court.
(6) La décision visée à l'alinéa (4)d) ne peut être portée en appel ni être revue par aucun tribunal.
(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.
(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.
(7.1) The Minister may order the release of a person who is named in a certificate that is signed and filed in accordance with subsection (1) in order to permit the departure from Canada of the person, regardless of whether the Chief Justice or the designated judge has yet made the determination referred to in paragraph (4)(d).
(7.1) Le ministre peut ordonner la mise en liberté de la personne nommée dans l'attestation afin de lui permettre de quitter le Canada, que la décision visée à l'alinéa (4)d) ait ou non été rendue.
(8) Where a person is detained under subsection (7) and is not removed from Canada within 120 days after the making of the removal order relating to that person, the person may apply to the Chief Justice of the Federal Court or to a judge of the Federal Court designated by the Chief Justice for the purposes of this section for an order under subsection (9).
(8) La personne retenue en vertu du paragraphe (7) peut, si elle n'est pas renvoyée du Canada dans les cent vingt jours suivant la prise de la mesure de renvoi, demander au juge en chef de la Cour fédérale ou au juge de cette cour qu'il délègue pour l'application du présent article de rendre l'ordonnance visée au paragraphe (9).
(9) On an application referred to in subsection (8) the Chief Justice or the designated judge may, subject to such terms and conditions as the Chief Justice or designated judge deems appropriate, order that the person be released from detention if the Chief Justice or designated judge is satisfied that
(a) the person will not be removed from Canada within a reasonable time; and
(b) the person's release would not be injurious to national security or to the safety of persons.
(9) Sur présentation de la demande visée au paragraphe (8), le juge en chef ou son délégué ordonne, aux conditions qu'il estime indiquées, que l'intéressé soit mis en liberté s'il estime que :
a) d'une part, il ne sera pas renvoyé du Canada dans un délai raisonnable;
b) d'autre part, sa mise en liberté ne porterait pas atteinte à la sécurité nationale ou à celle de personnes.
(a) Jurisdiction
[23] The cases under the former Act established that the designated judge (then referred to as the delegated judge) did not have jurisdiction to decide constitutional questions in the context of examining the reasonableness of the certificate, but that he had such jurisdiction in examining the reasons for detention.
[24] In Re Baroud (1995), 98 F.T.R. 99, Denault J., who was the delegated judge, found that his only role was not to
determine whether the Minister and the Solicitor General were correct in their assessment of the evidence presented to them but rather, in accordance with paragraph 40.1(4)(d), [to] determine whether the security certificate is reasonable on the basis of the evidence and information available to me....
[Para. 23 of his reasons]
He added:
... I have an obligation to enforce the applicable legislation and, in the context of this hearing, it is not my role to determine whether the section in question is contrary to the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms.
On the latter point, he noted that
The respondent has launched an action in this Court challenging the constitutional validity, applicability and operability of section 40.1 of the Act.
[25] In Suresh v. Canada (1996), 34 C.R.R. (2d) 377 (F.C.T.D.), Cullen J., who was not the delegated judge, was hearing a motion for recognition of the delegated judge's jurisdiction to hear submissions on the constitutional validity of the former Act. He dismissed the motion and concluded:
While accepting the principles set out in the above-notes cases, the applicant's argument is based on the assumption that the designated judge is a "court of competent jurisdiction" to hear Charter arguments. If the designated judge has no jurisdiction to hear Charter arguments, then the lack of an appeal is irrelevant. In my view, the lack of appeal is premised on an assumption that the designated judge does not have such jurisdiction. It is a further indication that Parliament intended that the designated judge only consider whether the certificate is reasonable on the basis of the available evidence. Questions of Charter infringement demand a much higher standard of proof and are incompatible with merely an assessment of reasonableness.
In summary, the clear language of section 40.1 of the Immigration Act is incompatible with extensive Charter review and it is my conclusion that the designated judge in the review of a certificate does not have jurisdiction to consider arguments and grant remedies pursuant to subsection 24(1) Canadian Charter of Rights and Freedoms and subsection 52(1) of the Constitution Act, 1982.
