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Smith v. Canada

Publisher Canada: Federal Court
Author Federal Court of Canada, Trial Division
Publication Date 11 March 1991
Citation / Document Symbol [1991] F. C. J. No. 212
Cite as Smith v. Canada, [1991] F. C. J. No. 212, Canada: Federal Court, 11 March 1991, available at: http://www.refworld.org/docid/3ae6b69928.html [accessed 22 October 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

IN THE MATTER OF a certificate issued pursuant to Section 40.1 of the Immigration Act.
AND IN THE MATTER OF a referral of such a certificate to the Federal Court of Canada pursuant to paragraph 40.1 (3) (a) of the said Act.
Between
Joseph Smith and Sarah Smith, Applicant, and Her Majesty the Queen, Respondent
Federal Court Judgments: (1991) F. C. J. No. 212
Action No. IMM-1-91

Indexed as: Smith v. Canada

Federal Court of Canada-Trial Division
Toronto, Ontario Cullen J.
Heard: February 5 and 12, 1991
Judgment: March 11, 1991

Clayton C. Ruby and Gregory James, for the Applicant. Winston K. Fogarty, Josée Desjardins and Mylène Bouzigon, for the Respondent.

CULLEN J. (Reasons for Order):--The applicants in this matter applied to be admitted to Canada as refugees. They were detained as possible security risks, and then brought before and adjudicator who reviewed the circumstance of their detention. The adjudicator ruled that continued detention was not warranted and ordered that they were to be released on conditions. The Minister of Employment and Immigration and the Solicitor General then issued a certificate pursuant to section 40.1 of the Immigration Act, 1976 (S.C. 1976-77, c. 52, as amended, now the Immigration Act, R. S. C. 1985, c. I-2, as amended) (hereinafter "the Act"). The certificate states that the applicants, in the opinion of the Ministers, do not qualify for admission to Canada because they are members of classes of persons described in paragraphs 19(1) (f) and 19 (1) (g) of the Act, which read as follows:

19(1) No person shall be grated admission who is a member of any of the following classes:…

(f)persons who there are reasonable grounds to believe will, while in Canada, engage in or instigate the subversion by force of any government;

(g)persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence;

The effect of such a certificate is to provide for the continued detention of the applicants notwithstanding the order of the adjudicator, and to prevent any further inquiry into their refugee status until the certificate has been reviewed in the Federal Court. Pursuant to paragraph 40.1(3) (a) of the Act, the ministerial certificate has been referred to the Federal Court of Canada for review by myself as a judge designated y the Chief Justice of this Court to determine whether the certificate is reasonable on the basis of the evidence and information available to me.

BACKGROUND

I propose to review the facts of this matter in considerable detail before moving on to the legal issues. The applicants, Iraqi citizens who are husband and wife, entered Canada on January 9, 1991 at Pearson International Airport in Toronto on a flight from Tokyo. Upon arrival they sought entry to Canada as Convention refugees, and were examined by an immigration officer under section 12 of the Act. The applicants stated that they had left Iran on January 1, 1991 for Kuala Lumpur, Malaysia. They stayed there illegally for seven days, and then flew to Canada after a one-day stopover in Tokyo. The applicants had been travelling on what Immigration officials determined to be a forged, damaged Saudi passport.

In the course of the examination, Mrs. Smith was found to be in possession of an address book, on one page of which the following was written in Arabic

(the translation is that provided by the Minister of Employment and Immigration and the Canadian Security Intelligence Service (CSIS)):

Missile

10 dinars

Explosive fuses

 

Bullets for a submachine gun

120 fels

Bullets for a heavy submachine gun

150 fels

Thagar black

17 dinars

Tracer bullets

30 dinars

The address book also contained several addresses and telephone numbers, and a number of handwritten phrases in Arabic. One of these phrases was translated by CSIS as follows:

We will put the utmost terror in the hearts of the infidels who believe in more than one God.

Mrs. Smith also had an identification card bearing her alias in Iraq as a member of the Islamic Union of Iraqi Students, which CSIS believes in linked to the Al-Dawa organization.

A search was conducted of the applicants' luggage, which yielded, inter alia, a false Iraqi passport, letters apparently written by the Iraqi secret police indicating that a decision had been made to arrest Mr. Smith for treason, and an identification card indicating that Mr. Smith was a member of the Islamic Revolutionary Guards, a division of the Iranian military. In addition, literature and pamphlets apparently published by the Al-Dawa party were found. Upon the discovery of these items, the applicants were questioned by officers of CSIS about the circumstances of their arrival in Canada and their relationship to Al-Dawa.

Al-Dawa

At this point, it would be useful to review the information made available to the Court about Al-Dawa. According to the evidence provided by the respondent, consisting mainly of magazine and newspaper articles and extracts from reference books already in the public forum, Al-Dawa is a militant, fundamentalist Shiite Islamic organization which is opposed to the relatively secularist Baath Party regime of Saddam Hussein and aligned with the Islamic revolutionary government in Iran.

