Federal Court Decisions

 

 

Date: 20061218

Docket: DES-4-01

Citation: 2006 FC 1514

Ottawa, Ontario, December 18, 2006

PRESENT:     The Honourable Madam Justice Layden-Stevenson

 

BETWEEN:

MAHMOUD ES-SAYYID JABALLAH

Applicant

and

 

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

and THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondents

 

 

REASONS FOR ORDER AND ORDER

 

[1]        These reasons address Mr. Jaballah’s request for a constitutional exemption from the 120 days prescribed by subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and are further to my reasons dated October 31, 2006, in Jaballah v. Canada (Minister of Public Safety and Emergency Preparedness) 2006 FC 1316.  In that decision I concluded that the Court does not have jurisdiction to continue a section 83 detention review under the IRPA where the review had commenced, but had not been completed, when the certificate determination was made under section 80 of the IRPA.  For the reasons that follow, I conclude that Mr. Jaballah has not demonstrated that a constitutional exemption is appropriate.

 

Background

[2]        Mr. Jaballah, an Egyptian national, came to Canada on May 11, 1996, with his wife, Husnah Mohammad Al-Mashtouli, and their four children.  Ms. Al-Mashtouli and the four children are Convention refugees; Mr. Jaballah is not.  Two children, born after the family’s arrival in Canada, are Canadian citizens.

 

[3]        Mr. Jaballah is the subject of a security certificate issued on August 13, 2001.  He has been in detention since August 14, 2001.  Distilled, the crucial facts, relative to the issue at hand, are listed below.

•           On July 1, 2002, Mr. Jaballah applied to the Minister of Citizenship and Immigration to be a person in need of protection under section 112 of the IRPA;

•           On May 23, 2003, Mr. Justice MacKay found the Ministers’ failure to decide Mr. Jaballah’s application for protection constituted an abuse of process.  The security certificate was determined to be reasonable;

•           On February 27, 2004, Justice MacKay dismissed Mr. Jaballah’s application for release from detention under subsection 84(2) of the IRPA;

•           On July 23, 2004, the Federal Court of Appeal affirmed Justice MacKay’s May 23, 2003 determination with respect to abuse of process but set aside, on jurisdictional grounds, the determination that the security certificate was reasonable;

•           Reconsideration of the reasonableness of the certificate was begun and while it was underway, Mr. Jaballah applied for release from detention as a constitutional remedy in view of the duration of his detention;

•           On February 1, 2006, Justice MacKay recognized the unique and special circumstances of Mr. Jaballah’s case and granted him a constitutional remedy under subsections 15(1) and 24(1) of the Charter to apply for release from detention.  The application for release was dismissed;

•           Between February 1, 2006 and June 23, 2006, Mr. Jaballah initiated a variety of motions in the Federal Court and the Federal Court of Appeal, the details of which need not be recited here;

•           On August 23, 2006, Justice MacKay dismissed a number of motions by Mr. Jaballah, including a motion to postpone hearings with respect to the security certificate.  Those hearings were held in mid-September, 2006;

•           On September 18, 2006, I began a hearing in relation to Mr. Jaballah’s application for release from detention under section 83 of the IRPA.  The public hearing commenced on October 6^th;

•           On October 16^th, Justice MacKay determined that the Ministers’ security certificate is reasonable;

•           After hearing the submissions of counsel on October 20^th, by Order dated October 31, 2006, I determined as follows:

(1)        This court lacks jurisdiction to apply the criteria contained in subsection 83(3) of the IRPA after a determination with respect to the security certificate is rendered;

(2)        The court’s jurisdiction to proceed directly to a detention review under subsection 84(2) exists only if a constitutional exemption from the operation of the prescribed 120 days (from the date of the certificate determination) is granted;

(3)        Unless the parties request otherwise, in which case a teleconference with counsel and the court will be convened, Mr. Jaballah shall serve and file written submissions in relation to the issue of whether a constitutional exemption from the prescribed 120 days in subsection 84(2) ought to be granted not later than November 8, 2006.  The Ministers shall serve and file responsive submissions not later than November 14, 2006 and Mr. Jaballah shall serve and file reply submissions not later than November 17, 2006.

 

•           On November 8^th, Mr. Jaballah’s counsel requested that “a teleconference be arranged between the parties and the court about addressing the issue relating to ‘removal within a reasonable time’ in the submissions to be filed with the Court”.  The teleconference occurred on November 10^th and, on the request of counsel, the schedule for written submissions was varied as follows:

(a)               Mr. Jaballah’s submissions are to be served and filed not later than Tuesday, November 14, 2006;

(b)              The Ministers’ response is to be served and filed not later than Monday, November 20, 2006;

(c)               Mr. Jaballah’s reply to the Ministers’ response is to be served and filed not later than Friday, November 24, 2006.

 

In all other respects, the provisions of my order dated October 31, 2006, remain unchanged.

 

•           The last of the submissions was filed on November 27^th.

 

Issue

[4]        The sole issue for determination, as framed by Mr. Jaballah, is: “whether Mr. Jaballah ought to be granted a constitutional exemption from the 120-day waiting period stipulated in subsection 84(2) of the IRPA so that the detention review commenced under section 83 may now be continued under subsection 84(2)”.

 

Statutory Provisions

[5]        The applicable statutory provisions are attached to these reasons as Schedule “A”.  For ease of reference, subsection 84(2) of the IRPA is reproduced here.

 

[6]        Subsections 241(1) and (2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) are also relevant.  Those provisions state:

 

[7]        In support of his claim for relief, Mr. Jaballah relies upon sections 7, 9, and subsection 24(1) of the Charter, that is: 

 

 

The Parameters

[8]        Before turning to the submissions, it is helpful to articulate the parameters in which the submissions are made:

•           the purpose of subsection 84(2) is to ensure that due diligence will be exercised by the authorities in removing a foreign national who has been detained for security reasons: Almrei v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 142 (C.A.) (Almrei);

•           normally, the 120 days prescribed by subsection 84(2) operates as a safeguard against arbitrary detention;

•           the 120-day period [in subsection 84(2)] is measured from the date the Ministers’ certificate is found to be reasonable so that time spent in detention before that period is not ordinarily a factor, and the 120 days, after the certificate is upheld, is not a factor in assessing whether release in the future will not be in a reasonable time.  The 120-day delay is not a measure in itself of a reasonable time, except as a necessary condition of an application under subsection 84(2).  However, the history of events may cast doubt on the reliability of any assertion (and evidence submitted) that the moment of removal is close or that removal is a ‘done deal’: Almrei; Jaballah v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 68 (F.C.);

•           Mr. Jaballah does not challenge the constitutionality of subsection 84(2).  He seeks to be exempted from the operation of a portion of it;

•           Mr. Jaballah is detained so there is no debate that section 7 of the Charter is engaged.  That is not to say, however, that section 7 is infringed;

•           Mr. Jaballah’s previous application for release was dismissed on February 1, 2006.

•           Mr. Jaballah is detained because two Ministers of the Crown are of the opinion that there are reasonable grounds to believe that he has engaged in terrorism.  That opinion has been determined, by the court, to be reasonable;

•           Justice MacKay, in referring to his determination that the Ministers’ certified opinion is reasonable, stated that “[b]y inference that opinion signifies that his continuing presence in Canada, without restraint, would constitute a danger to the security of the country”;

•           Mr. Jaballah concedes, for present purposes, that he is a “danger to national security” as the term is defined and interpreted for purposes of the IRPA (the Ministers do not allege that he is a danger to the safety of any person).  Nonetheless, he submits that the “danger” can be neutralized by release with the imposition of onerous conditions;

•           Justice MacKay’s order of October 16, 2006 (determining the Ministers’ security certificate to be reasonable) prohibits the Minister from removing Mr. Jaballah “to any country where and when there is a substantial risk that he would face torture, death or cruel and unusual treatment”.  Justice MacKay’s reasons specifically refer to Egypt (in the context of the discussion regarding deportation to a country where there is a substantial risk of torture or violation of rights as a human being);

•           Justice Mackay’s reasons also state that the prohibition does not mean that Mr. Jaballah may not be deported.  Rather, he determined at paragraph 84:

The Minister of Citizenship and Immigration has a responsibility to deport him, as soon as may be reasonably done if he does not leave Canada voluntarily (s.s. 48(2) of the IRPA)…Under the Act now he may discharge his responsibility by deporting Mr. Jaballah to a country where he does not face the prospect of torture.  If that proves impossible in a reasonable time, then if conditions should change, so that substantial risk of torture if he is returned to his own country can be adjudged to have been essentially eliminated, he may then be deported to his own country or another which is now perceived to present to him a substantial risk of torture, or worse.

 

•           Mr. Jaballah contends that Egypt is the only country to which the Minister has publicly considered removing Mr. Jaballah.  The Minister does not say otherwise;

With this understanding of the context and parameters in which the arguments are made, I turn to the submissions.

 

The Positions of the Parties

Mr. Jaballah

[9]        Mr. Jaballah contends that it is because of the unique and unusual circumstances of his case that it infringes the Charter to defer judicial consideration of the grounds for continuing detention for an additional 120 days.  It is the unconstitutional effect of the 120 days, on him, that prompts him to request the individual remedy of an exemption, under subsection 24(1) of the Charter, from the prescribed time.

 

[10]      In relation to specific circumstances, Mr. Jaballah reiterates that he has been detained for more than five years.  The security certificate process is intended to be expeditious.  Thus, it appears that his detention has lasted far longer than Parliament intended or expected.  The detention has had a serious and profound physical and psychological impact on him.

 

[11]      Mr. Jaballah asserts that Justice MacKay’s determinations of October 16, 2006, place significant limitations on the Minister’s power to remove him.  There is ample basis for the court to conclude that he is not likely to be removed within a reasonable time.  Consequently, granting a constitutional exemption would promote the principal objective of subsection 84(2), i.e. to provide for judicial review of the reasons for continued detention where removal is unlikely to occur within a reasonable time.

 

[12]      Further, Mr. Jaballah maintains that the granting of a constitutional exemption avoids the unfairness of interrupting the release proceeding in progress and delaying adjudication on whether detention continues to be justified.  According to Mr. Jaballah, the Ministers, in submitting that the section 83 detention review could continue after the certificate determination, impliedly accepted that judicial review of the reasons for detention should be available now.

 

The Ministers

[13]      The Ministers note that Mr. Jaballah bears the onus of demonstrating why he should be treated differently from every other person subject to the 120-day period in subsection 84(2) of the IRPA.  The Ministers claim that the request for a constitutional exemption is based on Mr. Jaballah’s speculation (albeit based on a reasonably held view of the facts) that the 120-day period will serve no purpose in this case.  It is not open to the court to grant an exceptional constitutional remedy based on speculation.

 

[14]      Moreover, in the Ministers’ view, the granting of a constitutional exemption would violate the law that Parliament enacted and would be contrary to the purpose of the provision in question.  It is absurd to suggest that the Ministers should be held to account for delay in effecting removal when the authority to remove has only been in effect since the certificate was determined to be reasonable.  Unfortunately, many certificate cases have been characterized by protracted litigation and delays.  This fact should not enable every person, subject to a security certificate, to argue that he or she should not have to wait 120 days for a detention review under subsection 84(2).  To say otherwise would yield uncertainty and further litigation regarding requests for exemptions in future cases.

 

[15]      The Ministers rely on the jurisprudence of this court and the Federal Court of Appeal upholding the constitutionality of the security certificate provisions and maintain that Mr. Jaballah’s detention is not arbitrary.  Mr. Jaballah’s arguments constitute a request for statutory time limits to be abridged or dispensed with in sympathetic circumstances where there exists speculation that the result will be the same, with or without the time limit.

 

[16]      In sum, the Ministers argue that Mr. Jaballah’s speculative contention assumes that the 120-day period can be dispensed with because the prospect of removal is particularly remote when regard is had to Justice MacKay’s ruling that he cannot be removed to a risk of torture.  Mr. Jaballah’s argument “proceeds backwards from speculation as to what the situation will be in 120 days, in order to justify a remedy that is requested today”.  His submission does not demonstrate why he should be treated differently from every other person subject to the 120-day period in subsection 84(2).  He is a suspected terrorist, detained while awaiting removal, and should be treated as such.  He has not met the onus of establishing that he should be treated differently and his request must be denied.

 

Analysis

[17]      Mr. Jaballah is a foreign national who is inadmissible to Canada on security grounds for engaging in terrorism and being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism (paragraphs 34(1)(c) and 34(1)(f) of the IRPA): Re. Jaballah 2006 FC 1230 (Jaballah Certificate Determination).  Justice MacKay, in his capacity as a designated judge, concluded that there is a reasonable basis for the opinion of the Ministers:

that Mr. Jaballah was engaged in terrorist activities in Egypt in the 1980’s, and after he left there in 1991 in international terrorist activities of the AJ and Al Qaida, particularly as a communicator between terrorist cells after he came to Canada; and further

 

that Mr. Jaballah, by inference from the standing within AJ and other terrorist networks of the persons with whom he had contact after his arrival in Canada, was a member, with senior standing as a communicator among terrorist cells and persons of the AJ and of the Al Qaida network.

 

[18]      In accordance with paragraph 81(b) of the IRPA, Justice MacKay’s determination constitutes a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing.  The removal order, under paragraph 49(1)(a) of the IRPA became effective on October 16, 2006.

