Almrei v. Can. (M.C.I.), 2004 FC 420

• Judge: Blanchard, J.
• Court: Federal Court (Canada)
• Case Date: March 19, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2004 FC 420;(2004), 249 F.T.R. 53 (FC)

Almrei v. Can. (M.C.I.) (2004), 249 F.T.R. 53 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. MR.064

Hassan Almrei (applicant) v. The Minister of Citizenship and Immigration and Solicitor General for Canada (respondents) and Canadian Broadcasting Corporation (intervenor)

(DES-5-01; 2004 FC 420)

Indexed As: Almrei v. Canada (Minister of Citizenship and Immigration)

Federal Court

Blanchard, J.

March 19, 2004.

Summary:

Almrei, a foreign national, was being detained following issuance of a security certificate, alleging his involvement with the Osama Bin Laden terrorist network and with a forgery ring with international connections. He sought judicial release under s. 84(2) of the Immigration and Refugee Protection Act (IRPA). Section 84(2) provided that "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".

The Federal Court dismissed Almrei's application to be released from detention. The court was not satisfied that he would not be removed from Canada within a reasonable time and opined that his release could pose a danger to national security or to the safety of any person.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release - Almrei, a foreign national, had been detained in solitary confinement since 2001 following issuance of a security certificate, alleging his involvement with the Osama Bin Laden terrorist network and with a forgery ring with international connections - He sought judicial release (Immigration and Refugee Protection Act, s. 84(2)) - The Federal Court dismissed the application - It was not established that he would not be removed from Canada within a reasonable time - He could be released immediately if he agreed to leave Canada - His efforts to resist removal by initiating numerous court proceedings contributed significantly to his time in detention - Such proceedings could not be used to support an argument of unreasonable delay - Further, the conditions of his detention in solitary confinement, given the circumstances, were insufficient to warrant his immediate release - The court also opined that Almrei's release would pose a danger, even if he was released on conditions and with the posting of cash sureties - See paragraphs 44 to 133.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release - Almrei, a foreign national, had been detained in solitary confinement since 2001 (28 months) following issuance of a security certificate alleging his involvement with the Osama Bin Laden terrorist network and with a forgery ring with international connections - He sought judicial release under s. 84(2) of the Immigration and Refugee Protection Act claiming that his continuing detention constituted a breach of his ss. 7 and 12 Charter rights - The Federal Court dismissed the application, holding that Almrei's continued detention in solitary confinement was not contrary to ss. 7 and 12 of the Charter - The detention was permitted by constitutionally valid legislation - The detention was preventative as opposed to punitive - The solitary confinement was for his own protection - He could end his confinement by agreeing to leave the country - See paragraphs 133 to 141.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release - Almrei, a foreign national, was being detained following issuance of a security certificate - He sought judicial release under s. 84(2) of the Immigration and Refugee Protection Act - In order to grant release under s. 84(2) the judge had to be satisfied that the foreign national "will not be removed from Canada within a reasonable time" and that the person's "release will not pose a danger to national security or to the safety of any person" - In 2000, the Federal Court of Appeal, in Ahani v. MCI, decided that an individual was free to take the steps available to him at law to remain in Canada, but, if he did, he could not then be heard to complain of delay - Almrei argued that this reasoning was wrong in light of the Supreme Court of Canada's decision in Suresh v. MCI (2002) - The Federal Court disagreed, stating that it was not convinced that Suresh had changed the applicability of Ahani (2000) to these circumstances - See paragraphs 27 to 36.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release - The Immigration and Refugee Protection Act (IRPA) came into effect in June 28, 2002, repealing the Immigration Act - Section 84(2) of the IRPA provided that "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" - The Federal Court stated that jurisprudence under the repealed Immigration Act was applicable to determinations under the current legislative scheme, notwithstanding the Supreme Court of Canada's decision in Suresh v. MCI (2002) - The court summarized the principles applicable to a detention review under s. 84(2) - See paragraph 35.

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release - Almrei, a foreign national, was being detained following issuance of a security certificate - He sought judicial release under s. 84(2) of the Immigration and Refugee Protection Act (IRPA) - The Federal Court judge designated to hear the application, noted that a number of hearings were conducted in camera, in the absence of Almrei or his counsel wherein the court considered secret evidence (IRPA, s. 78) - The judge referred to the principles applicable for dealing with secret evidence and determined that the secret evidence was properly considered in accordance with those principles - The judge noted that because the court could not disclose information that would be injurious to national security or to the safety of any person, the court's reasons could not be as complete as they would otherwise be as to whether the secret evidence was accepted or rejected in whole or in part - See paragraphs 52 to 62.

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See second Aliens - Topic 1561.2 ].

Civil Rights - Topic 3831

Cruel and unusual treatment or punishment - What constitutes - Immigration, deportation, sponsorship, etc. - [See second Aliens - Topic 1561.2 ].

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. Majoub (2003), 238 F.T.R. 12; 2003 FC 928, refd to. [para. 28].

Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 261 N.R. 40 (F.C.A.), refd to. [para. 29].

Ahani v. Canada, [1995] 3 F.C. 669; 100 F.T.R. 261 (T.D.), refd to. [para. 29].

Singh (Iqbal) v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 389 (T.D.), refd to. [para. 29].

Ahani v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 49 (T.D.), refd to. [para. 29].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 29].

Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; 85 F.T.R. 99 (T.D.), refd to. [para. 30].

R. v. Shayler, [2002] 2 All E.R. 477 (H.L.), refd to. [para. 58].

Ahani v. Canada (1996), 201 N.R. 233 (F.C.A.), refd to. [para. 92].

Almrei v. Canada (Attorney General) et al., [2003] O.T.C. 1104 (S.C.), refd to. [para. 94].

Jaballah, Re (2004), 247 F.T.R. 68 (F.C.), refd to. [para. 137].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 84(2) [para. 27].

Counsel:

Barbara Jackman, for the applicant;

Donald A. MacIntosh, for the respondent MCI;

Toby Hoffmann and Daniel Henry, for the respondent, Solicitor General of Canada;

Daniel Henry, for the intervenor.

Solicitors of Record:

Barbara Jackman, Toronto, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent, MCI;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Solicitor General of Canada;

Daniel Henry, for the intervenor.

This application was heard in Toronto, Ontario, on November 25 and 26, 2002, and January 20, June 24 and 25, November 24, 25, 27 and 28, 2003 and January 5 to 7, 2004, before Blanchard, J., of the Federal Court, who delivered the following decision on March 19, 2004.