Charkaoui, Re, 2003 FC 1419

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: December 05, 2003
• Jurisdiction: Canada (Federal)
• Citations: 2003 FC 1419;(2003), 253 F.T.R. 22 (FC)

Charkaoui, Re (2003), 253 F.T.R. 22 (FC)

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: [2003] F.T.R. TBEd. DE.017

In The Matter Of a certificate and its referral under subsection 77(1) and sections 78 to 80 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA)

In The Matter Of the warrant for the arrest and detention and the review of the reasons for continued detention pursuant to subsections 82(1), 83(1) and 83(3) of the IRPA

In The Matter Of the constitutional validity of sections 33, 76 to 85 of the IRPA

And In The Matter Of Mr. Adil Charkaoui

(DES-3-03; 2003 FC 1419)

Indexed As: Charkaoui, Re

Federal Court

Noël, J.

December 5, 2003.

Summary:

On May 16, 2003, the Minister of Citizenship and Immigration and the Solicitor General of Canada (the Ministers) issued and filed a certificate in court stating that they believed that Charkaoui should be declared inadmissible pursuant to the Immigration and Refugee Protection Act (IRPA), ss. 34(1)(c), (d) and (f)). The Ministers claimed that Charkaoui had been and continued to be a member of the Osama bin Laden terrorist network who was carrying out or would carry out terrorist acts or was engaged in, is engaging in or would engage in terrorism and consequently has been, is or would be a danger to national security. Also on May 16, 2003, the Ministers signed an arrest warrant for Charkaoui (IRPA, s. 82(1)). The warrant was executed on May 21, 2003, and Charkaoui was detained ever since. The certificate was referred to the court for a determination of reasonableness by a designated judge under s. 83(1) of the IRPA. At the Ministers' request, after examining the protected information filed in support of the certificate and the arrest warrant, the court held that for reasons of national security, the reasonableness hearing should be held in the absence of Charkaoui and his counsel (IRPA, ss. 78(d) and (e)). The court identified the information the disclosure of which would not be injurious to national security or the safety of any person and that information was given to Charkaoui's counsel (IRPA, s. 78(g)). In early July 2003, a reasonableness hearing was held in the absence of Charkaoui and his counsel for reasons of national security. Following the reasonableness hearing, the court, in a decision dated July 15, 2003, ordered pursuant to s. 83(2) of the IRPA that the detention be continued (237 F.T.R. 143). Subsequently, some of the protected information was in fact released to Charkaoui. At the July hearing Charkaoui's lawyers reserved the right to raise constitutional questions concerning numerous provisions of the IRPA. Subsequently, counsel applied for a determination of: (1) whether a designated judge responsible for determining whether the certificate was reasonable and whether detention should be continued 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, as set out in Appendix I following the reasons for judgment below.

The Federal Court dismissed the application, answering all the constitutional questions in the negative. The court concluded that sections 33 and 76 to 85 of the IRPA did not contravene s. 7 the Charter, ss. 1 and 2 of the Canadian Bill of Rights, the common law rules, the British North America (BNA) Act, art. 14(1) of the International Covenant on Civil and Political Rights or art. 10 of the Universal Declaration of Human Rights. In particular, the court held that: (1) a designated judge was the appropriate entity to hear and determine constitutional questions; (2) Parliament had established a procedure that struck a fair balance between two opposing interests (i.e., the right of the state to protect national security and the right of the permanent resident to be sufficiently informed of the allegations against him to be able to defend himself); (3) in light of the interests at stake, the procedure was consistent with the principles of fundamental justice protected by s. 7 of the Charter - Designated judges assumed their role independently and impartially; (4) in view of the need to protect national security, the "reasonableness" and "reasonable grounds to believe" evidentiary standards established by the IRPA were justified - in their application, however, those standards came closer to the standard of the preponderance of evidence; (5) the detention in these circumstances was preventive, not punitive, and was for the purpose of protecting the security of Canadians; it was not an exception to the rights protected by the Charter, (6) the impossibility of appealing the decisions of the designated judge concerning the certificate and the continued detention did not contravene s. 96 of the BNA Act; and (7) the procedure prescribed in the IRPA complied with Canada's obligations under arts. 12 to 14 of the International Covenant on Civil and Political Rights.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Jurisdiction of designated judge - The Federal Court held that a judge designated to determine whether a certificate issued under the Immigration and Refugee Protection Act (IRPA) was reasonable and whether detention should continue had jurisdiction to answer constitutional questions - See paragraphs 18 to 58 - The court stated that, inter alia, "being a Federal Court judge, a designated judge has all the powers associated with that office to which are added the powers conferred on designated judges. In my opinion, subsection 3(3) and paragraph 78(c) of the IRPA expressly entrust designated judges with the task of deciding constitutional questions. And even if Parliament had not expressly entrusted this task to designated judges (although I believe that it has) I am of the opinion, having regard to the concepts of express and implied intent discussed in Hynes, supra, that given the reason for designating judges and the special powers granted to them sections 76 to 85 of the IRPA impliedly create this duty" - See paragraph 58.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Whether review procedure contrary to principles of fundamental justice - 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 procedure established by Parliament (IRPA, ss. 76 to 85), for assessing the reasonableness of the certificate and continued detention violated the principles of fundamental justice - The Federal Court held that the procedure established by ss. 76 to 85 of the IRPA complied with the principles of fundamental justice referred to in s. 7 of the Charter - See paragraphs 96 to 107.

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 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 designated judge was not independent and impartial because the role assigned to the designated judge violated the right to a fair trial - The Federal Court rejected this argument, holding that the designated judge procedure did not compromise the independence or impartiality of the judiciary - (Charter, s. 7 and Canadian Bill of Rights, ss. 1 and 2) - See paragraphs 108 to 132.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - The Federal Court stated that "... the designated judge is an independent and impartial tribunal, that the procedure under sections 76 to 85 of the [Immigration and Refugee Protection Act] IRPA is consistent with the principles of fundamental justice, that an arrest warrant issued by the Ministers is acceptable in light of the respective objectives and roles of the executive and the judiciary established by Parliament, that the 'reasonableness' and 'reasonable grounds to believe' standards in ss. 82(1) and 83(1) of the IRPA are justified, given the need to protect national security and to comply with the objectives of the IRPA, and that the principles contained in sections 7 and 12 of the Charter have been complied with by Parliament" - See paragraph 134.

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 ss. 77, 80-83 and 85 of the IRPA contravened his rights under s. 15 of the Charter "insofar as [the IRPA] denies the individual the right to have his rights defined by a fair trial before an independent and impartial tribunal, as opposed to the treatment of citizens and other immigrants who have the right, for example, to appear before the Immigration Division, which independently disposes of the Minister's section 44 IRPA report" - The Federal Court held that the impugned provisions did not contravene s. 15 of the Charter or s. 1(b) of the Bill of Rights - The court stated that it did not see how the fact that there were two procedures depending on whether the reasons for inadmissibility were based on protected or unprotected information could give rise to unequal treatment - Further, Charkaoui did not indicate which of the enumerated grounds in s. 15 of the Charter was at the origin of the alleged unequal treatment - See paragraphs 141 to 152.

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 terms "member" and "danger to the national security of Canada" in ss. 34(1)(d) and 83(3) were vague and overbroad - The Federal Court held that these expressions were not vague or overbroad - See paragraphs 153 to 161.

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 held these provisions did not contravene s. 96 of the BNA Act - See paragraphs 168 to 178.

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 ss. 33, 77, 80-83 and 85, and in particular the in camera proceedings permitted by the IRPA, were inconsistent with Canada's obligations under ss. 12 to 14 of the International Covenant on Civil and Political Rights - The Federal Court held that the impugned provisions did not contravene the principles recognized in ss. 12 to 14 of the Covenant - See paragraphs 179 to 184.

Aliens - Topic 1561.1

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Pending reasonableness review - The Federal Court stated that "... the system of preventive detention established by Parliament in the [Immigration and Refugee Protection Act] IRPA in regard to persons concerned who, in the opinion of the Ministers, represent a danger to national security or to the safety of any person, appear to me to be consistent with the spirit of the Charter, and I do not see how sections 82, 83 and 85 of the IRPA could be in breach of one or more Charter rights. The review of the detention within 48 hours, the further review, and the possibility of conditional release likewise support this conclusion. Finally, the fact that the judge must proceed expeditiously and that his decision may not be appealed is, in some cases, clearly to the advantage of the person concerned. Indeed, after a prompt hearing at the outcome of which the certificate is declared unreasonable and therefore invalid, the person concerned will be released automatically and definitively" - See paragraph 140.

Civil Rights - Topic 3107

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

Civil Rights - Topic 3107.2

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

Civil Rights - Topic 5662

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

Civil Rights - Topic 8006

Canadian Bill of Rights - Principles of operation and interpretation - Right to a fair hearing in accordance with the principles of fundamental justice - [See third Aliens - Topic 1561 ].

Civil Rights - Topic 8007

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

Civil Rights - Topic 8363

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

Courts - Topic 4044

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

Cases Noticed:

Shandi, Re (1992), 51 F.T.R. 252 (T.D.), refd to. [para. 22].

Suresh v. Canada (1996), 105 F.T.R. 299; 34 C.R.R.(2d) 337 (T.D.), refd to. [para. 22].

Baroud, Re (1995), 98 F.T.R. 99 (T.D.), refd to. [para. 22].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 23].

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. 26].

Workers' Compensation Board (N.S.) v. Martin et al. (2003), 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301 (S.C.C.), refd to. [para. 26].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268, refd to. [para. 46].

Suresh v. Canada (Minister of Citizenship and Immigration) et al., [1998] 4 F.C. 192; 229 N.R. 240; 47 Imm. L.R.(2d) 1 (F.C.A.), refd to. [para. 49].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 62].

Ahani v. Canada (1996), 201 N.R. 233 (F.C.A.), refd to. [para. 79].

Ahani v. Canada, [1995] 3 F.C. 669; 100 F.T.R. 261 (T.D.), refd to. [para. 79].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 85].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 101].

Smith (J.) et al. v. Minister of Employment and Immigration, [1991] 3 F.C. 3; 42 F.T.R. 81 (T.D.), refd to. [para. 113].

Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.T.R. Uned. 791 (T.D.), refd to. [para. 113].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 116].

Charkaoui, Re, [2003] F.C.J. No. 1119, refd to. [para. 118].

Jolly v. Minister of Manpower and Immigration, [1975] F.C. 216; 7 N.R. 271 (F.C.A.), refd to. [para. 127].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 128].

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. 129].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 146].

Gosselin v. Québec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1, refd to. [para. 149].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 165].

Crevier v. Quebec (Attorney General) and Aubry; Crevier v. Quebec (Attorney General) and Cofsky and Alberta (Attorney General), [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 170].

Farrah v. Quebec (Attorney General) and Transport Tribunal, [1978] 2 S.C.R. 638; 21 N.R. 595, refd to. [para. 170].

Roberts v. Canada - see Wewayakum Indian Band v. Canada and Wewayakai Indian Band.

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [1989] 1 S.C.R. 322; 92 N.R. 241; 25 F.T.R. 161, refd to. [para. 174].

Statutes Noticed:

British North America Act, 1867 - see Constitution Act, 1867.

Canadian Bill of Rights, sect. 1(a) [para. 82]; sect. 1(b) [para. 142].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 82]; sect. 15 [para. 142]; sect. 24(1) [para. 40].

Constitution Act, 1867, sect. 96 [para. 169].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 27 [para. 56].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 3(3) [para. 47]; sect. 33, sect. 77, sect. 78 [para. 1 et seq.]; sect. 78(c) [para. 45]; sect. 79 [para. 1 et seq.]; sect. 79(1) [para. 47]; sect. 80, sect. 81, sect. 82, sect. 83, sect. 84, sect. 85 [para. 1 et seq.].

International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Arts. 9-14, Can. T.S. 1976, No. 47, sect. 12(3), sect. 13 [para. 181]; sect. 14(1) [para. 179].

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 40(1) [para. 56].

Authors and Works Noticed:

Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (the Commission), vol. 1, part v, pp. 556, para. 101 [para. 35]; 557, 558, para. 104 [para. 36].

Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (the Commission), vol. 2, c. 2, pp. 882, para. 6 [para. 36].

Côté, P.-A., Interpretation of Legislation in Canada (3rd Ed. 1999), pp. 323, 324, 349 [para. 46].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 46].

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), p. 225 [para. 46].

Counsel:

Johanne Doyon and Julius Grey, for Adil Charkaoui;

Daniel Roussy, Luc Cadieux and Daniel Latulippe, for the Solicitor General of Canada and the Minister of Citizenship and Immigration.

Solicitors of Record:

Doyon & Montbriand, and Grey, Casgrain, Montreal, Quebec, for Adil Charkaoui;

Department of Justice Canada, Montreal, Quebec, for the Solicitor General of Canada and the Minister of Citizenship and Immigration.

This matter was heard on October 8, 9 and 21, 2003, at Montreal, Quebec, before Noël, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on December 5, 2003.