Suresh v. R.
|Publisher||Canada: Provincial / Territorial Superior Courts|
|Author||Ontario Superior Court of Justice|
|Publication Date||28 January 1998|
|Cite as||Suresh v. R., Canada: Provincial / Territorial Superior Courts, 28 January 1998, available at: http://www.refworld.org/docid/3ae6b636c.html [accessed 27 April 2015]|
Re Suresh and Regina et al.
[Indexed as: Suresh v. R.]
Ontario Court (General Division), Lane J.Charter of Rights and Freedoms-Fundamental justice-Immigration-Deportation-Applicant moved in provincial superior court for order restraining Minister of Citizenship and Immigration from deporting him to Sri Lanka until his challenge to constitutionality of sections of Immigration Act under which be was ordered deported has been heard and determined - Court satisfied applicant would be at grave risk of torture and death if returned to Sri Lanka-Motion granted - Issue of constitutionality of impugned sections of Immigration Act should be dealt with in concurrent Federal Court proceedings and not in General Division - Canadian Charter of Rights and Freedoms, s. 7 - Immigration Act, R.S.C. 1985, c. 1-2. The applicant was found to be a Convention refugee. A security certificate was subsequently issued by two Ministers of the Crown that there were reasonable grounds to believe that the applicant was a member of a Sri Lankan terrorist organization. The reasonableness of that opinion was upheld by the Federal Court of Canada. The Minister of Citizenship and Immigration decided that the applicant represented a threat to the security of Canada and should be deported. The applicant applied in the Ontario Court (General Division) for a declaration that the sections of the Immigration Act under which he was to be deported were unenforceable as they were inconsistent with the Canadian Charter of Rights and Freedoms and to attack the acts of the Minister done under those sections. He moved for an order restraining the Minister of Citizenship and Immigration from deporting or otherwise removing him from Canada until the determination of the issues raised in the main application. Concurrently, he brought an application in Federal Court for leave to apply for judicial review of the same acts of the Minister. The same Charter issues were raised in that application. The applicant submitted that, as a member of an insurgent Tamil organization, he faced a grave risk of torture and death if he was returned to Sri Lanka and that he ought not to be deported to a country where he faced such consequences. There was considerable documentary evidence suggesting that the applicant would be detained upon arrival in Sri Lanka and that persons with similar anti-government records as his have suffered both official and unofficial reprisals, not stopping short of torture and death. Held, the motion should be granted. The applicant had raised a strong prima facie case that if he was returned to Sri Lanka he would likely be the subject of serious reprisals, extending to torture and even death, for his anti-government activity. The legal issues sought to be raised by the applicant were based on s. 7 of the Charter, which guarantees everyone the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. Section 7 is engaged when a person is to be removed to a state where those values are threatened. Canada has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which contains, in art. 3, the provision that no state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. The applicant had established that there was a serious issue to be tried. If the applicant was deported to Sri Lanka, he would be detained and questioned and exposed to the risk of torture and extra-judicial execution. In such circumstances, there was a strong possibility that it would be impossible for the Canadian courts to influence the situation. His application would have become moot, for any relief he might obtain would be unenforceable. De facto, refusal of the injunctive relief would decide the whole case against him. This amounted to damage which could not be quantified or compensated in monetary terms. The applicant had demonstrated that he would suffer irreparable harm if the injunctive relief were not granted. The balance of convenience favoured the applicant. The applicant had therefore met all the tests for injunctive relief. The Charter issues raised in the application before the Ontario Court (General Division) were also raised in the Federal Court proceedings. It was preferable that the litigation continue to be dealt with in the Federal Court rather than the provincial superior court, to the extent that the Federal Court had jurisdiction to entertain the applicant's claims. An order should be granted restraining the Minister from deporting or otherwise removing should be granted restraining the Minister from deporting or otherwise removing the applicant from Canada until ten days after the Federal Court had heard and determined the applicant's application for leave to commence a judicial review of the Minister's decision under s. 53(1) of the Immigration Act and other relief. RJR-MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311, 60 Q.A.C. 241, 111 D.L.R. (4th) 385, 164 N.R. 1, 20 C.R.R. (2d) D-7, 54 C.P.R. (3d) 114; Reza v. Canada,  2 S.C.R. 394, 116 D.L.R. (4th) 61, 167 N.R. 282, 21 C.R.R. (2D) 236, apld United States of Mexico v. Hurley (1997), 35 O.R. (3d) 481, 45 C.R.R. (2d) 73, 116 C.C.C. (3d) 414, 8 C.R. (5th) 354 (C.A.), distd Other cases referred to Bembenek v. Canada (Minister of Employment & Immigration) (1991), 69 C.C.C. (3d) 34 (Ont. Gen. Div.); Kindler v. Canada (Minister of Justice),  2 S.C.R. 779, 84 D.L.R. (4th) 438, 129 N.R. 81, 6 C.R.R. (2d) 193, 67 C.C.C. (3d) 1, 8 C.R. (4th) 1, 45 F.T.R. 160n; Nguyen v. Canada (Minister of Employment & Immigration) (1993), 18 Imm. L.R. (2d) 165 (F.C.A.); Singh v. Canada (Minister of Employment & Immigration),  1 S.C.R. 177, 17 D.L.R. (4th) 422, 58 N.R. 1, 14 C.R.R. 13, 12 Admin. L.R. 137; Sivakumar v. Canada (Minister of Citizenship &Immigration),  2 F.C. 872, 33 Imm. L.R. 113, 198 N.R. 219, 115 F.T.R. 240n (C.A.); Slaight Communications Inc. v. Davidson,  1 S.C.R. 1038, 59 D.L.R. (4th) 416, 93 N.R. 183, 40 C.R.R. 100, 26 C.C.E.L. 85, 89 C.L.L.C. 14,031; Yamani v. Canada (Solicitor General),  1 F.C. 174, 103 F.T.R. 105, 129 D.L.R. (4th) 226, 32 C.R.R. (2d) 295 Statutes referred to Canadian Charter of Rights and Freedoms, s. 1 Federal Court Act, R.S.C. 1985, c. F-7 Immigration Act, R.S.C. 1985, c. I-2, s. 53(1) Treaties and conventions referred to Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3 Convention Relating to the States of Refugees, art. 33 MOTION for an order restraining the Minister of Citizenship and Immigration from removing the applicant from Canada pending the determination of his challenge to the constitutionality of a decision to deport him. Barbara L. Jackman and Ronald P. Poulton, for moving party (applicant). Cheryl D.E. Mitchell and Bridget A. O'Leary, for the Crown, responding party (respondent). LANE J.: -Mr. Suresh (the "applicant") moves for an order restraining the Minister of Citizenship and Immigration from deporting the applicant or otherwise causing him to be removed from Canada until the determination of the issues raised in the main application herein. The applicant seeks to have our court declare that the sections of the Immigration Act, R.S.C. 1985, c. I-2, under which he is to be deported are unenforceable as they are inconsistent with the Canadian Charter of Rights and Freedoms, and to attack the acts of the Minister done under those sections in his case. He has concurrent proceedings presently before the Federal Court of Canada seeking leave to bring a proceeding there to judicially review the same acts of the Minister. On Monday, January 19, 1998, at the opening of the applicant's motion to enjoin his removal from Canada, I heard a motion by the Crown to stay this motion on the ground that the matter was before the Federal Court and that this court should, as a matter of discretion and comity, decline to intervene. For reasons which I endorsed on the record that day, I decided that it was necessary in the interests of justice to intervene to ensure that the applicant would not be deported without having his day in court on the issues raised in the Federal Court and here. I did so with some concern bearing in mind that the Federal Court itself has refused the very injunction now sought before me. However, no appeal could be brought in that court for a procedural reason noted in my endorsement and it seemed to me, as I said:
January 28, 1998
Once removed to Sri Lanka, there seems to be a good possibility that the applicant will not be in a position to benefit from any potential success he may have in the application for leave in the Federal Court. In these very narrow and peculiar circumstances, and in light of the view I hold that to offer the Applicant a forum to review his constitutional rights, and then to deport him before the constitutionality of his deportation is resolved, would be an affront to Canadian ideas of justice...I agreed to hear the motion for the injunction on its merits. That hearing took place on January 23 and I reserved my decision. The heart of the applicant's factual case is that if he is returned to Sri Lanka he will be in grave danger of persecution, torture and death. He asserts no inalienable right to remain in Canada, but only that he ought not to be deported to a country where he will face such consequences. His presence in Canada has been found to be a danger to this country and that finding was reviewed by the Federal Court under the Immigration Act and found to have a reasonable basis. He is, and has been found by the Federal Court to be, a member of LTTE, the Tamil organization which is conducting an insurgency against the mainly Sinhalese government of Sri Lanka. He concedes that he has been active in this country in raising funds for LTTE. There is considerable affidavit evidence suggesting that the applicant will be detained upon arrival in Sri Lanka and that persons with similar anti-government records as his have suffered both official and unofficial reprisals, not stopping short of torture and murder. There are reports of international agencies and national government agencies confirming that such occurrences are dismayingly frequent in Sri Lanka. There is evidence that numbers of prisoners have disappeared from the custody of the government security forces and that recent history shows that the government does not fully control its own forces in the field and in the prisons at the prisoner handling and protection level. There is evidence that the activities of the applicant make him typical of the kind of activists against whom these sorts of reprisals take place. From the January 30, 1997 U.S. Department of State Report on Human Rights Practices, referring to Sri Lanka (Record p. 164):
