Ahani v Canada (Minister of Citizenship and Immigration),

• Court: Court of Appeal (Ontario)
• Neutral Citation: 2002 OJ No 431
• Date: 08 February 2002

Canada, Ontario Superior Court of Justice.

Ontario Court of Appeal.

(Dambrot J)

(Laskin, Charron and Rosenberg JJA)

Ahani

and

The Queen1

Aliens — Refugees — Deportation — Association with terrorist organization — Whether constituting a danger to the security of Canada — Refugee a member of Iranian Ministry of Intelligence Security — Whether deportation contrary to the International Covenant on Civil and Political Rights, 1966

Human rights — Freedom from torture and inhuman treatment — Deportation — Whether deportation would constitute a violation of International Covenant on Civil and Political Rights, 1966 — United Nations Human Rights Committee

International tribunals — United Nations Human Rights Committee — Provisional measures — Whether binding — International Covenant on Civil and Political Rights, 1966 — Optional Protocol — Nature and extent of commitments assumed by States parties

Relationship of international law and municipal law — Treaties — Treaty ratified but not implemented by legislation — Effect in Canadian law — Whether creating rights — Purpose of doctrine that unincorporated treaty not forming part of Canadian law — International Covenant on Civil and Political Rights, 1966 — Decision of United Nations Human Rights Committee — Provisional measures — Whether capable of creating rights in Canadian law — The law of Canada

Summary: The facts:—The appellant was an Iranian who had been admitted to Canada as a refugee. The Minister of Citizenship and Immigration proposed to deport him on the basis of an assessment by the Canadian Security Intelligence Services that he was a member of the Iranian Ministry of Intelligence Security which sponsored a range of terrorist activity including assassination of political dissidents worldwide. The appellant's application for judicial review of the Minister's decision was rejected by the Federal Court and his appeal was dismissed by the Federal Court of Appeal and the Supreme Court of Canada (p. 384 above). The day before the Supreme Court of Canada gave judgment, the appellant filed a communication with the United Nations Human Rights Committee, arguing that his deportation would violate the International Covenant on Civil and Political Rights, 1966, which Canada had ratified but not incorporated into domestic law. The Committee made an interim measures request to Canada to stay the deportation until it had considered the communication. The Minister informed the appellant that she would not stay his deportation.

The appellant applied to the Ontario Superior Court of Justice for an injunction restraining his deportation until his communication had been considered by the Committee.

Held (by the Ontario Superior Court of Justice):—The application was dismissed.

(1) The Court had jurisdiction to hear the application (paras. 14–16).

(2) While Canadian courts often looked to international law when seeking the meaning of the Canadian Constitution, it was beyond doubt that treaties were not part of Canadian law and were not binding in Canada until they had been implemented by legislation. The Covenant had not been implemented and was thus unenforceable in a Canadian court. Moreover, the provisional measures indicated by the Committee were not binding even as a matter of international

law. There was no right, granted by the Constitution, to remain in Canada pending the outcome of the proceedings before the Committee (paras. 17–22).

The appellant appealed to the Ontario Court of Appeal. The respondents cross-appealed on the ground that the Ontario Superior Court should not have assumed jurisdiction.

Held (by the Ontario Court of Appeal, Rosenberg JA dissenting in part):—The appeal and the cross-appeal were dismissed. A stay of deportation was granted pending an appeal to the Supreme Court of Canada.

(1) The Superior Court was right to take jurisdiction (paras. 20–1).

(2) Section 7 of the Charter of Rights and Freedoms2 did not give the appellant a right to remain in Canada pending the outcome of the proceedings before the United Nations Human Rights Committee. Although the appellant had Section 7 rights, because he remained a Convention refugee and therefore must be deemed still to have a well-founded fear of persecution, the determination of the extent of those rights involved a balance between individual and State interests. While international law might inform the interpretation of Section 7, that provision could not be used to enforce Canada's international commitments in a domestic court. Moreover, Canada had not assumed any commitment to comply with provisional measures which, under the Covenant and the Optional Protocol thereto, were not binding even in international law (paras. 23–57).

Per Rosenberg JA (dissenting): The principle that a treaty which had not been implemented was not binding in Canadian law was designed to protect the people and Parliament of Canada from law-making by the executive. It was not designed to shield the executive from the consequences of its voluntary decision to enter into a treaty commitment. There was a principle of fundamental justice under the Charter of Rights and Freedoms that a person should not be deported pending a decision of the United Nations Human Rights Committee on whether deportation would violate the Covenant (paras. 68–113).

(3) The appellant did not have a legitimate expectation that he would not be deported pending the outcome of the proceedings before the United Nations Human Rights Committee (paras. 58–63).

(4) The Court would, however, grant a stay pending an appeal to the Supreme Court of Canada (paras. 64–6).

The judgment of the Court of Appeal commences at p. 398. The following is the text of the judgment of the Ontario Superior Court of Justice:

JUDGMENT OF THE SUPERIOR COURT OF JUSTICE

1. Mansour Ahani is a citizen of Iran. He arrived in Canada on October 14, 1991, and immediately claimed protection as a Convention refugee. On April 1, 1992, the Refugee Division of the Immigration and Refugee Board found him to be a Convention refugee.

2. On June 17, 1993 a security certificate signed by the Solicitor General of Canada and the Minister of Citizenship and Immigration pursuant to s. 40.1 of the Immigration Act, RSC 1985, c. I-2 was filed in the Federal Court of Canada. In the certificate, the Ministers certified that they were of the opinion that the applicant was a member of an inadmissible class specified in the anti-terrorism provisions of the Act. In brief, it is alleged that Ahani is or was a member of the Iranian Security Service, which is a terrorist organization. The applicant was arrested pursuant to this certificate, and has been in custody ever since.

3. On April 17, 1998, Denault J determined pursuant to s. 40.1 of the Immigration Act that the decision of the Ministers to issue the certificate was reasonable.

4. On April 28, 1998, an adjudicator determined that the applicant was a member of the inadmissible class alleged by the Ministers, and ordered him deported from Canada. He has remained in Canada since then as a result of injunctions preventing his removal while legal proceedings were pending.

5. On August 12, 1998, the Minister of Citizenship and Immigration issued her opinion, under s. 53(1)(b) of the Act, that the applicant constitutes a danger to the security of Canada, and that he faced only a minimal risk of torture in Iran. These findings enable the Minister to return the applicant, a Convention refugee, to the very country from which he sought refuge.

6. On June 15, 1999, an application for judicial review of the Minister's decision, and an action raising similar issues was dismissed by McGillis J. On January 18, 2000, an appeal to the Federal Court of Appeal was dismissed [(2000), 73 CRR (2d) 156, 252 NR 83]. On January 11, 2002, a further appeal to the Supreme Court of Canada was dismissed [(2000), 90 CRR (2d) 47 ante, 2002 SCC 2].

7. In its judgment, the Supreme Court concluded that on any standard of review, even correctness, there was no basis to interfere with the Minister's findings. The court also concluded that the procedural process accorded to Ahani was consistent with the principles of fundamental justice. In short the Supreme Court concluded that the deportation of the applicant to Iran will not violate his rights under s. 7 of the Canadian Charter of Rights and Freedoms.

8. On January 14, 2002, three days after the Supreme Court of Canada concluded that the deportation of the applicant to Iran would not violate his rights under s. 7 of the Charter, the applicant asked me to stay his deportation on the basis that to deport him to Iran will violate his rights under s. 7 of the Charter. What could have changed in those three short days to permit me, as a superior court judge, to part company with the conclusion of Canada's highest court?

9. According to the applicant, what has changed is this. On January 10, 2002, the applicant forwarded a preliminary petition to the United Nations Human Rights Committee claiming that Canada is in violation of various articles of the International Covenant on Civil and Political Rights, Can. TS 1976 No 47 (1966) relating to the fairness of his trial, the right to be free from torture, and arbitrary detention. The applicant asked the Committee to consider his petition under the Optional Protocol to the International Covenant on Civil and Political Rights (‘Optional Protocol/Protocol’). Accompanying this petition was a request to the Committee for ‘interim measures’, specifically a request that the Committee in turn request of Canada that it not remove the applicant to Iran until the Committee has had an opportunity to consider his petition, should the appeal to the Supreme Court of Canada fail.

10. On January 11, 2002, the Commission advised the applicant that Canada had been requested, in the event that the Supreme Court's decision expected to be delivered on January 11, 2002 were to allow the deportation of Ahani, to...