Date: 20031229
Docket: DES-5-01
Ottawa, Ontario, this 29th day of December, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
HASSAN ALMREI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and SOLICITOR GENERAL FOR CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] The applicant, Mr. Almrei, has made an application for an order pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the "IRPA"), that he should be released from detention. During the continued hearings in respect of this application on November 27 and 28, 2003, the applicant requested the opportunity to make submissions as to the applicability of section 78 of the IRPA to the within application.
Applicant's Submissions
[2] By letter dated December 5, 2003, the applicant submitted that section 84(2) of the IRPA does not incorporate section 78 of the IRPA and as such, the Minister cannot present secret evidence to the Court in the absence of the person concerned. The applicant submits that the fact that section 78 is not explicitly incorporated into section 84(2) is not a Parliamentary oversight, but is a purposeful exclusion. In the applicant's submission, a final security certificate stands as conclusive proof of the person's inadmissibility. Therefore, the existence of a valid security certificate negates the need for secret evidence to be presented. Sections of the IRPA providing for procedures for which there is a valid security certificate do not require incorporation of section 78, since the security certificate is conclusive proof of inadmissibility. The applicant refers to a pattern in the legislation that supports their view that section 78 should not be read into sections for which a security certificate is in existence. Section 83(1) and section 86 both provide procedures for which there is no final security certificate to stand as proof of the person's inadmissibility, and both of these sections specifically incorporate section 78. On the other hand, section 83(2) and section 84(2) provide procedures for which there is a final security certificate in existence, and do not incorporate section 78. Therefore, the applicant submits that, since a final security certificate is in existence in a section 84(2) detention review, no further evidence of inadmissibility is required, and section 78 should not be read in.
[3] The applicant submits that the rules of evidence ought not strictly apply to a detention review, given the nature of the hearing.
[4] Finally, the applicant submits that an unfair process that favours the Minister ought not to be incorporated into section 84(2) where there is no such statutory authorization. The applicant submits that the Minister has already had opportunity to present secret evidence and ought not to have further opportunity to do so. In the applicant's submission, liberty interests guaranteed by section 7 of the Charter ought not to be infringed or restricted without a statutory basis for doing so, and although national security interests are required to be balanced, the conclusive nature of the national security certificate sufficiently protects these interests.
Respondents' Submissions
[5] The respondents provided submissions in reply by their letter of December 10, 2003. The respondents submit that there is no reason to depart from the decisions of Madam Justice Dawson in Mahjoub v. M.C.I., 2003 FC 928 and Mr. Justice McKay in Jaballah, supra, that section 78 of the IRPA applies to section 84(2) detention review hearings.
[6] The respondents submit that the interpretation by the applicant leads to the absurd result that a person who has been detained on a security certificate that has been found reasonable can be released without regard to the reasons for which he or she was detained in the first place even though the second branch of the applicable test requires examination of national security interests.
[7] The respondents submit that the applicant has misconstrued the intent of Parliament and that the security certificate provisions are not intrinsically unfair, having been upheld by the Supreme Court of Canada in Suresh v. Canada, 2002 SCC 1. The respondents submit that Parliament clearly intended that any decision concerning the release of a person who is the subject of a security certificate be made on a complete record, including relevant material taken in camera.
[8] The respondents noted the inconsistency in the applicant's position since, on one hand, the applicant seeks to have the usual rules of evidence relaxed, but on the other hand, seeks to have s.78 found not applicable, where subsection 78(j) provides for the reception of anything that is appropriate, even if not admissible in a court of law.
[9] Finally, the respondent submits that it is in the interests of all Canadians that the Court deciding whether or not to release a person who is the subject of a security certificate should make such a decision on the most complete evidence available.
Applicant's Submissions in Reply
[10] The applicant made submissions in reply by letter of December 11, 2003. He reiterates that the security certificate stands as proof of the person's inadmissibility and the grounds for this inadmissibility. He states that the security certificate process is a significant departure from the norm in Canada for a fair hearing and that balancing of interests at play does not negate the fact that the normative standard is not applied in these kinds of cases. The applicant submits that, contrary to the respondents' submissions, the constitutionality of the security certificate process was not before the Court in Suresh. The applicant reiterates that detention reviews and bail applications normally entail the admission of evidence not in compliance with rules of evidence applied in civil and criminal proceedings, but distinguishes the reading into legislation a process which is not the 'norm' and which does not apply equally to the prosecution and the defence. Finally, the applicant submits that the Minister cannot claim a life, liberty or security of the person interest in the context of balancing the principles of fundamental justice under section 7, as can Mr. Almrei.
