Charkaoui, Re, (2004) 328 N.R. 201 (FCA)

• Judge: Richard, C.J., Décary and Létourneau, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: December 10, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 328 N.R. 201 (FCA);2004 FCA 421

Charkaoui, Re (2004), 328 N.R. 201 (FCA)

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: [2004] N.R. TBEd. DE.024

Adil Charkaoui (appelant) v. Le Ministre de la Citoyenneté et de l'Immigration et Le Solliciteur général du Canada (intimés)

(A-603-03; 2004 FCA 421; 2004 CAF 421)

Indexed As: Charkaoui, Re

Federal Court of Appeal

Richard, C.J., Décary and Létourneau, JJ.A.

December 10, 2004.

Summary:

In May 2003, Charkaoui, a permanent resi­dent, was arrested and placed under deten­tion pursuant to a security certificate issued under the Immigration and Refugee Protec­tion Act (IRPA). Proceedings ensued under the IRPA to determine the reasonable­ness of the certificate and of his continued detention as well as with regard to disclosure of infor­mation. During the course of pro­ceedings, Charkaoui filed a motion before the judge designated to preside over the reasonableness hearing for a deter­mina­tion of: (1) whether such a designated judge had jurisdiction to decide constitu­tional ques­tions; and (2) 40 questions relat­ing to the constitutional valid­ity of ss. 33 and 76 to 85 of the IRPA.

The Federal Court, in a decision reported 253 F.T.R. 22, dismissed the applica­tion, holding that the designated judge had juris­diction to deal with the constitutional ques­tions. The court answered all the constitu­tional questions in the negative. Charkaoui appealed.

The Federal Court of Appeal dismissed the appeal. The court affirmed that the desig­nated judge had jurisdiction to hear and de­cide the constitutional questions. However, Charkaoui was unable to demonstrate that the procedure for reviewing the reasonable­ness of the security certificate issued against him, the procedure for reviewing the rea­sons for the continuing detention or the procedure for reviewing protection of infor­mation under ss. 76 et seq. of the IRPA, did not meet the requirements of the Charter, the Bill of Rights or Canada's international ob­ligations. Therefore the court upheld the con­clusions of the designated judge.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Role of desig­nated judge - The Federal Court of Appeal dis­cussed the concept of "designated judge" within the structure of the Immigration and Refugee Protection Act - See paragraphs 40 to 62.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Jurisdiction of desig­nated judge - The Federal Court of Appeal held that a judge designated to determine whether a certificate issued under s. 76 of the Immigration and Refugee Protection Act (IRPA) was reasonable and whether de­tention should continue had jurisdiction to answer consti­tutional questions - The court held also that a designated judge could decide constitutional questions by way of a motion made during the course of reasonableness proceedings as opposed to requiring a separate action or an applica­tion for judicial review - See paragraphs 21 to 62.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Whether designated judge independent and impartial - The Min­ister of Citizenship and Immigra­tion and the Solicitor General of Canada (the Ministers) filed a certificate under the Immigration and Refugee Protection Act (IRPA) stating that Charkaoui was a dan­ger to national security because he was involved in the Osama Bin Laden terrorist network - Charkaoui was detained and the certificate was referred to the court for a determina­tion of reasonable­ness by a desig­nated judge - Charkaoui argued that ss. 77 and 78 of the IRPA contravened the rights under s. 7 of the Charter with respect to a fair trial before an independent and impar­tial tribunal - The Federal Court of Appeal rejected Charkaoui's argument - See para­graphs 63 to 127.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - The Minister of Citi­zen­­ship and Immigra­tion and the Solicitor General of Canada (the Ministers) filed a certificate under the Immigration and Refugee Protection Act (IRPA) stating that Charkaoui was a danger to national secu­rity because he was involved in the Osama Bin Laden terrorist network - Charkaoui was detained and the certificate was re­ferred to the court for a determina­tion of reasonableness by a designated judge - Charkaoui argued that the judicial exami­nation procedure under ss. 76 et seq. of the IRPA derogated from his status as a per­manent resident and did not ensure equal treatment to all permanent residents de­clared inadmissible on security grounds - The Federal Court of Appeal held that the judicial examination procedure under ss. 76 et seq. did not adversely affect his status as a permanent resident - As to the question of equality, there was no proof of discrimi­nation within the meaning of s. 15 of the Charter - See paragraphs 128 and 129.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - The Minister of Citi­zen­ship and Immigra­tion and the Solicitor General of Canada (the Ministers) filed a certificate under the Immigration and Refugee Protection Act (IRPA) stating that Charkaoui was a danger to national secu­rity because he was a member of the Osama Bin Laden terrorist network, and that he engaged or would engage in ter­rorism - Charkaoui was detained and the certificate was referred to the court for a determina­tion of reasonableness by a desig­nated judge - Charkaoui argued that the express­ions "reasonable grounds to believe" and "danger to the security of Canada" in ss. 33 and 34(1) of the IRPA were vague, over­broad or discriminatory - The Federal Court of Appeal rejected this argument - See paragraphs 102 to 107 and 133.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - The Minister of Citi­zenship and Immigra­tion and the Solicitor General of Canada (the Ministers) filed a certificate under the Immigration and Refu­gee Protection Act (IRPA) stating that Charkaoui was a danger to national secur­ity because he was a member of the Osama Bin Laden terrorist network, and that he engaged or would engage in terrorism - Charkaoui was detained and the certificate was referred to the court for a determina­tion of reasonableness by a designated judge - Charkaoui argued that because the decision of the designated judge in regard to the certificate and its consequences could not be appealed (IRPA, ss. 80(3) and 81), these provisions were in conflict with s. 96 of the British North America (BNA) Act - The Federal Court of Appeal rejected this argument - See paragraphs 135 and 136.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - The Minister of Citi­zenship and Immigra­tion and the Solicitor General of Canada (the Ministers) filed a certificate under the Immigration and Refu­gee Protection Act (IRPA) stating that Charkaoui was a danger to national secur­ity because he was a member of the Osama Bin Laden terrorist network, and that he engaged or would engage in terrorism - Charkaoui was detained and the certificate was referred to the court for a determina­tion of reasonableness by a designated judge - Charkaoui argued that the judicial examination procedure under ss. 76 to 85 of the IRPA did not comply with Canada's international obligations (i.e., the Inter­national Covenant on Civil and Political Rights, the European Convention on Hu­man Rights) - The Federal Court of Appeal held that the impugned provisions were in compli­ance with Canada's international ob­liga­tions - See paragraphs 137 to 143.