With the outbreak of war between Iraq and Iran in 1980. Baghdad deported thousands of Shiites to Iran from southern Iraq, where they form a majority. Some of these Iraqi exiles engaged in terrorist operations organized by Al-Dawa against Iraq, with the support of the Iranian government. Al-Dawa currently based in Iran, but continues to function underground in Iraq where it has engaged in bombings and hijackings against the Hussein government and other Middle East states.

CSIS believes that Al-Dawa has been involved in terrorist attacks against Western interests in the Middle East, in particular bomb attacks in 1983 against the French and American embassies in Kuwait. CSIS believes that these attacks were carried out with the support and encouragement of Iran. It also states that Al-Dawa has cooperated in terrorist activities with the Lebanese Hizballah group, a fundamentalist Shiite group that has also been linked to Iran.

Interview with CSIS

The record of the interview reveals that Mr. Smith was very forthcoming in his response to the questions of the CSIS officers about his association with Al-Dawa. It should be noted that the respondent has admitted that the CSIS officers did not advise the applicants of, nor accord them, an opportunity to retain and instruct counsel before this interview. However, because of the ultimate conclusion I have reached in this matter, I do not think it necessary to consider any possible Charter violations arising out of this admission. In any case, in my opinion this is a case where unrestrained candour on the part of the applicants has worked to their advantage despite the absence of counsel.

Mr. Smith stated that he first became involved with the party in Iraq in 1979, distributing leaflets on its behalf and participating in demonstrations. After the beginning of the Iran-Iraq war in 1980, the Hussein government believed that Iran was supporting Shiite opposition groups like Al-Dawa in order to destabilize the Iraqi regime. The Iraqi secret police were directed to search out and jail these Shiite fundamentalists. Those who were found to be Al-Dawa members were executed. Mr. Smith was arrested and jailed in 1981. He could not be directly linked to Al-Dawa, however, and he was released in 1983.

After his release, Mr. Smith fled Iraq for Iran. As an Iraqi, he required a government-approved sponsor to stay in Iran during the war. Mr. smith was sponsored by the Al-Dawa party. At this time, he took and alias to protect his family in Iraq in case his association with Al-Dawa became known to the Iraqi government through Iraqi informers and agents. While in Iran, he volunteered for service in the Islamic Revolutionary Guards, and after a brief period of military training fought against Iraq for three months in 1984. He then returned to Tehran, where he worked for a magazine for a year. Mr. Smith then became active in the Al-Dawa again and volunteered to go to an Al-Dawa base in Kurdistan in Iraq, which was to serve as a base for sabotage actions against Iraqi facilities. Mr. Smith told CSIS that he did not take part in any sabotage missions, his role being to provide religious guidance to the local Kurds. CSIS asked him why he had been given this responsibility, as he had no formal religious training. He stated that he provided instruction at a very basic level, as the Kurdish peasants had only a very rudimentary knowledge of their religion. He spent a year at the base, during which a limited number of missions were launched against Iraq, only one of which was successful. He stated that he did not know the true identities of the saboteurs, presumably a precaution taken against infiltration by Iraqi agents, and had very little knowledge of their training.

In 1986, Mr. Smith was released from his duty at the base and spent six months in the Iranian city of Qom. Here he met and married Mrs. Smith in 1987. Mrs. Smith had left Iraq in 1980, and had moved to Iran after three years spent in Syria as a legal visitor. They then returned to Tehran, where Mr. Smith took up his former position with the magazine.

With the end of the Iran-Iraq war in 1988, relations between the former enemies began to improve. Relations improved further after the Iraqi invasion of Kuwait in 1990, and Mr. Smith stated that he and other members of the Iraqi exile community had been warned that one of the terms of this rapprochement was that Iraqi exiles in Iran would be forcibly repatriated to Iraq. He feared that as an opponent of the Hussein regime his life would be in danger should he be returned to Iraq. He also stated that he feared that an Iraqi embassy which had recently opened in Tehran would be used to identify and eliminate dissidents exiled in Iran.

Mr. Smith said he then decided to flee to Canada based on its reputation as a free and democratic society. He borrowed money and bought the false Iraqi and Saudi passports and plane tickets to Canada. The passports were made out under the aliases the Smiths had used while in Iran. A friend in Tehran provided him with the names of people to contact in Toronto, who might be able to assist him on arrival.

CSIS officers asked Mr. Smith to explain the references to weapons in the address book. He stated that he had compiled the list in 1986 when he was at the Al-Dawa base in Iraq. He had been approached by a Kurdish arms merchant, who knew Mr. Smith to be an Al-Dawa member. The merchant asked Mr. Smith to record the prices of some of his inventory should Al-Dawa be interested in purchasing some. Mr. Smith said he had passed this information on to his colleagues in the military section of the base, and did not know if any purchases had taken place.

CSIS also asked Mr. Smith to explain the Arabic statement in the notebook concerning the "infidels". He stated that its was a Koranic verse, which was used by members of Al-Dawa as passwords amongst themselves. This particular password had been given to him before he had left the base in Iraq for Qom, and was to be used when contacting other Al-Dawa members when he arrived in the city. He stated that he had written the verse in the notebook so he would be able to recall it when he arrived in Qom.

Mr. Smith concluded the interview by advising the CSIS officers that he had come to Canada for peaceful reasons, and had no intention of rejoining Al-Dawa if he were allowed to remain in Canada.

DETENTION OF THE SMITHS

A decision was made to detain the Smiths for seven days pursuant to paragraph 103.1 (1) (a) of the Act, on the grounds that they had not satisfied the immigration officer as to their and inadmissible class. The Smiths were ordered detained in separate detention centres. The detention was ordered to be continued by a senior immigration officer on January 16, 1991 after review by an adjudicator.

On January 23, 1991, the Minister of Employment and Immigration issued a certificate under subsection 103.1 (2) of the Act stating that the identity of the applicants had not yet been established, and that the Minister had reason to suspect that they were members of and inadmissible class of persons. The Minister stated that a further period of detention was necessary to investigate these matters, and the applicants were then brought before another adjudicator pursuant to subsection 103.1 (5) of the Act in order to determine if reasonable efforts of investigation were being made by the Minister that would warrant their continued detention.

Hearing Before the Adjudicator-January 23-24, 1991:

At the hearing, a senior immigration officer stated that the applicants were being investigated by the Canadian Security and Intelligence Service (CSIS) as possible security risks, on the grounds that they had entered Canada on forged documents, that Mr. Smith had admitted his association with Al-Dawa, and that he had been in possession of the weapons list in the notebook. The officer acknowledged that Al-Dawa did not support the current Iraqi government, but submitted that given the state of war between the United Nations Alliance and Iraq, it was conceivable that the applicants might act on behalf of Iraq in Canada should the war begin to so badly for Iraq. The officer offered his assurance to the adjudicator that an active investigation of the applicants was being carried out by CSIS, and that he had a report by CSIS in his possession, but investigative efforts at the hearing.

The adjudicator determined that the minister had not satisfied him that reasonable efforts were being made to investigate the identities of the applicants or their alleged membership in an inadmissible class, as the immigration officer had provided no factual basis for him to determine if the efforts were reasonable. He therefore refused to order continuing detention under subsection 103.1 (5) of the Act. He stated that while the facts provided by the Immigration officer may have warranted the initial detention, they did not constitute reasonable investigative efforts that would justify continued detention.

The Immigration Officer then argued that the adjudicator should order the continued detention of the applicants under paragraph 103 (3)(b) of the Act on the ground that the applicants posed a danger to the public. In support of this position he submitted that the applicants were members of a terrorist group that CSIS had determined was hostile to the West, that they did not have valid identification, and referred to the inscriptions referring to weapons and " striking terror" in the address book.

Counsel for the applicants stated that the CSIS information about Al-Dawa was erroneous and outdated. He submitted that the applicants posed no threat to Canada because of their membership in Al-Dawa, and that the applicants' association with Al-Dawa was the reason they sought refuge in Canada in the first place. He observed that Mr. Smith had spent two years in prison for opposition to the Iraqi government, which bolstered the credibility of his refugee claim. He argued that anyone entering Canada intending to engage in terrorism would be unlikely to carry with them literature about their cause, or enter on forged, damaged passports. As for the inscriptions in the address book, he submitted that Mr. Smith had provided candid, credible explanations for them. As for Mrs. Smith, she was now pregnant, and unlikely to constitute a danger to Canada.

The adjudicator ordered that the applicants be released on conditions. He stated that he could not conclude on the evidence provided that the applicants posed a danger to the public. He acknowledged that Al-Dawa was opposed to the Iraqi government and had probably engaged in armed opposition to it. However, he stated that the minister had failed to provided any evidence beyond the assertion of the immigration officer that Al-Dawa was likely to engage in activities against North America or other members of the Alliance. In addition, he found that there was no evidence that the applicants themselves had ever engaged in terrorism, and that even if Mr. Smith had engaged in armed resistance to the Iraqi regime in the past, there was no evidence that the would engage in violent acts while in Canada. The adjudicator also found that the explanations provided by Mr. Smith as to the address book were credible and consistent with his claim for refugee status as an opponent of the Iraqi government.