Analysis
[11] I have read these submissions carefully and I am not convinced that I should depart from the jurisprudence that has been developed in Mahjoub.
[12] Subsection 84(2) does not contain any provision with respect to the procedure to be followed in the detention review. Subsection 40.1(10) of the former Immigration Act, R.S.C. 1985, c. I-2, provided that on the hearing of such an application, the judge designated to hear the application would examine in camera and in the absence of the person making the application and any counsel representing that person, any evidence or information presented to the Minister in relation to national security or the safety of persons, and then provide the person making the application with a statement summarizing the evidence or information available to the designated judge. The summary was to be prepared having regard to whether the evidence or information should not be disclosed on the grounds that disclosure would be injurious to national security, or to the safety of persons.
[13] Madam Justice Dawson decided in Mahjoub that, notwithstanding the absence of a similar provision in the current Act, the same procedure remains applicable. In her analysis at paragraph 25, she states that the 120-day detention review does not occur in a vacuum:
...any decision about the danger posed to national security or the safety of any person by the release of the subject from detention is not made in a vacuum or in circumstances where the Ministers would be required to re-adduce the information and evidence previously put before the Court when determining the reasonableness of the certificate.
[14] The 'proceedings' that are commenced by the issuance of the security certificate continue, in her view, at least so long as the subject of the certificate remains in detention or is released on bail pending removal. Madam Justice Dawson concludes, and I agree, that since an application for release is part of the continuing proceedings pursuant to which the applicant is detained, subsections 78(e) and (h) of the IRPA remain applicable.
[15] Pursuant to section 81(a), if a certificate is determined to be reasonable under subsection 80(1), it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible. In my view, conclusive proof of inadmissibility is not conclusive proof that the person will pose a danger to national security or to the safety of any person. The second branch of the detention review test set out in 84(2) is not automatically met where there is in existence a valid security certificate. To hold otherwise would render nugatory the second branch of the detention review examination.
[16] In addition, I am of the view that the requirements of subsection 84(2) necessitate incorporation of section 78 procedures. Subsection 84(2) requires that a judge be satisfied that the foreign national, detained on the basis of a security certificate that has been determined to be reasonable, will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person. Consideration of the second branch of the test, that release will not pose a danger to national security or to the safety of any person, requires that the judge assess the basis upon which the applicant is detained. It simply does not follow that the designated judge seized with making this determination could properly make the determination without the benefit of all of the evidence as to the reasons for continued detention. Equally the respondents ought to have the opportunity to update the secret information in the event of a change in circumstances.
[17] I also note that a similar conclusion was reached by Mr. Justice MacKay in Jaballah v. M.C.I. (20 November 2003), DES-04-01.
[18] For the above reasons, I conclude that section 78 of the IRPA applies to detention review hearings pursuant to section 84(2) of the IRPA.
ORDER
THIS COURT ORDERS that:
1. Section 78 of the IRPA applies to detention review hearings pursuant to section 84(2) of the Immigration and Refugee Protection Act.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: DES-5-01
STYLE OF CAUSE: Hassan Almrei v. The Minister of Citizenship and Immigration and Solicitor General for Canada
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 24-28, 2003
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: December 29, 2003
APPEARANCES BY:
Ms Barbara Jackman For the applicant
Donald A. MacIntosh For the respondent MCI
Toby Hoffmann For the respondent Solicitor General of Can.
Mr. Daniel Henry For the Intervener
SOLICITORS OF RECORD:
Barbara Jackman For the applicant
596 St. Clair Avenue West, Unit 3
Toronto, Ontario M6C 1A6
Morris Rosenberg For the respondent MCI
Deputy Attorney General of Canada
Toronto, Ontario
Morris Rosenberg For the respondent Solicitor General of Can.
Deputy Attorney General of Canada
Ottawa, Ontario
FEDERAL COURT
Docket: DES-5-01
BETWEEN:
HASSAM ALMREI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
SOLICITOR GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER