Charkaoui, Re

Charkaoui, Re
Court (s) Database
Federal Court Decisions
Date
2003-12-05
Neutral citation
2003 FC 1419
File numbers
DES-3-03
Notes
Reported Decision
Decision Content
Date: 20031205
Docket: DES-3-03
Reference: 2003 FC 1419
Ottawa, Ontario, the 5th day of December, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
IN THE MATTER OF a certificate
and its referral under subsection 77(1)
and sections 78 to 80 of the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 ("the IRPA")
IN THE MATTER OF the warrant for the arrest
and detention and the review of the reasons for continued detention
pursuant to subsections 82(1), 83(1) and 83(3) of the IRPA
IN THE MATTER OF
the constitutional validity of
sections 33, 76 to 85 of the IRPA
AND IN THE MATTER OF
Mr. Adil Charkaoui
REASONS FOR ORDER AND ORDER
I. INTRODUCTION
1 Through a multitude of constitutional questions, Mr. Adil Charkaoui ("Mr. Charkaoui") is contesting the validity of several provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("the IRPA") which establish a procedure for determining whether a permanent resident is a danger to national security or the safety of any person. To the extent possible, this procedure seeks to satisfy two opposing interests: the interest of the state in protecting national security, and the interest of the individual ("the person concerned") in being able to assert, in his defence, all the rights normally available to him. Specifically, Charkaoui's application contests the constitutional validity of sections 33 and 77 to 85 of the IRPA on the basis that they violate sections 7, 9, 10, 15 and 11(e) of the Canadian Charter - Constitution Act, 1982, enacted as Part B of the Canada Act 1982 (U.K.), 1982, c. 11 ("the Charter"); the British North America Act, now the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) ("the BNA Act"); sections 1 and 2 of the Canadian Bill of Rights, S.C. 1960, c. 44, reproduced in R.S.C. 1985, App. III. ("the Canadian Bill of Rights"); the common law; the U.K. Bill of Rights (1689), An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (1 Will. & M., Sess. 2, c. 2) ("the Bill of Rights"); Article 14(1) of the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Arts. 9-14, Can. T.S. 1976, No. 47 ("the Covenant") and Article 10 of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), UN GAOR, 3rd Sess., Supp. No. 13, U.N. Doc. A/810, at 71 (1948) ("the Universal Declaration").
2 In addition, Mr. Charkaoui submits that subsection 80(3) of the IRPA violates section 96 of the BNA Act because the decision of the Chief Justice or his designate ("designated judge") as to the reasonableness of the certificate stating that "a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality" (subsection 77(1) of the IRPA) may not be appealed or judicially reviewed. Moreover, according to Mr. Charkaoui, the fact that the designated judge, under paragraph 78(e) of the IRPA, presides over the hearing in the presence of counsel for the Minister of Citizenship and Immigration and the Solicitor General of Canada ("the Ministers") but in the absence of the person concerned and his counsel, could create an appearance of bias, whether or not such bias actually exists. This appearance of bias would undermine the independence and impartiality of the judiciary - concepts that section 96 of the BNA Act protects.
3 Counsel for the Ministers, for their part, submit that the designated judge responsible for determining whether the detention is reasonable and whether it should be continued does not have the jurisdiction needed to decide constitutional questions.
4 At the hearing held on September 9, 2003, I brought to the attention of counsel in attendance that Mr. Charkaoui was proceeding by way of application rather than by way of statement of claim to pose the questions set out in paragraphs 1 and 2. However, none of the parties made any comments regarding this manner of proceeding and no objection was made in this regard.
II. BACKGROUND
5 One of the IRPA's objectives is to maintain (in French, "garantir") the security of Canadian society (paragraph 3(1)(h) of the IRPA). One method that Parliament has given the Ministers to accomplish this objective is to sign a certificate that renders the person concerned inadmissible to Canada (subsection 77(1) of the IRPA). The signing of this certificate is a ministerial power that cannot be delegated. The certificate must be signed by the Minister of Citizenship and Immigration and by the Solicitor General, after which it is filed with the Federal Court of Canada.