CERTIFICATE UNDER SECTION 40.1(1) OF THE ACT

On January 25, 1991, the Minister of Employment and Immigration and the solicitor General filed a certificate with a senior immigration officer, acting under section 40.1 of the Act, which states (in the provisions relevant to this proceeding):

40. 1(1) Notwithstanding anything in this Act, where the Minister and the Solicitor General are of the opinion, based on security or criminal intelligence reports received and citizen or permanent resident, is a person described in paragraph 19(1)(d), (e), (f), (g), or (j) or 27(2)(c), they may sign and file a certificate to that effect with an immigration officer, a senior immigration officer or an adjudicator.

(2)Where a certificate is signed and filed in accordance with subsection (1), and inquiry under this Act concerning the person in respect of which the certificate is filed shall not be commenced, or if commenced shall be adjourned, until the determination referred to in paragraph (4) (d) has been made and a senior immigration officer or an adjudicator shall, notwithstanding section 23 or 103, detain or make and order to detain the person named in the certificate until the making of the determination.

(3)Where a certificate referred to in subsection (1) is filed in accordance with that subsection, the Minister shall

(a)forthwith cause a copy of the certificate to be referred to the Federal court of Canada 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 of Canada a deportation order may be made against the person.

(4)Where a certificate is referred to the Federal Court of Canada 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 bear 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 such disclosure would be injurious to national security or to the safety of persons;

(b)provide the person named in the certificate with a statement summarizing such information available to the Chief Justice or the designated judge, as the case may be, as will enable the person to be reasonably informed of the circumstances giving rise to the issue of the certificate, having regard to whether, in the opinion of the Chief Justice or the designated judge, as the case may be, the information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons;

(c)provide the person named in the certificate with a reasonable opportunity to be heard;

(d)determine whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available to the Chief Justice or the designated judge, as the case may be, and, if found not to be reasonable, quash the certificate; and

(e)notify the Minister, the Solicitor General and the person named in the certificate of the determination made pursuant to paragraph (d).

(5)For the purposes of subsection (4), the Chief Justice or the designated judge may receive and accept such evidence or information as the Chief Justice or the designated judge sees fit, whether or not such evidence or information is or would be admissible in court of law.

(6)A determination made under paragraph (4) (d) is not subject to appeal or review by any court

(7)Where a certificate has been reviewed by the Federal Court pursuant to subsection (4) and has not been quashed under paragraph (4) (d),

(a)the certificate is conclusive proof that the person named in the certificate is a person described in paragraph 19 (1) (d), (e), (f), (g) or 27(2) (c); and

(b)the person named in the certificate shall, notwithstanding section 23 or 103, continue to be detained until the person is removed from Canada….

A detention order was the issued in respect of the applicants by a senior immigration officer.

Section 40.1 was enacted by An Act to Amend the Immigration Act, 1976 and the Criminal Code in consequence thereof, S. C. 1988, c. 36, now c. 29, (4th Supp.), and proclaimed in force January 1, 1989. Section 40.1 provides for a form of judicial review in the case of an applicant for refugee status who is not a permanent resident of Canada and who for security or other specified reasons may not be admitted to Canada. The concerned Ministers file with this Court a certificate of their conclusion that a person does not qualify for admission, for review by the Court to determine whether the certificate is reasonable on the evidence and information provided to the reasonable on the evidence and information provided to the judge. Until this determination is made, and the certificate either quashed or approved, and inquiry into the refugee status of the applicant may not be commenced, or if already commenced it must be adjourned.

On January 31, 1991, I conducted a hearing during which I examined the security intelligence reports considered by the Minister and the Solicitor General. I also heard other evidence presented by a CSIS officer, Gregory Pearce.

Following this hearing I signed an Order that extended the time to serve the applicants with notice of the proceedings pursuant to paragraph 40.1 (3) (b) to January 29, 1991, four days after the certificate had been riled instead of the three days provided for in paragraph 40.1 (3) (b). The Order also provided that the respondents be allowed to advance the evidence of Gregory Pearce, that the hearing be conducted in camera in the absence of the persons named in the certificate and their counsel and that the security intelligence reports be sealed and kept separate and apart from other public court files. I examined a summary of the information provided to me which had been prepared by CSIS, vetted it and ordered it served on the applicants. I then scheduled February 5, 1991 as the date on which the applicants would have their "reasonable opportunity to be heard".

HEARINGS OF FEBRUARY 5 AND 12, 1991

The hearing was held in open court on the request of the applicants, which was not objected to by the respondent. I also ordered, on the request of the applicants and without objection from the respondent, that in the best interests of the applicants that the be referred to in these proceedings by the pseudonyms Joseph Smith and Sarah Smith.

At the hearing, counsel for the applicants attempted to move before me a motion by way of certiorari to quash the order of detention made by the senior immigration officer on January 25, 1991. However, as leave for the motion had not been obtained I refused to allow the motion to be filed at the hearing. Counsel for the applicants then stated that he would seek leave separate and apart from these proceedings under section 40.1 of the Act.

At the hearing, the applicants made a number of preliminary objections about the procedures followed by the Court and the respondent in this matter, which the applicants submitted affected the jurisdiction of the Court to consider the reasonableness of the certificates. These objections are as follows:

a)That the order I made to extend time for service of notice to the applicants was made without jurisdiction, and that compliance with the notice requirements of subsection 40.1(3) is a condition precedent to he jurisdiction of this Court over the subject matter of this proceeding;

b)That the Court had no jurisdiction to make the order extending time or the other orders on an ex parte basis;

c)That the decision of the Court to hear the additional evidence of Gregory Pearce in camera should not have been made in camera

d)That the summary provided to the applicants did not comply with paragraph 40.1(4)(b) of the act, as it had not been drafted by the designated judge personally;

e)That the reference of the certificate to the Federal court was not filed ‘forthwith' as required by paragraph 40.1(3)(a) of the Act;

f)That the Court should order that fuller disclosure be provided to the applicants of the sealed documents, that full details be provided of all evidence heard in camera, that the ink and paper in the address book be dated by forensic science techniques, that the CSIS officers who interviewed the applicants be made available for cross examination, that the translator of the materials be produced for cross-examination, and that the complete CSIS file on Al-Dawa be produced for use by the applicants.

The matter was then adjourned to February 12, 1991, when the submissions of the parties on the preliminary objections were heard. Following argument on these issues I reserved my decision. It was agreed at that time that if I found no merit in the preliminary objections, the applicants would have their "reasonable opportunity to be heard" provided by paragraph 40.1 (4) (c) of the Act on March 26, 1991. With respect to the issue of more extensive disclosure, counsel for both parties undertook to consult with each other as to whether they could agree on terms by which the evidence of the CSIS officers could be placed before the Court. The Court was subsequently advised by letter dated February 22, 1991 that they were not able to come to an agreement. With regard to the issue of the age of the ink and paper in the notebook, the respondent stated that it was prepared to accept the admission of Mr. Smith that the address book had been most recently used in 1986.

PRELIMINARY OBJECTIONS

The objections by the applicants are directed towards the jurisdiction of this court to hear the merits of the case. While my ultimate conclusion as to the reasonableness of the certificate tend to make most of the issues raised in the following analysis academic, I feel that they must be addressed as the jurisdiction of the court to make the ultimate determination of reasonableness has been challenged.

1.Order to Extend Time

The respondent put forward several arguments to counter the submission of the applicants that this Court has no jurisdiction to grant an extension of time. First, the respondent submitted that compliance with the notice provisions in paragraph 40.1 (3) (b) is not a condition precedent to the Court having jurisdiction to consider the reasonableness of the certificate. The respondent further argued that the word "shall" in the context of the notice provisions should be read as having directory and not mandatory import in this particular context. In the alternative, it was submitted that the Court had the implied power to extend time in order for it to effectively exercise the review jurisdiction over the certificate expressly granted by the Act. Finally, the respondent submits that the computation of time provisions in the Federal Court Rules should apply to this proceeding. I agree with the respondent's submission that compliance with the notice provision is not a precondition to the exercise of its review function under subsection 40.1(4). It should be noted that under paragraph 40.1 (4) (a), the Court is required to conduct the in camera review within seven days of the referral of the certificate to the Court under subsection 40.1 (3). The referral to the Court is to be made "forthwith" after the filing of the certificate with the appropriate immigration official under subsection 40.1 (1). The person named in the certificate is to be notified that a certificate has been filed within three days of it being filed. It is therefore possible that a certificate could be filed, referred to the Court and reviewed before the three-day notice provision has expired. It is true that case, the applicants were not notified until four days had elapsed from the date the certificate was filed, and that the review by the Court was conducted six days later. However, it still must be observed that the statute contemplates that in some circumstances, a review may be conducted before the person named in the certificate need be notified of the fact that a certificate has been filed. I would therefore conclude from the above that it was not the intention of Parliament that strict observance of the notice provisions is a precondition to the judicial consideration of the certificate under subsection 40.1(4).

I am also satisfied that the respondent is correct in submitting that the word "shall" in subsection 40.1 (3) should be read as being directory and not mandatory. Jones and de Villars, in their text Principles of Administrative Law (1985, Carswell) observe at pp. 110-111 that in determining whether a statutory requirement is mandatory or directory, the Court should consider

….the policy of the Act, all its provisions, the reason for including the specific statutory requirement in question, whether any statutory consequence is provided for failure to comply, and what the practical effect of non-compliance is on the complainant or any other person.