The Government generally remained committed to the human rights of its citizens. However, the intensification of the war with the LTTE was accompanied by a deterioration in the human rights record of the security forces in some areas. In February the security forces were responsible for the extra-judicial killings of at least 50 Tamils, including the murder of at least 24 civilians... by army troops. At least 300 individuals are believed to have disappeared from security force custody on the Jaffna Peninsula, while 50 more disappeared elsewhere on the island. Torture remained a serious problem, and prison conditions remained poor... Impunity for those responsible for human rights abuses remained a problem.From the British Refugee Council report on Sri Lanka, February 1997 (Record p. 136 at p. 160):
In November 1996, the Supreme Court judge, Mr. P. Ramanathan, stated that, the court has made a number of judicial pronouncements against the use of torture and inhuman treatment by law enforcement officers, but regardless, torture in police stations continue[s] unabated. This was confirmed by a number of people the Refugee Council delegation met in Colombo.The position of the applicant is that he is personally at a special risk because of his known position in the LTTE. This is supported by the reported statements of the Foreign Minister of Sri Lanka (Toronto Globe and Mail, January 17, 1998, Record, p. 204) that the applicant is a "big fish" whose activities are seen as "lethal". While the Foreign Minister also said that the applicant would be safe, there is much evidence to the effect that no guarantee of safety would be effective in the conditions prevailing in Sri Lanka. The Tab 5 deponent appears to have the requisite personal experience to be a knowledgeable witness. It does not appear that the Crown sought to cross-examine him; certainly I was not asked to permit it in the interval between Monday's jurisdictional ruling and Friday's merits hearing. His evidence is that prison murders of Tamils by Sinhalese fellow prisoners can only take place with the connivance of the prison authorities, because the two groups are always kept segregated. Such a prison murder took place as recently as December 1997. He stresses that the political authorities do not exercise effective control of the security forces in the prisons. Because of his activities for the LTTE, he says, the applicant will be reviled by the security forces and he believes the applicant will be tortured. The Tab 3 deponent's evidence as to the risk to the applicant is to the same effect, particularly paras. 4 and 5. He is in a position to know the situation and his evidence is also persuasive. The many exhibits provide a useful background. Another deponent, Mr. Duraisamy, is also a person whose background makes him a knowledgeable witness. He says that it is certain that the applicant, as a "big fish", will be detained upon his return and that his safety in the hands of the security forces cannot be guaranteed by the political authorities. Persons who are known to be members of LTTE are at "grave risk" of torture and death in the custody of the security forces. The evidence of this deponent to the same effect was relied on by the Federal Court of Appeal in Sivakumar v. Canada (Minister of Citizenship & Immigration),  2 F.C. 872, 33 Imm. L.R. 113, in allowing an appeal from the refusal of an interlocutory injunction against the removal of that plaintiff pending a hearing on the merits of his case for a declaration that removal would be a breach of his Charter rights. The Crown complained of some of this evidence, in particular that of the Tab 3 deponent, whose affidavit, it was said, should be regarded as advocacy, but I am satisfied that his qualifications are still sufficient to give his evidence significant weight. As well, much of the importance of the affidavit is in those exhibits which are published documents. It is true that some of the exhibits are clippings from newspapers, as the Crown notes. Mindful of the comments of Campbell J. of this Court in Bembenek v. Canada (Minister of Employment & Immigration) (1991), 69 C.C.C. (3d) 34 at p. 52 (Ont. Gen. Div.), on the restricted use to be made of such sources, I have sought to base my findings upon the affidavits and to view the clippings as providing some support for what has been sworn to. In the circumstances of cases like this, where incidents in a civil war are part of the essential factual matrix, there is sometimes no alternative but to rely on such sources. It is not possible to bring sworn evidence for every incident in a civil war. The Crown, with the resources of the Ministry behind it, did not provide any witness to deny that such outrages as torture and extra-judicial "execution" of imprisoned opponents of the regime occur. Instead, the Crown submitted that the court should find that the applicant will be safe because diplomatic assurances to that effect have been received from officials of the government of Sri Lanka, both in that country and here. But no such diplomatic assurance is before me. There is an affidavit from an Immigration Department lawyer, Toby Hoffman, stating that the deponent has read an e-mail transmission between two other Immigration Department lawyers advising that unnamed officials of Sri Lanka gave unnamed officials of Canada assurances that while the applicant may be detained, he will not be subjected to torture or degrading treatment, and that it is "presumed" that the Sri Lankan government will provide protection. This is a far cry from the sort of evidence that would provide a basis for reliance upon the diplomatic assurances of a foreign government. The assurance itself is not before the court, nor do we even know if it is in writing nor at what level it was given. There is no evidence from the appropriate Canadian authorities stating any confidence in these assurances, and whether we have treaty relations with Sri Lanka that would ensure that there are in place mechanisms for monitoring compliance. The Crown referred me to the decision of the Ontario Court of Appeal in United States of Mexico v. Hurley (1997), 35 O.R. (3d) 481, 116 C.C.C. (3d) 414, in support of the view that the court could rely on the assurances provided. In reviewing that case, it is important to note that it was an extradition case and thus was a situation where there was an applicable treaty between the foreign government and our own. At p. 491, the court expressly referred to the existence of the treaty as an element reassuring the court that Mexico would take the obligations seriously. As well, the report of the case cites extensively from the letter of the Minister recording the steps that he had taken, including asking his colleague, the Minister of Foreign Affairs, to ensure "that Mexico provides, in writing, their agreement to abide by the conditions set out in the surrender warrant, prior to Canada's surrendering Mr. Hurley to Mexico". By contrast, the evidence of assurance in the case at bar is so weak as to be essentially meaningless. On the evidence, I am satisfied that the applicant has raised a strong prima facie case that if he is returned he will likely be the subject of serious reprisals for his anti-government activity. The evidence indicates that there is a serious risk that these reprisals will extend to torture and possible death. The parties are agreed that the test to be met by the applicant on this motion is three-fold:
-to show a serious issue to be tried;
-to show that without the restraining order the applicant will suffer irreparable harm;
-to show that the balance of convenience favours the applicant, essentially by assessing which of the parties would suffer the greater harm from the grant or refusal of the interim remedy.
Serious IssueThe process to be undertaken in a constitutional case to assess whether there is a serious issue to be tried was described by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General)  1 S.C.R. 311, 111 D.L.R. (4th) 385. The court said at p. 337 that the importance of the interests affected required every court faced with an alleged Charter violation to review the matter carefully, even when, as is the case here, other courts have concluded that no Charter breach has occurred. Motions judges would rarely have the time to engage in extensive analysis of the plaintiff's claim. Therefore, the court concluded that the "serious question" formulation was to be used and that the public interest was always an issue in the assessment of the balance of convenience. The threshold is a low one, involving a preliminary assessment of the merits. At p. 337-38 the court said:
Once satisfied that the application is neither vexations nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is neither necessary nor desirable.I have already concluded that factually the applicant's case meets this test and more. The legal issues sought to be raised are based on s. 7 of the Charter guaranteeing everyone the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. This section is engaged when a person is to be removed to a state where these values are threatened: Singh v. Canada (Minister of Employment & Immigration),  1 S.C.R. 177, 58 N.R. 1; Nguyen v. Canada (Minister of Employment & Immigration) (1993), 18 Imm. L.R. (2d) 165 (F.C.A.). in the latter case the court said, in obiter, at pp. 175-76:
It would be my opinion, however, that the Minister would act in direct violation of the Charter, if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me, a participation in a cruel and unusual treatment within the meaning of s. 12 of the Charter, or at the very least an outrage to public standards of decency, in violation of the principles of fundamental justice under s. 7 of the Charter. There are means to enjoin the Minister not to commit an act in violation of the Charter.In the very similar circumstances of Sivakumar, supra, a similar injunction was granted on appeal after being refused in the Trial Division, on the ground that there was a serious issue (p.119):
whether the removal of the appellant to Sri Lanka pursuant to the deportation order would, in the circumstances described above, engage the protections in sections 7 and 12 of the Charter.Canada's international obligations must inform any debate on whether the deportation of the applicant to a country where he may well be illegally tortured and killed conforms to our concepts of fundamental justice, or may be justified under s. 1 of the Charter on the basis of a pressing and substantial objective justifying a restriction on Charter rights: Slaight Communications Inc. v. Davidson,  1 S.C.R. 1038 at p. 1056, 59 D.L.R. (4th) 416. Canada has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which contains as art. 3, the following:
3. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.The applicant also argued that he was to be deported for his membership in a group and for his proselytizing activity on behalf of that group, the LTTE, and that this breached his freedoms of speech and of association. He cited Yamani v. Canada (Solicitor General),  1 F.C. 174, 103 F.T.R. 105, especially at pp. 224-25 F.C., pp. 136-37 F.T.R., where the court was of the view that a provision for deportation of permanent residents for membership in loosely defined kinds of organizations was a Charter breach. The Crown submitted that Mr. Suresh had already been found to be a danger to Canada because of his involvement with LTTE, an organization involved in terrorist activities in Sri Lanka and which itself is alleged to be hostile to human rights in territory which itself is alleged to be hostile to human rights in territory under its control. In my view, these considerations as to the under its control. In my view, these considerations as to the nature of LTTE cannot prevail today, even assuming that they might have some relevance in a proceeding where the ultimate merits are being decided. They may give grounds for a refusal to exercise a discretion at the end of a full argument, but I am to make only a preliminary assessment of the merits. On that basis, I am of the opinion that the Charter considerations noted above are too fundamental to be overridden by such matters. Charter rights are the due, not only of the good, but also of the bad, the unworthy and the undeserving. The Crown submitted that the court should refuse relief to the applicant as he had filed no affidavit in this matter. The facts as to his activities were already canvassed before Teitelbaum J. In the Federal Court on the issue of the reasonableness of the determination that the applicant was a danger to Canada. That being so, the major utility of such an affidavit in the present proceedings would be to say that he feared for his safety if returned to Sri Lanka. The Crown did not cross-examine the deponents who expressed this fear on the applicant's behalf and I can see no ground for holding that his failure to make an affidavit should be fatal to his exercise of a right to challenge the constitutionality of the law under which he is to be deported. As his counsel pointed out, he has not been in Sri Lanka since the early 1990s and others are better witnesses as to what may await him there than he could be. The Crown also submitted that the Convention Relating to the Status of Refugees by art. 33 prohibits the return of a refugee to a territory where his life or freedom would be threatened by reason of, inter alia, his political opinions, but exempts from that protection persons who, like the applicant, have been found to be a danger to the host country. That is so, but there is no equivalent exemption to art. 3 of the Convention against Torture, supra, to which this country is equally bound. What counsel for the Crown described as her main submission was that there was no factual underpinning to the suggestion that the applicant was personally in any danger, because of the assurances of his safety given by the Government of Sri Lanka. For the reasons already noted, I do not accept this submission. She also submitted that it did not raise a serious issue to say that the applicant, an alien with no absolute right to remain in Canada, could not be deported because of a fear of torture in the receiving country. She submitted that the decision of the Supreme Court of Canada in Kindler v. Canada (Minister of Justice),  2 S.C.R. 779, 67 C.C.C. (3d) 1, established that it was not a Charter breach for the Minister to order the extradition of a person to a territory having the death penalty without first obtaining an undertaking that the extraditee would not be sentenced to death. Such an act did not offend Canadian notions of fundamental justice. How, then, could deporting a person, after full due process in Canada, to a country where he is threatened with a risk similar to the death penalty, albeit extra-judicial, offend our ideas of fundamental justice? One response to this submission is that the very issue before the court is whether the applicant can be said to have had full due process when his Charter challenge to the deportation proceedings has not been heard. But more fundamental is the following, taken from the judgment of La Forest J. (L'Heureux-Dubé and Gonthier J. concurring) in Kindler itself, at pp. 831-32 S.C.R., pp. 831-32 S.C.R., pp. 9-10 C.C.C.:
Accordingly, this court has held that extradition must be refused if surrender would place the fugitive in a position that is so unacceptable as to "shock the conscience": see R. v. Schmidt (1987), 33 C.C.C. (3d) 193...
There are, of course, situations where the punishment imposed following surrender - torture, for example - would be so outrageous to the values of the Canadian community that the surrender would be unacceptable.The prospect of torture does not become less outrageous because it will be inflicted illegally. In my view the applicant has shown a serious issue to be tried, both factually and legally, in the proceedings before me.