[Para. 13, 14]
[26] In Singh v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 616 (T.D.), Rothstein J. (as he then was), who was not the delegated judge, on an application for judicial review brought simultaneously with the application for review of the certificate, had before him an application for interim relief that would result in the applicant's release from custody. The judge notes, at paragraph 7 of his reasons, that it was because of the lack of jurisdiction of the delegated judge that the applicant claimed he had to bring a distinct application for judicial review in order to obtain a review of the constitutional issues. Having dismissed the application for interim relief on the ground that the balance of inconvenience weighed in favour of the Ministers, Rothstein J. refrained from deciding the issues of jurisdiction and procedure that were before him. However, he expressed the following opinion, in obiter:
Initially, I would have thought that a constitutional challenge to legislation would have to be brought by action as was done in Ahani, supra. However, in this case the applicant also challenges the constitutionality of the Ministers' certificate. In addition, I note the dicta of Bastarache J. in the recent Supreme Court of Canada decision in Canada (Canadian Human Rights Commission) v. Canadian Liberty Net, [1998] S.C.J. No. 31 (QL) in which he makes reference to an originating notice of motion for a free-standing injunction. This question of procedure entails significant analysis and on this application the arguments were not fully developed. Further, the parties did not deal with the application, if any, of Canadian Liberty Net, supra. Given my decision to dismiss the application for interim relief on the basis of balance of inconvenience favouring the Ministers, such extensive analysis is unnecessary. I shall assume the present proceeding to be a valid one for bringing this request for interim relief before the Court.
[Para. 9]
Incidentally, he refused to decide whether, assuming that the constitutionality issue necessarily had to be brought in the Federal Court in the form of an action, he could order pursuant to section 18.4 of the Federal Court Act that the application for judicial review that was before him could be brought as if it were an action.
[27] In Suresh v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 192 (C.A.) (an appeal unrelated to the decision of Cullen J., supra), this Court considered whether the delegated judge, in the review of the reasons for detention, had jurisdiction to determine constitutional issues. Pursuant to subsection 40.1(9) of the former Act, the delegated judge had ordered the release of Suresh subject to certain conditions. The specific question before the Court of Appeal was "whether a designated judge ... has jurisdiction to hear any constitutional issues that arise from an order made by that judge pursuant to subsection 40.1(9)" (para. 1 of the reasons). Suresh argued that certain conditions imposed by the delegated judge contravened freedom of expression and association under the Charter.
[28] McDonald J.A., on behalf of the Court, said he was
convinced that there is nothing in the Act limiting a designated judge on jurisdictional grounds from considering constitutional issues on a subsection 40.1(8) application. ...
and added that
The cases cited by the appellant [Baroud, Suresh and Singh, supra] as standing for the proposition that constitutional issues can not be considered are, in any event, easily distinguished on their facts.
[Para. 9 of the reasons]
[29] McDonald J.A. then went on to distinguish the Baroud and Suresh cases on their facts, noting that because in Suresh
paragraph 40.1(4)(d) of the Act only gave the designated judge jurisdiction to consider the reasonableness of the certificate, constitutional arguments could not be entertained.
[Para. 11 of the reasons]
He added, at paragraphs 12 and 13:
I would note that a prominent factor giving rise to Cullen J.'s decision in Suresh was that subsection 40.1(6) [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4] of the Act sets out that a determination under paragraph 40.1(4)(d) is not subject to appeal or review by any court. There is no such corresponding limit pertaining to subsection 40.1(8) of the Act. Further, both Suresh and Baroud were concerned with attacking the constitutionality of an entire section of the Act (for instance, in Suresh, clauses 19(1)(e)(iv)(C) and 19(1)(f)(iii)(B)) whereas in the case at bar, we are concerned only with the constitutionality of the terms of an order made by the designated judge. These cases are, therefore, distinguishable on the ground that they arose under a different section of the Act which limits any right of appeal and on the ground that they were concerned with entirely different issues.
Thus, I find that a designated judge under subsection 40.1(8) of the Act has jurisdiction to entertain Charter arguments with respect to the constitutionality of the terms of any order made under subsection 40.1(9) of the Act. Indeed, a designated judge is compelled to consider the constitutionality of any order he or she makes pursuant to this subsection. Unlike a proceeding under subsection 40.1(4) he has the remedy available: namely, the appropriate wording of the release conditions.
[Footnote omitted]
[30] This Court therefore concluded, in Suresh, in obiter, that the delegated judge had jurisdiction to decide constitutional issues in the context of his review of the reasons for detention, but it based this conclusion largely on the fact that the decision of the delegated judge in this regard was appealable.
[31] What is the situation under the IRPA?