6 In the case at bar, a certificate stating that Mr. Charkaoui is inadmissible was signed by the Ministers on May 16, 2003, and subsequently filed with the Federal Court. The Ministers believe that Mr. Charkaoui has been and continues to be a member of the Osama bin Laden network, an organization that has carried out, is carrying out or will carry out terrorist acts; that in this capacity the respondent has engaged in, is engaging in or will engage in terrorism; and consequently that the respondent has been, is or will be a danger to national security (paragraphs 34(1)(c), (d) and (f) of the IRPA).
Another method created by Parliament to maintain the security of Canadian society is the signing of an arrest warrant by the Ministers. The signing of this warrant is also a non-delegated ministerial power. In order to sign such a warrant, both Ministers must have reasonable grounds to believe that the person concerned is a danger to national security or the safety of any person or is unlikely to appear at a proceeding or for removal. The Ministers signed a warrant for Mr. Charkaoui's arrest on May 16, 2003 (subsection 82(1) of the IRPA). The arrest warrant was executed on May 21, 2003, and Mr. Charkaoui has been in detention ever since.
7 Counsel for the Ministers requested that I hold a hearing, in the absence of Mr. Charkaoui and his counsel, as to the reasonableness of the certificate and as to whether detention should be continued. After examining the protected information tendered in support of the certificate and the arrest warrant, I concluded that, for reasons of national security, the hearing should indeed be held in the absence of Mr. Charkaoui and his counsel (paragraphs 78(d) and (e) of the IRPA). Knowing that it was important Mr. Charkaoui be "reasonably informed" of the circumstances giving rise to the certificate, the arrest warrant as well as his continued detention, I identified the information the disclosure of which would not be injurious to national security or the safety of any person, and that information was given to counsel for Mr. Charkaoui on May 26, 2003 (paragraph 78(g) of the IRPA).
8 I was prepared, as were counsel for the Ministers, to hold the hearing on continued detention shortly after May 26, 2003. However, counsel for Mr. Charkaoui asked that the hearing be held on July 2 and 3, 2003, so that they could prepare adequately.
9 At the hearing in early July 2003, the Ministers and Mr. Charkaoui called certain witnesses and provided further affidavit testimony. In days that followed, I held a hearing in the absence of Mr. Charkaoui and his counsel for reasons of national security. I had notified Mr. Charkaoui and his counsel of this hearing, and they objected to it.
10 In a written decision dated July 15, 2003, (Charkaoui (Re), [2003] F.C.J. No. 1119), I ordered, pursuant to subsection 83(3) of the IRPA, that the detention be continued until the designated judge rendered another decision under subsection 83(2) of the IRPA as to whether detention should be continued.
11 While I took account, in that order, of my duty to protect information concerning national security, I also expressed certain concerns that stemmed from my review of the information with the intention to give Mr. Charkaoui and his lawyers the opportunity to respond.
12 My concerns were and continue to be as follows: Mr. Charkaoui's contacts with certain individuals (see the summary of the information provided to Mr. Charkaoui in accordance with paragraph 78(h) of the IRPA on May 26, 2003); Mr. Charkaoui's life in Morocco from 1992 to 1995 and in Canada from 1995 to 2000, including his travels; and Mr. Charkaoui's trip to Pakistan from February to July 1998.
13 As mentioned in the July 15, 2003 order (paras. 7 and 9 of Charkaoui (Re), [2003] F.C.J. No. 1119), the designated judge must periodically review the protected information to determine whether additional information can be disclosed to the person concerned. Indeed, when national security is involved, the circumstances justifying non-disclosure may change.
14 On July 17, 2003, after meeting the requisite conditions in such a situation, I authorized the disclosure of information that had been, until then, considered protected. The information was about the fact that Mr. Abou Zubaida, considered a close associate of Osama bin Laden, recognized Mr. Charkaoui in a photograph (he identified him as Zubeir Al-Maghrebi) as someone he had seen in Afghanistan in 1993 and in 1997-98.
15 On August 14, 2003, after meeting the requisite conditions in such a situation, I authorized the disclosure of information that had been, until then, considered protected. This time, the information was that, during interviews with the Canadian Security Intelligence Service (CSIS) in January 2002, Mr. Ahmed Ressam recognized Mr. Charkaoui in two photographs, identifying him as Zubeir Al-Maghrebi. Mr. Ressam added that he had met him in Afghanistan in the summer of 1998 while they were training at the same camp. The photograph presented to Mr. Abou Zubaida for the purposes of identification on July 17, 2003, was part of the evidence released to Mr. Charkaoui during the August 14, 2003 disclosure.
16 At the 2 and 3 July 2003 hearings, where the reasons for continued detention were reviewed, Mr. Charkaoui's lawyers reserved the right to raise constitutional questions concerning sections 33 and 76 to 85 of the IRPA.
17 A notice of constitutional questions pursuant to section 57 of the Federal Courts Act, S.C. 2002, c. 8, and Rule 69 of the Federal Court Rules, SOR/98-106 ("the Rules") was served on the Attorney General of Canada and his provincial counterparts. The hearing on these questions was held on October 8, 9 and 21, 2003, in the presence of Mr. Charkaoui, his counsel, and the Minister's representatives and counsel.
III. ISSUES
Jurisdiction
1. Does the designated judge responsible for determining whether the certificate is reasonable and whether detention should be continued have jurisdiction to decide constitutional questions?
Constitutional questions
2. If the designated judge does have jurisdiction to decide constitutional questions, what are the answers to the 40 constitutional questions set out in Appendix I to this Order?
For the reasons set out below, I will answer the first question in the affirmative and the second question in the negative. Consequently, the instant application will be dismissed.
18 Because of the number and scope of the questions based on the Charter, the BNA Act, the Canadian Bill of Rights, the common law, the Bill of Rights, the Covenant and the Universal Declaration, and in order adequately to convey Mr. Charkaoui's position, I will reproduce the full text of the first part of paragraph 25 of the Notice of Constitutional Question as submitted by his counsel on September 17, 2003:
[Translation]
The person concerned alleges that the provisions of sections 33 and 77 to 85 of the IRPA are inoperative and/or ultra vires because, inter alia:
(a) they infringe the fundamental right to have one's rights defined by an independent and impartial tribunal - and not, as the IRPA provides, by the executive - notably by permitting detention based on the signing of a certificate, and by depriving the judge of the jurisdiction needed to decide on the merits of the measure, the rights of the concerned person and the certificate, all of which, in violation of section 96 of the Constitution, is done without providing for a right of appeal or judicial review;
(b) they infringe the right not to be deprived of release on reasonable bail and constitute cruel and unusual punishment are in breach of the rules of natural justice;
(c) they violate the independence of the judiciary and the appearance of impartiality required of judges;
(d) they allow for an ex parte procedure in which no one represents the interests of the person concerned and in which the opposing party is the only one to be represented;
(e) they allow for secret evidence without allowing for argument or participation of the person concerned and without revealing all the evidence and the nature of the undisclosed evidence or information, if any;
(f) the provisions are vague, overbroad and discriminatory; and
(g) they place the person in respect of whom the certificate was signed at risk of persecution or mistreatment or in danger of his life, and prevent him from being able to return safely to his country of origin,
in contravention of
(i) sections 7, 9, 10, 11(e), 12 and 15 of the Charter; the Canada Act 1982, Schedule B;
(ii) sections 1 and 2 of the Canadian Bill of Rights, 8-9 Elizabeth II, c. 44, R.S.C. 1985, App. III;
(iii) the common law;
(iv) the Constitution Act, 1867;
(v) the English Bill of Rights;
(vi) article 14(1) of the International Covenant on Civil and Political Rights;
vii) article 10 of the Universal Declaration of Human Rights.
19 As this excerpt from the Notice discloses, the scope of the challenge is so broad that I had to ask Mr. Charkaoui's counsel to draft precisely worded constitutional questions that tie the contested provisions to the arguments being made and the constitutional basis of those arguments. The purpose was to avoid losing sight of the heart of the matter and to respond to all the constitutional arguments raised. In order to avoid overburdening these reasons, the 40 constitutional questions as raised by Mr. Charkaoui's counsel have been set out in Appendix I to this order. An awareness of these questions should assist in understanding the analysis that follows.
A) Does the designated judge responsible for determining whether the certificate is reasonable and whether detention should be continued have jurisdiction to decide constitutional questions?
20 The Ministers submit that the jurisdiction of designated judges is so limited that they cannot decide constitutional questions concerning the IRPA, specifically sections 33, 34 and 76 to 86 of Division 9, which is entitled "Protection of Information."
21 The Ministers submit that case law has consistently confirmed that the jurisdiction of a designated judge is limited. They refer, among other decisions, to Re Shandi (1992), 51 F.T.R. 252, 17 Imm. L.R. (2d) 54 (T.D.), Suresh v. Canada (1996), 34 C.R.R. (2d) 337 (F.C.T.D.) and Re Baroud (1995), 98 F.T.R. 99 (F.C.T.D.), at page 108.
22 The conclusion that a designated judge has limited jurisdiction that does not encompass the determination of constitutional questions is based on Mills v. The Queen, [1986] 1 S.C.R. 863, where the Supreme Court of Canada analysed the three-pronged test of a court with requisite jurisdiction to decide constitutional questions. The court must have jurisdiction over the parties, jurisdiction over the the subject matter and jurisdiction to order the remedy sought.
23 In Suresh, supra, at paras. 4 and 7-9, Cullen J. applied the three part test for determining a court's jurisdiction to sections 40.1 et seq. of the Immigration Act, R.S.C. 1985, c. I-2 ("the former Act"). Cullen J. held that although designated judges clearly had jurisdiction over the parties and subject matter, they did not have the power to grant a constitutional remedy:
[T]he designated judge must determine, based on the evidence presented to him or her, whether the Ministers' decision to issue the certificate is reasonable.
. . .
[R]easonableness and constitutionality are distinct issues. . . . [P]aragraph 40.1(4)(d) gives the designated judge jurisdiction only to consider the reasonableness of the certificate. . . . By expressly prohibiting further appeal or review, Parliament reinforced the notion that proceedings under section 40.1 of the Immigration Act are intended only to consider whether the Ministers' decision to issue the certificate is reasonable on the basis of the available evidence. . . .
The applicant submits, however, that subsection 40.1(6) only prevents appeal or review of the merits of the designated judge's determination of the reasonableness of the certificate, but it does not prevent appeals on constitutional issues.
. . .
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.
24 However, Cullen J. notes that if Parliament had stated that the designated judge had jurisdiction over the whole of the matter, the judge would have had the jurisdiction needed to decide constitutional questions:
Provided that the designated judge has jurisdiction over the whole of the matter before him or her - the parties, the subject matter, and the remedy sought - he or she has jurisdiction to consider constitutional issues and grant constitutional remedies.
25 The former Act has since been replaced by the IRPA and the Supreme Court of Canada has continued to develop the criteria for determining whether a court has jurisdiction to decide constitutional questions (R. v. Hynes, [2001] 3 S.C.R. 623; Nova Scotia (Workers' Compensation Board) v. Martin, [2003] S.C.J. No. 54).
26 Without exhaustively listing all the differences between the former Act and the IRPA, it would be helpful in my opinion to note certain differences that provide a good illustration of the evolution of the jurisdiction and powers of designated judges.
27 The designated judge has jurisdiction to hear cases involving foreign nationals and permanent residents (subsection 77(1) of the IRPA). Under the former Act, the designated judge only had jurisdiction over foreign nationals and permanent residents coming under the authority of the Security Intelligence Review Committee (section 38.1 and subsections 40(1) and 40.1(1) of the former Act.)
28 The designated judge now has jurisdiction to perform the following functions: assessing the reasonableness of the certificate (subsection 80(2) of the IRPA); commencing a review of the reasons for detention not later than 48 hours after the beginning of detention (subsection 83(1) of the IRPA); before making a determination on the certificate, reviewing, at least once in the six-month period following each preceding review, whether the person concerned should continue to be detained in light of whether he or she is a danger to national security or the safety of any person or whether he or she is unlikely to appear at a proceeding or for removal (subsection 83(3) of the IRPA); 120 days after the determination regarding the certificate, the designated judge may, on application, release the person, subject to certain terms and conditions, if satisfied that the release will not pose a danger to national security or the safety of any person (subsections 84(2) and 83(3) of the IRPA); and the designated judge also has the jurisdiction to review the lawfulness of an application for protection (subsections 79(1), 79(2) and 80(1) of the IRPA). The former Act only allowed the designated judge to decide on the reasonableness of the certificate and review the necessity of detention following the determination concerning the certificate (paragraph 40.1(4)(d) and subsection 40.1(8) of the former Act).
29 Based on the English version of paragraph 78(c) of the IRPA, a designated judge now has the power to deal with "all matters" resulting from the consideration of the certificate (though the French version does employ the term "l'affaire"). This express power to deal with all matters related to the case simply did not exist in the former Act.
30 Although a designated judge under the former Act would examine the information in support of the certificate within seven days of its signing (paragraph 40.1(4)(a) of the former Act), and section 78 of the IRPA still provides for this, the IRPA adds new requirements: the designated judge must consider the certificate informally and expeditiously (paragraph 78(c) of the IRPA) and must commence a review of the reasons for continued detention not later than 48 hours after the beginning of detention (subsection 83(1) of the IRPA). Thus, under the IRPA, the designated judge must examine the information and consider the certificate as well as the reasons for continued detention, and then promptly make a determination.
31 The principle that the Act is to be construed and applied in a manner that "ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms" (paragraph 3(3)(d) of the IRPA) is another new element. While this principle of construction is self-evident, its express inclusion in the IRPA is particularly important to bear in mind when determining the jurisdiction of a designated judge. The principle was found in the former Act, but in a more limited form: it merely stated that standards for admission to Canada could not be discriminatory (paragraph 3(f) of the former Act.)
Immigration Act, R.S.C. 1985, c. I-2 Repealed
Immigration and Refugee Protection Act, S.C. 2001, c. 27
3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need:
. . .
(f) to ensure that any person who seeks admission to Canada on either a permanent or temporary basis is subject to standards of admission that do not discriminate in a manner inconsistent with the Canadian Charter of Rights and Freedoms;
Application
3. (1) ...
(3) This Act is to be construed and applied in a manner that:
. . .
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
32 Lastly, it is important that both the former Act and the IRPA provide that determinations regarding a certificate cannot be appealed (subsection 40.1(6) of the former Act and subsection 80(3) of the IRPA). However, the IRPA adds that if a certificate is confirmed to be reasonable, it becomes a removal order, and also may not be appealed (section 81 of the IRPA, as opposed to section 70 of the former Act).
33 Before analysing the provisions to determine whether the designated judge is, within the meaning of section 24(1) of the Charter, a court of competent jurisdiction to decide constitutional questions, the concept of designated judge should be circumscribed further.
34 Interestingly, the concept was formulated in the report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police ("the Commission"). The Commission refers to the notion of "designated judge" in Part V of its report at paragraph 101 (volume I, page 556) where it considers the question of applications for warrants in connection with the Official Secrets Act, R.S.C. 1985, c. O-5, stating as follows:
In a system of responsible Cabinet government operating within the rule of law Ministers are responsible for the effective and proper execution of the powers lawfully available to government, but they do not have final responsibility for determining what the law is. In our system of government this is normally the function of judges.
35 At paragraph 104 of Part V (volume I, pages 557-58), the Commission recommends as follows:
To ensure the availability of reasonably experienced judges to hear applications for warrants, we propose that five judges from the Trial Division of the Federal Court of Canada be designated by the Chief Justice of the Federal Court to hear applications.
. . .
Hearings before a judge in our proposed system would be ex parte proceedings. . . . Submissions have been made to us that the proceedings should be made more adversarial by providing for the appointment of an officer to serve as 'a friend of the court'. This officer would appear before the judge and point out possible weaknesses or inadequacies in applications. While we think such a proposal has considerable merit and have considered it carefully, we have concluded that, on balance, it would not be advisable to adopt such a mechanism. The adversarial element afforded by such a procedure might be rather artificial and would make the process of approving applications unduly complex. Further, we think that an experienced judge is capable of giving adequate consideration to all relevant aspects of an application without the assistance of an adversarial procedure.
At paragraph 6 of Chapter 2 (volume 2, page 882), the Commission addresses the question of external reviews and states as follows:
These two sets of recommendations clearly envisage a significant role for the Federal Court of Canada in decisions relating to national security. As we recommended earlier in Part V, this role would best be carried out by a nucleus of judges from the Appeal and Trial Divisions who would be specially designated for the purpose by the Chief Justice of the Court.
36 Parliament has employed the designated judge concept in other statutes. Judges are designated to hear matters involving national security under the following provisions, among others: sections 2 and 21 et seq. of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, sections 38 to 38.15 of the Canada Evidence Act, R.S.C. 1985, c. C-5, subsection 40.1(4) et seq. of the Immigration Act, R.S.C. 1985, c. I-2, and sections 76 et seq. of the IRPA. 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.
37 In my opinion, the reason for designating certain Federal Court judges is to limit access to protected information and thereby protect activities involving Canada's national security and the means by which information regarding national security is obtained.
38 To summarize, in addition to the full jurisdiction of a Federal Court judge, designated judges have the jurisdiction specifically granted to them under sections 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.
39 Based on the foregoing analysis of the origins and role of designated judges, it is incumbent on us to ask whether a designated judge is, within the meaning of section 24(1) of the Charter, a "court of competent jurisdiction" to decide constitutional questions.
40 In order to be a court of competent jurisdiction, a court must have jurisdiction over the person concerned, jurisdiction over the subject matter, and the power to order the remedy sought (Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Hynes, [2001] 3 S.C.R. 623).
41 The IRPA gives the designated judge full jurisdiction over the person concerned: it confers upon that judge the power make decisions about the person's future and the person's detention before and even after the determination regarding the certificate. The IRPA grants jurisdiction over the subject matter to the designated judge in an equally express manner. Indeed, no judge who is not designated has the power to decide questions of national security.
42 As for the power to order the remedy sought, the Supreme Court of Canada noted in Hynes, supra, at page 641, that if no provision specifically grants the power to decide Charter questions, one must determine whether Parliament implicitly intended to make such a grant:
Absent express empowerment, this determination requires consideration of the function performed by the court or tribunal and the structure, powers and processes conferred on it by Parliament or the legislature. . . . Distilled to a single statement, the test of power to grant the remedy sought can be stated as follows: is the court or tribunal suited to grant the remedy sought under s. 24 in light of its function and structure? (Emphasis added.)
43 In my opinion, the rule of construction that Parliament enacted in subsection 3(3) of the IRPA, which "ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms," is equivalent to an express grant of the power to order a remedy. Is it not the role of a designated judge, under the Charter, to ensure that ministerial decisions are not only taken in accordance with the IRPA, but also in accordance with the Charter? Moreover, in paragraph 78(c) of the IRPA, Parliament clearly specifies that the designated judge "shall deal with all matters." In my opinion, this decision-making power covers all questions arising out of a matter, including Charter questions.
44 It is impossible to analyse the designated judge's jurisdiction without interpreting paragraph 78(c) of the IRPA. It can be seen that the words "all matters" are included in the English version, but not in the French:
Immigration and Refugee Protection Act, S.C. 2001, c. 27
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
78. ...
(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
78. [...]
c) il [le juge qui entend l'affaire] 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;
45 In Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 at paragraph 27, the Supreme Court of Canada states that it has held numerous times that the modern approach to interpretation must be preferred; this is the approach articulate by E.A. Driedger in The Construction of Statutes (2d ed. 1983), at page 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
In addition, in R. Sullivan, Driedger on the Construction of Statutes (3d ed. 1994), at page 225, and P.-A. Côté, The Interpretation of Legislation in Canada (3d ed. 1999), at pages 323-24 and 349, the following is stated:
The Canadian constitution imposes certain requirements respecting bilingual legislation. Some constitutional texts . . . also have two official versions. The interpreter must take into consideration the fact that the two versions, in English and in French, are equally authoritative.
. . .
. . . Unless otherwise provided, differences between two official versions of the same enactment are reconciled by educing the meaning common to both. Should this prove to be impossible, or if the common meaning seems incompatible with the intention of the legislature as indicated by the ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained.
. . .
Bilingual drafting can sometimes lead to a lack of harmony between the two linguistic versions, but these two versions, hypothetically, are the grounding of only one rule and this there is no antinomy. . . . Any interpretation permitting reconciliation is to be favoured, because it is assumed this better reflects the work of a rational legislature.
An ordinary reading of the English and French versions of section 78(c) of the IRPA in light of the modern approach to statutory interpretation leads to a broad interpretation of section 78(c). I therefore conclude that a judge hearing the case must consider all matters relevant to the case.
46 In fact, section 78 and subsection 79(1) of the IRPA favour such an interpretation. Indeed, the French version employs the term "l'affaire" in both provisions. "L'affaire" refers to the assessment of the reasonableness of the certificate or the continued detention. Thus, the other "affaires" include questions of law and procedure. Consequently, subsection 3(3) and paragraph 78(c) of the IRPA can be interpreted as expressly conferring on the designated judge the power to decide constitutional questions. Only a designated judge has the jurisdiction to decide whether the certificate and the basis for detention are reasonable. The way in which the designated judge assumes this role is entirely up to him or her. The important thing is that the designated judge protect the information that can be injurious to national security all the while ensuring that the person concerned is reasonably informed of the circumstances giving rise to the certificate and the detention. I am therefore of the opinion that the IRPA gives the designated judge jurisdiction over the person concerned and the subject matter as well as the power to order a remedy.
47 At this stage, I return to the concepts of express and implied intent discussed in Hynes, supra. Even if the IRPA did not disclose Parliament's express intent to confer the power to grant the remedy sought - and I have found that it does - it is my opinion that Parliament's implied intent, as gleaned from the role given to designated judges under sections 76 to 85 of the IRPA, includes as an unspoken assumption the power to grant the remedy sought.
48 Well before the IRPA came into force, McDonald J.A. of the Federal Court of Appeal stated in obiter that an appellate court should not substitute itself for a trial court in regard to Charter issues because a designated judge is in the best situation to rule on such issues. In Suresh v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 192, at 200, he states:
Clearly a designated judge hearing a subsection 40.1(8) application is in the best position to rule on any Charter issues. Indeed, a designated judge is compelled to consider whether an order he or she makes has any constitutional implications. If the designated judge decides in the first instance that prima facie a Charter right might be infringed by the terms of an order, he is in the best position, after hearing all the evidence, to determine whether, given security concerns, the terms of the order can be upheld under section 1 of the Charter. In doing so he may have to consider whether the application of Charter requirements to an order made under subsection 40.1(9) involved a determination of the "constitutional applicability" of that subsection, thus giving rise to the notice requirements of section 57 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 19)]. This matter was not argued before us.
49 I would even say that designated judges are in the ideal position to rule on constitutional questions arising from sections 76 to 85 of the IRPA because they have all the relevant information as well as all the special powers associated with the jurisdiction in question.
50 The issue in Hynes, supra, was whether a justice in a preliminary inquiry under the Criminal Code, R.S.C. 1985, c. C-46, could decide constitutional questions. By a majority, the Supreme Court answered in the negative, just as it had in Mills, supra. The majority came to this conclusion because they were of the opinion that the trial judge was better situated than a preliminary inquiry justice, a trial being the ideal place to decide such questions (Hynes, supra, at paragraph 40). In the case at bar, the designated judge's role is much closer to that of a trial judge than that of a preliminary inquiry justice. A designated judge and a trial judge both have jurisdiction over the entire matter as well as its outcome.
51 The position that a designated judge is a court of competent jurisdiction to decide constitutional questions also prevents a duplication of procedures that would require more time and generate additional costs for taxpayers. Undeniably, conferring jurisdiction over Charter questions to another judge of the Court, whether designated or otherwise, could create the need for a new procedure and cause additional delays. This concern was raised by Gonthier J. of the Supreme Court of Canada in Nova Scotia (Workers Compensation Board) v. Martin, [2003] S.C.C. 54 at paragraph 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 . . .
52 In addition to mentioning that additional delays are not in the interest of taxpayers, I note that Parliament has specified that the designated judge must proceed expeditiously. In entrusting the task of deciding Charter questions to the designated judge, Parliament is ensuring that the time spent at first instance is as short as possible while enabling the judge to perform a careful assessment of the reasonableness of the certificate and a diligent review of the reasons for detention.
53 Some might argue that the impossibility of appealing decisions regarding a certificate limits the jurisdiction of the designated judge with regard to constitutional questions because it means that decisions on constitutional questions are without appeal. I cannot accept such an argument. In my view, a judgment that pertains to Charter questions and is rendered in a proceeding under sections 76 to 85 of the IRPA is not a determination on the certificate or the continued detention. Its subject matter is completely different from the subject matter of a determination on the certificate or on continued detention. It must therefore be addressed separately. Moreover, a judgment pertaining to Charter questions does not pertain directly to the information that forms the basis of a determination on the certificate or the continued detention.
54 In light of the nature of the questions raised in the case at bar and the fact the hearing leading to a determination as to the reasonableness of the certificate has not yet been held, it is my view that the questions to be decided are close to questions of law, which are dealt with in subsection 27(1) of the Federal Courts Act.
55 Consequently, it is my view that the judgment of a designated judge deciding constitutional questions can be appealed under section 27 of the Federal Courts Act. If this is not the case, although I believe it is, subsection 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, remains available. It provides:
Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave t