Ahani v. Canada, (1996) 201 N.R. 233 (FCA)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Marceau, Hugessen and Décary, JJ.A.
• Citation: (1996), 201 N.R. 233 (FCA)
• Date: 04 July 1996

Ahani v. Can. (1996), 201 N.R. 233 (FCA)

MLB headnote and full text

In The Matter Of a declaration between Mansour Ahani and Her Majesty the Queen;

And In The Matter Of a certificate issued pursuant to section 40.1 of the Immigration Act, S.C. 1976-77, c. 52 as amended;

And In The Matter Of section 40.1 and specific provisions thereof, and section 117 of the Immigration Act, S.C. 1976-77, c. 52 as amended;

And In The Matter Of the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms (being Part I of the Constitution Act, 1982);

And In The Matter Of the Canadian Bill of Rights, 1970, App. III, c. 44, as amended.

Mansour Ahani (appellant/plaintiff) v. Her Majesty the Queen (respondent/defendant)

(A-639-95)

Indexed As: Ahani v. Canada

Federal Court of Appeal

Marceau, Hugessen and Décary, JJ.A.

July 4, 1996.

Summary:

The plaintiff, a Convention refugee, chal­lenged the constitutional validity of s. 40.1 of the Immigration Act on the basis that it violated ss. 7, 9 and 10(c) of the Charter and s. 2(e) of the Canadian Bill of Rights.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 100 F.T.R. 261, dismissed the action. Ahani appealed.

The Federal Court of Appeal dismissed the appeal.

Aliens - Topic 1558

Exclusion and expulsion - Power to detain and deport - Minister's certificate (Immi­gration Act) - General - Section 40.1 of the Immigration Act created a statutory scheme under which the Chief Justice or a designated judge of the Federal Court was required to review the reasonableness of a certificate signed by the Solicitor General of Canada and the Minister of Employ­ment and Immigration indicating that a person, other than a Canadian citizen or permanent resident, was a member of an inadmissible class in Canada for specified reasons, including terrorism - The Federal Court of Canada, Trial Division, held that s. 40.1 did not violate s. 7, 9 or 10(c) of the Charter or s. 2(e) of the Canadian Bill of Rights - The Federal Court of Appeal upheld the decision.

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and non-criminal proceedings - Procedure not contrary to fundamental justice - Section 40.1 of the Immigration Act created a statutory scheme under which the Chief Justice or a designated judge of the Feder­al Court was required to review the rea­sonableness of a certificate signed by the Solicitor General of Canada and the Min­ister of Employment and Immigration indicating that a person, other than a Canadian citizen or permanent resident, was a member of an inadmissible class in Canada for specified reasons, including terrorism - The Federal Court of Canada, Trial Division, held that the procedure described in s. 40.1 did not violate the principles of fundamental justice - The Federal Court of Appeal upheld the deci­sion.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Section 40.1 of the Immigration Act cre­ated a statutory scheme under which the Chief Justice or a designated judge of the Federal Court was required to review the reasonableness of a certificate signed by the Solicitor General of Canada and the Minister of Employment and Immigration indicating that a person, other than a Canadian citizen or permanent resident, was a member of an inadmissible class in Canada for specified reasons, including terrorism - The Federal Court of Canada, Trial Division, held that the pre-determi­nation detention of the named person under s. 40.1 was not arbitrary and did not infringe s. 9 of the Charter - The Federal Court of Appeal upheld the decision.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Section 40.1 of the Immigration Act cre­ated a statutory scheme under which the Chief Justice or a designated judge of the Federal Court was required to review the reasonableness of a certificate signed by the Solicitor General of Canada and the Minister of Employment and Immigration indicating that a person, other than a Canadian citizen or permanent resident, was a member of an inadmissible class in Canada for specified reasons, including terrorism - The Federal Court of Appeal stated that the s. 40.1 context was not akin to a criminal context - The detention was imposed not as a punishment or to assure the person's presence, but principally as a means of providing preventive protection to the Canadian public - Such preventive detention was not arbitrary or excessive - See paragraph 4.

Civil Rights - Topic 8006

Canadian Bill of Rights - Principles of operation and interpretation - Right to fair hearing in accordance with principles of fundamental justice - [See Civil Rights - Topic 3193 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 3193 ].

Cases Noticed:

Nguyen v. Minister of Employment and Immigration, [1993] 1 F.C. 696; 151 N.R. 69 (F.C.A.), leave to appeal refused (1993), 163 N.R. 80 (S.C.C.), refd to. [para. 3].

Statutes Noticed:

Immigration Act, S.C. 1976-77, c. 52, sect. 40.1 [para. 1].

Counsel:

Melvin Green and Paul Burstein, for the appellant;

Jim Leising and Donald MacIntosh, for the respondent.

Solicitors of Record:

Burstein & Paine, Toronto, Ontario, and Sack, Goldblatt, Mitchell, Toronto, Ontario, for the appellant;

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on July 3, 1996, at Toronto, Ontario, by Marceau, Hugessen and Décary, JJ.A., of the Federal Court of Appeal.

The following decision of the Court of Appeal was delivered orally on July 4, 1996, by Marceau, J.A.