[32] In Charkaoui v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 451 (F.C.A.), this Court held that the designated judge's decision on review of the reasons for detention was not subject to appeal under the new Act. It follows that the jurisdiction of the designated judge can no longer be justified by McDonald J.A.'s obiter dictum in Suresh. The solution must be found elsewhere.
[33] The designated judge in this case (Mr. Justice Simon Noël) rightly notes that in the absence of any express attribution of jurisdiction, the Court may, because of the particular function it performs and the structure, powers and processes conferred on it by Parliament, have implicitly been given jurisdiction to grant the Charter relief that is sought (see R. v. Hynes, [2001], 3 S.C.R. 623, p. 641).
[34] Noël J. concluded that the IRPA implicitly gave the designated judge the jurisdiction that was not assigned to him by the former Act. In reaching this conclusion, he relies primarily on paragraph 3(3)(d) of the IRPA, which provides that "This Act is to be construed and applied in a manner that ... ensures that decisions taken under this Act are consistent with the Canadian Charter ...", and the English text of paragraph 78(c) of the IRPA, which states that the judge "shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit".
[35] With respect, we do not think that these provisions alter the jurisdiction of the designated judge for the purposes that concern us here. Paragraph 3(3)(d) is a routine provision that applies to everyone who is required by the Act to make decisions, whether it is a visa officer, the Immigration Division, the Refugee Protection Division, the Minister, the designated judge, a judge sitting on judicial review or the Federal Court of Appeal. This paragraph is not attributive of any new jurisdiction.
[36] The English text of paragraph 78(c) does not confer any new jurisdiction, either. It is addressed to the form of the hearing, and nothing more. The French text is clear. In regard to the English text, we acknowledge that the use of the words "determination", in the introductory clause of section 78, and "matter" in paragraph 78(a), to express the word "affaire" that is used throughout the French text, and the use of the words "all matters" in the English text of paragraph 78(c), which have no equivalent in the French text, are not the happiest choices, but in our opinion there is no doubt what they mean: the designated judge hears the matter - which includes the ancillary questions of proof and procedure - informally and expeditiously.
[37] We note as well that the English text of paragraph (c) uses the word "deal", which is rendered by "procède" in the French text, and this in our view confirms that section 78 is addressed to procedure and not jurisdiction. It is further on, in sections 80 and 83, that the jurisdiction of the designated judge is established.
[38] Finally, the type of informal procedure contemplated by paragraph 78(c) is incompatible with the type of procedure that would allow a Court to decide constitutional issues.
[39] However, we reach the same conclusion as Noël J., but by a somewhat different route. Our reasons are related to the concept of designated judge, the recent recognition of the jurisdiction of a designated judge to make certain decisions that are subject to appeal, and to some legislative changes.
[40] First, a word about the concept of "designated judge" that Noël J. rightly refurbished. This concept, we think, has been distorted by the case law, mainly out of the mistaken belief - to which we will return - that once it is said that the judge's final decision is not appealable, he can have no decision-making powers other than those closely associated with the limited mandate conferred on him as designated judge. When we go back to the origin of the concept, as Noël J. did at paragraphs 35 and 36 of his reasons, we find that Parliament's intention was not to make the "designated judge" a second-rank judge invested with fewer powers than a non-designated judge, but to ensure the presence of judges who are sufficiently informed to hear matters pertaining to national security. The designated judge's specialization has meant, over the years, that his expertise as a generalist judge has been put on the "back burner", which is an error: it is an added value, for a judge of the Federal Court, to be a designated judge, and his general expertise as a judge is enhanced, not diminished, by his specialization as a designated judge. As Noël J. notes, at paragraphs 37 and 39 of his reasons,
[37] ... It should be emphasized that the designation procedure established by these provisions is not intended to limit the judge's powers. Indeed, the designated judge exercises the ordinary functions of a puisne judge. Only the circumstances in which the judge is carrying out the functions are exceptional, in the sense that they involve national security.
...
[39] To summarize, in addition to the full jurisdiction of a Federal Court judge, designated judges have the jurisdiction specifically granted to them under section 76 et seq. of the IRPA. Thus, when hearing immigration matters, designated judges do not lose their status of Federal Court judge; they retain all their powers, and also have the powers that result from being a designated judge.
