Zündel, Re, (2005) 259 F.T.R. 36 (FC)

• Judge: Blais, J.
• Court: Federal Court (Canada)
• Case Date: February 24, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 259 F.T.R. 36 (FC);2005 FC 295

Zündel, Re (2005), 259 F.T.R. 36 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] F.T.R. TBEd. MR.001

In The Matter Of a certificate signed pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act");

And In The Matter Of the Referral of that certificate to the Federal Court pursuant to subsection 77(1), sections 78 and 80 of the Act;

And In The Matter Of Ernst Zündel

(DES-2-03; 2005 FC 295)

Indexed As: Zündel, Re

Federal Court

Blais, J.

February 24, 2005.

Summary:

On May 1, 2003, the Minister of Citizenship and Immigration and the Solicitor General of Canada signed a certificate stating that Zündel, a permanent resident of Canada, was inadmissible on grounds of national security. The matter was referred to a designated judge to determine if the certificate was reasonable pursuant to ss. 77(1), 78 and 80 of the Immigration and Refugee Protection Act (IRPA). At issue also was the validity of a pre-removal risk assessment respecting Zündel.

The Federal Court determined that the security certificate was reasonable and that a pre-removal risk assessment was lawfully made.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - The Federal Court discussed that standard of proof required when a certificate is referred for a determination of reasonableness - See paragraphs 15 to 22.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - On May 1, 2003, the Minister of Citizenship and Immigration and the Solicitor General of Canada signed a certificate stating that Zündel was inadmissible on grounds of national security - The security certificate was referred to a designated judge for a reasonableness hearing - The Ministers claimed that Zündel's status as leader and ideologue within the White Supremacist Movement and through his web site, etc. influenced others to actuate his ideology - The Ministers believed that Zündel's views could incite hatred and potential political violence in relation to the White Supremacist Movement - Zündel claimed that he was merely a 65 year old man, who had lived peacefully in Canada for many years and was not involved in criminal activities - The Federal Court held that there were reasonable grounds to believe that Zündel was inadmissible on security grounds for being a danger to the security of Canada - The court stated that it had no doubt regarding the fairness and legality of the process and no doubt that the evidence in support of the certificate conclusively established that Zündel represented a danger for the security of Canada and that the certificate signed by the Ministers was reasonable - See paragraphs 1 to 116.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection - [See Aliens - Topic 1783 ].

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) (IRPA, s. 115) - On May 1, 2003, the Minister of Citizenship and Immigration and the Solicitor General of Canada signed a certificate stating that Zündel, a permanent resident of Canada who was heavily involved with the White Supremacist Movement, was inadmissible on grounds of national security - The security certificate was referred to a designated judge for a reasonableness hearing - An issue arose as to whether the pre-removal risk assessment (PRRA) decision rendered on October 28, 2003, stating that Zündel would not be subjected to a risk of torture or a risk to his life or a risk of cruel and unusual treatment or punishment, if he were returned to Germany, was lawfully made - The Federal Court held that Zündel was unable to demonstrate that the PRRA decision was patently unreasonable - The Minister acknowledged and properly applied the test for determining whether Zündel was a person in need or protection - See paragraphs 117 to 132.

Cases Noticed:

Almrei v. Canada (Minister of Citizenship and Immigration) (2004), 249 F.T.R. 53; 2004 FC 420, refd to. [para. 13].

Baroud v. Canada (1998), 160 F.T.R. 91 (T.D.), refd to. [para. 15].

Charkaoui, Re, [2004] 1 F.C.R. 528; 237 F.T.R. 143; 2003 FC 882, refd to. [para. 15].

Yao v. Canada (Minister of Citizenship and Immigration) (2003), 235 F.T.R. 249; 2003 FCT 741, refd to. [para. 15].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), leave to appeal denied [2001] S.C.C.A. No. 71, refd to. [para. 15].

Canada (Minister of Citizenship and Immigration) et al. v. Singh (Iqbal) (1998), 151 F.T.R. 101 (T.D.), refd to. [para. 16].

Al Yamani v. Canada (Minister of Citizenship and Immigration) (2003), 314 N.R. 347; 2003 FCA 482, leave to appeal denied, [2004] S.C.C.A. No. 62 (S.C.C.), refd to. [para. 18].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 19].

Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592; 252 N.R. 1 (F.C.A.), revd. [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 20].

Kane v. Church of Jesus Christ Christian-Aryan Nations, [1992] A.W.L.D. No. 302 (Alta. Bd. Inq.), refd to. [para. 51].

Citron v. Zündel, [2002] C.H.R.D. No. 1, refd to. [para. 71].

Harkat, Re (2004), 259 F.T.R. 98 (F.C.), refd to. [para. 88].

Charkaoui, Re (2004), 328 N.R. 201; 2004 FCA 421, refd to. [para. 90].

Ahani v. Canada (1996), 201 N.R. 233 (F.C.A.), refd to. [para. 91].

Cemerlic v. Canada (Solicitor General) (2003), 228 F.T.R. 1; 2003 FCT 133, refd to. [para. 109].

Canada (Minister of Citizenship and Immigration) v. Singh, [1998] F.C.J. No. 978, refd to. [para. 109].

Henrie v. Security Intelligence Review Committee et al., [1989] 2 F.C. 229; 24 F.T.R. 24 (T.D.), affd. (1992), 140 N.R. 315 (F.C.A.), refd to. [para. 109].

Jaballah, Re, [2003] 4 F.C. 345; 234 F.T.R. 26; 2003 FCT 640, refd to. [para. 109].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 109].

La v. Canada (Minister of Citizenship and Immigration) (2003), 232 F.T.R. 220 (T.D.), refd to. [para. 122].

Authors and Works Noticed:

Canada, Security Intelligence Review Committee, The Heritage Front Affair Report, s. 13.12 [para. 28].

Mitrovica, Andrew, Covert Entry, pp. 138 to 140 [para. 74].

Counsel:

Donald MacIntosh & Pamela Larmondin, for the Minister;

Murray Rodych & Toby Hoffmann, for the Solicitor General;

Peter Lindsay & Chi-Kun Shi, for the respondent.

Solicitors of Record:

Department of Justice, Toronto, Ontario, for the Minister;

Canadian Security Intelligence Service, Legal Services, Ottawa, Ontario, for the Solicitor General;

Peter Lindsay & Chi-Kun Shi, Toronto, Ontario, for the respondent.

This matter was heard at Toronto, Ontario, on May 2, 9, 16, July, 10, 28-30, August 26, September 23, 24, November 6, 7, December 10, 11, 2003, January 22, 23, 26, 27, February 9, 12, 18, 19, April 13, 14, 29, 30, May 4, 5, June 9, July 27, August 6, 11, 30, 31, September 14, 16, 17, October 19, 20, November 1, 2, 5, and 23, 2004, before Blais, J., of the Federal Court, who released the following decision in both official languages on February 24, 2005.