Aliens - Topic 1561.1

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Deten­tion - Pending reasonableness review - The Minister of Citi­zen­ship and Immigra­tion and the Solicitor General of Canada (the Ministers) filed a certificate under the Im­mi­gration and Refugee Protection Act (IRPA) stating that Charkaoui was a dan­ger to national secur­ity because he was a member of the Osama Bin Laden terrorist network, and that he engaged or would en­gage in terrorism - Charkaoui was detained and the certificate was referred to the court for a determina­tion of reasonable­ness by a designated judge - Charkaoui argued that the IRPA provisions for deten­tion during the judicial examination of the security certificate were inconsistent with the Char­ter and the Canadian Bill of Rights - The Federal Court of Appeal rejected Char­kaoui's argu­ment, stating that the provi­sions relating to preventive detention dur­ing the determina­tion on the reasonableness of the security certificate met the require­ments of the Charter and Bill of Rights - See paragraphs 130 to 132.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - [See fifth Aliens - Topic 1561 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - Overbreadth principle - [See fifth Aliens - Topic 1561 ].

Civil Rights - Topic 3187

Trials - Due process, fundamental justice and fair hearings - Administrative and non­criminal proceedings - Right to inde­pen­dent and impartial tribunal - [See third Aliens - Topic 1561 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and non­criminal proceedings - Procedure not con­trary to fundamental justice - [See third Aliens - Topic 1561 and Aliens - Topic 1561.1 ].

Civil Rights - Topic 5662

Equality and protection of the law - Par­ticular cases - Immigration - [See fourth Aliens - Topic 1561 ].

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 Aliens - Topic 1561.1 ].

Civil Rights - Topic 8007

Canadian Bill of Rights - Principles of operation and interpretation - Equality before the law - [See fourth Aliens - Topic 1561 ].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction (incl. court of competent jurisdiction) - [See second Aliens - Topic 1561 ].

Civil Rights - Topic 8626

Canadian Charter of Rights and Freedoms - Regulation of guaranteed rights - Vague­ness rule - [See fifth Aliens - Topic 1561 ].

Constitutional Law - Topic 2501.1

Determination of validity of statutes or acts - Jurisdiction - [See second Aliens - Topic 1561 ].

Courts - Topic 4044

Federal Court of Canada - Jurisdiction - Trial Division - Immigration and citizen­ship - [See second Aliens - Topic 1561 ].

Cases Noticed:

Baroud, Re (1995), 98 F.T.R. 99 (T.D.), refd to. [para. 24].

Suresh v. Canada (1996), 105 F.T.R. 299; 34 C.R.R.(2d) 337 (T.D.), refd to. [para. 25].

Singh (Iqbal) v. Canada (Minister of Citi­zenship and Immigration) et al., [1998] 3 F.C. 616; 149 F.T.R. 49 (T.D.), refd to. [para. 26].

Suresh v. Canada (Minister of Citizenship and Immigration) et al., [1998] 4 F.C. 192; 229 N.R. 240 (F.C.A.), refd to. [para. 27].

R. v. Hynes (D.W.), [2001] 3 S.C.R. 623; 278 N.R. 299; 208 Nfld. & P.E.I.R. 181; 624 A.P.R. 181, refd to. [para. 33].

Minister of Indian Affairs and Northern Development v. Ranville et al., [1982] 2 S.C.R. 518; 44 N.R. 616, refd to. [para. 42].

Canada (Minister of Citizenship and Immi­gration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 45].

Canada (Ministre de la Citoyenneté et de l'Immigration) v. Obodzinsky, [2003] 2 F.C. 657; 305 N.R. 238 (F.C.A.), refd to. [para. 46].

Canada (Minister of Citizenship and Immi­gration) v. Katriuk (1999), 235 N.R. 305 (F.C.A.), refd to. [para. 47].

Narvey v. Canada (Minister of Citizenship and Immigration) - see Canada (Minister of Citizenship and Immi­gration) v. Katriuk.

Canada (Minister of Citizenship and Immi­gration) v. Dueck (2002), 286 N.R. 358 (F.C.A.), refd to. [para. 47].

Canada (Minister of Citizenship and Immi­gration) v. Fast, [2002] N.R. Uned. 148; 2002 FCA 292, refd to. [para. 47].

Zündel, Re (2004), 331 N.R. 180; 2004 FCA 394, refd to. [para. 47].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, refd to. [para. 49].

Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404; 242 N.R. 173 (F.C.A.), refd to. [para. 54].

Moktari v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 341; 249 N.R. 385 (F.C.A.), refd to. [para. 54].

United Kingdom (Secretary of State for the Home Department) v. Rehman, [2001] 3 W.L.R. 877; 281 N.R. 125 (H.L.), refd to. [para. 66].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 66].

Ribic v. Canada (Attorney General) (2003), 320 N.R. 275; 2003 FCA 246, refd to. [para. 66].

Chahal v. United Kingdom (1996), 23 E.H.R.R. 413, refd to. [para. 71].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353, refd to. [paras. 79, 153].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

Sogi v. Canada (Minister of Citizenship and Immigration) (2004), 322 N.R. 2 (F.C.A.), leave to appeal denied [2004] S.C.C.A. No. 354, refd to. [para. 81].

Kiareldeen v. Ashcroft and the Immigra­tion and Naturalization Service (2001), 273 F.3d 542 (3rd Cir.), refd to. [para. 85].

Ahani v. Canada (1996), 201 N.R. 233 (F.C.A.), leave to appeal denied [1997] 2 S.C.R. v; 223 N.R. 72, refd to. [para. 90].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 97].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1, refd to. [para. 99].

Terminiello v. Chicago (1949), 337 U.S. 1, refd to. [para. 100].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 103].

R. v. B.G., [1999] 2 S.C.R. 475; 240 N.R. 260, refd to. [para. 124].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 124].

R. v. Lippé - see Lippé et autres v. Québec (Procureur général) et autres.

Maaouia v. France, [2000] E.C.H.R. 39652/98, refd to. [para. 143].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 33, sect. 34, sect. 76, sect. 77, sect. 78, sect. 79, sect. 80, sect. 81, sect. 82, sect. 83, sect. 84, sect. 85 [para. 2].

International Covenant on Civil and Politi­cal Rights, 1966, 999 U.N.T.S. 171, generally [para. 137].

Authors and Works Noticed:

Canada, Report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (McDonald Commission Report) (1981), vol. 1, p. 586, para. 104 [para. 126].

McDonald Commission Report - see Canada, Report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police.

Counsel:

Johanne Doyon, for the appellant;

Daniel Latulippe, Daniel Roussy and Luc Cadieux, for the respondents.

Solicitors of Record:

Doyon, Morin, Montréal, Quebec, for the appellant;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Montréal, Quebec, for the respondents.

This appeal was heard on November 8, 2004, at Ottawa, Ontario, before Richard, C.J., Décary and Létourneau, JJ.A., of the Federal Court of Appeal.

The decision of the Federal Court of Appeal was delivered in both official languages on December 10, 2004, when the following opinions were filed:

Décary and Létourneau, JJ.A. - see para­graphs 1 to 144;

Richard, C.J., concurring reasons - see paragraphs 145 to 154.