Almrei v. Canada (Minister of Citizenship and Immigration)

Almrei v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-03-19
Neutral citation
2004 FC 420
File numbers
DES-5-01
Notes
Reported Decision
Decision Content
Federal Court Reports Almrei v. Canada (Minister of Citizenship and Immigration) (F.C.) [2004] 4 F.C. 330
Date: 20040319
Docket: DES-5-01
Citation: 2004 FC 420
Ottawa, Ontario, this 19th day of March, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
HASSAN ALMREI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and SOLICITOR GENERAL FOR CANADA
Respondents
and
CANADIAN BROADCASTING CORPORATION
Intervener
REASONS FOR ORDER AND ORDER
[1] The applicant, Mr. Almrei, seeks an order releasing him from detention pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (hereinafter referred to as "IRPA"). Release under subsection 84(2) requires a determination that the applicant "will not be removed from Canada within a reasonable time" and that the person's "release will not pose a danger to national security or to the safety of any person".
A. BACKGROUND FACTS
[2] The applicant, Mr. Almrei, is a citizen of Syria. He grew up in Saudi Arabia and came to Canada via Jordan in January 1999. Upon arriving in Canada, Mr. Almrei claimed protection as a Convention refugee. On June 2, 2000, after an oral hearing before the Immigration and Refugee Board, he was recognized as a Convention refugee.
[3] Mr. Almrei was detained on October 19, 2001, pursuant to a certificate signed by the Minister of Citizenship and Immigration and the Solicitor General for Canada (the "Ministers") in accordance with subsection 40.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "former Act"). The certificate which issued on October 16, 2001, was based on a security intelligence report received and considered by the Ministers. The certificate indicated that, in the opinion of the Minister of Citizenship and Immigration and the Solicitor General for Canada, the applicant was a person described in subparagraphs 19(1)(e)(iii), 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the former Act. These subparagraphs provide as follows:
19(1) Inadmissible Persons - No person shall be granted admission who is a member of any of the following classes:
(e) persons who there are reasonable grounds to believe
...
(iii) will engage in terrorism, or
(iv) are members of an organization that there are reasonable grounds to believe will
...
(C) engage in terrorism;
...
19(1)(f) persons who there are reasonable grounds to believe
...
(ii) have engaged in terrorism, or
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
...
(B) terrorism,
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;
19(1) Personnes non admissibles - Les personnes suivantes appartiennent à une catégorie non admissible :
e) celles dont on peut penser, pour des motifs raisonnables, qu'elles :
[...]
(iii) soit commettront des actes de terrorisme,
(iv) soit sont membres d'une organisation don't il y a des motifs raisonnables de croire qu'elle :
[...]
(C) soit commettra des actes de terrorisme;
[...]
19(1)(f) celles dont il y a des motifs raisonnables de croire qu'elles :
[...]
(ii) soit se sont livrées à des actes de terrorisme,
(iii) soit sont ou ont été membres d'une organisation don't il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée :
[...]
(B) soit à des actes de terrorisme,
le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;
[4] Following the issuance of the certificate, the matter was referred to the Federal Court of Canada in accordance with subsection 40.1(3) of the former Act for a determination as to the certificate's reasonableness pursuant to subsection 40.1(4) of the former Act. A hearing in the absence of Mr. Almrei and his counsel was conducted on October 24, 2001, over which Madam Justice Tremblay-Lamer, a designated judge of the Federal Court of Canada, presided. Following the hearing, Justice Tremblay-Lamer approved a summary of the information made available to her in camera. The summary was released to the applicant in order that he could be reasonably informed of the circumstances giving rise to the issuance of the certificate, pursuant to subsection 40.1(4)(b) of the former Act. Mr. Almrei was also provided with the opportunity to respond to the statement summary, which was to occur in an open hearing on November 13, 2001. On that date, counsel acting on behalf of Mr. Almrei requested an adjournment on the grounds that they had just been retained by Mr. Almrei and that they had been denied access to their client. The adjournment was granted and the hearing resumed on November 19, 2001. Upon resumption of the hearing, new documents were filed by the Ministers resulting from a computer search by the RCMP. These documents included numerous images of Osama Bin Laden and other Al Qaida members, including Mohammed Atta, alleged to have planned the highjacking, pictures of a plane cockpit, a security officer badge, copies of passports, and military weapons. Mr. Almrei's counsel then presented a motion requesting that the testimony of Mr. Almrei be heard in camera and requesting that the Court hold a voir-dire to determine whether Mr. Almrei's testimony could be heard in camera. This motion was dismissed and Mr. Almrei elected not to testify.
[5] In her decision on the reasonableness of the certificate, dated November 23, 2001, Madam Justice Tremblay-Lamer noted that Mr. Almrei's failure to testify constituted a failure on his part to avail himself of his opportunity to be heard. Therefore, the only evidence before her was that presented at the October 24, 2001, hearing in the absence of Mr. Almrei and his counsel pursuant to paragraph 40.1(4)(a) of the former Act, and she concluded at paragraph 31, that on that evidence:
[t]he confidential information strongly supported the view that Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Osama Bin Laden and that Mr. Almrei is involved in a forgery ring with international connections that produces false documents.
[6] The security certificate issued against the applicant was therefore found to be reasonable (Almrei (Re), 2001 FCT 1288).
[7] On December 5, 2001, Mr. Almrei was served with notice that the Minister of Citizenship and Immigration would be seeking an opinion that Mr. Almrei constituted a danger to the security of Canada, which, if rendered, would permit the removal of Mr. Almrei to Syria. The applicant replied to the Minister's notice on January 28, 2002. The Minister made further disclosure in relation to the notice on October 15, 2002, and the applicant replied to this further disclosure on November 12, 2002.
[8] A deportation order issued against Mr. Almrei on February 11, 2002. The order issued pursuant to subsection 32(6) of the former Act, following an inquiry in which it was determined that the applicant was a person described in paragraph 27(2)(a) of the former Act. These paragraphs provide:
27(2) Reports on Visitors and Other Persons - An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who
(a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c);
32(6) Deportation or Departure of other than Permanent Residents - Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), the adjudicator shall, subject to subsections (7) and 32.1(5), make a deportation order against that person.
27(2) Rapports défavorables: autres cas -
L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadien ou de résident permanent et indiquant que celle-ci, selon le cas:
a) appartient à une catégoerie non admissible, autre que celles visées aux alinéas 19(1)h) ou 19(2)c);
32(6) Expulsion à l'exception des résidents permanents - S'il conclut que l'intéressé relève d'un des cas visés par le paragraphe 27(2), l'arbitre, sous réserve des paragraphes (7) et 32.1(5), prend une mesure d'expulsion à son endroit.
[9] Mr. Almrei filed a motion in the Federal Court for a 120 day review of his detention pursuant to subsection 84(2) of the IRPA on September 23, 2002. An ex parte in camera hearing, in the absence of Mr. Almrei and his counsel, occurred on November 18, 2002, to review updated information provided to the Court by the Ministers in response to Mr. Almrei's motion for release. I considered submissions and evidence as to whether and why the disclosure of this updated information would be injurious to national security, and upon being satisfied that the information was relevant and that its disclosure would be injurious to national security, I approved for release a summary of the information. The summary was released to counsel for the applicant on November 19, 2002. This summary allowed Mr. Almrei to be reasonably informed about the updated information without disclosing any information that, in my view, would be injurious to national security or to the safety of any person.
[10] The public hearing in respect of Mr. Almrei's motion for an order releasing him from detention began on November 25, 2002. Evidence in respect of the first part of the subsection 84(2) test, whether the applicant would be removed in a reasonable time, was given by the applicant and by two witnesses on behalf of the Ministers. On November 26, 2002, the applicant and the Ministers made submissions on this first part of the subsection 84(2) test.
[11] On January 13, 2003, the Minister's Delegate formed the opinion pursuant to paragraph 115(2)(b) of the IRPA that Mr. Almrei was a danger to the security of Canada and could be
removed to Syria, his country of nationality. The Greater Toronto Enforcement Centre of Citizenship and Immigration Canada (CIC) was informed of the Minister's opinion and was told that it could begin making removal arrangements for Mr. Almrei. Mr. Almrei was notified of this decision on January 16, 2003. Mr. Almrei filed an application for leave and for judicial review of the decision of the Minister's Delegate on January 17, 2003. On the same day, the applicant, fearing his removal imminent, filed a motion to stay the removal until his application for judicial review was considered and finally determined.
[12] The stay application was subsequently withdrawn by the applicant on the undertaking by the Minister of Citizenship and Immigration not to remove Mr. Almrei until the judicial review application was dealt with. As a consequence of the Minister of Citizenship and Immigration consenting to leave being granted on the judicial review application, the applicant agreed to suspend the detention review with the provision that the detention review hearing would resume on seven days notice by the applicant. A consent order issued to this effect on January 21, 2003.
[13] By letter dated April 23, 2003, the Minister of Citizenship and Immigration consented to the judicial review application, acknowledging that "the Minister's Delegate made serious errors in respect to the decision made pursuant to subsection 115(2)". Counsel for the applicant therefore requested that the detention review be brought back on pursuant to my Order of January 21, 2003. Consequently, on May 16, 2003, I ordered that the judicial review be granted and that the detention review resume on June 24, 2003.
[14] The detention review proceeding continued on June 24 and 25, 2003, during which I heard from seven witnesses. Three of these witnesses (one on behalf of the Ministers and two on behalf of the applicant) testified as to whether removal would occur in a reasonable time. Four witnesses addressed their willingness to post sureties and contribute otherwise, to ensure Mr. Almrei's compliance with any conditions the Court might impose on his release.
[15] The Court also received two declarations, one from the applicant and one on behalf of the applicant from a declarant whose identity was ordered not to be disclosed. During this hearing, the applicant made a motion for an Order (1) to seal evidence given by the applicant and to permit the applicant to testify in camera; and (2) to compel a Canadian Security Intelligence Service (CSIS or the Service) or Royal Canadian Mounted Police (RCMP) officer to appear to be examined by counsel for the applicant. The Canadian Broadcasting Corporation (CBC) was given third party standing in respect of the applicant's first request. The applicant was to provide written submissions in respect of the issues raised by July 31, 2003. Counsel for the Ministers and the CBC were to provide reply submissions by August 20, 2003.
[16] The applicant's submissions on these issues, along with submissions on the reasonableness of the time for removal, were filed on August 5, 2003. The Ministers and the third party filed their respective responses on August 27, 2003, and August 29, 2003, respectively. After reviewing these submissions and the evidence, an Order and Reasons for Order issued on October 17, 2003, requiring certain information in the declarations of the applicant and the second declarant to be sealed, and requiring the Ministers to provide a CSIS officer for examination by the applicant. The Order gave the applicant 20 days in which to serve and file submissions identifying the portions of the reasons of the Order sought to be protected, and to file submissions identifying parts of the declarations to be expunged from the record. The Ministers and the intervener were given five days to reply. Submissions were received from the applicant on November 6, 2003, from the intervener on November 10, 2003, and from the Ministers on November 12, 2003. Further submissions were received from the applicant on November 14, 2003. Having regard to these submissions, Orders were issued on November 21 and 24, 2003, whereby certain portions of the evidence arising therefrom were ordered not to be disclosed.
[17] In the meantime, on July 28, 2003, the applicant received notice that the Minister of Citizenship and Immigration would be making a determination pursuant to paragraph 115(2)(b) of the IRPA as to whether he should be removed from Canada on the basis that he poses a danger to the security of Canada. By letter dated August 18, 2003, the applicant requested an extension until September 2, 2003, to make submissions on the risk he faced if returned to Syria, to which the respondent Ministers consented.
[18] The parties were convened by telephone conference on September 16, 2003, to discuss resumption of the detention review. It was determined that November 24, 2003, was the earliest possible date for resumption of the hearing.
[19] On October 23, 2003, the Minister's Delegate, the Director General of the Case Management Branch, CIC, made a determination pursuant to paragraph 115(2)(b) that the applicant would not be at risk of torture if returned to Syria and, in the alternative, if he would be at risk of torture if returned to Syria, his removal to torture was justified because of the risk he presented to the security of Canada. On October 30, 2003, the applicant filed an application for leave and for judicial review of the Minister's Delegate's decision.
[20] On Friday, November 21, 2003, affidavit evidence was filed on behalf of the Ministers indicating that the applicant's removal date had been selected and removal was scheduled to occur within two and one-half weeks. On November 24 and November 26, 2003, this Court heard from three witnesses who confirmed, on behalf of the Ministers, that the applicant's removal was imminent.
[21] Since Mr. Almrei's removal was imminent, the applicant requested a stay of the removal order pending the determination of his application for leave and for judicial review of the October 23, 2003, decision. The motion for stay of the removal was heard on November 26, 2003, and the detention review was adjourned pending the determination of that motion.
[22] By my Order and Reasons for Order of November 27, 2003, the deportation order dated February 11, 2003, was stayed pending the outcome of the application for leave and for judicial review. The detention review therefore resumed on November 27 and continued on November 28, 2003.
[23] When the detention review proceedings resumed, the Ministers produced one witness, a CSIS Intelligence Officer, in accordance with my Order of October 17, 2003. The Court also heard from four witnesses who gave evidence as to the applicant's character and in respect of their willingness to ensure that Mr. Almrei complied with terms and conditions of release that might be imposed by the Court.
[24] During these continued proceedings, the applicant made an argument that section 78 of the IRPA had no application to detention review proceedings. The applicant requested permission to make written submissions as to the applicability of section 78 of the IRPA to the within proceedings, and submissions were received from the applicant on December 5, 2003, from the Ministers on December 10, 2003, and from the applicant in reply on December 12, 2003. An Order and Reasons for Order issued on December 29, 2003, in response to these submissions, in which I concluded that section 78 of the IRPA applied to detention review hearings pursuant to subsection 84(2) of the IRPA.
[25] The detention review hearing resumed on January 5, 2004, and concluded on January 7, 2004, during which the Court heard from the applicant and from three witnesses on behalf of the applicant. These witnesses gave their views as to whether the applicant poses a danger to national security or to the safety of any person.
[26] The applicant and the Ministers were to have filed written submissions on January 26, 2004, and February 2, 2004, respectively. The applicant's submissions were received on February 2, 2004. Counsel for the applicant requested a further extension of time to file her reply submissions and was granted until February 18, 2004, to file these reply submissions.
B. LEGISLATIVE FRAMEWORK AND APPLICABLE LEGAL PRINCIPLES
[27] Subsection 84(2) of the IRPA sets out the test to be met before a foreign national can be released from detention. It provides as follows:
84(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.
84(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.
[28] Subsection 84(2) is substantially similar to subsections 40.1(8) and (9) of the former Act. The test to be applied remains a two-fold test, and the judge designated to hear the application must be satisfied that the foreign national "will not be removed from Canada within a reasonable time" and that the person's "release will not pose a danger to national security or to the safety of any person". As Justice Dawson noted in Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2003 FC 928 (hereinafter Mahjoub) at paragraph 16, the wording with respect to the first part of the subsection 84(2) test is identical to that found in the former Act in subsection 40.1(9), and the wording with respect to the second part of the subsection 84(2) test differs only in that the term "will not pose a danger to national security" is used instead of the phrase "would not be injurious to national security", and reference is made to the safety of "any person" instead of the safety of "persons".
[29] In Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 261 N.R. 40 (hereinafter Ahani (2000)) the Federal Court of Appeal decided that, in the evaluation as to whether a person will be removed within a reasonable time, an individual is free to take the steps available to him at law to remain in Canada, but, if he does, he could not then be heard to complain of delay. This is the same reasoning that was used by Justice McGillis in Ahani v. Canada, [1995] 3 F.C. 669 (hereinafter Ahani (1995)) at 695, Justice Rothstein, then of the Trial Division, in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 970 (QL) at paragraphs 6-8, and Justice Denault in Ahani v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 49 (C.A.) (hereinafter Ahani (1999)) at paragraph 23, and which was later adopted by Justice Dawson in Mahjoub. The applicant submits that the reasoning used in these cases by the Federal Court of Appeal and the Trial Division is "just wrong and cannot be followed by this Court", because the reasoning is premised on a view of the statutory scheme that is in error, in light of the Supreme Court of Canada's decision in Suresh v. Canada (Ministry of Citizenship and Immigration), 2002 SCC 1 (hereinafter Suresh).
[30] The applicant sets out in his submissions the particular grounds upon which he bases his assertion that the decision in Ahani (2000) is wrong or cannot be supported because of the decision in Suresh. First, the applicant submits that Parliament did not intend for people who are subject to security certificates to remain in custody until removed, as is allegedly stated in Ahani (2000) at paragraph 12. Secondly, the applicant submits that there is nothing in the legislation to suggest that Parliament intended that persons not removed within the 120 day period continue to be detained. This is argued to be in conflict with the statement at paragraph 13 of Ahani (2000) that "release under subsection 40.1(9) cannot be an automatic or easy thing to achieve." Thirdly, the applicant submits that the Court of Appeal in Ahani (2000) was in error to expect the applicant to lead new evidence of a significant change in circumstances, in order to be released. The applicant submits that the same decision determined that different standards of proof apply to the security certificate reasonableness hearing and the release application consideration, and that the decision is therefore internally inconsistent. In addition, it is argued that Ahani (2000) is contrary to the Supreme Court of Canada's reasoning in Suresh in this respect. Fourthly, the applicant submits that Justice Linden's statement in Ahani (2000) that an applicant who is the subject of a security certificate is not entitled to a presumption of innocence is "odd" or misplaced. Fifthly, the applicant submits that, contrary to the reasons in Ahani (2000), at paragraph 18, the right to seek an effective remedy is part of the statutory process enacted by Parliament, and cannot be counted against the applicant in the determination as to whether removal will take place within a reasonable time. In the applicant's submission, the right to seek an effective remedy is entrenched by the Canadian Charter of Rights and Freedoms, Schedule B, Part I to the Canada Act 1982 (U.K.) 1982 c. 11, (the "Charter"), and if Parliament intended that a person's removal be predicated on her not taking steps to protect herself from removal to torture, Parliament would not have provided for a statutory review mechanism, nor would Parliament have left intact the jurisdiction of this statutory court to grant stays against removal. The applicant notes that the decision in Ahani (2000) is not consistent with decisions in Suresh and in Sahin v. M.C.I. [1995] 1 F.C. 214 in this regard.
[31] The decision in Ahani (2000) is one of the Federal Court of Appeal. As such, I would necessarily be bound by the reasons therein, unless I was convinced that a change in the legislation or, as per the applicant's suggestion, the Supreme Court of Canada's decision in Suresh deemed this jurisprudence to be no longer applicable in the circumstances.
[32] I am not persuaded by the applicant's arguments that Suresh has changed the applicability of Ahani (2000) in these circumstances. On the contrary, I agree with the reasons of Madam Justice Dawson in Mahjoub that there is no basis to depart from the reasons and decision of the Federal Court of Appeal in Ahani (2000). In Mahjoub, the learned justice concluded at paragraph 19 that she had "... not been persuaded that the wording now found in subsection 84(2) of the Act is, by virtue of the decision of the Supreme Court of Canada in Suresh, to be construed in a significantly different fashion than the similar provisions in the former Act". She found "great similarity" in the language in the two provisions and noted that the applicable passages relied on in Suresh were not written in the context of a detention review. She acknowledged that the comments of the Supreme Court with respect to the nature of the evidence required to establish "a danger to the security of Canada" to be of guidance in interpreting the phrase "danger to national security". She concluded, however, and I agree, that Suresh is not inconsistent with prior jurisprudence.
[33] One of the arguments advanced on Mr. Almrei's behalf is that the Supreme Court in Suresh made it clear that the determination that the security certificate is reasonable does not automatically mean that the person presents a danger to the security of Canada or to the safety of any person. It was argued that the issuance and upholding of a security certificate is based on a reasonableness standard, i.e. that the person is "possibly" described and not "likely" described. As a consequence of the higher standard required on a detention review, it is argued that the legal principles set out by the Court of Appeal, in particular, in Ahani (2000) are not applicable to detention reviews under subsection 84(2).
[34] I agree with the applicant that a determination that a security certificate is reasonable is not conclusive proof that the person is a danger to the security of Canada. Section 81(a) states that, if a certificate is determined to be reasonable, it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible. If satisfying the requirements of 81(a) automatically satisfied the requirements of 84(2), the latter would be redundant. Further, Parliament has clearly set out two different standards of proof in respect of section 81(a) and subsection 84(2), reasonable grounds and balance of probabilities, respectively. I am not persuaded, however, that there is anything in the Court of Appeal's decision in Ahani (2000) which is inconsistent with this conclusion or inconsistent with the determination in Suresh. In fact, Justice Linden recognized these two differing standards of proof at paragraph 16 of Ahani (2000):
...the onus of proof in this release application is on the person applying to be released. In my view, that onus must be met on the ordinary standard of proof in civil cases, the balance of probabilities. While Parliament has changed the normal standard of proof in the subsection 40.1(1) proceedings to "reasonableness" in paragraph 40.1(4)(d) [sic] and to "reasonable grounds" in section 19, it has not done so with regard to the release proceedings under subsection 40.1(8) to (10). Further, the word "satisfied" is used. Hence, in my view, there is no reason to think that the standard of proof should be anything other than the usual balance of probabilities standard.
[35] Therefore, I am unable to conclude that the Supreme Court of Canada's decision in Suresh undermines the import of the Federal Court of Appeal's decision in Ahani (2000). I am essentially in agreement with the reasoning and conclusions of Madam Justice Dawson in Mahjoub that jurisprudence under the former Act is applicable to determinations under the current legislative scheme, notwithstanding the decision in Suresh. As a consequence, I also conclude that the following legal principles derived from this jurisprudence, as described by Madam Justice Dawson, are applicable to detention review proceedings pursuant to subsection 84(2) of the IRPA.
i. The standard of proof is the ordinary civil standard.
ii. The Ministers have already discharged the onus upon them to establish the grounds for the initial detention.
iii. The certificate is conclusive proof that the person is inadmissible to Canada on grounds of security or any other ground listed in subsection 77(1) of the Act, or its predecessor section, and referenced in the certificate.
iv. Release under subsection 84(2) cannot be an automatic, because persons to whom subsection 84(2) applies have been found to be inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality.
v. A person cannot be detained indefinitely, at least without good reason. Therefore, review is available after 120 days and release is allowed, but only if the statutory criteria are met.
[36] I should also note that, earlier in this proceeding, I ruled that the provisions of section 78 of the IRPA are applicable to applications for judicial release under subsection 84(2) of the IRPA. At that time, I provided reasons for my ruling. Sections 78(e) and (h) of the IRPA provide the process to be followed when considering evidence in the absence of the permanent resident or the foreign national named in the certificate, which would be injurious to national security or the safety of persons. Those subsections provide as follows:
78. The following provisions govern the 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;
[...]
(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.
78. Les règles suivantes s'appliquent à l'affaire:
[...]
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;
[...]
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.
C. BASIS FOR DETENTION
[37] Mr. Almrei was detained in October 2001 pursuant to a security certificate signed in accordance with subsection 40.1(1) of the former Act. In accordance with 40.1(4)(b), the basis for the detention was set out, to the extent possible in a public document, in the "Statement Summarizing the Information Pursuant to Paragraph 40.1 of the Immigration Act", dated October 18, 2001. That summary reviewed the nature of the allegations against Mr. Almrei, the reasons for the issuance of the security certificate, and for the original detention.
[38] In that summary, the Service states that it has reason to believe that Mr. Almrei is a member of an international network of extremist groups and individuals who follow and support the Islamic extremist ideals espoused by Osama Bin Laden. According to this summary, the Bin Laden Network uses terrorism to further its goals of overthrowing secular Islamic governments in order to create Islamic states based on their extremist interpretation of Islamic law, and the network is associated with bombings of United States Embassies, and suspected of involvement in the planning and execution of September 11, 2001, attacks against the United States.
[39] The Service also states in this summary that Mr. Almrei participated in Jihad and has demonstrated a devotion to Osama Bin Laden's cause. The summary alleges that a common bond is shared by individuals involved in the Osama Bin Laden Network based on time spent in training camps and on battlefields fighting in Jihads under leaders associated with or sponsored by Bin Laden, and it alleges that Mr. Almrei shares these bonds and has demonstrated his support of Osama Bin Laden and his followers. The summary states that Service investigations have shown that Mr. Almrei is preoccupied with security and behaves in a clandestine fashion to avoid authorities detecting his activities, and that Mr. Almrei is associated with Arab Afghans connected to the Osama Bin Laden network, including Nabil Al Marabh.
[40] In this summary, the Service alleges that terrorist groups rely on false travel documents to facilitate international travel, and that Mr. Almrei is involved in a forgery ring with international connections that produces such false documents. It notes that Mr. Almrei admitted having obtained three false Syrian passports from the Muslim Brotherhood and a false United Arab Emirates (UAE) passport in order to travel outside Saudi Arabia, and that, although Mr. Almrei claimed to have destroyed these documents, a search by CIC of his apartment on September 13, 2000, revealed a number of these documents, including the false UAE passport. The summary also alleges that Mr. Almrei's perfume and honey business provided him with the opportunity to travel to Pakistan in the early 1990's when mujahedin activity was taking place. The Service refers in this summary to media reports indicating that honey businesses were used to provide cover and funds for the Osama Bin Laden Network.
[41] Subsequent to Mr. Almrei's arrest and detention on October 19, 2001, the Service obtained further information substantiating its belief that Mr. Almrei's release would be injurious to national security. As indicated above (see 'Background'), following an in camera hearing on November 18, 2002, in the absence of Mr. Almrei and his counsel, I approved a summary of the additional information, which was released to the applicant on November 19, 2002. This second summary served to inform Mr. Almrei of the further information.
[42] In this second summary, the Service alleges that danger to the public from the Al Qaida network has intensified and that individuals supporting Al Qaida's ideology have amply demonstrated that they are still prepared to participate in Jihad against the West. The Service indicates in this summary that security agencies worldwide are concerned about the strong likelihood of future attacks already in the advanced planning and preparation stages, and that there is difficulty locating individuals involved in such activities who have assumed false identities, since Osama Bin Laden has directed supporters on how to blend into western societies and prepare for further terrorist attacks. The summary includes examples of Canadian citizens whose whereabouts are unknown, but who the Service believes are using false identities to remain undetected.
[43] The second summary reiterates the Service's conclusion that Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Osama Bin Laden, and their conclusion that Mr. Almrei is involved in a forgery ring with international connections that produces false documents. The summary alleges that Mr. Almrei's detention disrupted a significant logistical support service which could be available to Al Qaida supporters in Canada and abroad, and it alleges that his release would place him in a position to re-establish his connections in the procurement of fraudulent documents.
D. ISSUES
[44] In order for the applicant to be released, subsection 84(2) of the IRPA requires that both of the following questions be answered in the affirmative:
1. Will the foreign national not be removed from Canada within a reasonable time?
and
2. Will Mr. Almrei's release pose a danger to national security or to the safety of any person?
[45] I will also consider the following question:
Is the continuation of Mr. Almrei's detention a breach of his rights under sections 7 and 12 of the Charter?
E. POSITIONS OF THE PARTIES
I. Applicant's position
[46] Mr. Almrei is detained in solitary confinement at the Toronto West Detention Centre since October 19, 2001. The applicant submits that he will not be removed immediately and that, especially when taking into account the conditions, and in particular, the solitary nature of the detention, his detention has already exceeded a reasonable time. The applicant submits that further detention constitutes cruel and unusual treatment and is contrary to sections 7 and 12 of the Charter.
[47] On the second part of the subsection 84(2) test, the applicant submits that his release will not pose a danger to national security or to the safety of any person. He contends that the threat he may pose to national security or to the safety of any person is not "serious" as required by the Supreme Court of Canada in Suresh and the case against him does not allege involvement in violence or a risk of involvement in violence. In Mr. Almrei's submission, there is no evidence in the public record to support the contention that he supports Islamic extremist ideals espoused by Osama Bin Laden, that he has or may take violent action against civilians, or that he is a religious extremist. Mr. Almrei contends that he participated in the Jihad in response to a call from the mosques and government, and he denies having been trained to be a fighter or having been associated with Bin Laden.
[48] With respect to the allegations that Mr. Almrei has connections with Arab Afghans, the applicant submits that no terrorism related charges have been laid against any of the individuals cited by the Service in their public summaries. Mr. Almrei contends that his efforts to obtain false documents while in the Middle East are consistent with the reality of his circumstances, in that he was unable to obtain legitimate travel documents, and that his assistance to Al Marabh in obtaining a false passport does not mean that he is part of an international forgery ring. He submits that his involvement in a small honey business was not linked to Al Qaida, and that his behaviour cannot be characterized as clandestine, as alleged, but even if it was clandestine, such behaviour is understandable given his awaren