[41] Moreover, the expression "designated judge" is misleading in that it disguises the fact that the judge is a representative of the Chief Justice (see section 76) and the fact that, in effect, it is the Court, and not the judge, that renders the decision. As subsection 77(1) says, the Ministers refer the certificate to the Federal Court "which shall make a determination under section 80" (our underlining). Parliament intended, therefore, that it would be the Court, at its highest level moreover, that would hear and determine questions related to national security.
[42] By restoring to the designated judge his "letters patent of nobility", Noël J. and this Court are simply returning to what was said by Mr. Justice Dickson in Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, a case in which the Supreme Court of Canada reversed itself and removed the concept of "persona designata" from the legal lexicon:
... I would declare that whenever a statutory power is conferred upon a s. 96 [of the BNA Act] judge or officer of a court, the power should be deemed exercisable in an official capacity as representing the court, unless there is express provision to the contrary.
[p. 527]
[43] Next, a word about the power now given to a designated judge to make certain decisions that are subject to appeal. One of the premises of Denault, Cullen JJ. and McDonald J.A. in the aforementioned cases was that a delegated judge could make only the final decision that he had a specific mandate to make, i.e. the one dealing with the reasonableness of the certificate. It was in fact common at the time to limit the delegated judge's jurisdiction and to say that since his decision concerning the certificate was without appeal, he could not make any other decision that itself was subject to appeal.
[44] This approach was likely explained by the analogy that was made with the case law dealing with revocation of citizenship. Under subsection 18(1) of the Citizenship Act (R.S.C. 1985, c. C-29), the Federal Court had to determine whether there had been fraud, false representation or knowing concealment of material circumstances when a person was admitted to Canada, and the Court's decision, under subsection 18(3), was final and not subject to appeal. Under rules 900 et seq. of the Federal Court Rules then in force, which set out a special procedure on citizenship appeals, the Court's practice was to designate a judge, referred to as a reference judge, to hear the appeal.
[45] This narrow interpretation of the reference judge's jurisdiction proved to be mistaken, as time went by. It was the Supreme Court of Canada's 1997 judgment in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, that initiated a more realistic interpretation of subsection 18(3) of the Citizenship Act. A motion to stay the proceedings had been presented to a judge other than the reference judge. The motion was allowed and the proceedings were stayed. The Minister appealed the decision to the Federal Court of Appeal, but Tobiass' counsel asked that the appeal be set aside for lack of jurisdiction. In their opinion, subsection 18(3) of the Citizenship Act immunized the decision staying the proceedings from any appeal. The Court of Appeal, in the majority, dismissed the motion and attorned to its jurisdiction. The Supreme Court of Canada upheld the existence of the right of appeal in these words:
This conclusion flows from the wording of s. 18. Section 18(1) refers to a very particular kind of decision: a decision as to whether a person "has obtained, retained, renounced or resumed citizenship" by false pretences. However, a stay of proceedings is entered for reasons which are completely unrelated to the circumstances surrounding the obtaining, retaining, renouncing or resuming of citizenship. Indeed, a decision to order (or not to order) a stay of proceedings is different from the type of determination that the Court is called upon to make under subsection 18(1).
[p. 413]
However, whether s. 18(1) is interpreted narrowly as encompassing only the ultimate decision as to whether citizenship was obtained by false pretences, or more broadly to include the interlocutory decisions made in the context of a s. 18(1) hearing which are related to this determination, it is apparent that it does not encompass an order granting or denying a stay of proceedings.
Unlike interlocutory decisions, a stay of proceedings will not be made in order to more efficiently determine the ultimate question of whether citizenship was obtained by false pretences. An order staying proceedings is therefore not related to this ultimate decision.
[p. 415]
... The power to order a stay does not flow by necessary implication from the power to decide if citizenship was obtained by false pretences, set out at s. 18(1). Rather, it is a power which not only has its source in a different statutory provision (s. 50 of the Federal Court Act) but is also unrelated to the power set out at s. 18(1). To borrow the words of Lamer C.J. in Hinse, it is a "separate, divisible judicial act" (p. 626).
[p. 418]
[46] Since Tobiass, this Court has recognized the right of appeal from other types of decisions made in the context of a reference. For example, in Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2003] 2 F.C. 657 (F.C.A.), the Court held that a judgment on the possibility of proceeding by summary judgment was appealable:
[35] When one looks at the purpose and objective of subsections 18(1) and (3), it seems to me that the decision from which there can be no appeal is the one made by the judge hearing the entire matter, who determines in light of all the facts whether there was a fraudulent act. In the case at bar, the decision by the Motions Judge is not a decision made on the issue before the reference judge, namely a decision on whether there was a fraudulent act.
...
[37] I further consider that a decision on the scope and requirements of the summary judgment proceeding is similar to a decision ordering a stay of proceedings, and this is not covered by the appeal prohibition contained in subsection 18(3): see Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at paragraph 57. Both decisions are procedural in nature. One, the stay of proceedings, is designed to terminate proceedings, and the other, the summary judgment procedure, either to terminate or to shorten proceedings by terminating a part of them. At no time, however, does a decision on the validity of recourse to either of these procedural vehicles affect or impinge on the matter being heard by the Trial Division under subsection 18(1), namely a determination of whether the respondent has obtained entry to Canada by fraud or false representation.
[47] Mr. Justice Marc Noël, in Narvey v. Canada (Minister of Citizenship and Immigration) (1999), 235 N.R. 305 (F.C.A.), has held that a decision on a judge's bias was not covered by subsection 18(3) of the Citizenship Act and was appealable. (See also the decisions of Stone J.A. in Canada (Minister of Citizenship and Immigration) v. Dueck (2002), 286 N.R. 358 (F.C.A.) and Isaac J.A. in Canada (Minister of Citizenship and Immigration) v. Fast, 2002 FCA 292, who query the scope of subsection 18(3).) This Court, in Zundel v. Canada (Minister of Citizenship and Immigration), 2004 FCA 394, has recently decided that a decision pertaining to the partiality of the judge was subject to appeal notwithstanding subsection 80(3) of the IRPA.
[48] If it is agreed that the designated judge may, in the exercise of the powers conferred by sections 80 and 83 of the IRPA, make some decisions that are subject to appeal, then there should be no further question as to his jurisdiction to make them. It seems obvious to us that a decision on the constitutional validity of the IRPA has to do with the jurisdiction of the Court and not the reasonableness of the certificate, that it constitutes a separate, divisible judicial act, to repeat the words of Lamer C.J. in Tobiass, and that it is consequently appealable.
[49] Finally, a word on the legislative changes. Under the former Act, the delegated judge was assigned two specific mandates: to examine the reasonableness of the certificate, and to order, in the circumstances described in subsection 40.1((9), the release. The IRPA gives the designated judge a third mandate: to determine whether the Minister's decision on an application for protection, filed under subsection 112(1), is "lawfully" made. This additional mandate is found in section 80, the same section that gives the designated judge the mandate to examine the reasonableness of the certificate. If lawfulness is the issue, it is a question of law, and as the Supreme Court of Canada tells us, questions of law include constitutional questions:
In cases where the empowering legislation contains an express grant of jurisdiction to decide questions of law, there is no need to go beyond the language of the statute. An express grant of authority to consider or decide questions of law arising under a legislative provision is presumed to extend to determining the constitutional validity of that provision.
[Nova Scotia (Workers' Compensation Board) v. Martin,
[2003] 2 S.C.R. 504, at para. 40]
[50] If a designated judge now has explicit jurisdiction to decide constitutional questions in the exercise of one of the three mandates conferred on him by the IRPA, it is not unreasonable to think that Parliament, by implication, intended that he also have this jurisdiction in the exercise of the other two.
(b) Procedure
[51] Still to be determined is whether the designated judge may decide constitutional questions by way of a motion instead of by way of an action or an application for judicial review.
[52] Noël J. was careful, in this case, to dissociate the motion on the constitutional validity of the IRPA from the judicial review of the reasons for detention. He held a distinct, independent, formal hearing under the procedural rules that are generally applicable. The argument in court and the reasons he gave steered clear of the specific facts of the Charkaoui case. The questions that were argued were questions of law and they were decided on the basis of a record that the parties considered complete. It was by choice and not for lack of procedural options that the Ministers filed no evidence pertaining to justification under section 1 of the Charter.
[53] It should be noted, in relation to the procedure followed, that the review of the reasons for detention is conducted in the general context of the application for judicial review of the reasonableness of the certificate that the Ministers must refer to the Federal Court under subsection 77(1). It is the Ministers, therefore, and not the permanent resident, who bring the matter before the Court. This is a sui generis proceeding. It is not one of the initiating proceedings covered in rule 61 of the Federal Court Rules, 1998: it is not an action, an application for judicial review or an appeal. In such a case, rule 169 tells us, the proceeding is governed by the rules applicable to actions, insofar, of course, as those rules are compatible with those set out in section 78 of the IRPA. Rule 169 cites, by way of example, references under section 18 of the Citizenship Act. It could have cited, as a further example, applications made under sections 76 et seq. of the IRPA.
[54] There was for a long time a passionate debate in this Court over the appropriate procedure for challenging the constitutionality of a statute. The decision of Rothstein J. in Singh, supra, is one such illustration. While there was no dispute that an action was an appropriate vehicle, there was no consensus as to whether an application for judicial review might be as well, which meant that counsel, as in Singh, had to show some imagination. The debate was definitively decided in Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (C.A.) and in Moktari v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 341 (C.A.): the Court also has jurisdiction to hear constitutional challenges of statutory provisions in the context of a judicial review proceeding.
[55] We refer to that debate and to its ultimate resolution in order to illustrate how far we have come, in this Court, from that procedural era which aroused the ire of litigants, counsel and judges alike. Although they were made in the context of a judicial review proceeding, we think the following remarks by Mr. Justice Robertson, at paragraph 6 of his reasons in Moktari, likewise apply in an action, and thus, through the operation of rule 169, to the judicial examination provided in the IRPA:
[6] We hasten to add that while the 1992 amendments to the Federal Court Act were aimed at effecting significant changes in the law governing judicial review in this Court, it is equally obvious that to permit parallel proceedings arising from a single decision would diminish the capacity of this Court to dispense justice in an expedient and efficient manner. The confusion over whether declaratory relief is available in judicial review proceedings has caused some litigants to initiate a judicial review application in this Court and then commence an action, for example, in the superior court of a province for the purpose of challenging the constitutional validity of the applicable legislation: the complexities of the situation are outlined fully in Suresh v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 206 (C.A.). In our view the right to seek and obtain declaratory relief in judicial review proceedings is as much a matter of statutory interpretation as it is a matter of practical necessity especially in the field of immigration law. One need only look at the thousands of judicial review applications processed by the Trial Division of this Court in any one year to appreciate that the initiation of parallel but unnecessary proceedings can only work against the best interests of justice.
[56] Also relevant are these remarks by Mr. Justice Gonthier in Martin, supra, at paragraph 28, although they were made in the context of the debate over the jurisdiction of administrative tribunals to decide constitutional issues:
First, and most importantly, the Constitution is, under s. 52(1) of the Constitution Act, 1982, "the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect". The invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1). Thus, in principle, such a provision is invalid from the moment it is enacted, and a judicial declaration to this effect is but one remedy amongst others to protect those whom it adversely affects. In that sense, by virtue of s. 52(1), the question of constitutional validity inheres in every legislative enactment. Courts may not apply invalid laws, and the same obligation applies to every level and branch of government, including the administrative organs of the state. Obviously, it cannot be the case that every government official has to consider and decide for herself the constitutional validity of every provision she is called upon to apply. If, however, she is endowed with the power to consider questions of law relating to a provision, that power will normally extend to assessing the constitutional validity of that provision. This is because the consistency of a provision with the Constitution is a question of law arising under that provision. It is, indeed, the most fundamental question of law one could conceive, as it will determine whether the enactment is in fact valid law, and thus whether it ought to be interpreted and applied as such or disregarded.
29 From this principle of constitutional supremacy also flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts: see Douglas College, supra [Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570], at pp. 603-604. In La Forest J.'s words, "there cannot be a Constitution for arbitrators and another for the courts" (Douglas College, supra, at p. 597).
[Para. 28 and 29]
[57] Paraphrasing Robertson J.A. and Gonthier J., we say that it would work against the best interests of justice to force litigants to undertake parallel proceedings based on a single decision, a fortiori when such proceedings are brought in the same Court. Such is the principle that must now guide us when, as in the case at bar, one party, the respondents, argues that the other party, the appellant, should have brought a parallel proceeding in the Federal Court.
[58] It seems obvious to us, in this case, that the respondents' submission must be rejected. It is the Ministers who brought the originating proceeding, the application for judicial examination, and the appellant, in challenging his detention, is simply pleading in his defence that some provisions of the IRPA are unconstitutional. Logically, this defence ought to be arguable by a motion within the framework of the original proceeding without the need to initiate a parallel proceeding or to open a new file.
