Almrei, Re, (2009) 337 F.T.R. 160 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: November 10, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 337 F.T.R. 160 (FC);2009 FC 3

Almrei, Re (2009), 337 F.T.R. 160 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. JA.003

In The Matter Of a certificate signed pursuant to section 77(1) of the Immigration and Refugee Protection Act (IRPA);

And In The Matter Of the referral of a certificate to the Federal Court pursuant to section 77(1) of the IRPA;

And In The Matter Of a review of the detention of Hassan Almrei (DES-3-08; 2009 FC 3)

Indexed As: Almrei, Re

Federal Court

Mosley, J.

January 2, 2009.

Summary:

Almrei, a foreign national and citizen of Syria, had been detained since October 19, 2001, pursuant to s. 82(2) of the Immigration and Refugee Protection Act (IRPA), having been named in a security certificate issued by the Minister of Citizenship and Immigration and the Solicitor General of Canada. Almrei applied under s. 83 of the IRPA for judicial release from detention under conditions. This was his fourth release application.

The Federal Court allowed the application.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - Almrei, a foreign national and citizen of Syria, had been detained for over seven years, under a ministerial security certificate - He applied, for the fourth time, for judicial release from detention under conditions - The Ministers claimed that Almrei supported the extremist Islamist ideology espoused by Osama Bin Laden, had connections to persons who shared that ideology, had been involved in an international false document ring and could use his talent at procuring false documents to facilitate his own absconding - The Ministers submitted that Almrei's detention had to be continued because his release on the proposed conditions would be injurious to Canada's national security and because he posed a flight risk - The Federal Court held that the Ministers failed to satisfy the court that there were reasonable grounds to believe that Almrei's continued detention was necessary - Rather, the court was satisfied that any risk Almrei might pose to national security or of absconding could be neutralized by conditions - The court noted that while the length of the detention in this case did not outweigh all other considerations, it counted heavily in favour of his release - The court, with serious reservations, concluded that a supervising surety living in the same residence was not an essential element of a conditional release plan - See paragraphs 94 to 290.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - Almrei, a foreign national from Syria, who was being detained on a security certificate, applied for the fourth time for judicial release from detention - Preliminary issues arose respecting cross-examination, whether transcripts and decisions from prior hearings should be excluded because they had taken place under an unconstitutional procedure and whether prior factual findings by the court were binding - The Federal Court held that if Almrei chose to testify on the detention review, he could be cross-examined on the issues that were before the court - If his affidavit remained in evidence, he could be cross-examined on the affidavit by government counsel and the cross-examination would not be limited to the content of the affidavit and could address any of the matters before the court for determination on the detention review - As a general rule, witnesses could not be shielded from their prior inconsistent statements taken under oath in a judicial proceeding - An opposing party could not be constrained from using the prior transcripts of that testimony for cross-examination unless it was demonstrated that there was clearly some procedural unfairness from doing so or that unfairness would arise from the use of a particular statement - The principle of judicial comity might arise in the context of a ruling on a point of law, but the judge did not consider himself bound by any factual findings made by his fellow judges in the earlier proceedings - Finally, should Almrei choose not to testify on the detention review, the judge stated that he would draw no adverse inference from his failure to testify at this stage of the proceedings - See paragraphs 60 to 93.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release (incl. conditions of) - Section 82(5) of the Immigration and Refugee Protection Act provided that "On review, the judge (a) shall order the person's detention to be continued if the judge is satisfied that the person's release under conditions would be injurious to national security or endanger the safety of any person ..." - The French text used the word "danger" instead of "injurious" - The Federal Court commented that it read no difference of meaning into the choice of the word "injurious" in the English text - See paragraphs 45 to 47.

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions - [See third Aliens - Topic 1561.2 ].

Cases Noticed:

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 19].

Charkaoui, Re (2008), 376 N.R. 154; 2008 SCC 38, refd to. [para. 25].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 2002 SCC 1, refd to. [para. 48].

Zündel, Re (2004), 259 F.T.R. 73; 2004 FC 1295, refd to. [para. 49].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2005), 335 N.R. 229; 2005 SCC 40, refd to. [para. 57].

R. v. Wooten (1983), 5 D.L.R.(4th) 371 (B.C.S.C.), refd to. [para. 68].

Merck Frosst Canada Inc. et al. v. Canada (Minister of National Health and Welfare) et al. (1994), 169 N.R. 342; 55 C.P.R.(3d) 302 (F.C.A.), leave to appeal refused (1995), 188 N.R. 396; 58 C.P.R.(3d) vii (S.C.C.), refd to. [para. 71].

Zündel v. Canada (Attorney General) et al. (1998), 157 F.T.R. 59 (T.D.), refd to. [para. 71].

Sawridge Indian Band v. Canada, [2005] F.T.R. Uned. 518; 2005 FC 865, refd to. [para. 71].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 72].

R. v. Henry (D.B.) et al. (2005), 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 72].

Martineau v. Ministre du Revenu national, [2004] 3 S.C.R. 737; 328 N.R. 48; 2004 SCC 81, refd to. [para. 74].

Sawridge Indian Band et al. v. Canada (2001), 283 N.R. 107; 2001 FCA 338, refd to. [para. 76].

Lahai v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 250; 2002 FCA 119, refd to. [para. 77].

United Kingdom (Secretary of State for the Home Department) v. A.F., [2007] EWHC 651, revd. [2007] UKHL 45, refd to. [para. 82].

United Kingdom (Secretary of State for the Home Department) v. M.B. and A.F. - see United Kingdom (Secretary of State for the Home Department) v. A.F.

Glaxo Group Ltd. et al. v. Canada (Minister of National Health and Welfare) et al. (1995), 103 F.T.R. 1 (T.D.), refd to. [para. 85].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al. (1996), 197 N.R. 291 (F.C.A.), refd to. [para. 85].

Hansard Spruce Mills Ltd., Re, [1954] 4 D.L.R. 590 (B.C.S.C.), refd to. [para. 85].

Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 572; 315 N.R. 91; 2004 FCA 4, refd to. [para. 87].

Sittampalam v. Canada (Solicitor General), [2005] F.T.R. Uned. 872; 2005 FC 1352, refd to. [para. 87].

Charkaoui, Re, [2004] 1 F.C.R. 528; 237 F.T.R. 143; 2003 FC 882, refd to. [para. 87].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 186].

McLean et al. v. Seisel et al. (2004), 182 O.A.C. 122 (C.A.), refd to. [para. 193].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 194].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 194].

Charkaoui, Re (2005), 261 F.T.R. 11; 2005 FC 248, refd to. [para. 267].

Jaballah, Re (2007), 296 F.T.R. 1; 2007 FC 379, refd to. [para. 268].

Harkat, Re (2006), 278 F.T.R. 118; 2006 FC 628, refd to. [para. 269].

Mahjoub v. Canada (Minister of Citizenship and Immigration) et al. (2007), 309 F.T.R. 72; 2007 FC 171, refd to. [para. 278].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 82(5) [para. 45].

Counsel:

Marianne Zoric, Alexis Singer, Gordon Lee, Bernard Assan, Toby Hoffmann, Florence Clancy and Marcel Larouche, for the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness;

Lorne Waldman and Karin Baqi, for Hassan Almrei;

Paul Copeland and Gordon Cameron, Special Advocates.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness;

Waldman and Associates, Toronto, Ontario, for Hassan Almrei;

Copeland, Duncan, Toronto, Ontario, and Blake, Cassels & Graydon LLP, Ottawa, Ontario, Special Advocates.

This application was heard on August 20, September 29 and 30, October 1-3, 7-9, 14, 15, 20 and 28, and November 10, 2008, before Mosley, J., of  the Federal  Court, who deliveredthe following reasons for judgment on January 2, 2009.