In my view, the legislative framework concerning time limits was intended to be directory and not mandatory. The policy and purpose of the Immigration Act, as set out in section 2 of the Act, balances the security interests of the state with the individual rights of the parties seeking entry to Canada, and thus could be construed as supporting either characterization. However, while statutory provisions should be observed if at all possible, it may not always be practical in circumstances where national security is at risk to require strict compliance where there is no serious prejudice to the person named. In addition, there is no specific consequence provided for the failure to provide notice. As there is no basis for participation by the person named in the certificate until after the in camera review, the failure of the respond to notify the applicants within the prescribed three-day period has not seriously prejudiced them in the circumstances of this case. This does not mean, however, that significant delays in meeting the statutory notice requirement should be excused by the Court as mere irregularities. It would appear that the purpose of this particular notice requirement in the Act is to ensure that a person named in a certificate is aware of the reason for his or her continued detention, and also of the fact that they may face deportation. In my view, these are significant interests that should be protected, and departures from the statutory standard should only be condoned where there has been substantial compliance with the three day provision and a lack of prejudice o the named person's interests. In this case, the delay in providing notice to the applicants was one day, which is not significant nor unduly prejudicial in the circumstances.

I would therefore conclude that based on the foregoing, the jurisdiction of the Court to consider the reasonableness of the certificate has not been affected by the failure of the respondents to strictly observe the notice requirements. It is therefore unnecessary to consider the alternative grounds put forward by the respondents on this issue.

2.Ex Parte Proceedings

Counsel for the applicants submits that there was no jurisdiction for the Court to have made the order extending time, nor the other elements of the order, on an ex parte basis. In support of this submission, he relies o Neal v. Attorney General of Saskatchewan et al. (1977), 56 c. c. c. (2d) 128 (S. C. C.), a case in which the Supreme Court of Canada ruled that an application by the Crown for extension of time to file an appeal against an acquittal in a summary conviction case obtained ex parte should be set aside.

I am unable to see any merit in this submission. In my opinion, the case at hand is easily distinguishable from that in the Neal case. It is trite law that the normal practice in any legal proceeding is to provide notice to the other side, and an opportunity to make submissions. However, in this case, I believe that paragraph 40.1 (4) (a) of the Act provides the Court with the jurisdiction to proceed ex parte. Unlike the situation in Neal, the statute in this case clearly provides the presiding judge with the discretion to hear all or part of the evidence or information presented in the absence of the person named in the certificate of their counsel if the disclosure of such evidence would be injurious to national security or the safety of persons. In my opinion, this right to exclude would by implication extend to the making of orders necessarily incidental to the exercise of this discretion, and therefore the judge need not hear submissions on these orders. In this case, the order to hear the evidence of Gregory Pearce in camera was incidental to the decision that the evidence should not be disclosed, which is a determination that the judge is expressly authorized to make. Similar points could be mad with respect to the orders to conduct the entire hearing in camera, to seal the reports, and providing and edited summary. As for the order to extend time, I am satisfied that this could also be conducted in camera as part of the overall proceedings, and in any event for the reasons given above no prejudice resulted from the lack of opportunity to make submissions on his point.

3.In Camera Proceedings

The applicants submit that section 40.1 only authorizes in camera examination of the security reports considered by the Ministers, and other information like the oral evidence of Pearce in limited circumstances. They also submit that the decision to allow further evidence to be called in camera cannot be made in camera.

In my opinion, this submission is also without merit. Paragraph 40.1 (4) (a) expressly authorizes a judge to "hear any other evidence or information" in camera in his discretion for national security reasons. There is no reason to exclude oral evidence from the scope of this provision. As for the submission that this decision cannot itself be made in camera, I would dispose of this argument for the same reasons as put forward in the section on ex parte proceedings.

4.The Summary

The applicants further submit that the statement summarizing the information necessary for the applicants to be reasonably informed of the circumstances giving rise to the certificate must be prepared by the judge himself. There is no express requirement in paragraph 40.1 (4) (b) that the summary be prepared by the judge himself, and I would not read one in the absence of compelling reasons to do so. In my opinion, the function of the judge in this case is to ensure that the person named has been reasonably informed. In this case, I examined and approved the report of the evidence available to me, and in my discretion ordered parts edited from the summary in the interests of national security without prejudicing the applicants' right to be reasonably informed. I would also note that editing of information provided to the court occurs in analogous judicial situations, such as the affidavits of police informers when access is sought to the sealed packet in a wiretap case: see R. v. Garofoli (Supreme Court of Canada, No. 21099, November 22, 1990, unreported).

5."Forthwith"

The applicants also submit that as the reference of the certificate was not made to the Federal Court until four days had elapsed since the filing of the certificate, it was not referred "forthwith" as required by paragraph 40.1 (3) (a) of the Act.

The meaning of "forthwith" was considered by the Ontario Court of Appeal in R. v. Parrot (1979), 106 D. L. R. (3d) 296. The accused union leader was required by back-to-work legislation to give notice "forthwith" to his workers that a strike had become invalid. The Court considered the meaning of "forthwith", at 302-303 D. L. R.:

Finally,…we are satisfied that the word "forthwith" in s. 3 (1) of the statute must be read as meaning "immediately" or "as soon as possible in the circumstances, the nature of the act to be done being taken into account": 37 Hals., 3d. ed., p. 103; or "'as promptly as is reasonably possible or practicable under all the circumstances'": R. v. Bell, (1969) 2 C. C. C. 9 at p. 18….

Reference to all reproted cases seem to support the twin proposition that "forthwith" does not mean instantly (R. v. Cuthbertson, supra), but rather, without any unreasonable delay, considering "the objects of the rule and the circumstances of the case": per Jessel M. R., Ex parte Lamb (1881), 19 Ch. D. 169 at p. 173….See also Mihm et al. v. Minister of Manpower and Immigration, (1970) S. C. R. 348 at p. 358….

In this case, I am satisfied that the certificate was referred to the Court as soon as was reasonably possible in the circumstances. It is of course desirable that in a case in which the liberty of an individual is at stake, that the matter be brought before the court with all reasonable speed. In this case, its was necessary for the respondent to gather the necessary evidence and information to be presented before the Court. Such research necessarily takes time from the time that the certificate was issued, and in this case, when part of the time took place over a weekend, I am satisfied that the time taken was reasonable in the circumstances. I would note that the statute provides that the security and intelligence and other reports should be examined by the Court within seven days of the issuance of the certificate, and in this case the four days that did elapse still left the Court with sufficient time to adequately examine the evidence.

6.Greater Disclosure

As noted above, the applicants sought greater disclosure of the material that was before the Court in the in camera hearing. They sought full disclosure of the documents in the sealed files, that full details be given of the evidence provided by witnesses at the hearing, and that the author of the written material submitted before me be produced for cross-examination. They also requested that the officers who searched and questioned the applicants and the translator be made available for cross-examination. They also submitted that any files that CSIS may have on Al-Dawa be produced for examination by the applicants.

The respondent stated at the hearing that it was opposed to producing the CSIS officers who interviewed the applicants for cross-examination, but that the respondent would be prepared to allow the applicants to submit written questions concerning any potential Charter violations or other irregularities which may have occurred during the course of the interview, which the officers would answer by affidavit. The respondent opposed the request for production of any sealed documents, files or other excluded evidence from the hearing on the ground that they could not be disclosed for reasons of national security. For the same reason, the respondent objected to producing the CSIS translator for cross-examination. As for the request to cross-examine the author of the written material, this was considered acceptable as long as the cross-examination was limited to matters that did not enter the realm of national security.

Paragraph 40 (1) (4) of the Act gives me as a judge sitting on review of the certificate the discretion to determine whether any part of the information or evidence before me should not be disclosed on the grounds that the disclosure would be injurious to national security or the safety of persons. I was satisfied that in the circumstances, the disclosure of the sealed file material would be injurious to national security. In this respect, I adopt the remarks of Addy J. in Re Henrie and Security Intelligence Review Committee et al. (1988), 53 D. L R. (4th) 568 (F. C., T. D.), at 579 as appropriate guidelines for the exercise of this discretion:

It is of some importance to realize that an "informed reader", that is, a person who is both knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and of the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, for instance, be in a position to determine one or more of the following: (1) the duration, scope, intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the Service; (3) the typographic and teleprinter systems employed by C. S. I. S.; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel or of other persons involved in an investigation.

For these reasons, it is not possible to comment directly on the reasons for sealing the particular documents in this case, as my comments could serve to identify the evidence and other factors listed by Addy J. The same considerations would apply to the applicants' request to produce the persons requested for cross-examination. The applicant cite R. v. Garofoli, supra, as authority for their request to have the CSIS officers produced for cross-examination. In Garofoli, the situation is distinguishable, because while there was concern over the secrecy and efficacy of police investigations, there was no corresponding national security concern.

It is still possible that the process under section 40.1 may violate the Charter. The issue of whether the procedure for review of the security certificate, disclosure of evidence and detention set out in section 40.1 of the Act violates section 7 of the charter was referred to in oral argument at the hearing, but no detailed submissions were made on this point. It is probable that a detailed Charter argument was to be made by the applicants at the hearing scheduled for March 26, 1991, their "reasonable opportunity to be heard". I have come to the conclusion, however, that it is not necessary to provide the applicants with additional time to constitute reasonable opportunity to be heard, beyond the submissions already made, because it appears to me that the Minister has not demonstrated that the certificate was reasonable on the basis of the evidence before me. As the Charter issues have not been argued in detail, and no evidence has been lead under section 1, I express no opinion as to whether section 40.1 could withstand Charter scrutiny.

REASONABLENESS OF THE CERTIFICATE

Having concluded that I have jurisdiction to make this determination it might reasonably have been expected that we would now move under paragraph 40.1 (4) (c) to provide the persons named in the certificate with a reasonable opportunity to be heard and in fact that was to take place on 26 March 1991. However, having examined the issues involved in some considerable detail and having herd the case for applicants, I can find no need to hear from the detainees because the substantive issue can be determined now.

DECISION

The first step in is to determine the appropriate meaning to be accorded to the word "reasonable" in paragraph 40.1 (4) (d). in judicial review of administrative action, the role of the Court is usually not to review the merits of the decision, but rather to determine whether the decision-maker has acted in accordance with the law. Usually, if there is an express requirement of reasonable conduct in the relevant statute, the official if challenged must justify the decision by providing evidence that would demonstrate that there was a rational basis for his decision, and that he did not base his conclusion on irrelevant considerations. An example of the relatively restrictive approach to reasonableness is found in the decision of Lord Diplock in Secretary of State for Education v. Tameside Borough Council, (1977) A. C. 1014 (H. L.), at 1064, where he stated that a statutory requirement that a public authority exercise a discretion "reasonably" should be regarded as proscribing "conduct which no sensible authority actin with due apprehension of its responsibilities would have decided to adopt".

In my opinion, however, a higher standard of proof of reasonableness should be applied in cases where an interest in personal liberty is at stake. In R. v. Secretary of State for the Home Department, ex p. Khawaj (1984) A. C. 74, the House of Lords considered certain provisions of the British Immigration Act and held that if an immigration officer ordered the detention of any person as an illegal entrant, it would not be sufficient merely to show some reasonable grounds for the action. As a liberty interest was at stake in the detention, the immigration officer had to satisfy a civil standard of proof to a high degree of probability that the detained person was an illegal entrant. As Lord Scarman stated for the majority, at 113:

My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied…. It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater v. Bater (1951) p. 35 and in Hornal v Neuberger Products Ltd. (1957) 1 Q. B. 247, a grave matter. The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake. "…the nature and gravity of an issue determines the manner of attaining reasonable satisfaction of the truth of the issue": Dixon J. in Wright v. Wright (1948) 77 C. L. R. 191, 210.I would therefore adopt the civil standard flexibly applied in the way described in the case law to which I have referred. And I completely agree with the observation made by my noble and learned friend, Lord Bridge of Harwich, that the difficulties of proof in many immigration cases afford no valid ground for lowering the standard of proof required.

Applying the standard set in Khawaja, it is apparent to me that the certificate issued under section 40.1 is not reasonable and should therefore be quashed. I do not find that there is sufficient evidence on the standard set out in Khawaja for the Minister to have concluded that the applicants were members of the inadmissible classes described in paragraphs 19(1) (f) and 19 (1)(g) of the Act. There are insufficient grounds to believe that the applicants will attempt to instigate the subversion by force of any government while in Canada. The connection of the applicants with Al–Dawa, which they freely admitted, is in my opinion an insufficient basis on which to conclude that the applicants will engage in subversion without substantial evidence that they as individuals would engage in subversion while in Canada. The evidence provided by the respondent dealt with the suspected activities of Al-Dawa, but did not provide any evidence as to the potential for subversive activities by the applicants as individuals. As the adjuducator pointed out, the fact that Mr. smith may have engaged in armed resistance against Iraq in the past does not mean that he will do so while in Canada. As for the address book, I agree with the adjudicator that the explanations provided by the applicants were credible, and consistent with the refugee claim of the applicants.

I would also conclude that it is not reasonable to consider that the applicants will engage in acts of violence that would endanger people in Canada, or are a member of an organization likely to engage in such activities. There was no evidence provided by the respondent that Al – Dawa has engaged in such activities in Canada, or is likely to in the future. The same could be said of the applicants. The possible inferences that could be drawn from their association with Al – Dawa or the address book are in my opinion insufficient in the absence of more direct, individualized evidence about their likelihood to take part in such activities. In my opinion, it is possible that groups which are involved in terrorism, which it appears that Al- Dawa might be in certain circumstances, are not monolithic, but rather may contain within their ranks those who are less disposed to violence or even totally uninvolved.

Without more evidence as to the individual proclivity or involvement of the applicants in terrorism or other violence, I do not believe that further detention is reasonable.

In my opinion, the activities of the applicant are consistent with their claim for refugee status, who often arrive in this country with questionable documentation. The applicants appear to have at a genuine refugee claim based upon their opposition to the regime of Saddam Hussein. In any event, it is difficult to believe that if the applicants were intent upon subversion that they would enter Canada with identifying pamphlets, and readily provide immigration officials with a detailed history of their association with a suspect group.

I would therefore direct that the certificate be quashed. The applicants are of course at liberty, should incriminating evidence against either individual come to their attention, to move again under section 40.1, but in the present circumstances the detainees are free to continue with their application for refugee status.

CULLEN J.


 

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