[59] This motion, while it is presented in the context of the original proceeding, is an independent and distinct proceeding that, by its nature and its effects, escapes the rules of procedure established for the original proceeding and the rules of procedure established for the presentation of ordinary motions. Clearly, this cannot amount to deciding informally whether a statutory provision is or is not constitutional, and both the parties and the judge are entitled to require the application of the ordinary rules of evidence and adjudication. In some ways, it is a mini-trial within a trial, and this mini-trial can, as in this case, take the form of an ordinary motion.
[60] The parties might have proceeded otherwise and before another judge. Since the procedure they adopted by mutual agreement has not adversely affected anyone, has enabled the parties to present all the evidence they considered necessary, and has helped to resolve on the merits and in complete equity the issue that was before the court, it is in the best interests of justice that this Court respect the choice of the parties. It would be downright ridiculous, in the circumstances, to set aside the decision that was given and to order that the same debate be resumed in the same Court and possibly in this Court of Appeal merely because a new file should have been opened and a parallel procedure taken.
[61] The respondents propose, essentially, that the procedure be the one taken in Ahani and Baroud: while the designated judge considers informally and expeditiously the reasonableness of the certificate and the reasons for detention, another judge of the Court, in the context of an action, should consider the constitutional questions raised by the individual concerned. This is still a possible procedure, but in itself it is not perfect. It entails a duplication of proceedings and will not necessarily result in any real saving of time since, as happened in Ahani, the execution of the removal order was stayed by the Minister until final judgment was rendered on the constitutional questions. The procedure taken in the case at bar, subject of course to the acquiescence of the parties and the judge, has reduced the paperwork and the costs, facilitated the hearing of the constitutional arguments (since the judge need not be apprised of the factual basis of the case or the requirements peculiar to national security cases), and let the Court of Appeal itself decide whether it was necessary to stay the review of the reasons for detention pending the appeal, which it has agreed to do in this case but to which it might not have agreed.
[62] We conclude, then, that the designated judge had jurisdiction to determine the constitutional questions that were put before him and that he did not commit any reviewable error, in the circumstances, by doing so in the context of a motion.
2. Do sections 77 and 78 of the IRPA contravene the rights under the Charter with respect to a fair trial before an independent and impartial tribunal, when, for example, the designated judge must determine the "reasonableness" of the security certificate issued by the ministers and not the merits of the case?
[63] This question raised by the appellant warrants special attention. His complaint is directed at the entire process Parliament has established for determining whether he constitutes a danger to national security and whether his detention is justified in the circumstances. He cites the cumulative effect of the following factors which, he says, deprive him of the right to a fair and equitable hearing by an impartial and independent tribunal:
(a) the decision that leads to his inadmissibility is taken by the executive authority and not by a judge;
(b) the judge's role is improperly and unjustly limited to verifying the reasonableness of the security certificate when he should be assessing its merits;
(c) the decision of the designated judge is made on the basis of secret evidence to which the appellant does not have access;
(d) he does not obtain a summary of the information that is not disclosed to him;
(e) there is no means for him to test the validity and credibility of this information and thus it is difficult if not impossible for him to refute it;
(f) the standard of evidence adopted by Parliament to justify the issuance of a security certificate is too minimal, since it is enough to have reasonable grounds to believe that the acts described in section 34 have occurred, are occurring or may occur when this standard should have been more stringent and require that the acts be proved according to the standard of the balance of probabilities;
(g) under paragraph 78(j), the designated judge may admit and base his decision on any evidence that he considers useful, even if it is inadmissible at trial;
(h) the notions of "reasonable grounds" and "danger to the security of Canada" are vague and overly broad;
(i) the decision of the designated judge has far-reaching implications for a permanent resident like the appellant, who will be deported from the territory, when this decision is final and without appeal; and
(j) the appellant is deprived of the right to be released on bail.
Factors to be considered and their cumulative impact
[64] It is appropriate to analyze each of the allegations relating to these factors and their cumulative impact.
(a) the decision that leads to inadmissibility is taken by the executive and not by a judge
[65] It is undeniable that the initial inadmissibility decision is made by the executive, as are thousands of other decisions made by government ministers, but that decision is subject to the intervention of the judiciary as is often the case for the decisions of federal agencies or a multitude of ministerial or governmental decisions. So there is nothing unlawful, still less abnormal, in a decision of public interest being taken by a minister of the government who is responsible for enforcing the statute under which that decision is made.
[66] In fact, as legislators or as members of the executive, it is the elected parliamentarians, representatives of the population, who are vested with the power to manage and administer the public interest and sec