 

[19]      The judicial determination of the reasonableness of the Ministers’ certificate triggers (upon the expiration of 120 days and the application of Mr. Jaballah), as of right, a judicial review of his detention (subsection 84(2) of the IRPA).

 

[20]      At this point, it is beneficial to reiterate, with precision, the relief requested by Mr. Jaballah.  To assist in this regard, I turn, again to the Federal Court of Appeal’s decision in Almrei, where the court determined at paragraph 41, that a person who applies for judicial release under subsection 84(2) must establish four things:

(a)                that he or she has not been removed from Canada;

(b)               that at least 120 days have elapsed since the Federal Court determined the security certificate to be reasonable;

 

(c)                that he or she will not be removed from Canada within a reasonable time; and 

 

(d)               that the release would not pose a danger to national security or to the safety of any person.

 

[21]      Mr. Jaballah seeks to be exempted from condition (b).  That is, he seeks an exemption from the 120-day statutory requirement.  He argues that requiring him to wait for the expiration of the 120 days has the effect of infringing his constitutional rights under sections 7 and 9 of the Charter.

 

[22]      Section 7 of the Charter protects the right to life, liberty and security of the person and the right not to be deprived of those rights except in accordance with the principles of fundamental justice.  The issue, in Mr. Jaballah’s view, is not whether he should be detained, but whether, in the unusual circumstances of his case, the deferral of judicial consideration of the grounds for continuing detention for 120 days after the certificate determination, has the effect of infringing his Charter right to liberty and security of the person. 

 

[23]      Two principal arguments are advanced in support of the requested relief.  First, Mr. Jaballah submits that the duration of his detention, coupled with Justice MacKay’s prohibition against removal to torture frustrates the purpose of subsection 84(2) because he will not be removed within 120 days.  Therefore, requiring him to wait 120 days for a review of detention has the unconstitutional effect of breaching his right to liberty and security of the person.  Second, he contends that the 120 days prescribed by subsection 84(2) is unnecessarily broad and arbitrary.  Therefore, it is not in accordance with the principles of fundamental justice.

 

[24]      I will address each of Mr. Jaballah’s arguments in turn.  Before doing so, I refer to my reasons of October 31^st in this matter, specifically at paragraph 31, where I stated that “the pivot around which the release provisions turn is the certificate determination”.  There are significant distinctions between the pre-certificate release and the post-certificate release provisions.  Those distinctions have been canvassed in my earlier reasons and I need not repeat them here.  Suffice it to say that the focus, purpose and test to be applied in relation to the respective provisions are discrete.

 

[25]      In Almrei, the Federal Court of Appeal advocated an expansive and purposive interpretation of subsection 84(2) in furtherance of the objective of ensuring judicial examination of detention and judicial protection against indeterminate or indefinite detention (paragraphs 36 and 52).  I agree with Mr. Jaballah that Parliament intended the security certificate scheme to be expeditious and that the duration of his detention may be indicative that Parliament did not contemplate circumstances such as his.  I also agree that Mr. Jaballah’s history does little to instil confidence that Parliament’s intent for an informal and expeditious process has been achieved.  Mr. Jaballah’s case has been convoluted and protracted.  There are a multitude of reasons why this is so and much time has been required “in essence to ensure fairness in proceedings, mainly initiated by Mr. Jaballah, as is his right”: Jaballah (Re), [2006] 4 F.C.R. 193 (F.C.) at paragraph 71.  

 

[26]      Notwithstanding the duration of his detention thus far, for a variety of reasons, I have difficulty with Mr. Jaballah’s contention that the purpose of the 120 days is frustrated and that his detention has become indeterminate or indefinite.

 

[27]      The first reason is the nature of the review.  The subsection 84(2) review is future oriented in the sense that the concept of “removal within a reasonable time” requires a measurement of the time elapsed from the moment the certificate was found to be reasonable and an assessment of whether that time is such that it leads to a conclusion that removal will not occur within a reasonable time.  Concerns about a possible violation of the “reasonable time” requirement emerge after the 120 days mentioned in subsection 84(2) have elapsed and removal has not occurred: Almrei at paragraph 55. 

 

[28]      Second, where there exists a statutory review of detention, as of right, it cannot be said that the detention is of indeterminate future duration. 

 

[29]      Third, Justice MacKay did not prohibit the Minister from deporting Mr. Jaballah.  Justice MacKay prohibited deportation to any country “where and when there is a substantial risk that he would face torture, death, or cruel and unusual treatment”.  A reiteration of paragraph 84 of Justice MacKay’s reasons in Jaballah Certificate Determination is warranted:

The Minister of Citizenship and Immigration has a responsibility to deport him, as soon as may be reasonably done if he does not leave Canada voluntarily (s.s. 48(2) of the IRPA)…Under the Act now he may discharge his responsibility by deporting Mr. Jaballah to a country where he does not face the prospect of torture.  If that proves impossible in a reasonable time, then if conditions should change, so that substantial risk of torture if he is returned to his own country can be adjudged to have been essentially eliminated, he may then be deported to his own country or another which is now perceived to present to him a substantial risk of torture, or worse.

 

Subsection 241(2) of the Regulations, reproduced at paragraph 6 of these reasons, empowers the Minister to select any country (for removal) that will authorize the foreign national’s entry.

 

[30]      Fourth, I appreciate Mr. Jaballah’s frustration with the Minister’s silence as to exploration or intention of removal to a third country.  The enlightenment of some disclosure in this respect may well have saved both Mr. Jaballah and the court a considerable amount of time and effort.  Notwithstanding, there is no obligation for the Minister to disclose his intentions regarding Mr. Jaballah’s removal until such time as the Minister removes him or is required to respond to Mr. Jaballah’s evidence in the course of a subsection 84(2) inquiry.  Absent a constitutional exemption from the prescribed 120-day period in subsection 84(2), there is nothing to prohibit the Minister from remaining mute regarding his intentions or efforts.  Arguably, in the face of Justice MacKay’s prohibition against return to torture, the Minister may well require the prescribed time to investigate, ascertain and assess the feasibility of removal to a third country.  In such circumstances, it is not possible to infer anything from the Minister’s silence.

 

[31]      For the foregoing reasons, I disagree with Mr. Jaballah’s submissions that, at this point, the purpose of the 120-day waiting period in subsection 84(2) is frustrated and serves no useful purpose.  His allegation of indefinite or indeterminate detention is premature.  I do not mean to imply that these factors are irrelevant.  Indeed, they are highly relevant to the subsection 84(2) review.  Where the removal of a foreign national is delayed so as to bring into play the “reasonable time” requirement, the judge must consider the delay and the causes of such delay, including the delay generated by the parties as well as the institutional delay which is inherent in the exercise of a remedy: Almrei at paragraph 80.

 

[32]      I turn now to the submission that subsection 84(2) is unnecessarily broad.  Mr. Jaballah refers to R. v. Heyword, [1994] 3 S.C.R. 761 and asserts that the court must ask whether “those means are necessary to achieve the state objective”.  His position is that in circumstances where the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual’s rights will have been limited for no reason.

 

[33]      My first observation is to reiterate what I have just stated as Mr. Jaballah’s submissions in support of this argument essentially repeat what he has stated with respect to his first argument.

 

[34]      However, there is an additional fundamental frailty in relation to Mr. Jaballah’s submission.  Under subsection 24(1) of the Charter, he seeks a constitutional exemption from the prescribed 120-day time period in subsection 84(2).  He accepts the constitutionality of the provision.  He refers to two types of constitutional exemptions.

 

[35]      The first is used to protect the interests of a party who has succeeded in having a legislative provision declared unconstitutional where the declaration of invalidity has been suspended: Corbière v. Canada, [1999] 2 S.C.R. 203 at paragraph 22 (Corbière); Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at paragraphs 51-57 per Lamer, C.J. (in dissent and concurred in by Cory J.) (Rodriguez).

 

[36]      The second type of constitutional exemption may be granted from otherwise valid legislation to particular individuals because, while the legislation is generally valid, it has an unconstitutional effect and a remedy as suggested in R. v. Seaboyer, [1991] 2 S.C.R. 577 at paragraphs 82-87 (Seaboyer).  Mr. Jaballah seeks the second type of exemption.

 

[37]      In Seaboyer, the Supreme Court left open the possibility of the constitutional exemption as a solution in an appropriate case.  While the requested remedy in the present circumstances is exceptional, it is not, as the Ministers suggest, absurd.

 

[38]      It seems to me that Mr. Jaballah’s “overbreadth” argument is internally inconsistent with his position that subsection 84(2) is constitutional.  To advance that subsection 84(2) is overly broad is to attack the provision’s constitutionality.  It is, in substance, an argument premised on subsection 52(1) of the Constitution Act.  As Mr. Jaballah notes, at paragraph 14 of his reply submission, individual remedies under subsection 24(1) of the Charter are rarely available in conjunction with an attack under subsection 52(1).

 

[39]      With respect to the Seaboyer type of constitutional exemption, as I have noted, Mr. Jaballah’s supporting arguments (the purpose of the provision is frustrated and the detention is indeterminate or indefinite) have been rejected and therefore do not establish that the provision has the effect of infringing his constitutional rights.

 

[40]      However, even assuming that subsection 84(2) impinges on Mr. Jaballah’s right to liberty and security of the person, the question that remains to be answered is whether the resulting deprivation is contrary to the principles of fundamental justice.  That is, does the impugned provision deprive Mr. Jaballah of the right to a review of his detention in a manner that is not in accordance with the principles of fundamental justice guaranteed by section 7.  I will return to this aspect of the inquiry later in these reasons.

 

[41]      The submissions regarding section 9 are skeletal and are intertwined with the submissions in relation to section 7.  In my view, the section 9 argument is without merit.  There is a plethora of jurisprudence from this court and the Federal Court of Appeal  beginning with the decision of Madam Justice McGillis in Ahani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 669, aff’d (1996), 201 N.R. 233 (F.C.A.) leave to appeal dismissed, [1997] 2 S.C.R. v. (Ahani)  holding that the detention provisions applicable to security certificates are not arbitrary.

 

[42]      The detention of individuals under security certificates is expressly authorized by law and occurs only following a separate decision by two Ministers that a person, who is neither a Canadian citizen nor a permanent resident, has a terrorist background or propensities: Ahani (F.C.T.D.).  The scheme provides for judicial scrutiny of the reasonableness of those opinions; the provisions are preventive, not arbitrary: Ahani (F.C.A.).  Those comments have been determined to be apposite under the current legislation: Charkaoui (Re), [2005] 2 F.C.R. 299 (C.A.) (Charkaoui).

 

[43]      Additionally, Mr. Jaballah has already had the benefit of a detention review.  The opinions of the Ministers have been determined to be reasonable.  These factors, among others, distinguish his circumstances from those in R. v. Swain, [1991] 1 S.C.R. 933.  Mr. Jaballah’s detention is lawful and statutorily mandated.  The 120-day requirement in subsection 84(2) is not arbitrary unless it serves no purpose.  The provision’s purpose has been discussed in my analysis in relation to section 7.  Mr. Jaballah has not established that its application is arbitrary.  It follows that the prescribed period of 120 days cannot have the effect of infringing Mr. Jaballah’s constitutional rights under section 9 of the Charter. 

 

[44]      I return now to the issue regarding the principles of fundamental justice.  No argument, beyond those that I have addressed, has been advanced with respect to this aspect of the inquiry.

 

[45]      The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society.  Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally: Rodriguez at paragraph 146.

 

[46]      The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at 733 (Chiarelli).  This principle was recently reaffirmed in Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539 (Medovarski).  At paragraph 10 of Medovarski, the Chief Justice of Canada stated that the objectives expressed in the IRPA indicate an intent to prioritize security and communicate a strong desire to treat criminals and security threats less leniently.  Paragraph 3(1)(h) of the IRPA includes the objective “to maintain the security of Canadian society”.  The corresponding French version states “de garantir leur sécurité”.

 

[47]      In Charkaoui, Chief Justice Richard commented on Canada’s legitimate and compelling interest in protecting national security.  He described the challenge confronting the government as “how best to achieve an equilibrium between the dictates of national security and civil rights”.  The task of the law is “to find ways to maintain national security without unduly sacrificing individual liberties”.  Parliament has met this challenge by including “provisions in the Act which require judicial consideration of the reasonableness of the security certificate issued by the Ministers”.

 

[48]      The jurisprudence of this court and that of the Federal Court of Appeal holds that the security certificate and detention provisions of the IRPA are constitutional and comply with the principles of fundamental justice.  The Supreme Court of Canada has had the issue of the constitutionality of these provisions under reserve since June of 2006.  Unless and until the Supreme Court determines otherwise, the provisions are constitutional.

 

[49]      As for Mr. Jaballah’s unique circumstances, he has had the benefit of a judicial review of his detention and his application was dismissed earlier this year.  The Ministers’ security certificate in relation to him has been determined to be reasonable.  Therefore, he falls within the parameters of subsection 84(2) of the IRPA.  I have addressed each of Mr. Jaballah’s submissions regarding an abridgement of the 120-day time period in subsection 84(2).  As previously stated, he did not offer arguments, beyond those that have been addressed, specific to the issue of the principles of fundamental justice.  It is not for me to speculate as to what those arguments might be.

 

[50]      On the basis of the submissions before me and for the reasons I have given, Mr. Jaballah’s request, under subsection 24(1) of the Charter, for a constitutional exemption from the 120-day waiting period stipulated in the IRPA must be dismissed.

 

[51]      I again refer to Justice MacKay’s determination that the Minister has an obligation to remove Mr. Jaballah, as soon as may be reasonably done, to a country where he does not face the prospect of torture.  If, within 120 days from October 16, 2006 (half of which has now expired), Mr. Jaballah has not been removed, the IRPA assures that he may have his detention reviewed.

 

[52]      In Harkat v. Canada (Minister of Citizenship and Immigration) (2006), 351 N.R. 155 (F.C.A.), Mr. Justice Décary, at paragraph 20 (citations omitted) stated:

…[T]he objective behind subsection 84(2) of the Act is "to ensure judicial examination of detention and judicial protection against indeterminate or indefinite detention". The possible release, albeit under very onerous terms and conditions and for a temporary period, of a foreign national who is being detained without criminal conviction on the basis of a security certificate found by a judge to be reasonable, is an important part of the legislative scheme put in place to deal with terrorism in a non-criminal context. It is the remedy chosen by Parliament to prevent indeterminate or indefinite detention, a concept which is simply not in harmony with our democratic values even when applied to persons who have been found on reasonable grounds to have engaged in terrorist activities.

 

 

 

[53]      Mr. Jaballah, if he is not removed within 120 days, may request that the evidence from the public hearings commenced October 6^th be read in on the subsection 84(2) review.  Should a subsection 84(2) review be required, to ensure that the matter is prioritized, I shall refer the file to the office of the Chief Justice forthwith.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ORDER

 

            THIS COURT ORDERS THAT the application for a constitutional exemption from the 120-day waiting period stipulated in subsection 84(2) of the IRPA is dismissed.

 

 

 

“Carolyn Layden-Stevenson”

SCHEDULE “A”

to the

Reasons for order dated December 18, 2006

in

MAHMOUD ES-SAYYID JABALLAH

and

 

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

and THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

DES-4-01

 

Immigration and Refugee Protection Act, S.C. 2001, c. 27   76. The definitions in this section apply in this Division. “information” means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.   “judge” means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.     77. (1) The Minister and the Minister of Public Safety and Emergency Preparedness shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court, which shall make a determination under section 80.   (2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.   78. The following provisions govern the determination: (a) the judge shall hear the matter; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; (e) on each request of the Minister or the Minister of Public Safety and Emergency Preparedness made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (f) the information or evidence described in paragraph ( e) shall be returned to the Minister and the Minister of Public Safety and Emergency Preparedness and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed; (i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.     79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).   (2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Courts Act.     80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.   (2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.   (3) The determination of the judge is final and may not be appealed or judicially reviewed.     81. If a certificate is determined to be reasonable under subsection 80(1), (a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible; (b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and (c) the person named in it may not apply for protection under subsection 112(1).     82. (1) The Minister and the Minister of Public Safety and Emergency Preparedness may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.   (2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.     83. (1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require.         (2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.   (3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal     84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.   (2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.   85. In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency.

Loi sur l’immigration et la protection des réfugiés, L.C. 2001, ch. 27   76. Les définitions qui suivent s’appliquent à la présente section. « juge » Le juge en chef de la Cour fédérale ou le juge de cette juridiction désigné par celui-ci.   « renseignements » Les renseignements en matière de sécurité ou de criminalité et ceux obtenus, sous le sceau du secret, de source canadienne ou du gouvernement d’un État étranger, d’une organisation internationale mise sur pied par des États ou de l’un de leurs organismes.     77. (1) Le ministre et le ministre de la Sécurité publique et de la Protection civile déposent à la Cour fédérale le certificat attestant qu’un résident permanent ou qu’un étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée pour qu’il en soit disposé au titre de l’article 80.   (2) Il ne peut être procédé à aucune instance visant le résident permanent ou l’étranger au titre de la présente loi tant qu’il n’a pas été statué sur le certificat; n’est pas visée la demande de protection prévue au paragraphe 112(1).   78. Les règles suivantes s’appliquent à l’affaire :   a) le juge entend l’affaire;   b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;   c) il 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;   d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve;   e) à chaque demande d’un ministre, il examine, en l’absence du résident permanent ou de l’étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;   f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l’affaire soit si le juge décide qu’ils ne sont pas pertinents ou, l’étant, devraient faire partie du résumé, soit en cas de retrait de la demande;   g) si le juge décide qu’ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d’autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l’affaire;     h) le juge fournit au résident permanent ou à l’étranger, afin de lui permettre d’être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;   i) il donne au résident permanent ou à l’étranger la possibilité d’être entendu sur l’interdiction de territoire le visant;   j) il peut recevoir et admettre en preuve tout élément qu’il estime utile — même inadmissible en justice — et peut fonder sa décision sur celui-ci.       79. (1) Le juge suspend l’affaire, à la demande du résident permanent, de l’étranger ou du ministre, pour permettre à ce dernier de disposer d’une demande de protection visée au paragraphe 112(1).   (2) Le ministre notifie sa décision sur la demande de protection au résident permanent ou à l’étranger et au juge, lequel reprend l’affaire et contrôle la légalité de la décision, compte tenu des motifs visés au paragraphe 18.1(4) de la Loi sur les Cours fédérales.     80. (1) Le juge décide du caractère raisonnable du certificat et, le cas échéant, de la légalité de la décision du ministre, compte tenu des renseignements et autres éléments de preuve dont il dispose.   (2) Il annule le certificat dont il ne peut conclure qu’il est raisonnable; si l’annulation ne vise que la décision du ministre il suspend l’affaire pour permettre au ministre de statuer sur celle-ci.                     (3) La décision du juge est définitive et n’est pas susceptible d’appel ou de contrôle judiciaire.     81. Le certificat jugé raisonnable fait foi de l’interdiction de territoire et constitue une mesure de renvoi en vigueur et sans appel, sans qu’il soit nécessaire de procéder au contrôle ou à l’enquête; la personne visée ne peut dès lors demander la protection au titre du paragraphe 112(1).       82. (1) Le ministre et le ministre de la Sécurité publique et de la Protection civile peuvent lancer un mandat pour l’arrestation et la mise en détention du résident permanent visé au certificat dont ils ont des motifs raisonnables de croire qu’il constitue un danger pour la sécurité nationale ou la sécurité d’autrui ou qu’il se soustraira vraisemblablement à la procédure ou au renvoi.   (2) L’étranger nommé au certificat est mis en détention sans nécessité de mandat.             83. (1) Dans les quarante-huit heures suivant le début de la détention du résident permanent, le juge entreprend le contrôle des motifs justifiant le maintien en détention, l’article 78 S’appliquant, avec les adaptations nécessaires, au contrôle.             (2) Tant qu’il n’est pas statué sur le certificat, l’intéressé comparaît au moins une fois dans les six mois suivant chaque contrôle, ou sur autorisation du juge.   (3) L’intéressé est maintenu en détention sur preuve qu’il constitue toujours un danger pour la sécurité nationale ou la sécurité d’autrui ou qu’il se soustraira vraisemblablement à la procédure ou au renvoi.     84. (1) Le ministre peut, sur demande, mettre le résident permanent ou l’étranger en liberté s’il veut quitter le Canada.   (2) Sur demande de l’étranger dont la mesure de renvoi n’a pas été exécutée dans les cent vingt jours suivant la décision sur le certificat, le juge peut, aux conditions qu’il estime indiquées, le mettre en liberté sur preuve que la mesure ne sera pas exécutée dans un délai raisonnable et que la mise en liberté ne constituera pas un danger pour la sécurité nationale ou la sécurité d’autrui.     85. Les articles 82 à 84 l’emportent sur les dispositions incompatibles de la section 6.

 

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          DES-4-01

 

STYLE OF CAUSE:                          MAHMOUD ES-SAYYID JABALLAH

                                                            v.

                                                            THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

                                                            and THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

 

PLACE OF HEARING:                    Toronto, Ontario

                                                            Ottawa, Ontario

 

DATES OF HEARING:                    September 18, 19 and 28, 2006

                                                            October 2, 3, 4, 5, 6,

                                                            October 10, 11, 12, 13,

                                                            October 17, 18, 19, 20, 23 and 26, 2006

                                                            Written Submissions: November 14, 20 and 27, 2006

 

REASONS FOR ORDER:               LAYDEN-STEVENSON J.

 

DATED:                                             December 18, 2006

 

 

APPEARANCES:   Ms. Barbara Jackman Mr. Paul Copeland Mr. John Norris   Mr.  Donald MacIntosh Mr. David Tyndale Ms. Mielka Visnic Mr. Michael William Dale Mr. Marcel Larouche

FOR THE APPLICANT           FOR THE RESPONDENTS

 

 

 

SOLICITORS OF RECORD:

 

Jackman & Associates Toronto, Ontario   Ruby, Edwardh Toronto, Ontario   Copeland, Duncan Toronto, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENTS